On July 31, 2019, just one day before work on the Rosemont Mine was to commence near Tucson, Arizona, United States District Judge James A. Soto issued his ruling in the Center for Biological Diversity v. United States Fish and Wildlife Service. Judge Soto’s ruling halted any work on the Rosemont Mine until further notice. This decision is an enormous win for impacted residents, tribes, environmental groups, and the future of mining reform.
The Administrative Procedures Act (APA) prevents agencies from making “arbitrary and capricious,” decisions and grants courts the authority to invalidate agency actions.[1] Here, the Forest Service acted arbitrarily and “inconsistent with its own policies”[2] by ignoring that Hudbay Minerals (“Hudbay”) needed to prove their claims actually had valuable minerals.[3] Under the General Mining Law of 1872, mining claims do not become valid unless the claimant discovers minerals. Simply placing a stake in the ground and filing some paperwork is insufficient. The Court found Hudbay never intended to use their claims for mining. Instead, their Forest Service approved plan called for using the claims as a site for disposing Hudbay’s mine waste.
Thus, Hudbay’s purported mining claims had less value to them as mineral deposits than as a place to dump their tailings. And since neither Hudbay nor the Forest Service ever validated these mining claims, the Court held the Forest Service’s approval to dump waste atop them was arbitrary and capricious. Furthermore, the National Environmental Policy Act (NEPA) requires agencies to consider reasonable alternatives in an environmental impact statement (EIS).[4] The Forest Service failed to do this too. These mistakes, along with the Forest Service implementing improper regulations and misinforming the public were key factors in Judge Soto’s ruling.[5]
Judge Soto’s ruling vacated the final environmental impact statement (FEIS) that the Forest Service had granted the Rosemont Mine in 2013.[6] As a result, the U.S. Army Corps of Engineers (“Corps”) suspended the Clean Water Act permit granted to the Rosemont Mine.[7] The Corps’ permit was based on the FEIS approved by the Forest Service. Without these permits, Hudbay Minerals cannot operate the Rosemont Mine.
What is Next?
Unfortunately, Hudbay will not stop here. The Canadian company has until December 27th to file an appeal with the 9th Circuit Court of Appeals.[8] If the Appeals Court accepts Hudbay’s appeal, Rosemont Mine could face up to an additional twenty-four-month delay.[9] Hudbay has already filed several hundred new legal claims as a potential back up strategy.[10] Some of these new claims involve mill site claims, areas without valuable minerals where claimants may dispose their waste.[11]
Nevertheless, if the Court of Appeals affirms Judge Soto’s ruling, we could see improvement in resource protections from future mining projects on public lands. First, mining companies will have to prove their claims. Second, the ruling lays bare the permissive way the Forest Service deals with mining companies. This reinforces the push for reform of the Mining Law of 1872. Mining reform will provide mine claimants or lessees with the regulatory certainty they desire, safeguards for public health and the environment, and fairness for taxpayers, including ending an antiquated system that has led to the conditions we see at Rosemont.
Post by Megan Knight
Works Cited
[1] Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., No. CV-17-00475-TUC-JAS, 2019 WL 3503330, at *9 (D. Ariz. July 31, 2019).
[2] Id.
[3] Tony Davis, “Rosemont takes steps that could get around judge’s ruling blocking the mine,” Arizona Daily Star, 26 Oct. 2019, https://tucson.com/news/local/rosemont-takes-steps-that-could-get-around-judge-s-ruling/article_62c101d8-8c7e-58ef-9a4b-9a20e4053a90.html
[4] Id.
[5] Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., No. CV-17-00475-TUC-JAS, 2019 WL 3503330, at *19 (D. Ariz. July 31, 2019).
[6] Id at *4.
[7] Tony Davis, Army Corps suspends Rosemont Clean Water Act permit, Arizona Daily Star, 27 Aug. 2019, https://tucson.com/news/army-corps-suspends-rosemont-clean-water-act-permit/article_3f4dc1d0-c83c-11e9-be49-4f20269474e5.html
[8] Id.
[9] Tony Davis, ‘Shocking,’ ‘blockbuster’ Rosemont Mine ruling has national implications, experts say, Arizona Daily Star, 16 Aug. 2019, https://tucson.com/news/local/shocking-blockbuster-rosemont-mine-ruling-has-national-implications-experts-say/article_55dd98cc-128b-5105-9590-186f8c2c1e8f.html
[10] Tony Davis, “Rosemont takes steps that could get around judge’s ruling blocking the mine,” Arizona Daily Star, 26 Oct. 2019, https://tucson.com/news/local/rosemont-takes-steps-that-could-get-around-judge-s-ruling/article_62c101d8-8c7e-58ef-9a4b-9a20e4053a90.html
[11] Id.