Judge: Challenges to new Arizona copper mine 'moot' after Hudbay abandons Rosemont water permit
A federal judge dismissed a pair of lawsuits filed by three Native American tribes and a coalition of environmental groups over Rosemont Copper's move to expand its mining operations on the western slopes of the Santa Rita Mountains south of Tucson.
In recent weeks, the Tohono O'odham Nation, Pascua Yaqui and Hopi tribes, along with the environmental groups led by the Tucson-based Center for Biological Diversity, challenged "Copper World," a project to expand the controversial mining project to a nearby area across the western reaches of the Santa Ritas. In their filings, both groups argued Rosemont was violating the terms of a Section 404 permit granted under the Clean Water Act by the U.S. Army Corps of Engineers.
However, lawyers for Hudbay Minerals, Inc. the Toronto-based company that owns Rosemont, said it voluntarily surrendered the permit, making the challenges moot. Company representatives welcomed the decision, which was released Tuesday. Opponents of the mine said they were disappointed, and would consider an appeal.
In his 16-page ruling, U.S. District Judge James A. Soto agreed with Hudbay, ruling the two lawsuits were moot and "must be dismissed for lack of jurisdiction" because Rosemont has "surrendered the permit, avowed that it will not use it, and does not request that it be reissued."
"There is no longer a live case or controversy surrounding the propriety of the Corps decision," Soto wrote, and relief for the tribes and environmental organizations is "no longer available."
"In sum, plaintiffs have gotten what they wanted: Rosemont no longer has the permit," Soto wrote. "Consequently, there is no case or controversy left for the court to decide."
Earlier this year, Rosemont representatives told Pima County officials they would ramp up grading and clearing on a 3,500-acre site southeast of Sahuarita, on the Helvetia Mining District, a parcel of private property owned by the company. The environmental law firm EarthJustice, representing the tribes, filed a temporary restraining order asking Soto to block Rosemont from tearing up thousands of acres, spanning almost four miles.
In a parallel lawsuit, environmental groups led by the Tucson-based Center for Biological Diversity prepared to file their own lawsuit against Rosemont, arguing the company was violating the Clean Water Act by "filling, grading, and destroying" a network of ephemeral streams—dry river washes that will flood during monsoon rains—and had done so without a federal permit.
For the last 15 years, the Rosemont project 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.
In a similar lawsuit, Soto agreed with environmental groups, ruling the U.S. Forest Service "improperly evaluated and misapplied" federal law, leading to "an inherently flawed" approval of the open-pit copper mine. Hudbay appealed, but on May 12, the 9th Circuit Court of Appeals upheld the halt in a 2-1 decision.
Facing stiff opposition on the eastern side of the Santa Ritas, the company began drilling and exploring on the Helvetia Mining District, which includes a historic mining area in 2020. Rosemont eventually dubbed this project Copper World, and on March 10, the company told the Pima County Regional Flood Control District they would begin "clearing, grading, stockpiling and other earthwork activities" as part of the project, which would be used "in connection" with Rosemont's future mining and metallurgical operations.
Soto's ruling 'affirms permitting path' for Copper World
Hudbay praised Soto's ruling, writing that the order, along with the 9th Circuit Court of Appeals order "affirms the permitting path forward for Copper World, including the ability to receive federal permits for the second phase under existing mining regulations."
The company said it began early site work at Copper World with "initial grading and clearing activities continuing at site," and Rosemont will continue "exploration and technical work at site with seven drill rigs conducting infill drilling and supporting future feasibility studies."
Further, Hudbay said it's on track to complete a Preliminary Economic Assessment of Copper World later this year, which will include a " two-phase mine plan." The first phase will include the "standalone operation" on the Helvetia Mining District, Hudbay said, adding that it expects the site to require only state and local permits will operate for 15 years.
And, the second phase will include the larger Rosemont mine plan, extending the mine's life by including "an expansion onto federal lands to mine the entire Rosemont and Copper World deposits."
This second phrase will require federal permits, Hudbay said, adding that it expects the assessment to "demonstrate robust economics for this low-cost, long-life copper project, delivering the copper needed for domestic supply chains while offering many benefits to the community and local economy in Arizona."
Opponents said they will consider an appeal.
"Coming on the heels of the favorable 9th Circuit decision 11 days earlier, we are disappointed in Judge Soto's decision yesterday to dismiss the various motions in district court," said Stu Williams, executive director for Save The Scenic Santa Ritas. "We continue to evaluate the ruling and are leaving open all options."
Work at Copper World 'entirely' on private property
In a letter to Pima County officials, Hudbay executive Javier Del Rio said the company would begin work on April 12, and it was submitting its plans for "review and comment only." Del Rio cited Arizona law, which keeps the county from limiting the construction of waste disposal areas for mining operations.
