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Rosemont Mine rollercoaster: Trump-era rules overturned, so Hudbay radically overhauled mining plan

The 15-year struggle over proposed mining activities in the Santa Rita Mountains continued to play out in June, as the Biden administration reversed a Trump-era loosening of environmental rules that would have allowed Toronto-based Hudbay Minerals Inc to dump mine waste into washes on the proposed Rosemont Mine site.

That, in turn, led Hudbay to radically alter its mining plans for sites on both the east and west sides of the mountain range as it continues to bulldoze on privately owned property.

On June 2, Assistant Secretary of the Army for Civil Works Michael L. Connor informed Earthjustice, one of the environmental groups leading resistance to Hudbay’s mining projects, that the Army Corps of Engineers had rescinded the Rosemont Copper Mine approved jurisdictional determination (AJD) that cleared that way for the project to move forward. The action was the result of a change to the Navigable Waters Protection Rule regarding definitions of “Waters of the U.S.”

Waters of the U.S. (WOTUS) is a legal designation for waterways considered important enough for government and environmental oversight.

The decision by the corps came in the wake of a series of decisions in federal court that allowed Rosemont Mine to move forward despite a 2019 ruling that overturned the U.S. Forest Service’s earlier project approval.

In March 2021, the corps determined the ephemeral streams and washes on the proposed mine site did not qualify as WOTUS and therefore were not subject to Clean Water Act regulations.

But recent negation of those Trump-era rules means Hudbay must now abide by pre-2015 definitions of WOTUS.

The corps also determined that Hudbay must reapply for permits in consultation with three tribes involved in litigation: the Tohono O’odham, Pascua Yaqui and Hopi.

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In a letter to Earthjustice attorney Stu Gillespie, who represents the tribes, Connor wrote that his office considered new information, including the vacated Navigable Waters rule and “technical errors” by the Environmental Protection Agency, and that the AJDs “were finalized without adequate coordination with the EPA or formal consultation with the Tribes.”

“The Tribal consultation request should have been honored, particularly in light of the Federal government’s trust responsibility to Tribal Nations as highlighted in President Biden’s January 26, 2021, memorandum entitled Tribal Consultation and Strengthening Nation-to-Nation Relationships,” the letter states, concluding that if Hudbay continues to discharge into jurisdictional waters without “appropriate authorization,” it “may be in violation of the Clean Water Act.”

A lawsuit filed by the tribes in the federal district court in 2019 stated the mines would disturb and “desecrate” 33 ancient Native American burial grounds and adversely impact the tribes’ “historic properties, human burials, sacred sites … villages and graves of ancestors and traditional resource gathering areas … These impacts are severe, irreversible, and irretrievable … [The Rosemont Mine] would destroy this historical and cultural foundation [of the Tribes], diminish tribal members’ sense of orientation in the world, and destroy part of their heritage.”

The project would puncture the aquifer beneath the mine site and, once mining stopped, the pit would fill with toxic water.

But Hudbay remains adamant that it will continue to move forward with its plans, claiming the corps “never found that there are WOTUS on site and our own analysis shows that there are none.”

“By their terms, and consistent with longstanding Army Corps policy, the AJDs are valid for five years ‘unless new information warrants revision,’” the company stated in a recent email to the Arizona Mirror. “We do not believe that the lack of consultation with the Tribes is ‘new information’ that justifies a revision. There is no legal requirement for the Corps to consult with Tribes on AJDs and their policy at the time our AJDs were issued was not to consult. This is a reasonable position considering that an AJD is a purely legal decision where input from the Tribes cannot affect the outcome.”

Earthjustice lawyers, however, relied on a completely different interpretation of the Army Corps’ action.

“I think the big takeaway from (the) letter is those AJDs are invalid,” Earthjustice attorney Caitlin Miller told the Mirror. “Rosemont can’t rely on them: They are ineffective. If Rosemont wants to take any action in any of the waters covered by the 404 permit, they have to get a new jurisdictional determination. That determination will be made under that pre-2015 WOTUS definition. Under that definition, those are Waters of the United States.”

Two projects merge into one phased 44-year plan

Until recently, Hudbay pursued two projects affecting thousands of acres on both sides of the Santa Rita mountain range.

To the east, Rosemont would have directly impacted 955 acres, leaving a 3,000-foot-deep pit measuring 6,000 feet in diameter after 20-25 years of mine life. Also left behind would be nearly 2 billion tons of mine waste on about 2,500 acres of Coronado National Forest.

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After years of legal wrangling, Hudbay shifted its attention to the west side of the Santa Ritas with its Copper World project. It will be built on private property, and its five open-pit mines would be subjected to far less environmental regulation.

In the wake of the recent Army Corps decision, though, Hudbay announced an updated plan to its investors via a June 6 press release.

The new model, dubbed the Copper World Complex, is a two-phase project beginning on approximately 4,500 acres of private land on the west side of the Santa Ritas, although Hudbay expects to purchase more land as it becomes available.

The first phase would consist of four open pits and while the second phase would expand two of those pits onto public land that was previously the Rosemont site.

