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Judge tosses out Rosemont mine plan, blocks construction

Cites 'magnitude of errors' in Forest Service review; Enviros hail 'critical victory'

A federal judge ruled Wednesday that the U.S. Forest Service "improperly evaluated and misapplied" federal law, leading to "an inherently flawed" approval of a long-controversial open-pit copper mine in the Santa Rita Mountains about 30 miles southeast of Tucson.

Local environmentalists cheered the decision, while the mining company said it would appeal the judge's ruling.

In a dense 37-page decision, U.S. District Judge James A. Soto found several problems with the Forest Service’s 2017 approval of the mine, and the 2013 final environmental impact statement which cleared the way for the approval, and he immediately blocked the company, Toronto-based Hudbay Minerals from beginning construction on the proposed $1.9 billion mine. 

"Given the magnitude of the errors discussed herein, allowing the Rosemont Mine to proceed while the Forest Service conducts further proceedings on remand is unwarranted," Soto wrote.

Soto’s decision will be challenged, but in the meantime, Hudbay’s 30-year operations plan for the mine will be sent back to the Forest Service. 

The open-pit mine mine would directly affect more than 950 acres of land, and the company plans to dump around 1.9 billion tons of waste rock on nearly 2,500 acres of land in the Coronado National Forest, part of Southern Arizona’s "Sky Islands," and part of the range of the endangered southern jaguar and the ocelot a as well as nearly a dozen other endangered and critical species. Overall, around 3,653 acres of the Coronado National Forest will be impacted by the mine's operation. 

Under the plan, Rosemont would blast a mile-wide, half-mile deep pit to extract rock over the next 20 to 25 years, and in the course of digging through 3,000 feet of geological material, the mine will "penetrate the wall of the groundwater table" under the mountains, and the company plans to pump groundwater out, Soto wrote. However, after the mine ceases operations, the company plans to turn off the pumps, and the pit will become as "hydraulic sink" and fill with groundwater. 

The decision Wednesday was immediately praised by environmental groups, who have led three of the five different lawsuits filed to block the mine. This includes Save the Scenic Santa Ritas, the Center for Biological Diversity, the Arizona Mining Reform Coalition and the Sierra Club’s Grand Canyon Chapter.

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Hudbay, a Canadian-owned corporation, did not respond to TucsonSentinel.com's request for comment Wednesday, but issued a brief press release Thursday morning.

Two other lawsuits were filed by the Tohono O’odham Nation, the Pasqua Yaqui Tribe, and the Hopi Tribe against the Forest Service and the U.S. Army Corps of Engineers. One lawsuit argued that the planned mine would disturb and desecrate 33 burial grounds likely containing the ancestors of the tribes, while the second challenges the U.S. Army Corps of Engineer's decision to clear the mine's operation under the Clean Water Act.

All of these lawsuits have been consolidated into three cases under Soto.

'Critical victory' hailed by environmentalists

"This is a crucial victory for jaguars and other wildlife that call the Santa Ritas home," said Randy Serraglio, a conservation advocate with the Center for Biological Diversity. "The judge’s ruling protects important springs and streams from being destroyed. We’ll move forward with everything we’ve got to keep protecting this Southern Arizona jewel from this toxic mine," he said.

Gayle Hartmann, president of Save the Santa Ritas, said she was "heartened" by the decision.

"We are heartened that the federal judge recognized that the Forest Service fell short in their duty to protect public lands and resources," she said. "Our public lands are a public trust, and we must not allow them to be illegally used to enrich a foreign mining company." 

Judge Soto wrote that "in light of the extensive briefing, voluminous record, and time constraints," he would not review "every single argument sprawled across all five cases," but rather focused on three specific issues: whether the Forest Service "improperly evaluated and misapplied" Rosemont’s right to use the land’s surface, the "regulatory framework" of that analysis and how the agency could "regulate activities" in association with those surface rights.

"These defects pervaded throughout" the agency’s Final Environmental Impact Statement and Record of Decision, Soto wrote.

Part of his ruling focused on how the Rosemont Mine would use public land destined for the mine's tailings and waste rock. 

While the Forest Service based its decision on the company’s argument that it needed 2,447 acres because there was a valuable mineral deposit below, Soto said that the “administrative record shows no basis upon which the Forest Service could find Rosemont discovered a valuable mineral deposit within the facilities, tailings, and waste rock areas.”

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"In fact, the evidence in the FEIS shows the absence of any such deposit within those lands,” he said. And, he argued that the company’s plan to dump 1.9 billion tons—waste rock and well as tailings – there is “a powerful indication that there was not a valuable mineral deposit underneath that land." 

"The unauthorized dumping of over 1.2 billion tons of waste rock, as well as about 700 million tons of tailings, and the establishment of an ore processing facility no doubt constitutes a depredation upon Forest Service land," he wrote. "The administrative record shows no basis upon which the Forest Service could find the Mining Laws would authorize this activity."

Hudbay: Judge 'misinterpreted' law

"We are extremely disappointed with the court's decision. We strongly believe that the project conforms to federal laws and regulations that have been in place for decades," said Peter Kukielski, Hudbay's interim president, in a press release Thursday. "We will be appealing the decision as we evaluate next steps for the Rosemont Project."

"Hudbay believes that the Court has misinterpreted federal mining laws and Forest Service regulations," the release said. The company said that approval of the mining plan came "after a thorough process of 10 years involving 17 co-operating agencies at various levels of government, 16 hearings, over 1,000 studies, and 245 days of public comment resulting in more than 36,000 comments."