"Our initial notice of this exempt work was sent to the [Flood Control District] on March 10, 2022 and the first work in designated floodplains starts today," Del Rio wrote to Pima County Administrator Jan Lesher in an email. "As emphasized in my prior letters, this work is entirely on Rosemont's private property and will not involve any significant storm-water diversions that could impact adjacent property owners."
Following Del Rio's letter, the Center for Biological Diversity, along with Western Mining Action, Save the Santa Ritas, and the Sierra Club's Grand Canyon chapter, filed a notice of intent – a prelude to a federal lawsuit—against Rosemont, arguing the company should cease and desist its clearing and grading operations because by dumping debris into a dense network of ephermeral streams protected by the Clean Water Act, the company must get permission from federal officials, known as as a Section 404 permit. If the company refuses, it's violating federal law, they argued.
"After years of declaring little or no interest in the western slopes of the Santa Rita Mountains, Rosemont is now showing their true hand,” said Gayle Hartmann, board president of Save the Scenic Santa Ritas in April. "They want to pursue complete and utter destruction of the ridgeline and slopes of the northern Santa Ritas. An almost certain outcome would be serious impacts to our already fragile watershed, in particular washes that support the Santa Cruz River. We’re not going to stand by and let the company ignore federal law as they significantly deface a beloved, local sky island."
Along with the Army Corps, the group also informed officials at the Environmental Protection Agency, and the Arizona Department of Environmental Quality of their intent to sue.
Aerial photos taken by the center in mid-April showed soil and rocks spilling into and filling portions of a wash as construction had already begun.
On May 3, Hudbay lawyers moved to dismiss the challenges, telling Soto the company voluntarily surrendered the Section 404 permit. As part of this filing, they included a terse letter from Del Rio to Tori White, the Operations and Regulatory chief at the Army Corps of Engineers, detailing the change.
"Given the status of the permit, including the uncertainty about its reinstatement, Rosemont decided to voluntarily surrender the permit," wrote Hudbay's attorneys.
Court order has 'no effect' after Rosemont abandons permit
Soto wrote that while the tribes and environmental groups pushed to require the Corps of Engineers to draw up a new environmental impact statement outlining Copper World's effects on the Santa Ritas, that "order would have no effect."
"Rosemont has given up the permit and does not ask that it be reissued," Soto wrote. "There would be nothing for the Corps to reevaluate or to consult with the tribes about. The sole relief plaintiffs seek, an order vacating the permit and remanding to the Corps for reevaluation and consultation, has been rendered unavailable now that Rosemont has surrendered the permit."
While the tribes and environmental groups have pushed against this reasoning, arguing that Rosemont can't voluntarily surrender the permit, Soto wrote " it is well accepted that, when a permit is no longer effective, the related claims become moot."
Soto also rejected the reasoning that allowing Rosemont to abandon the Section 404 permit would "eviscerate" the Clean Water Act, writing that Rosemont's obligation to pursue the permit has "always risen solely on account" of the Clean Water Act.
"If after surrendering the permit Rosemont were to improperly discharge pollutants" into Waters of the United States, they would violate the Clean Water Act "and there would be grounds for the Corps to initiate an enforcement action and for plaintiffs to file a citizen suit under the CWA. It does not follow that, because Rosemont has surrendered the permit, it is immune from penalties for CWA violations," he wrote.
Soto noted that on May 23 and May 24, the Corps of Engineers would conducting site visits, and Rosemont told the court in a status report, "while preparing for the visit, it noticed that native material comprised of soil and rocks had been placed in or inadvertently fallen into washes within the utility corridor for the Rosemont Copper Mine Project."
"Rosemont reported that the impact was small, that it has already removed the material, that it is restoring the washes to their prior condition, and that it has disclosed the incident to the Corps," Soto wrote.
Soto also rejected the arguments the original Rosemont open-pit mine and the newer Copper World project are inextricably linked. Rather, the two project had "independent utility," and are not "connected or cumulative actions" under the National Environmental Policy Act. Under NEPA, the tribes and environmental groups argued, Soto could require the Army Corps to prepare a new Environmental Impact Statement, further delaying the project.
Soto said Copper World is "temporally separated from the Rosemont Mine Project, is in a different location and, unlike the Rosemont Mine Project, is wholly on land that Rosemont privately owns. The record reflects that neither project depends on the other project, and each project could take place without the other," he said.
"Because the projects are not connected, the Corps’ non-discretionary duty to prepare a supplemental EIS is not triggered by Rosemont’s activities within the Copper World Project and the Corps is not required to consult with the tribes pursuant" to federal law, he said.