By Miriam Wasser, originally posted on August 2, 2016

 

When Duane “Chili” Yazzie learned that a massive load of bright-yellow toxic mining waste was flowing down the Animas River toward his small farming community in Shiprock, New Mexico, he rushed home and turned on every sprinkler and hose he had.

With the plume of waste about 100 miles upstream from his farm, he figured he had a day or two before it affected his irrigation water. And in the meantime, his crops needed all the clean water he could get.

While Yazzie had seen a photograph of the discolored Animas River the previous day, he had dismissed it as something that was happening far away. But on the night of August 7, 2015 — two days after the massive spill began in southern Colorado at the Gold King Mine — he finally grasped how serious and dangerous this was. The realization came during an emergency meeting called by the Navajo Nation Environmental Protection Agency. Because the Animas River flows directly into the San Juan River, the latter of which Yazzie and thousands of other Navajo farmers rely on for irrigation water, things were about to get ugly, officials said.

Shiprock is a sprawling but sparse town of about 9,000 people in the rugged, high-altitude desert of northwest New Mexico. Positioned about halfway between the Arizona border and the city of Farmington, the town is perhaps most notable for the 1,500-foot jagged or “winged” rock piercing through the otherwise-flat ground — early European settlers called the area Shiprock because they thought the formation looked like a large sailboat with multiple masts and sails.

Many in Shiprock rely on farming to make a living or to feed their families, so when officials said they’d be turning off the irrigation water for an undetermined amount of time, a sudden and collective sense of fear overtook the room.

All evening long, as Yazzie allowed the irrigation water to flow into his 100-acre farm, every major news outlet in the country was broadcasting shocking images of the Animas River. The waste, which was reportedly spilling out of the mine at a rate of 600 gallons per minute, was yellow because of the sulfuric acid and heavy metals it contained — lead, arsenic, cadmium, copper, aluminum, zinc, and manganese, among others.

In total, about 880,000 pounds of heavy metals spilled into the river, and some tests showed lead levels in the water were 12,000 times higher than normal.

At 66, Yazzie has black hair streaked with silver that he usually wears pulled back in a braid. He favors bright shirts and beaded jewelry, a color palette that contrasts sharply with his thick, black eyebrows and the deep laugh lines around his mouth. He speaks slowly, deliberately, and often squints or closes his eyes as if he’s trying to formulate just the right sentence in his head before he says it.

“Yellow River,” he calls it. “The day the river turned yellow.”

Yazzie went to bed a few hours after the meeting with the water still running, but woke up to learn that it had been shut off sometime during the night. The town’s irrigation system was still off two days later when he and his family watched the river turn a foggy yellow color.

Though various EPA tests showed the surface water in the San Juan and Animas rivers had returned to pre-spill conditions within two weeks of the spill, many experts warned that the metals likely just had settled to the bottom of the rivers, and easily could be churned up in a big storm or during spring run-off. It’s for this reason that the city of Shiprock didn’t turn back on its irrigation system until late April of this year. (Subsequent water-quality tests have shown that they probably made the right decision, because contaminant levels periodically did spike throughout the winter and early spring.)

For Yazzie and every farmer in the area, it was heartbreaking to watch thousands of acres of half-grown corn, squash, alfalfa, tomatoes, and melons shrivel and turn brown under the hot New Mexico sun. But the alternative, they decided, was worse.

Though no one in Shiprock drinks from the San Juan River, it’s unclear what would have happened had they irrigated their fields with the contaminated water — could they have poisoned their families and anyone who ate the produce? It’s been well established that drinking water contaminated with heavy metals over a sustained period of time can cause cancer, neurological and development disorders, organ failure, and a variety of other health problems, but no one really knows exactly how dangerous it is to eat food grown with contaminated water. As Karletta Chief, assistant professor of hydrology at the University of Arizona and member of the Navajo Nation, told UA News, “there is little data that provides answers to Navajo concerns regarding the potential exposures they face as result of this contamination.”

