The Canadian mining company proposing to build an open-pit copper mine in the Santa Rita Mountains said Thursday that it will appeal a federal judge’s ruling blocking the mine’s construction.
The ruling stopping the Rosemont Mine drew sharp criticism from Hudbay Minerals Inc. and the National Mining Association.
U.S. District Judge James Soto’s ruling Wednesday night drew high praise, however, from Pima County Administrator Chuck Huckelberry and U.S. Rep. Raúl Grijalva, a Tucson Democrat who is chairman of the House Natural Resources Committee .
Lawsuits brought by environmentalists and tribes against Rosemont, which led to Soto’s ruling, successfully argued that only public lands directly above valuable mineral deposits are covered by the federal 1872 mining law’s definition of mining rights.
Officials of the mining company, which had hoped to start Rosemont construction this month, said they believe Soto misinterpreted federal mining laws and Forest Service regulations as they apply to Rosemont. Their written statement didn’t elaborate on that point.
“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 statement.
The Forest Service’s Rosemont decision followed a 10-year process involving 17 co-operating agencies at various levels of government, 16 hearings, more than 1,000 studies, and 245 days of public comment resulting in more than 36,000 comments, Hudbay’s statement noted.
The mining association, meanwhile, said “this fundamentally flawed decision conflicts with more than a century of U.S. Supreme Court decisions on the Mining Law.”
The ruling “misconstrues” existing legal precedent regarding rights conveyed by the 1872 mining law to certain classes of mining claim holders and their ability to “use surface resources to further the development of those claims,” said the association, which also didn’t elaborate.
“This is a yet another example of the protracted delays that plague the U.S. mine permitting process,” said Conor Bernstein, a mining association spokesman. “This project has been in the permitting stage for more than 11 years, with more than $100 million spent in support of the permitting process and yet, with one misguided decision, progress is once again stopped.
“It is no wonder that our import dependence continues to grow for the minerals that we could — and should — be sourcing here at home,” Bernstein said.
Huckelberry, however, noted in a memo to the Pima County Board of Supervisors that Soto’s ruling echoed what he has been saying since 2006. That was the year before Hudbay Minerals’ predecessor, Augusta Resource Corp., filed its first proposed operating plan for Rosemont.
Starting that year, Huckelberry repeatedly and unsuccessfully sought to persuade the Forest Service that the unpatented claims the mining companies held on public land near their privately owned open-pit site were not be valid because there was no evidence they contained valuable mineral deposits. Those lands are where Hudbay and Augusta planned to dump their waste rock and tailings for the mining operation.
Huckelberry noted that Soto’s ruling speaks directly to the issue of whether the Forest Service could say “no” to the mine as opposed to conditioning its approvals on various environmental requirements.
“This was also a central point during the entire 12-year review process” before the service approved Rosemont, Huckelberry said.
Soto ruled that the waste rock and tailings can’t legally be dumped on these lands because the validity of the claims hadn’t been established.
Grijalva said he hopes Soto’s ruling will end what he called the federal government’s nearly 150-year practice of giving every mining company “almost everything it’s ever wanted, with no questions asked.”
“Congress, federal agencies, and most of all the American public no longer have to live with the industry-backed fiction that the law gives them a blank check to mine and dump wherever they please,” Grijalva said in a written statement.
He noted that he’s now working to overhaul the 1872 mining law, which was a key factor underlying the Forest Service’s decision to approve Rosemont.
The fate of these competing legal views now lies with the U.S. 9th Circuit Court of Appeals in San Francisco, where the first appeal will go. Ultimately, the U.S. Supreme Court would make a final decision on the case if whichever side loses at the 9th Circuit appeals that ruling — a very distinct possibility.
Soto, who was appointed to the bench in 2014 by then-President Barack Obama, ruled the Forest Service abdicated its duty to protect the Coronado National Forest from “depredation.”
He ruled that the Forest Service had erred in approving without question 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. The service issued its approval in June 2017.
Soto wrote 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 waste rock and about 700 million tons of mine tailings.
The Forest Service’s primary error was to accept 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. “There must be a valuable mineral deposit underlying the claim.”
Throughout its decadelong review of the project, the Forest Service improperly evaluated and misapplied Rosemont’s right to use public land surfaces, the judge said.
He said the service also improperly evaluated the extent to which the service could regulate activities on its land in association with those surface rights.
“These defects pervaded” the final Rosemont environmental impact statement and the Forest Service’s 2017 final approval, Soto wrote, “and led to an inherently flawed analysis from the inception of the proposed Rosemont Mine.”
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