The latest twist in the battle over building the nation’s third largest open-pit copper mine in Southern Arizona’s Santa Rita Mountains has derailed Hudbay Mineral Inc.’s mining operations and left the Canadian corporation on the losing end of a court decision.
On Thursday, the 9th U.S. Circuit Court of Appeals upheld a 2019 ruling by federal judge James Soto in Tucson that stopped the international mining giant’s Rosemont mine operations. Hudbay had appealed that decision.
The court agreed with Soto that the U.S. Forest Service erred in approving the mining corporation’s claims to mining rights on lands for waste-rock dumping within the Coronado National Forest.
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The court’s opinion clarified that there was no dispute over Rosemont Copper Company, a Hudbay subsidiary, “having valid mining rights on the land” where the 3,000-feet deep and 6,500-feet wide open-pit mine would be dug in the mountains south of Tucson.
However, the court upheld Soto’s ruling that the Forest Service decision to give the corporation rights “to dump 1.9 billion tons of waste rock near its pit, on 2,447 acres of National Forest land” fell outside federal mining laws.
The court additionally affirmed the district court’s opinion that the Forest Service “acted arbitrarily and capriciously in approving the entirety of Rosemont’s” mining plan of operations in its Final Environmental Impact Statement and recorded decision.
When Hudbay’s mining operations stop after 20-25 years, the corporation’s massive waste rock in the Coronado National Forest would be 700-feet deep and “occupy the land in perpetuity,” the court said.
The ruling stems from the Center for Biological Diversity’s lawsuit to stop Hudbay’s mining operations. The Tohono O’odham, Pascua Yaqui and Hopi tribes, as well as a coalition of environmental groups that includes Save the Scenic Santa Ritas, the Arizona Mining Reform Coalition and the Sierra Club’s Grand Canyon chapter, are also parties to the suit.
A separate legal action was filed in April by three tribal nations seeking a temporary restraining order to stop the corporation from bulldozing and clearing lands in the Santa Rita slopes sacred to the Tohono O’odham, Pascua Yaqui and Hopi tribes. Hudbay has christened that project Copper World and is building in the slopes opposite the eastern mountain side targeted for the Rosemont mine pit.
Hudbay officials were swift to release a media statement following the May 12 court ruling on its Rosemont mining plans.
“While Hudbay reviews the Decision, in any event, the company will continue to pursue its alternative plan to advance its Copper World project.”
The Center for Biological Diversity celebrated the decision as a win for preserving forest land sacred to Indigenous communities and vital to protected animals that live in the critical habitat.
“This momentous decision makes it clear that Hudbay’s plan to destroy the beautiful Rosemont Valley is not only a terrible idea, it’s illegal,” said Allison Melton, an attorney at the center, in a news release.
“The Santa Rita Mountains are critically important for Tucson’s water supply, jaguars, ocelots and many other species of rare plants and animals. We won’t let them be sacrificed for mining company profits.”
Tohono O’odham Nation Chairman Ned Norris Jr. blasted the mining corporation, calling on Arizonans to rally against mining in lands that could not only destroy Native American heritage, but also contaminate protected U.S. waterways.
“This landmark decision further validates that Rosemont’s foreign owners have neither the legal right nor the valid mining claims for their proposed plan to destroy sacred sites beneath a mountain of poisonous mine waste,” said Norris in a press statement to Earthjustice, a nonprofit environmental law group.
The land and waters at risk in the range are sacred to Indigenous people who have buried their ancestors and worshipped in these mountains and foothills for generations. The mountains are home to Hohokam burial grounds and a historic Hohokam village.
“The ruling thoroughly dismantles the error-riddled process and reinforces the importance of protecting these sites and the entire region’s water supply,” Norris said. “As decisive as this decision is, Rosemont’s foreign investors will likely continue to try and profit through environmental and cultural destruction. We must not allow this to happen.”
The appeals court panel also agreed with Soto basing his 2019 decision on laws that restrict mining companies’ rights to occupy federal lands only in areas where minerals have been found.
“Indeed, based on a conclusion that there are no valuable minerals on the claims, the court held that the claims are actually invalid,” the opinion said.
However, the panel cited a slight difference in reasoning with the district court judge relying on a conclusion that no valuable minerals exist on the claims for land. “Rather, we hold that the claims are invalid because no valuable minerals have been found on the claims,” the court said.
The panel said that it did not know what the Forest Service would have decided on the mining claims had the federal agency understood that the corporation had no rights beyond those granted in mining law and “that Rosemont’s mining claims are invalid under the Mining Law.”
The battle endures though — the panel noted that the Forest Service, with a broader understanding of mining law, could decide whether other regulations apply to Hudbay’s proposal to occupy federal lands for waste-rock dumping, and, if applicable, whether the federal agency would allow the mining plan.
The regulation at issue is known as Part 228A, which outlines the Forest Service’s powers to implement mining law and applies to use of National Forest lands for mining. Under the regulation, mining companies with valid mining claims must submit a mining plan of operations for Forest Service approval.
In a dissenting opinion, one of the panel judges cited the regulation as a reason to reverse and remand for the district court to review the Forest Service decision under Part 228A. She wrote that the “lawfulness of waste-rock disposal did not depend on whether the mine operator has valid mining claims to the disposal area.”
The panel majority instead decided to remand the issue to the Forest Service to decide how to move forward based on the regulation, however, now informed on the court’s “holding that Rosemont’s mining claims on the 2,447 acres are invalid under the Mining Law.”
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