Losing a year’s worth of crops was devastating, but what farmers in Shiprock and all along the 400-miles of the Animas and San Juan rivers wanted to know was whether the heavy metals would slowly accumulate in their bodies and in the bodies of their children and grandchildren.

“We’re worried about the long-term affects of contamination,” Yazzie says, casting his eyes downward and adding that many in the community are still terrified of the river water. “Nothing is normal anymore.”

One year after the Gold King Mine spill, though the most obvious signs of disaster have faded from view, the “yellow river dilemma,” as Yazzie calls it, is still an active concern. With hundreds of thousands of abandoned mines just like Gold King throughout the west, many of which are leaking toxic waste every single day, it’s not really a matter of if there will be another big spill, it’s a matter of when it will happen, and what health problems might start surfacing in the next few years.

“The key issue,” says Sandy Bahr, chapter director of the Arizona Sierra Club, is that the Gold King Mine was “just one of many ticking time bombs on the landscape.”

As Yazzie and his neighbors waited for the stretch of the San Juan River running through their town to turn yellow, the Gold King Mine continued to gush hundreds of gallons of contaminated mustard-colored water every minute out of a 10-foot-by-15-foot hole.

The hole itself was actually made by contract employees of the U.S. Environmental Protection Agency who were attempting to put a pipeline into the mine to drain the backed-up wastewater. They had underestimated the water level and pressure, though, so the waste began pouring out when they broke through the mine wall.

The spill was so bad that two days after the breach, the EPA was forced to revise its original estimate about the scope of the disaster. It wasn’t just 1 million gallons of wastewater that had poured into the river, it was more like 3 million gallons — 3 million and counting.

One week after the spill, as the mine was still releasing wastewater, the first signs of pollution started showing up in water tests conducted near Lake Powell, meaning the contamination had spread hundreds of miles and polluted rivers in Colorado, Utah, New Mexico, and the Navajo Nation.

The reactions to the spill were varied. Even though no one really knows what the long-term human or ecological impact may be, instead of researching that or looking into what sorts of meaningful reforms could be implemented to fix the problem of leaking abandoned mines, the conversation surrounding the spill for the last year has focused almost entirely on who is to blame.

Within days of the spill, lawmakers started demanding EPA administrator Gina McCarthy resign and that her agency be investigated for possible criminal behavior. (This week, the federal government announced its intention to investigate, though details of the probe have not been announced.)

Additionally, in the last year, multiple congressional committees have investigated whether and how the EPA is to blame even though the agency itself has admitted fault, launched an internal investigation into the matter, and set new regulations for dealing with mine remediation.

Watching all of this unfold, a small group of environmentalists, politicians, and academic experts, many of whom have been warning for years that a spill like this was inevitable, have become increasingly frustrated. As far as they’re concerned, blaming the EPA just distracts from the real underlying problem of why there are so many abandoned mines in the west and why so little is being done to clean them up. Yes, the EPA was responsible for the Gold King Mine spill, they say, but there’s another more insidious and often overlooked culprit: The General Mining Act of 1872.

The name alone tells you how old it is.

President Ulysses S. Grant signed the act into law to encourage people to move out west and mine valuable hard-rock minerals. To make mining appealing, the law allowed miners and mining companies to purchase federal lands for between $2.50 and $5 per acre, depending on the area, and then take whatever ore is beneath the surface by any means necessary and without paying royalties. All anyone has to do to keep a claim is pay a $100 fee every year.

Congress did put a moratorium on new mining claims in 1994, but since the act must be renewed annually, it’s possible that at some point in the future, federal lands could once again be sold to a mining company for $5 an acre.

“The 1872 Mining Law is costing the American taxpayers billions and billions of dollars,” says U.S. Rep. Raúl Grijalva of Tucson, one of the country’s most ardent and outspoken critics of the legislation. “When it was passed, it had a purpose — in hindsight, it may be a questionable purpose, but the fact is that the law still stands on the book and requires little if nothing from mining companies.”