Since the mine was proposed in 2007 it has faced a series of challenges, both legal and political, including a resolution passed in April by the Pima County Board of Supervisors opposing the mine. 

In a memo to supervisors, Pima County Administrator Chuck Huckelberry criticized the U.S. Army Corps of Engineer's approval of the mine, calling it "bizarre and seriously flawed logic." 

The agency argued that the groundwater affected by the mine was outside of their scope of analysis, wrote Huckelberry. "This is perhaps the most bizarre rationale I have experienced in my 40 plus-year career in public service," he wrote.

The Rosemont Mine faces several other legal challenges, as well. Soto did not rule on the lawsuit that challenged the Corps of Engineers permit for the mine under the Clean Water Act, the Center for Biological Diversity said. 

And, a challenge issued by the Center for Biological Diversity arguing that a "biological opinion" from U.S. Fish and Wildlife Service that said the mine's operation would not jeopardize threatened and endangered species in the Santa Ritas will also receive a later decision, Soto said. 

"Today’s decision by Judge Soto will help ensure that Arizona’s communities and the environment will be protected from the ravages of this ill-conceived and devastating mining proposal," said Roger Featherstone, director of the Arizona Mining Reform Coalition. "Future generations will look back at these proceedings and marvel that our organizations and tribal governments needed to go to court to force the U.S. Forest Service to do what they are chartered to do — protect our water and natural heritage."

Permit signed in March

The U.S. Army Corps of Engineers on March 8 signed what was at the time the final permit needed to clear the way for construction on the proposed mine east of Green Valley and Sahuarita. Approval of the Mine Plan of Operations was the final step, though opponents of the mine, which has been in the works for 12 years, vowed a court battle.

The 404 permit allowed Hudbay, of Canada, to use Coronado National Forest land to place tailings on about 2,500 acres next to its mine site on the eastern side of the Santa Rita Mountains south of Tucson.

August Resource, the mine's original owner, filed a Mine Plan of Operation in 2007, two years after buying the land. The Coronado National Forest finished a 10-year Environmental Impact Statement in 2017, and produced a Record of Decision on the project.

The project has been contentious from the outset, with detractors concerned over water use, the effects on tourism and the environment, among many other issues. Proponents pointed to jobs and new mining methods that will dramatically cut down on water use. Augusta Resource sold the mine to Hudbay in 2014.

The company has touted the economic benefits of what they call "one of the largest construction projects in the history of southern Arizona." According to a press release in March, the $1.9 billion project would employ up to 2,500 people during the construction phase, with 500 permanent jobs.

Mile-wide open-pit mine

The proposed open-pit copper mine would be about 6,500 by 6,000 feet – more than a mile wide in each direction – with a final depth up to 2,900 feet, according to the Forest Service’s environmental impact statement on the Rosemont project. Of the 1.96 billion tons that would be excavated from the site, about 700 million tons would be ore and the remaining 1.2 billion tons would be waste rock.

The Rosemont mine is expected to produce an estimated 5.88 billion pounds of copper, 194 million pounds of molybdenum, and 80 million ounces of silver. This could represent approximately 11 percent of U.S. copper production and less than 1 percent of world copper production, based on 2011 statistics.

The mine would be in operation from 24 to 30 years, generating an estimated $136.7 million in state and local taxes while creating a projected 434 direct jobs and 1,260 indirect jobs per year in Pima County alone, the Forest Service report said.

The proposed project includes more than 5,400 acres of combined private lands, National Forest System lands, and areas administered by the Arizona State Land Department.

In the lawsuit, the groups argued that the mine will disrupt watersheds in the area, consuming up to 4.8 million gallons per day, mostly supplied by groundwater wells in the Santa Cruz valley. Moreover, as the mine actively pumped water, it would gradually disrupt the region’s water system, acting as a “hydraulic sink to the regional aquifer in perpetuity.”

The group estimated that the mine would ultimately use more than 30 billion gallons of water. For comparison, in 2000, the city of Tucson used about 41 billion gallons of water.

Rep. Raul Grijalva, D-Tucson, said last year that while Hudbay talks about the economic benefits of the mine, “it ignores its negative environmental impacts that will cause irreparable damage to wildlife habitats, water quality, and land.”

“The health, well-being, and cultural needs of Southern Arizona’s residents should always come before the profits of a mining company,” Grijalva said.

Fred Palmer, a senior fellow at the Heartland Institute, said he believes that the pros of the mine outweigh its cons on this site, which is federal land sitting on a “terrific” copper deposit.

“It’s inherently within the public interest that this deposit be developed, notwithstanding the protestations from the tribes, who I deeply respect and the environmental community,” he said.

But Hartmann of Save the Scenic Santa Ritas said the value of the Coronado National Forest, where the mine would be located, is too great to risk.

“This is a beautiful place that has natural attributes … including streams, wildlife, beautiful oak trees, places to camp, a scenic route along the eastern side of the Santa Rita Mountains that people in southern Arizona have enjoyed for centuries,” Hartmann said.

“That value is much, much greater than anything that could come from an open-pit mine,” she said.

Green Valley News Editor Dan Shearer and Cronkite News reporter Sarabeth Henne contributed background to this report.


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Rob Scott/Cronkite News

Opponents of the Rosemont Copper mine, which would be situated here in the Santa Rita Mountans, said studies on the mine have overlooked its environmental impacts.

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