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History of County Efforts Regarding Davidson Canyon and Proposed Mining Impacts


County Opposes Renewal of Mineral Lease to Arizona/California Portland Cement Company on State Trust Land

In December of 2004, the Arizona State Land Department requested comments from the County on the renewal of several mineral leases and on new mineral leases along Davidson Canyon and within the Cienega Valley. The County’s position has consistently been that these proposals for new or continued mining run counter to significant conservation efforts that have taken place in this area at the Federal and local level and will irretrievably damage the integrity of this nationally important landscape and a key water source for Tucson’s population.  One mining company in particular, Arizona/California Portland Cement has been successful in getting a mining lease from the Arizona State Land Department for land on the east and west side of Davidson Canyon.  The County submitted comments opposing the renewal of the lease due to the impact mining could have on significant public investments in conservation properties downstream of the proposed mine and impacts on surrounding landowners.  The County’s comments regarding the renewal of this lease are contained in numerous letters to the State Land Department and the Governor, and are also contained in a Board adopted resolution.  Initially, the County received no response to these letters.

County Adopts Resolution Opposing New Mining Leases and the Renewal of Mining Leases in Biologically Sensitive Areas of Pima County

Since January 2005, Pima County has actively opposed mining efforts within the Cienega Creek watershed and adjacent to Davidson Canyon, southeast of Tucson. In addition to the Arizona/California Portland Cement proposal, the County also opposed the issuance of a lease to Phoenix Brickyard Company along Cienega Creek, and the Charles Seal Lease east of Davidson Canyon.  The Board’s resolution opposing Arizona/California Cement’s mineral lease proposal in Davidson Canyon, also contained language opposing other new mining leases and the renewal of mining leases in biologically sensitive areas of Pima County.  Letters of comment were sent to the State Land Department. In both of these cases, the County’s concerns were ignored and the leases were issued.  The County has found it difficult to acquire copies of these leases since they can only be acquired from the Phoenix office of the State Land Department at a cost of $1 a page and payment up front is required.

The County Administrator also testified before the Congressional Subcommittee on National Parks, Forests, and Public Lands, and the Subcommittee on Energy and Natural Resources, in February of 2007 regarding the negative impacts of mining in Pima County. 

In addition, the County requested the withdrawal of certain areas in Pima County from mining.

County Urges Higher Level of Protection for Davidson Canyon 

On February 4, 2005 Pima County, in conjunction with the Pima Association of Governments, submitted an application to ADEQ for an Outstanding Waters of the State designation for Davidson Canyon.  In April of 2006, a memorandum from Flood Control District Director Suzanne Shields discussed the status of the application. Three years after the application, the County Administrator formally requested an update from ADEQ on the status of the application. The designation was finally approved in December 2008, notice of which was given in a press release from ADEQ on December 3, 2008, and will become effective February of 2009. 

State Land Commissioner Issues Mineral Leases

In June 2006, the County, in response to a request from the State Land Commissioner, provided the Land Department with several conditions to include in the renewal of the mineral lease, while at the same time reiterating the County’s outright opposition to issuing the lease. On July 28, 2006 the County responded by letter to the Governor’s Office responding to comments that Arizona/California Portland Cement had on the County requested conditions.

On November 22, 2006, in response to a court order stating that the State Land Commissioner must make a decision on whether to issue the lease or not, the Land Commissioner issued Decision and Order, No. 134_2006/2007, granting Arizona/California Portland Cement the mineral lease.  The Order did include the conditions proposed by the County, however the County was concerned that the intent of the conditions would not be carried through to the lease language. By a letter dated November 24, 2006, the County asked the State Land Commissioner to allow the County to be involved in drafting the details associated with these conditions in the actual lease document, and asked for the Commissioner’s support in initiating legislative reform of the State mineral leasing process.  By a resolution adopted by the Board on December 5, 2006, the County reiterated the same requests.  The Deputy Land Commissioner met with the County Administrator to discuss these requests, but ultimately the Land Department decided not to involve the County in the drafting of the conditions in the lease language. In addition, the Deputy Land Commissioner felt that progress could be made on reforming various aspects of the State Land Department’s mineral lease process administratively. However, the County has not been made aware of any reforms.

On December 18, 2006, the County requested a notice of the Land Commissioner’s Decision and Order.  The Land Commissioner responded the County was not a party of interest and therefore would not get a notice.

County Takes Legal Action Against State Land Department

On December 21, 2006, the County initiated an administrative appeal of the State Land Commissioner’s November 22, 2006 Decision and Order by filing a Notice of Appeal with the Land Department.  By letter dated January 16, 2007, the State Land Commissioner rejected the County’s administrative appeal.