Because in the last 140 years, every attempt to overhaul or reform the law has failed — even reports from the Government Accountability Office specifically recommending the law be changed have yielded nothing — the law’s critics call it antiquated, and say it does little more than give the modern-day industrialized mining industry a free pass to pollute public lands and get rich at the expense of taxpayers.

Defenders of the law, however, argue that critics exaggerate the environmental and economic impacts. The 1872 law might not spell out environmental protections and expensive royalties, they say, but mining companies are still subject to other federal laws like the Clean Air or Clean Water Act, and have to keep their operational costs low to compete internationally.

At the end of the day, whether the merits of the law outweigh the negatives is certainly debatable, but what is not is the fact that the law is a relic of a time period that simply no longer exists — in 1872, the average miner was a man with a pickaxe and a donkey; today, it’s a big high-tech corporation.

Change has been nearly impossible because “the mining industry has a pretty big lobby, and they have a lot of pull with Western politicians,” says Lauren Pagel, policy director at Earthworks, an environmental group based in Washington, D.C., that’s been at the forefront of the push for mining reform since the 1980s.

“All other industries that operate on public lands pay royalties or some sort of fee because those resources they’re taking, mining, logging, or drilling are publicly owned. The hard-rock industry is the only one that’s allowed to take them for free, and the taxpayers are left with all these abandoned mines,” she continues. “I sometimes feel like it gets put on the back burner because it’s not a national issue.”

Moments after a section of the Gold King Mine burst open at 10:30 a.m. on Wednesday, August 5, 2015, an EPA contractor at the site pulled out his cellphone and started recording video. What he captured looked like a flash flood of thick, orange water streaming downhill into a mountainous and pine-tree-studded area. The torrent took out trees in its path, and flowed into Cement Creek, a small tributary of the Animas River near the town of Silverton, Colorado.

The Gold King Mine, which was abandoned in 1923, was one of a series of old gold mines in the area that the EPA had known was problematic for years. The agency’s plan to was to clean out a collapsed mine entrance, drain any wastewater into isolated remediation pools, and plug up the mine once and for all. But workers severely underestimated the amount of pressurized waste trapped behind a pile of timber and rock, so when the wall was breached, everything came pouring out.

Another cellphone video clip from a few minutes later shows the panicked reaction of the workers as they realize they have literally opened a floodgate of poison. The soup of mustard-colored water, technically called acid mine drainage, was full of the sort of heavy metals that aren’t necessarily dangerous to touch, but if ingested can be fatal.

(Acid mine drainage occurs when mining activities alter the hydrology of an area in such a way as to pull massive amounts of water into a mine. The water then reacts with sulfide-rich minerals and forms sulfuric acid, which dissolves heavy metals in the disturbed rocks and carries the sludgy, brightly colored byproduct out of the mine whenever the water escapes.)

By the afternoon of August 5, the first reports of a yellow river started hitting the media, and by that evening, major news outlets around the country were broadcasting what quickly became an iconic image of a group of kayakers paddling through the discolored water.

The story went viral the following day, and EPA leaders admitted that they had no idea how much waste was left in the mine, or what effect the highly acidic water might have on humans and the surrounding ecosystem.

The mustard-colored mine waste arrived at the Colorado-New Mexico border early Friday morning, just around the same time that Yazzie’s irrigation water supply was shut off. The plume continued south to the confluence of the Animas and San Juan rivers, reaching Shiprock sometime over the weekend.

At first the EPA seemed hesitant to release the results of its water tests, which further infuriated the public, and by the time the agency did begin talking about the contaminants in the water, it was probably too late — few downstream of the spill trusted the EPA anymore.

“There was a lot of frustration with the EPA,” Yazzie says, particularly as the agency’s promises to compensate farmers never materialized. To this day, not a single dollar has been paid out to a Navajo farmer, though according to the EPA website, the agency has disbursed a few million dollars to affected states and local municipalities and is pushing to make the area near the mine a Superfund site.

