Federal judge bars Rosemont Mine construction

Federal judge bars Rosemont Mine construction

The proposed site for the Rosemont Mine in the Santa Rita Mountains southeast of Tucson. Environmentalists and three tribes successfully sued to stop its construction. 

A federal judge stopped the planned Rosemont Mine in a ruling Wednesday evening, halting plans to start building the $1.9 billion project in August.

U.S. District Judge James Soto’s ruling in Tucson overturned the U.S. Forest Service’s 2017 decision approving the mine and its 2013 final environmental impact statement clearing the way for that approval.

His ruling, if it survives appeals to higher courts, would drive a stake into longstanding federal policies that say the Forest Service virtually can never say “no” to a mine if it would otherwise meet federal laws. It calls into legal question how the Forest Service has used the 1872 Mining Law to justify its approval of Rosemont — and by extension other mines on its land.

Soto’s decision called the Forest Service approval “arbitrary and capricious.” He sided with environmentalists and tribes that sued to stop the Hudbay Minerals Inc. project. Specifically, he essentially ruled that the mining company can't put its waste rock and mine tailings on Forest Service land even though it has mining claims on it because it has failed to prove the claims are valid.

In a news release Thursday morning, Hudbay said it will appeal the ruling to the 9th Circuit Court of Appeals. The company believes that the district judge has misinterpreted federal mining laws and Forest Service regulations as they apply to Rosemont, the company said. The statement didn't elaborate on that point, and company spokeswoman Jan Howard said it would have no additional comments right now beyond what was in the release.

“We are extremely disappointed with the Court’s decision. We strongly believe that the project conforms to federal laws and regulations that have been in place for decades,” said Peter Kukielski, Hudbay's interim President and Chief Executive Officer, in the release.

The Forest Service's Rosemont decision followed a thorough process of ten years involving 17 co-operating agencies at various levels of government, 16 hearings, over 1,000 studies, and 245 days of public comment resulting in more than 36,000 comments, Hudbay's statement noted.

But the Rosemont opposition group Save the Scenic Santa Ritas, in its statement, took note of Soto's criticism of what he called the Forest Service's "inherently flawed analysis from the inception of the proposed Rosemont Mine."

Gayle Hartmann, the group's president, said its members are heartened that the judge recognized that the Forest Service fell short in its duty to protect public lands and resources.

"Our public lands are a public trust, and we must not allow them to be illegally used to enrich a foreign mining company," Hartmann said.

Heidi Schewel, a Coronado National Forest spokeswoman, declined to comment Thursday morning on the ruling, saying, "We do not comment on litigation."

Two lawsuits challenging the Forest Service's approval were filed separately by four environmental groups and by three Indian tribes. A decision in a related lawsuit, challenging the U.S. Fish and Wildlife Service's approval of a biological opinion for the project, is pending.

The ruling caps a 12-year, polarizing debate on the proposed mine. It comes five months after the U.S. Army Corps of Engineers approved a separate, Clean Water Act permit for the project — an approval that now has no immediate legal bearing as long as the judge's ruling against the Forest Service stands.

The open pit mine, which would cover more than 4,500 acres of private and public lands in the Santa Rita Mountains southeast of Tucson, would be the third largest copper mine in the U.S.

In his 37-page decision, Soto hammered almost exclusively at the Forest Service’s approval of Hudbay’s plan to dump mine waste rock and tailings from its 955-acre pit onto 2,447 acres of nearby public land on the Santa Ritas’ eastern slopes.

Opponents’ lawsuits argued that only public lands directly above valuable mineral deposits are covered by the federal 1872 mining law’s definition of mining rights.

Soto wrote in his decision that for Hudbay to gain access to valuable copper, molybdenum and silver from the pit, the company would need to extract about 1.2 billion tons of economically worthless waste rock and about 700 million tons of mine tailings.

The Forest Service's primary error in this case was to accept, without question, that Hudbay's unpatented mining claims on those 2,447 acres were valid, thereby allowing them to be used for placement of the waste rock and tailings, he wrote.

"This was a crucial error, as it tainted the Forest Service's evaluation of the Rosemont Mine from the start," Soto wrote.

He wrote that the 1872 Mining Law grants exclusive property rights to miners having valid, unpatented mining claims. To have one, "there must be a valuable mineral deposit underlying the claim," he wrote.

"If there is a valuable deposit underlying the claim, the miner has the exclusive right to extract and profit from those minerals, and the right to use the surface above those minerals for purposes of mining," even when on federal lands, Soto wrote.

Historically, obtaining unpatented mining claims has been a "low bar," he wrote. A miner could simply enter federal land, put up stakes marking a claim and record a notice with local authorities setting out the parameters of the purported mineral deposit, Soto wrote.

But without a valuable mineral deposit beneath the purported mining claims, the claims are invalid under the 1872 law, "and no property rights attach to those invalid unpatented mining claims," Soto wrote.

The Forest Service's formal, administrative record for Rosemont shows that this test for the 2,447 acres having valuable mineral deposits wasn't carried out, he said.

"As such, the record reflected that the mining claims were invalid," Soto wrote.

Defendants in the case argued that the Forest Service lacked jurisdiction under the law to determine the validity of the Rosemont unpatented mining claims, and said that jurisdiction belongs to another federal agency, the U.S. Bureau of Land Management, Soto wrote.

While that's true regarding who has jurisdiction over that issue, "that does not mean that the Forest Service had no obligation to assess Rosemont's surface rights," Soto wrote.

"The Forest Service had no factual basis to determine that Rosemont had valid unpatented mining claims giving them property rights over those 2,447 acres of land," he wrote. "Rather, the record strongly indicated the opposite."

RELATED CONTENT: Local thoughts on the Rosemont Mine

Contact reporter Tony Davis at tdavis@tucson.com or 806-7746.

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