Ninth Circuit won’t remove block against Arizona copper mine

TUCSON, Ariz. (CN) — The U.S. Forest Service didn’t adequately assess the environmental impact of a planned copper mine in Arizona that would’ve dumped nearly two billion tons of waste rock and tailings, a Ninth Circuit panel ruled Thursday. 

The federal agency first approved the Rosemont Mine in Tucson’s Santa Rita Mountains in 2017, an action quickly followed by lawsuits from environmental groups and Native American tribes. The Coronado National Forest, where the mine would operate, includes designated or proposed habitat for jaguars, yellow-billed cuckoos, Southwestern willow flycatchers, Chiricahua leopard frogs and other species.

The agency also approved the placement of a tailings pile, which would cover 2,700 acres, on “open land” — land not covered by a mining claim — located two miles from the planned site of the Rosemont copper mine. 

In mining, tailings are the materials left over after separating the resource from the refuse.

In August 2019, a federal judge ruled the agency misapplied regulations that govern where Rosemont Copper Co. can put the waste and overturned the agency’s approval of the mine.

A split panel upheld that decision Thursday, finding the 1872 General Mining Act did not allow for the tailings to occupy that land for what would essentially be for the rest of time. 

“Rosemont proposes to bury the existing surface of 2,447 acres of National Forest land beneath a 700-foot-deep layer of waste rock. Under any ordinary definition, the layer of waste rock will ‘occupy’ the land on which it sits, and will do so permanently. No person or structure will ever again touch the surface of that land. Rosemont’s 1.9 billion tons of waste rock will occupy that land forever, obstructing countless alternative uses,” wrote Circuit Judge William Fletcher, a Bill Clinton appointee. Fletcher was joined in his decision by the Trump-appointed Circuit Judge Eric Miller.

The 19th-century law legalized the mining of certain mineral resources on federal lands, bringing some order to political conflict between gold miners, prospectors and the government. Under the law, signed by President Ulysses S. Grant, individuals and corporations could claim rights to certain valuable minerals or resources if they discover their existence.

In oral arguments before the panel in February 2021, Department of Justice attorney Amelia Yowell told the court that the lower court’s ruling was based on a faulty interpretation of regulations and the law. 

“If the Service were to deny Rosemont land to store its waste rock and tailings, that would in effect prohibit Rosemont from exercising its right under the mining law,” Yowell argued.

Rosemont Copper Co.’s Canadian parent company, Hudbay Minerals, said it spent roughly $700 million on the operation when it reached its final approval in 2019.

Fletcher disagreed, finding that the Forest Service failed to confirm claims that essential resources were on the land, a necessary decision since the law otherwise does not give a right of occupation beyond what is temporarily necessary for exploration. 

“The question is whether valuable minerals have been ‘found’ on the claims, not whether valuable minerals might be found,” Fletcher wrote. “It is undisputed that no valuable minerals have been found. Because no valuable minerals have been found, the claims are necessarily invalid.”

Ned Norris Jr., chairman of the Tohono O’odham Nation, applauded the ruling Thursday. The nation was one of the tribes that had sued over the mine, arguing that the waste could have buried dozens of prehistoric tribal sites.

"This landmark decision further validates that Rosemont's foreign owners have neither the legal right nor the valid mining claims for their proposed plan to destroy sacred sites beneath a mountain of poisonous mine waste,” Norris Jr. said in a statement. “The ruling thoroughly dismantles the error-riddled process and reinforces the importance of protecting these sites and the entire region’s water supply. As decisive as this decision is, Rosemont's foreign investors will likely continue to try and profit through environmental and cultural destruction. We must not allow this to happen."

The Center for Biological Diversity, which also sued over the mine, echoed Norris Jr.’s sentiment.

“This momentous decision makes it clear that the plan to destroy the beautiful Rosemont Valley is not only a terrible idea — it’s illegal,” said Allison Melton, an attorney for the group, in a statement. “The Santa Rita Mountains are critically important for Tucson’s water supply and many species of rare plants and animals. We won’t let them be sacrificed for mining company profits.”

Judge Danielle J. Forrest, a Trump appointee, dissented from her colleagues, finding that while the mining law is ambiguous, the Forest Service had acted properly by “promulgating formal regulations and developing policies based on its interpretation.”

Follow @themikemcdaniel

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