9th Circuit upholds 'landmark' ruling blocking Rosemont copper mine

In a win for environmental groups and three Native American tribes, a federal appeals court has upheld a ruling that halted the long-controversial Rosemont copper mine in the Santa Rita Mountains about 30 miles southeast of Tucson.

In 2019, U.S. District Judge James A. Soto ruled the U.S. Forest Service "improperly evaluated and misapplied" federal law, leading to "an inherently flawed" approval of the open-pit copper mine, planned to grow as large as a mile wide. In his decision, Soto found several problems with the Forest Service’s 2017 approval of the proposed mine, and the 2013 final environmental impact statement which cleared the way for that approval. Soto's ruling immediately blocked Toronto-based Hudbay Minerals from beginning construction on the proposed $1.9 billion mine.

Hudbay appealed the decision, but on Thursday, the 9th Circuit Court of Appeals upheld the halt in a 2-1 decision.

Environmental groups praised the appellate court ruling, calling it "momentous," while local officials said the decision "confirms what Pima County disputed from the beginning."

For their part, Hudbay executives said they would review the court's decision, before pivoting to efforts on the west slopes of the Santa Rita Mountains, where they are attempting to reinvigorate the project by developing Copper World—a nearby copper mine on private land once known as the Helvetia Mining District.

For the last 15 years, the Rosemont mine has been thwarted by fierce response from environmental groups, who have argued that the mine—which ultimately could include half-mile-deep pit across 2,500 acres—would seriously harm the Santa Rita Mountains. The open-pit mine would directly affect more than 950 acres of land, and the company originally planned to dump around 1.9 billion tons of waste rock on land in the Coronado National Forest, part of Southern Arizona’s "Sky Islands," and within the range of the endangered southern jaguar and the ocelot, as well as nearly a dozen other endangered and critical plants and animals. Overall, around 3,653 acres of the Coronado National Forest would be impacted by the mine's operation, if it were to swing into action.

The ruling released Thursday makes that less likely to happen, although Hudbay still has opportunities to appeal. The mine has been stalled for more than a decade by a series of lawsuits.

The Canadian mining company still faces several other legal actions over Rosemont, and has repeatedly lost in court, even as federal officials have at times been willing to give the company access to public lands in its bid to build the mine. The mine has also faced opposition from Pima County officials, and three Native American tribes, who recently asked federal courts to also block Rosemont from dumping mining tailings into dry streambeds as part of Copper World.

Most recently, in a separate lawsuit, the 9th Circuit agreed Rosemont could not use federal public lands, including lands with burial sites and other areas with cultural and religious significance to the Native American tribes, to dump nearly two billion tons of waste rock and tailings. As a practical matter, the Forest Service "amended the Multiple Use Act and the Mining Law to give Rosemont what it wants," and that its argument was "foreclosed by a century of precedent," the court ruled.

In the court's 71-page opinion published Thursday, Circuit Judge William A. Fletcher wrote the Forest Service had previously approved Rosemont's operations plan on two separate grounds. First, the Forest Service believed that a 1955 law gave the company the right to dump waste rock on open national forest land, "without regard to whether it has any mining rights on that land." And, second, the Forest Service "assumed" under the Mining Law, Rosemont had "valid mining claims on the 2,447 acres it proposed to occupy with its waste rock."

However, as part of a lawsuit launched by environmental groups—including Save the Scenic Santa Ritas, the Center for Biological Diversity, the Sierra Club's Grand Canyon Chapter, and Arizona Mining Reform Coalitions—Soto ruled this does not support the agency's approval of Rosemont's mining plan.

"Indeed, based on a conclusion that there are no valuable minerals on the claims, the court held that the claims are actually invalid," Fletcher wrote, adding that Soto "therefore concluded the service acted arbitrarily and capriciously in approving" Rosemont's plan. 

The federal agency approved the mining plan "based on its misunderstanding of Section 612 of the Multiple Use Act and on its incorrect assumption that Rosemont's mining claims are valid under mining law," the judge wrote.

In a dissenting opinion, Trump appointee Judge Danielle J. Forrest wrote the case "boils down to which of [the Forest Service's] regulations govern the placement of waste rock resulting from mining onto forest land."

The regulations the Forest Service has "adopted to fill in the gaps left by the Mining Law make two things clear," she wrote. "The lawfulness of waste-rock disposal does not depend on whether the mine operator has valid mining claims to the disposal area," and "it was not arbitrary and capricious" for the the Forest Service to apply" part of federal law to Rosemont’s proposed deposit of waste rock because "on their express terms they apply to this activity as a matter of law."

'Landmark decision' hailed by environmentalists, tribal groups

Pima County Board of Supervisors Chair Sharon Bronson told the Tucson Sentinel on Thursday that the decision is "win for the environment," adding the Board of Supervisors have "consistently opposed the Rosemont mine."

