The Scraping of the Santa Ritas: Hudbay wins latest court battle over the Rosemont Mine as heavy equipment continues to roll in the Santa Rita Mountains

The same judge who put the skids on the Rosemont Mine project in 2019 has dismissed a pair of lawsuits attempting to halt mining activities in the Santa Rita Mountains filed by several environmental groups and three southern Arizona tribes.

On May 23, U.S. District Court Judge James A. Soto denied the groups’ request for a temporary restraining order to stop work at the Copper World site on the western slopes of the Santa Ritas and its lawsuit alleging Rosemont was violating portions of the Clean Water Act (CWA).

The judge ruled the lawsuit “moot” after the mining company voluntarily vacated a Section 404 permit granted under the CWA by the U.S. Army Corps of Engineers in March 2019. The permit would have allowed Toronto-based Hudbay Minerals Inc to “discharge dredged or fill materials into potential waters of the United States” on 3,653 acres of the Coronado National Forest.

Soto argued that, in the wake of the Rosemont mine voluntarily vacating its permit, his court lacked jurisdiction, since the absence of a valid permit precluded legal relief for the plaintiffs, who included the Tohono O’odham Nation, Pascua Yaqui and Hopi tribes in addition to Tucson-based Center for Biological Diversity, Western Mining Action, Save the Scenic Santa Ritas and the Sierra Club’s Grand Canyon chapter.

“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, and the relief Plaintiffs request is no longer available,” Soto wrote. “Accordingly, these cases are moot and must be dismissed for lack of jurisdiction.”

The latest court decision in the 15-year battle to stop the Rosemont Mine project gives Hudbay free rein to continue work on its property and may open the door for a future that joins two projects over the north ridge of the Santa Ritas.

“This is a disappointing ruling that allows Rosemont to evade the regulatory process and bedrock environmental laws,” said Stuart Gillespie, senior attorney for Earthjustice. “We all pay the price as Rosemont bulldozes tribal cultural properties and pollutes headwater streams in the Santa Rita Mountains.”

Copper World is a project proposed on the west side of the mountains that would be developed on land owned by Hudbay, part of the Helvetia Mining District, and would eventually consist of two large pits and three “tailings” piles, creating 64 million tons of waste.

Waste rock is material with no commercial value, while tailings are the materials left over from the extraction process that may contain traces of valuable minerals not worth processing.

Hudbay has quietly acquired 4,500 acres of land in the area and says it contains sufficient copper to support a 15-year mine life.

On May 12, a three-judge panel of the Ninth Circuit Court of Appeals upheld a ruling Soto handed down in July 2019 that overturned a June 2017 approval of the project by the U.S. Forest Service.

The ruling is based on Hudbay subsidiary Rosemont Mining Company’s intent to dump nearly 2 billion tons of mining waste on National Forest land.

In his earlier decision, Soto determined the U.S. Forest Service erred in its approval, citing the “arbitrary and capricious actions of the Forest Service.” 

Hudbay appealed the ruling, but the panel voted 2-1 to uphold Soto’s decision.

While the courts do not dispute Hudbay’s right to mine on federal property where it holds valid mining claims under Arizona’s Mining Law of 1872, what Hudbay will do with the mining waste was at the heart of the lawsuit.

Hudbay submitted its preliminary mining plan of operations in 2007 for the proposed open-pit mining operation on land it has “undisputed mining claims” on, located partly in Coronado National Forest.

The resulting pit would be 3,000 feet deep and 6,500 feet wide, covering more than 950 acres, and producing more than 5 billion pounds of copper over the course of two decades or so.

The pit would puncture the aquifer below, requiring continuous water pumping throughout the life of the mine. Once mining operations ceased, the pit would fill with mineral-heavy, toxic water over the course of several decades.

The operation would produce an estimated 1.25 billion tons of waste rock and 660 million tons of tailings on 2,447 acres of National Forest land, creating a 700-foot-deep pile of waste that would “occupy the land in perpetuity.”