Meanwhile, as the drama of the spill unfolded in the political sphere, the EPA leadership knew farmers on the Navajo Nation needed water desperately. The agency announced it was hiring an independent trucking company, SSS Trucking, which frequently transports oil and natural gas, to deliver 16,000-gallon containers full of clean water to 11 sites along the San Juan River. As farmers gathered around the massive black units, ready to load as much as they could into smaller tanks in the back of their pickup trucks so they could haul it back to their farms, it became immediately clear that there was a problem.

The water that came out of the tanks smelled foul and had an oily sheen to it.

“Having been without water for more than a week, our plants were starting to die. Then we find out that these big tanks are contaminated — people were very angry. As mad as we were at the EPA, this just exacerbated it,” Yazzie says.

On August 17, Yazzie wrote on Facebook, “EPA and SSS Trucking were told to take the water and dump it off Rez, to load up the tanks and get off the Rez … Now the Chapter, the Navajo Nation, and the [Bureau of Indian Affairs] are scrambling to secure other sources for water. Crops are getting thirsty; it is reaching critical stage. Pray for rain.”

Apparently realizing that farmers would rather let their fields dry up than douse them in water they believed was dirty, the EPA had the tanks removed. (Water quality tests would later show that while one tank had oil residue on the outside, all water inside of the tanks met EPA standards for drinking water.)

But even with the delivery of the BIA water, many farmers just couldn’t get enough to their crops to save them. Yazzie estimates that he lost $7,000 worth of crops, but says many families had it worse.

Asked what has and has not changed in the 12 months since the spill, Yazzie removes a piece of paper from his pocket and answers by reading a story he wrote recently.  “We don’t trust government. Unbiased universities say [the river water] seems okay but … who do we believe, they all sound the same. Maybe it is okay, how do we know for sure? Our great dilemma is, do we turn on the water to farm and risk forever contamination? We are torn, we need water, but we must also preserve farms for coming generations. Farming is our life, water is our life, this is our culture, our spiritual way, it’s who we are.”

In many ways, the General Mining Act of 1872 was a product of the California Gold Rush and the beginnings of the Industrial Revolution. The federal government knew hard-rock mining was an inherent gamble, and wanted to find a way to encourage more people to join the 49ers out west, while also finding new concentrated sources of much-needed minerals. Congress’ solution, it seemed, was to just make mining as cheap, easy, and risk-free as possible.

But as law historian Gordon Morris Bakken explained in his 2008 book, The Mining Law of 1872: Past, Politics, and Prospects, problems arose almost immediately — particularly when it came to the disposal of mining waste.

In the 19th century, few knew that mining could create serious public-health problems, so no provisions were written in to the law spelling out how to deal with toxic waste. Miners just dumped tailings in rivers or in open spaces, let orange acid water pour out of mines, and paid little attention to how they disposed of dangerous chemicals used to extract ore. Even as late as the 1950s, miners and mining companies freely dumped waste and justified it by saying they were contributing to the economy, the ultimate “greater societal good,” Bakken writes.

Jared Diamond, Pulitzer Prize-winning author and academic expert on the intersection of society and geography, also addresses problems with the mining law in his book, Collapse: How Societies Choose to Fail or Succeed. “The mining industry evolved in the U.S. with an inflated sense of entitlement, a belief that it is above the rules, and a view of itself as the West’s salvation,” he writes.

Diamond became a critic of the 1872 Mining Law after watching how easily mining companies could ravage huge areas of land in Montana, and then walk away from a giant mess of open-pit mines, chemical pools, and tailing pilings when the ore was gone. “When the American public and governments demand so little of the mining industry, why should we be surprised that the industry itself volunteers little,” he suggests.

Although if history is any indication, substantial reform has always been a steep uphill battle.

The first big push for reforming the law came in the 1960s, but the mining lobby, having gained considerable strength in the prior few decades, successfully defeated the effort with arguments about free-market capitalism and by spreading fear that the entire American economy could collapse if operational mining prices increased. As Bakken notes in his book, the debate over the 1872 Mining Law frequently is a battle between short-term economic gains and long-term environmental concerns.

