9th Circuit rules against Rosemont Copper mine

Arizona copper fight reflects tough choices as America tries to go green
REUTERS/Caitlin O'Hara
  • U.S. Forest Service approved waste-rock dump under ‘improper assumption’ that company had valid mining rights there
  • Appeals court says company had no valid stakes in the proposed dumping area; tells agency to reconsider

(Reuters) - Plans for a massive open-pit copper mine in southeastern Arizona took another hit on Thursday, as a federal appeals court found the U.S. Forest Service erred in approving a Hudbay Mineral subsidiary’s proposal to heap waste rock and other mining byproducts in the Coronado National Forest.

The 9th U.S. Circuit Court of Appeals affirmed a 2019 ruling by a federal judge in Tucson, who faulted the Forest Service for assuming that Rosemont Copper Company had valid claims to the mineral rights in the proposed dumping area and, therefore, could use the land “in connection with” mining operations.

While Rosemont had staked mineral-rights claims on more than 2,800 acres of forest land, it had only discovered minerals on 365 of those acres. Under federal mining laws, the rest of its stake was invalid, the 9th Circuit said.

“The Service thus gave to Rosemont, essentially free of charge, the right to permanently occupy 2,447 acres of National Forest land with 1.9 billion tons of its waste rock based on an improper assumption,” Circuit Judge William Fletcher wrote, joined by Circuit Judge Eric Miller. Circuit Judge Danielle Forrest would have reversed the district court’s ruling.

The majority said it was impossible to say how the assumption affected the Forest Service’s decision, so it sent the case back to agency for another look.

Roger Flynn, director and managing attorney for the Western Mining Action Project and a lawyer for several conservation groups suing to block the mine, said the decision has “important ramifications” because it establishes that large-scale mining operations “cannot use thousands of acres of public land for their waste dumping, without verifying that (they) meet the strict requirements for such rights.”

The decision is not a total loss for Hudbay, however. Unlike the district court, the 9th Circuit said the Forest Service could still decide, on remand, that the company’s valid mineral stakes on some forest land give it the right to use additional acreage “in connection with” mining operations.

Candace Brûlé, Hudbay’s vice president of investor relations, said the company was “encouraged” by that portion of the opinion and evaluating its next steps.

The case is one of many that were filed to block the 950-acre mine, including the 365 acres of forest land. A separate appeal by the U.S. Fish and Wildlife Service is pending.

A spokesman for the U.S. Justice Department, which represents the federal agencies in the cases, said they are reviewing the opinion and had no further comment.

The case is Center for Biological Diversity, et al v. U.S. Fish and Wildlife Service, U.S. Forest Service, et al., 9th U.S. Circuit Court of Appeals, No. 19-17585.

For Center for Biological Diversity et al.: Roger Flynn, Western Mining Action Project

For Native American Nations: Heidi McIntosh of Earthjustice

For U.S. Forest Service: Amelia Yowell of the U.S. Justice Department

For Rosemont Copper Co., Intervenor: Julian Poon of Gibson, Dunn & Crutcher

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