Mining activities would continue over a 44-year lifespan and “create more than 500 direct jobs and up to 3,000 indirect jobs in Arizona,” according to Hudbay.

The company claims it will contribute more than $3.3 billion in U.S. taxes, as well as $660 million in state taxes and $590 million in property taxes that “directly benefit local communities.”

The new configuration would also simplify the permitting process: The first phase would only require state and local permits and allow Hudbay a 16-year window to get federal permits for the expansion onto public lands.

When the projects merge, the ridgeline of the Santa Ritas would be altered forever.

The two sites share a common utility corridor that connects them. Earthjustice believes that corridor is covered by the now-invalid AJDs and should halt mining activities on both sites.

“By our reading, it does impact Copper World to a certain extent,” Miller said. “If Rosemont wants to work on that utility corridor and fill the washes, the (corps) says it’s going to have to get a new jurisdictional determination.”

Resistance from local jurisdictions

Hudbay’s announcement also spelled out potential roadblocks to the project, including obtaining required permits to develop the Copper World Complex; delays or disruption due to litigation challenging the permitting requirements; anticipated metals prices and costs of production; supply and demand for metals, as well as maintaining good relations with the communities in which the company operates.

The City of Tucson and Pima County are adjacent communities that will be affected by mining activities, and both have vowed to fight mining in the Santa Ritas as long as is practicable.

Earlier this year, the City of Tucson voiced opposition to Hudbay’s use of Central Arizona Project storage ponds southwest of the city.

On May 24, U.S. Rep. Raúl Grijalva sent a letter to officials in the Assistant Secretary of the Army’s Office, adding his voice to efforts to halt mining activities until Hudbay and the Forest Service consult with the tribes and address environmental issues.

Grijalva, a Tucson Democrat who chairs the House Natural Resources Committee, has advocated for updating the General Mining Act of 1872 that allows extraction companies access to resources without significant compensation to the state or local communities.

In April, Grijalva and Sen. Martin Heinrich (D-N.M.) advanced the Clean Energy Minerals Reform Act, which in part seeks to establish royalty payments for minerals taken from public lands, reinforces requirements to consult with tribes prior to receiving mining permits, gives federal land managers more authority to protect endangered species and cultural resources, strengthens environmental standards and establishes a fund to help communities clean up abandoned mine sites.

“Minerals like copper and lithium are essential for our clean energy future, but that doesn’t mean we should sacrifice our environment, health, and sacred or special places just to get them,” Grijalva stated at the time. “Our current mining law was put in place before we even knew what a car was, much less an electric one. By keeping this outdated system going, we’re telling mining companies it’s okay to wreak total havoc on our environment and then leave American taxpayers to foot the cleanup bill. Modernizing this relic of a law isn’t extreme or anti-industry—it’s just common sense.”

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Pima County adopts third resolution against Rosemont

On June 2, Pima County Supervisor Adelita Grijalva, Raúl Grijalva’s daughter, put forth a resolution voicing the county’s opposition to the project. It is the third such resolution passed by the county, but will not likely have a significant effect on the project beyond sounding a warning to citizens and officials on a state and federal level.

“It’s frustrating, the county has no authority,” Adelita Grijalva said. “They still use the jobs argument, and it will always come up. It’s not worth it: Pollutants will affect people’s health and livelihoods and the damage will always be there.”

She added that, at one point, the county may have been able to purchase property now owned by Hudbay, but funding was not available.

The resolution passed by a 4-1 margin, with Supervisor Steve Christy supporting Hudbay because the mining activity would bring “needed economic activity” to southern Arizona.

Christy said that he has been around for all three resolutions against the project, which “shows that there’s absolutely no effect” as a result of the resolutions. He also stated his belief that “Hudbay will prevail” against “extreme environmentalists.”

“The final ultimate end of this whole saga rests in 18 different departments in Washington, D.C., and all the courts do is delay it,” he said. “Mining is in the heart and soul of Southern Arizona. We have a modern and much needed economic development opportunity that we have been slapping around like a pinata.”

Prior to the discussion and vote on the resolution, Gayle Hartmann, president of Save the Scenic Santa Ritas, a nonprofit organization leading opposition to Rosemont, listed the damage that cannot be undone now that Hudbay is moving forward with preparations for the Copper World Complex.

She highlighted the negative effects to air quality in the region, the environmental damage left behind that will be the responsibility of local communities to clean up, as well as “squander[ing] billions of gallons of our precious groundwater.”

“Everyone needs to understand that the ridgeline of the Northern Santa Rita will come down: It will be destroyed,” she said. “I think the real concern here is the damage will be there forever, and our grandchildren and great-grandchildren are going to say, ‘How could you let this happen?’ I think we have to do everything we can to prevent that from happening.”

Hudbay declined to comment on the Pima County resolution.

This report was first published by the Arizona Mirror.


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Paul Ingram/TucsonSentinel.com

An aerial photo of Rosemont's new effort to dump tailings and other rock waste into dry streams along the west-side of the Santa Rita Mountains.