The next big opportunity for reform came in 1977 when Congress passed a landmark bill known colloquially as SMCRA (pronounced smackra). The acronym stands for the Surface Mining Control and Reclamation Act, and the law set out all sorts of new regulations for coal mining, including a mandate that coal-mining companies help pay for the cleanup of older mines.

“SMCRA created a royalty fee, created a reclamation fee, and it created a robust abandoned mine reclamation fund,” says Lauren Pagel of Earthworks. “And amazingly enough, guess what happened? The coal mines got cleaned up.” There was talk about adding hard-rock mining to SMCRA in the late ’70s, but the mining lobby pushed back hard, and “in the end, it didn’t work, and so 1872 continues to remain the law of the land,” she says.

Asked why hard-rock mining companies should be exempt from the type of royalty payments required of other industries, Luke Popovich, vice president of communications for the National Mining Association, the main hard-rock mining lobby group, answers that “unlike say oil and gas, minerals and metals are not commercial products when mined, but must go through a costly on-site process to turn them into marketable products.”

In other words, raising the input costs of mining would force the industry to pass on the costs to middle men, who would have to raise the price of consumer goods — if the public doesn’t want to pay more for things like smart phones, computers, solar panels, and even batteries, so the logic goes, then miners need to be able to mine certain minerals cheaply.

Through her work with Earthworks, Pagel has been battling the National Mining Association over hard-rock mining regulations for years, and according to her, the closest the country has ever come to reform was at the very end of former President Bill Clinton’s second term. Clinton signed a piece of legislation that, while not directly amending the law, curtailed it quite a bit by saying that mining claims could be denied if the proposed mine would cause significant harm to other resources.

The effort was short-lived, though, and was immediately overturned by the George W. Bush administration.

A couple of years later, Tucson’s Raúl Grijalva stepped up, and has been at the forefront of the legislative charge to reform hard-rock mining ever since. So far, though, he’s had little success; his bills rarely get out of committee.

“I’ve done this every year for about 10 years, and I keep introducing [bills] not because I’m a masochist,” he says with a little laugh, “but because I think it’s inevitable that the general public will realize what a threat this poses … and that what happened with the Gold King Mine spill is emblematic of what can happen all over the West.”

Grijalva’s critics may call him naïve for thinking he can change hard-rock mining practices, but “like it or not,” he says, “people are going to have to deal with the fact that the law needs to be changed. It’s not masochism. It’s persistence.”

When you drive into Shiprock, the first thing you see is a thick strip of green trees cutting across an otherwise sandy and shrubby landscape. Get a little closer, and you realize the strip of green is actually two strips, one on each side of a river. After you pass through the main part of town — a few blocks lined with agricultural supply stores, fast-food restaurants, and gas stations — you drive across a large bridge built in 1936, and finally get a good glimpse of the water below.

A year after the mine spill, it’s hard to image that the water flowing in such an idyllic looking river was once yellow and toxic. In the last year, both the EPA and its Navajo counterpart have tested the water multiple times and said it’s safe for agricultural purposes. But everyone is skeptical, says Chili Yazzie.

In conversation, Yazzie often mentions that because thousands of gallons of acid mine drainage seep from abandoned mines every day, he and his friends and family in Shiprock and all along the San Juan and Animas rivers have probably inadvertently been consuming water laden with all sorts of mining pollution for decades. Unless leaking mines are permanently remediated, they can release acid mine drainage in perpetuity, the EPA admits.

Years of water-quality data collected on the Navajo Nation have proven Yazzie’s concerns are warranted. The water may look fine, but government and independent tests have shown elevated levels of various heavy metals that are believed to have come from mine tailings or acid mine drainage. (And then there’s the documented historical legacy of drinking water laden with radioactive uranium, another hard-rock mineral protected under the 1872 law.)