"Congress, federal agencies and the American public have given mining companies carte blanche and access to our public lands to profit and pollute for too long," said U.S. Rep. Raúl Grijalva. "This decision will prevent bad faith mining companies from dumping toxic waste and protect tribal sacred sites that have existed since time immemorial," he said. "I’m proud to stand shoulder to shoulder with my brothers and sisters of the Tohono O’odham Nation, Pascua Yaqui Tribe, and Hopi Tribe in this fight." 

Tohono O’odham Nation Chairman Ned Norris Jr. agreed, calling the 9th Circuit Court's ruling a "landmark decision," and added "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."

"The ruling thoroughly dismantles the error-riddled process and reinforces the importance of protecting these sites and the entire region’s water supply," he said. "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 9th Circuit found that "the Forest Service acted improperly in assuming that Hudbay’s unpatented mining claims were valid when they in fact were not. Hudbay and its predecessor Augusta Resources repeatedly argued that dumping waste and tailings on Forest Service land was incidental to their development of the pit on their patented claims/privately owned land," Pima County Administrator Jan Lesher wrote in a memo Thursday afternoon.

"The law is now clarified. The Rosemont mine cannot proceed as proposed on the eastern slopes of the Santa Ritas," Lesher told the members of the Board of Supervisors.

Gayle Hartmann, president of Save the Scenic Santa Ritas said she was pleased with the ruling.  "Our public lands are the legacy we leave our children. The natural values they provide are far more important than the short-term gains that come from a destructive, open-pit mine."

As Fletcher noted in his opinion Thursday, pit mining "produces large amounts of waste rock," and he wrote that Rosemont "proposes to dump 1.9 billion tons of waste rock near its pit, on 2,447 acres of National Forest land."

"The pit itself will occupy just over 950 acres," he said, adding that when operations cease after 20 to 25 years, waste rock on the 2,447 acres would be 700 feet deep and "would occupy the land in perpetuity."

"The appeals court correctly relied on the facts and the letter of the law to invalidate the mine approval," said Roger Flynn, director and managing attorney for the Western Mining Action Project, who argued the case for conservation groups. "The Forest Service’s assumption that Hudbay had automatic rights under the 1872 Mining Law to permanently bury thousands of acres of public land with waste dumps contradicted, as the court held, ‘a century of precedent.’"

"The agency and Rosemont cannot unilaterally revise the Mining Law to suit the company’s needs, as the court properly held that ‘amendment of the Mining Law is a task for Congress, not for the service, and certainly not for us'," Flynn said.

Allison Melton, an attorney with the Center for Biological Diversity called the ruling "momentous," and it makes clear "Hudbay’s plan to destroy the beautiful Rosemont Valley is not only a terrible idea, it’s illegal."

"The Santa Rita Mountains are critically important for Tucson’s water supply, jaguars, ocelots and many other species of rare plants and animals. We won’t let them be sacrificed for mining company profits," Melton said. 

While the company reviews the court's decision,  Hudbay executives outlined their plans to develop the west side of the Santa Rita Mountains.

"Since 2019, Hudbay has successfully discovered the Copper World deposits located on patented mining claims adjacent to Rosemont," the company said, adding that it has 4,500 acres to "support an operation on private lands."

Hudbay said that "initial technical studies for Copper World" were completed and the company planned to pursue development of Copper World "in conjunction with an alternative plan for the Rosemont deposit." This would rely on a two-phase mine plan, beginning with a "standalone operation" on the Helvetia Mining District, which the company said would "require only state and local permits," over the next 15 years. The company would then seek to extend the mine and expand onto federal lands to "mine the entire Rosemont and Copper World deposits."

"The second phase of the mine plan would be subject to the federal permitting process and the company expects it will be able to pursue the federal permits within the constraints imposed by the decision, if any subsequent appeals are not successful," the company told investors.

In mid-April, environmental groups filed a notice of intent—a prelude to a federal lawsuit—against Rosemont for developing Copper World, arguing the company violated federal law by dumping debris into dry streams along the western slope of the Santa Rita Mountains. This was followed by a request for a restraining order filed by environmental law firm EarthJustice on behalf of the Tohono O'odham Nation, Pascua Yaqui and Hopi tribes.

Aerial photos from April 14 showed efforts underway, prompting the tribes to ask Soto to block Rosemont from continuing because the company is operating without permit—known as a Section 404 permit—under the Clean Water Act.

In a statement, EarthJustice said, "this is the second time that Rosemont has attempted to rush construction of its proposed mines" even while judges with the 9th Circuit Court of Appeals review the company's permit as part of a lawsuit.

As part of the lawsuit, Hudbay moved to rescind its request for a water permit, a maneuver the clears the company of some federal requirements, and would render the most recent lawsuits moot. However, Soto has not ruled on whether that ends the new lawsuits, as the company continues to clear land and move earth.

Lesher said that "while the county may have little to no authority over this mine, we will continue to advocate for meaningful mitigation and serve as a resource to the
community for factual information about its impacts" in her memo to the board.