Rosemont has a legal right to dig the proposed pit, but because there are no “valuable minerals” on the federal property it proposes to use as a waste dump, the courts have halted the project, barring an alternative plan.

Hudbay had argued that the “proposed occupation” of the land would not be permanent, as eventually the Rosemont waste rock would be “earth mingled with earth.”

Judge William A. Judge Fletcher disagreed. 

“The argument that the proposed occupation would not be permanent does violence to the English language,” he wrote, as “under any ordinary definition, the layer of waste rock will ‘occupy’ the land on which it sits, and will do so permanently.”

“No person or structure will ever again touch the surface of that land,” Fletcher wrote. “Rosemont’s 1.9 billion tons of waste rock will occupy that land forever, obstructing countless alternative uses.”

The Forest Service argued that, under mining law, it is not required to “assess the validity of Rosemont’s mining claims before approving Rosemont’s mining plan,” but the appellate court determined that the company’s claim to the property is not covered by Arizona’s Mining Law of 1872.

Fletcher further ruled that the Forest Service misinterpreted Section 612 of the Surface Resources and Multiple Use Act of 1955, effectively amending both the act and the mining law to give the mining company what it wanted.

“The Mining Law allows mining companies to occupy federal land on which valuable minerals have been found, as well as non-mineral federal land for mill sites, essentially free of charge,” he wrote. “But amendment of the Mining Law is a task for Congress, not for the Service, and certainly not for us.”

Judge Danielle J. Forrest wrote in a dissenting opinion that she believed it was within the purview of the Forest Service to interpret mining law at its discretion to “fill in the gaps” of the law.

“The regulations that the USFS has adopted to fill in the gaps left by the Mining Law make two things clear: (1) the lawfulness of waste-rock disposal does not depend on whether the mine operator has valid mining claims to the disposal area, and (2) it was not arbitrary and capricious for the USFS to apply [the law] to Rosemont’s proposed deposit of waste rock because on their express terms they apply to this activity as a matter of law.”

Forrest further argued that national forests were created to maximize economic activity and not to preserve public lands.

“Congress’s motivation in creating national forests was economic, not to promote ‘aesthetic, environmental, recreational, or wildlife-preservation purposes,’” she concluded.

Rosemont Mine would produce an estimated 1.25 billion tons of waste rock and 660 million tons of tailings on 2,447 acres of National Forest land, creating a 700-foot-deep pile of waste that would occupy the land in perpetuity.

In the wake of the court decision, both Hudbay and the National Mining Association (NMA) were quick to respond.

“We continue to believe that the District Court’s decision was fundamentally flawed, conflicts with more than a century of U.S. Supreme Court decisions on the Mining Law, and destabilizes the careful balance required between the vital need for responsible domestic mineral development and the preservation of certain federal lands,” wrote NMA President and CEO Rich Nolan. “More than 12 years and $100 million have been put into the permitting process and, yet, this proposed project — which could positively contribute to the realization of our country’s electrification and future energy goals — remains stalled.”

Nolan further stated that “flawed rulings like this one will only ensure the U.S. watches the global energy race from the sidelines.”

Once the appellate court’s decision was released, Hudbay doubled down on its intention to mine in the area, issuing a press release announcing it would continue to pursue development of Copper World.

In March, Hudbay informed Pima County that it would begin work on the property beginning on April 12.

Since then, the company has begun to aggressively work the property, creating roads and infrastructure that has already blocked washes and ephemeral streams in the area.

It is also preparing a preliminary economic assessment (PEA) for its investors to “demonstrate positive economics for this low-cost, long-life copper project,” a two-phase plan with the eventual goal to join the projects together.

“The first phase is expected to require only state and local permits,” Hudbay states. “The second phase … is expected to extend the mine life and incorporate an expansion onto federal lands to mine the entire Rosemont and Copper World deposits.”

In the wake of Soto’s May 24 decision, Hudbay has upped the ante, believing the decision opens the way for both projects to move forward.

“The District Court ruled in favor of Hudbay on all issues, including that Copper World and Rosemont are not connected actions under the National Environmental Policy Act and, therefore, that the Army Corps of Engineers does not have an obligation to include Copper World as part of its NEPA review of Rosemont,” the company wrote in a statement. “Hudbay expects the PEA 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.”

