Appeals court refuses new hearing on block of Rosemont Copper Mine
A federal appeals court rejected Rosemont Copper's bid for a new hearing on its mining project southeast of Tucson, keeping a ruling in place which effectively halted the long-controversial mine in the Santa Rita Mountains.
The Canadian company was seeking a review of an appeals court decision that has blocked the open-pit mine 30 miles from Tucson, asking for a larger panel of judges to take another look at the case.
The judges of the 9th Circuit Court of Appeals refused that request, leaving the company with the option of appealing to the U.S. Supreme Court.
Rosemont's parent corporation has refocused its efforts on a neighboring copper mining project in the Santa Ritas, known as Copper World.
In May, the 9th Circuit upheld a ruling by U.S. Judge James A. Soto, who said in 2019 that the U.S. Forest Service "improperly evaluated and misapplied" federal law, leading to "an inherently flawed" approval of the open-pit copper mine which was intended to grow as large as a mile wide. The decision hinged on Rosemont's plan to deal with nearly 1.25 billion tons of waste rock and 660 million tons of tailings, which would be dumped on national forest land in piles up to 700 feet deep.
In a 2-1 decision, the three-judge panel agreed with Soto, writing that while the Forest Service previously approved Rosemont's operations plan, it did so "without regard to whether it has any mining rights on that land," and the Forest Service "assumed" under mining law that Rosemont had "valid mining claims on the 2,447 acres it proposed to occupy with its waste rock."
In late July, lawyers for Hudbay Minerals, Inc., the Toronto company that owns Rosemont, sought an appeal and asked for an "en banc" hearing involving a larger number of judges of the appeals court.
Judges William A. Fletcher and Eric D. Miller rejected Hudbay's appeal on August 22, holding fast to the opinion they authored in May against the mining company. Judge Danielle J. Forrest—a Trump appointee who ruled in favor of Hudbay in May — voted to grant Hudbay's petition for new hearing, as well as a rehearing involving a larger panel of judges. But Forrest was alone in her position, as the court's remaining 28 judges voted against a new hearing.
"The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc," the court wrote.
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 a 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 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.” The mine’s tailings would bury thousands of acres within the range of the endangered northern 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.”
"This decision reaffirms the 9th Circuit ruling that blocked Rosemont from destroying sacred tribal sites and the region's water supply," said Heidi McIntosh, managing attorney for EarthJustice.
She noted that aside from Forrest, "Not one other judge asked for a rehearing en banc because the court's decision is clear-cut and consistent with longstanding statutes and cases."
"Rosemont will have to find another solution to dispose of its 1.9 billion ton mountain of waste rock and mine instead of foisting the problem on the Tribes and public lands," McIntosh said.
"From here, the only way up is to the U.S. Supreme Court," said Stu Williams, executive director of Save the Scenic Santa Ritas.
In a statement released after the decision, Hudbay said the company "continues to believe that the 9th Circuit should have answered the central question of the case: which regulations apply to mining operations on Forest Service land."
"We are evaluating options for seeking further review and focused on advancing our Copper World project on private land," the company said. "Hudbay continues to believe that the 9th Circuit should have answered the central question of the case: which regulations apply to mining operations on Forest Service land."
While the Rosemont mine has been moribund over legal challenges, Hudbay has shifted its efforts to the western slopes of the Santa Rita Mountains on a chunk of private land once known as the Helvetia Mining District.
Copper World faced its own legal challenges earlier this year after a coalition of environmental groups and Native American tribes filed two lawsuits, each arguing Rosemont was violating the terms of a Section 404 permit granted under the Clean Water Act by the U.S. Army Corps of Engineers.
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 Tohono O'odham Nation, Pascua Yaqui and Hopi tribes, filed a temporary restraining order asking Soto to block Rosemont from tearing up thousands of acres, spanning almost four miles.
However, in a legal maneuver lawyers for Rosemont told Soto the company agreed to voluntarily surrender the permit, making the challenges moot.
Soto agreed with Hudbay, and dismissed the two lawsuits. "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," he wrote.
Since the suit, Hudbay has moved forward with grading and plans to remove significant parts of the ridge-lines along the west side of the Santa Ritas.