News analysis: Go/no go determination for Copper Flat Mine finally in sight?

by Max Yeh | September 15, 2021
6 min read
Aerial view Copper Flat mine site
This aerial view of the Copper Flat Mine site shows the existing open pit. The pit is kept filled with groundwater that continuously flows in to replace evaporation losses. Source: New Mexico Copper Corporation

Whether the owners of the Copper Flat Mine near Hillsboro can transfer the rights to leased water the mine must have to reopen operate will be determined at a protest hearing to be held by the New Mexico Office of the State Engineer next September.

As a result of a special Water Adjudication Court decision in 2017, New Mexico Copper Corporation (NMCC) lost most of the water rights it hoped to use to operate Copper Flat Mine, the defunct open pit mine near Hillsboro. NMCC has appealed this decision to the New Mexico Court of Appeals (see Related stories below), but the court case is not definitive because, even without its own water rights, the project can lease water. And that is the gambit that was tried next. Last year, in a work-around effort to make up for its lost water rights, the Australian investment company that owns NMCC leased rights to 2,400 acre feet of water a year. It applied to the state engineer for permission to move those rights from the Sunland Park/Santa Teresa area near El Paso to Copper Flat’s production wells about four miles from Caballo Lake and the Rio Grande River. 

The application was immediately protested by more than 70 water rights owners in both the Caballo and the Santa Teresa areas, by individuals and businesses and by public and private organizations with interests in groundwater and surface water in southern New Mexico. While The Sun was on its summer break in August, the New Mexico Office of the State Engineer scheduled the protest hearing for next year. It will be held on September 12-16, 2022.

The hearing is definitive because it will determine if water use at the mine is damaging. A decision in favor of the protestants will kill the mine permanently. Even if the mine owners decide to appeal the hearing decision all the way to the New Mexico Supreme Court, the hearing will have established that there is not enough water in this area to mine with. 

Though the hearing is a year away, NMCC has already started its litigation process by asking protestants for their supporting evidence, documentation, correspondences, notes, research findings, public statements and any piece of writing relating to the mine or its application. This is the first phase of a legal litigation. Unlike permit hearings, the protest hearing will not be a place for the public to express its opinions. It will be a mini-trial, following the same procedures as a courtroom trial, except that it will be presided over by an OSE hearing officer rather than by a judge.

NMCC has initiated what is called the “discovery” phase of a litigation. During discovery, all parties gather their evidence and their witnesses. They inform the hearing officer and each other of these documents and their intention to call witnesses to establish facts and expert witnesses to express their opinions.  Everyone has a chance to challenge those documents and witnesses.

The litigation moves on to a decision by the hearing officer about what will be allowed as evidence and proof based on the written arguments of the various parties.

The hearing itself will proceed like a trial, with the calling of witnesses, the citing of allowed documents, etc. After it ends, the hearing officer will submit a recommendation to the State Engineer based on her determinations about five issues.

The first two are determinations of fact:

• Availability of water to satisfy the application.

• The nature and extent of the water right.

The final three are judgment calls:

• Whether granting the application would result in impairment to existing water rights.

• Whether granting the application would be detrimental to the public welfare of the state.

• Whether granting the application would be detrimental to the conservation of water within the state.

Prominent among the protestants are agricultural water users. Two ranches—the Pitchfork and the Ladder—are adjacent to the mine. The 1,000-foot-deep pit that will be created during the mine’s excavations will deplete the neighboring groundwater, as it flows continuously into the pit and evaporates.

young trees at Animas Creek Nursery
Certified forester Lee Newman, the owner-operator of Animas Creek Nursery, which grows and ships about 10,000 trees a year, fears the mining operation “would close us down and also probably kill Diamond pecan orchards . . . and many other trees that depend on a shallow water table. . . . And you can quote me.” Source: Max Yeh

The wells of small farmers along Animas Creek, including the prominent Animas Creek Nursery, may be directly impaired by pumping from the mine’s nearby production wells. Farmers south of the mine’s production wells fear similar impacts on their water resources, which are now, because drought conditions reduce their surface allotments, more dependent than ever on groundwater. The Elephant Butte Irrigation District speaks for its member-farmers’ water concerns and its water-sharing agreements with other entities and organizations.

Texas irrigators are represented by the Rio Grande Compact Commission for the State of Texas, which fears that river flows will be reduced by the withdrawal of water from wells close to the Rio Grande, as well as by a reduction of surface flows into the river as a result of the mining operation. New Mexico’s Interstate Stream Commission is protesting because of the threat to New Mexico’s ability to meet its water-release obligations under the Rio Grande Compact.

Both Santa Teresa Land development company and Rio Grande Turfgrass—the company that presently leases the water rights that the mining project proposes to transfer—want the rights to remain in Santa Teresa.

In addition, numerous domestic water users and four public water authorities from Hillsboro to Animas Creek and Caballo south to Sunland Park think their water supplies might be impacted by NMCC’s projected water use. Environmental groups Sierra Club and Gila Resource Information Project have joined the protest to protect the flora and fauna along Animas Creek and the Rio Grande.

NMCC has said in its Mining Operation and Reclamation Plan—submitted to the state and to the Bureau of Land Management as part of its applications for mining—that it needs some 6,100 acre feet a year of fresh water to mine (that is, some two billion gallons a year, which is a little over one third of the amount of water that was in Caballo Lake as of the first of September). The leased water rights whose transfer is being protested would seem insufficient to reopen the mine.  What the protest hearing will determine, however, is whether this large amount of water can be permanently removed from the local aquifer without damaging downstream water users. Unlike irrigation and domestic water uses, mining so pollutes the water that no return flow can be allowed. All of the water used by the mine for its expected 12 operating years will be evaporated into the air. 

The debate at the hearing will focus narrowly on groundwater rights, but water being water—moving and flowing back and forth between the Rio Grande and adjacent aquifers—the issues can easily get larger. At heart, the dispute between NMCC and the protestants arises from our normally inherent scarcity of water.  We live in an arid climate, but we want to act as if we do not. We want to water ski in the desert. That permanent scarcity is exacerbated by the present drought.  And the drought’s probable continuance in the short term, coupled with the accruing effects of a hotter and drier climate in the long term, makes the hearing’s outcome triply important for the area’s future. If the mining projects wins the OSE hearing, then we have lost 24 billion gallons of water permanently that would have supported cities, farms and recreation throughout southern New Mexico and further south.

TAGS: | | | |
author

Max Yeh is president of the Percha-Animas Watershed Association, a protestant in the OSE hearing. Yeh is also president of the board of the Sierra County Sun.

Share this:
HAVE YOU SEEN?

Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.

H.E.L.P.

This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.

RELATED
RELATED
New Mexico Copper Corporation, Turner Ranch Properties and Hillsboro citizen group await imminent Appellate Court decision
by Kathleen Sloan | June 22, 2021

The parties involved in a water fight that may determine if the New Mexico Copper Corporation can obtain sufficient water to process ore at the...

New Mexico Copper Corporation shareholder applying for 2,400 acre feet a year water use at mine
by Kathleen Sloan | April 25, 2020

The New Mexico Copper Corporation has all the approvals it needs to start mining at Copper Flat Mine, located outside of Hillsboro, but it lacks…

Scroll to Top