While the courts see the properties as two separate projects, Hudbay intends to “incorporate a two-phase mine plan with the first phase reflecting a standalone operation utilizing Hudbay’s private land for processing infrastructure and mining portions of the deposits located on patented mining claims.”

On April 4, 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 to sue over alleged violations of the Clean Water Act.

Hudbay could still seek to overturn the appellate court decision, but according to Earthjustice Senior Associate Attorney Caitlin Miller, the Ninth Circuit ruling still gives hope to the effort to stop the mines.

“That ruling is now going to require that mining companies, rather than externalizing their pollution and the cost of that pollution, they are going to have to figure out how to take care of it themselves,” she said. “It can be hard sometimes, especially when these cases go on for years. Sometimes, you take two steps forward, and then one step back, and that’s just the nature of it.”

Gayle Hartmann, president of Save the Scenic Santa Ritas, said the future is anyone’s guess.

“If the appellate court decision would have come out two years ago, I would have been ecstatic,” she said. “I don’t have much to say on the Soto decision except that I’m disappointed.”

Section 404 of the Clean Water Act regulates the discharge of fill material into “waters of the United States,” which can be defined at the discretion of the Environmental Protection Agency or the U.S. Army Corps of Engineers.

In 2020, the Trump Administration halted federal regulation of many ephemeral streams in Arizona. But in August 2021, U.S. District Judge Rosemary Marquez vacated the Trump-era rule. 

What that means for the Copper World project is not clear, but Miller said Earthjustice believes the Copper World project needs to have environmental impact reports.

“We’re not entirely sure what path this will take at this point,” Miller said. “It depends a lot on how the Forest Service decides to react to this Ninth Circuit ruling, whether or not they’re going to decide if it’s time to comply with the law and make sure that Rosemont complies with the law, or if they’re going to continue to seek additional review.”

In early May, U.S. Rep. Raúl M. Grijalva (D-Tucson) announced legislative attempts to update anachronistic mining law.

During a May 10 press conference Grijalva announced that on April 26 he had introduced the Clean Energy Minerals Reform Act with companion legislation in the Senate by Senator Martin Henrich (D-N.M.).

“We cannot risk damages to our sacred places, our wildernesses and our health,” he said. “We cannot build a 21st Century clean energy economy using a 19th Century law.”

The bill proposes tougher environmental and reclamation standards, requiring mining companies to clean up abandoned mines, lease federal property on which they mine and pay royalties on revenues gained through the exploitation of public lands.

Grijalva also noted that the cost of cleaning up environmental messes falls on the communities that support the mines and that existing law “provides all the privileges and none of the responsibilities to the mining industry.”

“The transition to a clean energy future will inevitably involve mining, there’s no question, but that doesn’t mean we should risk permanent damage to our sacred places, our wilderness, and our health,” Grijalva wrote in a May 10 press release.

According to a fact sheet released by Grijalva’s office, 50 million gallons of toxic wastewater flows from hardrock mining sites in the U.S. every day and “40% of the headwaters of western watersheds are polluted from abandoned mines.”

The extraction industry has removed more than $300 billion worth of metal from public lands, many of them being international mining interests not based in the U.S., without paying any royalties to the American people.

The fight over the fate of the Santa Ritas also comes at a time when reservoirs throughout the west are falling to historic lows and the Central Arizona Project, which distributes Colorado River water throughout Arizona, is cutting back allotments throughout the state.

Hudbay continues to move forward with its plans, though, despite widespread resistance from residents and politicians alike in southern Arizona, and the legal battles that will shape the landscape of public lands continue to make their way through the courts.

“We think they’re trying to do as much damage as possible so we’ll be disheartened and give up,” Hartmann concluded. “If this goes through, it will alter the profile of the mountains forever.”

This article originally appeared in the Arizona Mirror, an online nonprofit news agency. Find more reporting at azmirror.com.

This article appears in Jun 9-15, 2022.