Why such an obvious problem is allowed to continue has a lot to do with money. The various federal and state agencies ultimately tasked with cleaning up old mines tend to be severely underfunded. To put the size of the problem in perspective, the EPA estimates the total cost of cleaning up the worst abandoned mines could easily exceed $50 billion, and the environmental organization Earthworks places the cost anywhere between $32 and $72 billion. The EPA’s entire annual budget is $8.2 billion.

“We understand that because of the mining act, up in Colorado, there’s been an infiltration of wastewater [into rivers] since the 1800s. And only when we got the Gold King Mine spill did we understand the enormity of the problem,” Yazzie says.

Although Yazzie, like many others in Shiprock, has turned back on his irrigation water this summer, it’s not something he feels very confident about.

“The biggest concern that we have in the back of our minds is, what does this all mean?” he asks. “What could this have in store for us as a people who may have ingested some of that contamination? It’s just such a big unknown.”

On a warm day in late July, just short of the one-year anniversary of the Gold King Mine spill, Yazzie sits at a large oval table in the Shiprock Chapter headquarters with 12 others — scientists, environmentalists, social workers, and student research interns from local colleges. They’re discussing the psychological impact of the spill, comparing it to the Flint water crisis, and the BP and Exxon Valdez oil spills.

The chapter building sits a few hundred yards away from the north bank of the San Juan River, where, under a bright azure sky, clear water flows over mossy rocks and past big cottonwood and Russian olive trees. Nearby, two women sit at a picnic table, chatting and watching a few young children play on a jungle gym.

Inside the windowless conference room, however, the mood is somber.

“We’re here to talk about the psychological impact on humans as a result of our yellow-river dilemma,” Yazzie begins. “There have been ample studies on the environment and ecological concerns … but there hasn’t really been any studies of the impact on humans.”

For the next two hours, the 13 people in the room talk about the study, which so far has consisted mostly of collecting oral testimony in English and in Navajo from those affected.

“People were traumatized, angry, sad … A lot of people feel there’s no communication. They just feel lost out there, wondering what is going to happen,” says Karletta Chief, a hydrologist at the University of Arizona who is helping to run the study. She talks about how the San Juan River holds deep religious and cultural significance for the Navajo, and how many people she’s spoken with showed signs of trauma after the spill. “There’s definitely a huge need to help people heal and get back to normal,” she says.

At one point in the meeting, Yazzie shows the group some of the footage captured by an EPA contractor shortly after the spill. “What do we do now?” a voice in the background of the video says. Around the table, mouths are hanging open.

After the video, Chief mentions that people upriver have known for years that the area near the Gold King Mine spill was a disaster waiting to happen. According to an article in the Durango Herald published last August, acid mine drainage has been such a big problem in the upper Animas River watershed that the EPA proposed making the area a Superfund site years before the spill occurred. It never happened, though, because many in the Silverton area worried it would affect tourism.

“There are some people in the community who have known all about the leakage in water, and they say this has been going on for a long time,” Chief says about people she has interviewed for the study. “This is just an ongoing thing where they feel hurt; they just feel hurt.”

“We got about a year’s worth of contamination in a day, but then the next year, we’ll get that same level of contamination,” adds Dr. Chris Percy, director of community health services at the Navajo Medical Center. “We are hearing people say they want to stop the slow trickle.”

This is as much a social and environmental justice issue as it is an ecological issue, notes Rocky Romero, a professor at the New Mexico Highlands University School of Social Work and one of the main leaders of the study.

The others around the table nod their heads.

A little while later in the meeting, Yazzie closes his eyes for a moment, clearly deep in thought.

“When I was 10, we were in that water every day all summer. It was the natural thing to be in that water,” he says slowly. “Now, I don’t know. I don’t really see people swimming in it. I was talking to an elder here yesterday, and he was commenting about how the water used to be — they used to drink out of the river.”

He pauses. “Can’t do that anymore.” No one, he says, trusts the water.

**Editor’s Note: An earlier version of this story said the EPA never commented publicly about the water tanks it shipped to the Navajo Nation after the spill. That was incorrect, the EPA tested the water and found that while one container had oil residue on the outside, the water inside all of the tanks met all EPA standards for drinking water.