On February 16, 2007, the County filed a complaint in Maricopa County Superior Court to challenge the Commissioner’s decision to issue the leases.  Subsequently, the State Land Department requested that the court dismiss the case.  In April 2007 Pima County responded to the court with the reasons why the case should not be dismissed. In August 2007 the Judge denied the motion to dismiss.  However, after agreeing not to dismiss the case, the Judge in January 2008 denied Pima County the right to produce evidence.

The County actively sought expert opinion to support our assertion that the value of alternative future uses of the State Trust land was higher than the value for mining. However, State law elevates the status of mining above other uses, and the issuance of mining permits is a discretionary action of the State Land Commissioner, which made it impossible for the County to prevail.  The County was obligated to seek dismissal of the case in February 2008

County Requests BLM Conduct an EIS Instead of EA, and Enlists Assistance from Congressional Representatives

The mineral rights on a portion of the land the company proposes to mine on the east side of Davidson Canyon are owned by the federal government and managed by the Bureau of Land Management (BLM).  Therefore, Arizona/California Portland Cement has applied for a mining permit from the BLM.  In December 2006 the County became aware of the request to BLM for a mining permit and submitted general comments.  The County expressed concerns about the initial scoping meeting and another meeting was held. 

In April 2007 the County then submitted formal comments during the scoping process to the Tucson office of the BLM, and requested that an Environmental Impact Statement (EIS) be conducted instead of an Environmental Assessment.  BLM staff have stated that this does not preclude the need for an EIS if the results of the EA warrant an evaluation at an EIS level.  The County is concerned that and EA will not adequately take into account the cumulative effects that this project would have when added to the other mining projects proposed or permitted in the area. BLM could have chosen to conduct an EIS from the start.  In May 2007, after County staff met with the BLM staff, the County again requested an EIS instead of an EA. The County has written Congresswoman Giffords and Congressman Grijalva to ask for assistance.

The BLM is still assessing the environmental impacts of issuing such a permit. They have chosen to conduct and EA of the proposed project, which is scheduled to be completed by a consultant by early 2009.

County Has Almost No Authority to Regulate Mining

The County has an insignificant regulatory role in permitting this proposed mine.  The authority to effect, regulate and control the mining operation and activity lies with the State Land Department and the BLM, not Pima County.  Current Arizona state law regarding state mineral leases is wholly inadequate with regard to public notice and the imposition of real and effective mining mitigation measures.  Reform in this area is needed, as was requested by the County by letters dated February 12, 2008 to State Representatives Jonathan Paton and Marian McClure, and Senator Tim Bee. 

County Must Follow Rule of Law Regarding Issuance of Floodplain Use Permit

On April 11, 2007, Arizona/California Portland Cement filed an application with the Pima County Flood Control District for a Floodplain Use Permit for an at-grade crossing at Davidson Canyon Wash. Information regarding this Floodplain Use Permit can be found at the following site: http://www.rfcd.pima.gov/Davidson/. The Flood Control District is mandated by State Law to regulate floodplain areas for the purposes of public safety and the protection of property.   A Floodplain Use Permit is a regulatory permit issued by the Flood Control District to regulate any proposed development within the designated floodplain.  Arizona/California Portland Cement demonstrated in its floodplain use permit application that the proposed at-grade crossing of Davidson Canyon Wash would not create an obstruction of normal flows in the area, would not require the installation of culverts or other more intensive flood control improvements, and did not adversely impact riparian vegetation to the degree that would necessitate the imposition of mitigation measures. 

On determining that the proposed at-grade crossing fully complied with the County’s Floodplain Ordinance, the Flood Control District’s Chief Engineer issued the requested Floodplain Use Permit to Arizona/California Portland Cement on July 25, 2008.  The District is not authorized to withhold issuance of a permit once all applicable requirements of the Floodplain Ordinance have been met.  It should be noted that the Floodplain Use Permit issued to Arizona/California Portland Cement was for the Davidson Wash Crossing and has no relation to the federal and state permits that are related to Arizona/California Portland Cement’s intended mining operation on State Land.  

Three memos were provided to the Board regarding the issuance of this permit.

Current Actions

Supplemental Information

Who to Contact:

The following is a list of the agencies involved in the permitting process and their contact information:

Agency:

Contact Information:

602-542-4628

602-771-2300

520-258-7200

520-258-7200

520-243-1800

 

 

 

 

 

 

 


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