The company proposing to build the Rosemont Mine wants a federal judge to toss out or at least change key parts of his recent ruling that stopped work on the $1.9 billion project.
Rosemont Copper Co., in what it says is its first step toward appealing the July 31 ruling, is asking U.S. District Judge James Soto to vacate the ruling that prevented mine construction or to “alter or amend” it.
The company says Soto ruled that Rosemont Copper lacked valid mining claims on more than 2,400 acres of public land where it wants to dump waste rock and tailings.
Because Soto’s decision focused so heavily on mining claims as regulated by the 1872 Mining Law, the company wants the decision vacated on what it says are jurisdictional issues — it says opponents lack standing to sue on the issues that led to his decision.
If that’s not going to happen, the company wants the decision changed significantly.
The company also wants the judge to reverse part of his decision that threw out the Forest Service’s environmental review of the project, now nearly six years old.
Stu Gillespie, a lawyer for Indian tribes opposing the mine, said that many of the company’s arguments are hollow, particularly those focusing on the mining claims, and that the company is misinterpreting the judge’s ruling by saying that he found the claims to be invalid. The company also is misconstruing the standing issue, making arguments that are "wholly misplaced," Gillespie said.
Soto found that the Forest Service had accepted the validity of the mining claims without question, rather than making an effort to determine their validity. Without proof of valid mining claims, that land can’t be used for any mining activities, under the 1872 Mining Law, the judge ruled.
“This was a crucial error, as it tainted the Forest Service’s evaluation of the Rosemont Mine from the start,” Soto’s ruling said.
His ruling stopped work on the mine the day before it was supposed to start. Construction of the mine in the Santa Rita Mountains southeast of Tucson is now delayed for up to 18 to 24 months until the 9th U.S. Circuit Court of Appeals can rule on an expected appeal by Rosemont Copper and the U.S. Forest Service, which approved the project in June 2017.
Rosemont Copper wrote that it was “improper” for the judge to assess the validity of its mining claims on his own.
“Instead, the court should have allowed the Forest Service to evaluate whether there is a factual basis to support Rosemont’s rights,” the company’s request said.
The company is the Arizona subsidiary of Toronto-based Hudbay Minerals Inc., which holds the mining claims and owns the private land that will hold the majority of the mine’s half-mile-deep open pit.
The latest motion describes areas where the company believes the court inappropriately assumed the responsibility of the regulators and in due course, misrepresented current mining law and regulations, Hudbay said in a statement. The company wants the court to simply return the final Rosemont decision to the Forest Service for further investigation or explanation,while leaving the environmental impact statement in place for now.
Rosemont continues to reserve the right to appeal all issues raised in the court’s decision, the company said.
“It is our belief that the court went beyond its authority and jurisdiction, by conducting its own validity assessment of Rosemont’s unpatented mining claims.” said Andre Lauzon, Hudbay's Arizona business unit's vice president, in the statement. “Last week’s filing is our first step in the appeals process and correcting what we believe is a misinterpretation by the court of the current laws and regulations that govern mining activities on public lands throughout Arizona and the United States.”
The company's request cited several passages in Soto’s ruling that Rosemont Copper says shows he was ruling on the claims’ validity. For one, the judge wrote that the Forest Service had no factual basis to determine that Rosemont had valid claims, and that, “Rather, the record strongly indicated the opposite.”
In another sentence cited by Rosemont Copper, the judge wrote that, “The record indicates that Rosemont’s unpatented claims on that land are invalid as there is no valuable mineral deposit beneath the land.”
“The court’s decision to analyze the validity of Rosemont’s unpatented mining claims, rather than allowing the Forest Service to make that assessment ... violates established principles of administrative law and constitutes manifest error,” the company wrote.
“If the court could find that it was error for the Forest Service to allow Rosemont to use the surface of its unpatented mining claims without assessing their validity, the court’s analysis should end there.”
Rosemont Copper’s argument is an attempt to manufacturer an error when there is none, countered Gillespie, an attorney for three Indian tribes, including the Tohono O’odham, that filed one of two lawsuits that led directly to the judge’s decision.
“The court did exactly what it should do, to determine if there was a basis for the Forest Service decision. There was no basis,” Gillespie said.
The judge’s statements cited by Rosemont Copper demonstrate that the Forest Service’s decision was “arbitrary and capricious,” and don’t find conclusively that the mining claims themselves are invalid, Gillespie said.
The company also argued that the judge’s focus on the validity of Rosemont’s mining claims under the 1872 Mining Law creates serious problems for its jurisdiction, and for the groups suing the Forest Service to show they have a legal basis for challenging the project.
Since the mining claims issues the judge raised are tied to the 1872 law, the “various environmental, aesthetic, cultural, and recreational interests” held by the parties suing the Forest Service are marginally related to that law’s purpose and insufficient to give them standing to sue, the company said
Those arguments are irrelevant and misconstrue Soto's order, tribal attorney Gillespie countered. In their lawsuit, the tribes alleged that the Forest Service violated two other federal laws -- the Organic Act and the National Environmental Policy Act-- by assuming the mining company had a right to use mining claims on forest land for waste rock disposal, Gillespie said.
"There is no dispute the tribes’ interests in protecting sacred sites and irreplaceable environmental resources" are covered by those two laws, easily satisfying requirements for standing in court, Gillespie said.
Indeed, Rosemont Copper never challenged the tribes’ standing before Soto's ruling, and can't challenge it now in what amounts to the company's request that the ruling be reconsidered, he said.merits briefing and cannot raise this issue in a motion for reconsideration.
The company also asked Soto to reverse part of his decision that tossed out the Forest Service’s final environmental impact statement for the mine, a decision that would require the statement to be rewritten if the mine were ever to be built.
“The FEIS is a six-volume environmental analysis containing over 10 years and over a thousand pages of thorough review,” Rosemont Copper wrote.
“Even if the court’s conclusion that the Forest Service failed to analyze a reasonable range of alternatives were correct, the environmental analysis with respect to the alternatives the Forest Service did consider is thorough and remains relevant.