Federal Judge in Tucson Rules on Rosemont Mine with Broad Impacts

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On July 31, 2019, Judge Soto of the Tucson Division of the U.S. District Court for the District of Arizona issued an extensive order addressing the arguments against and in favor of the proposed Rosemont Mine in the Santa Rita Mountains south of Tucson, Arizona. The Santa Rita Mountains lie within the Coronado National Forest, an area whose land and resources are under the protection of the federal government. The approval process for the project began in 2007 and the U.S. Forest Service spent the next decade completing the required Environmental Impact Statement (EIS). After finding that the proposed mining project was inconsistent with the goals of its own Forest Plan, the Forest Service changed its Forest Plan to accommodate the needs of the Rosemont Mine rather than requiring modifications to the Mine’s planned operations. After the Forest Service approved the project, numerous environmental groups and stakeholders brought suit alleging the approval of the project violated the law. Because they each had similar administrative records, and because they shared common issues, different suits were consolidated into one.

Oral arguments took place on July 23, 2019 in Tucson, Arizona. Arguments from all parties lasted well into the afternoon. The Center for Biological Diversity, Save the Scenic Santa Ritas, and three tribes — Tohono O’odham, Hopi, and Pascua Yaqui — were the main plaintiffs arguing that the Forest Service acted beyond the scope of its power in approving the mine. A member of the legal team from Earthjustice argued first on behalf of the three tribes. Each advocate invoked many statutes and sources of law that are not directly or obviously related to mining, including the Endangered Species Act, the Organic Act, the National Historic Preservation Act, and the Common Varieties Act. However, although there were many laws referenced in oral arguments, the Court did not rule on all of them.

Interestingly, the Rosemont decision hinges not on the actual mine itself, but on the proposed dumping site for the waste byproducts of the mine, which is located in the Coronado National Forest. The judge did not decide on whether the mine itself is allowed under federal law, but whether the Forest Service acted properly under its statutory authority to allow the Rosemont Mine to proceed with its proposed dumping site. The judge did not rule on claims regarding the Endangered Species Act, did not opine on the Forest Services’ evaluation of the mine pit lake, and did not analyze any violation of the National Historic Preservation Act. The District Court’s opinion agreed primarily with the tribes’ and Save the Scenic Santa Ritas’ argument about the Forest Service’s approval of the proposed dumping site for the waste rock in the Coronado National Forest without conducting the required evaluations.

The Mining Law of 1872 is the primary law under which the court analyzed Rosemont’s mining claim. It allows for a possessory interest to federal land that has valuable mineral deposits for the purposes of mining. A possessory interest in real property means that the federal government maintains ownership and title to the land, but the individual who finds the valuable mineral deposits has the right to occupy and use the land. The possessory right to the federal land pertains only to the land on which the minerals lie and cannot be extended to adjacent areas. To assert possessory rights, one must show that valuable mineral deposits exist on the tract of federal land in question. A valuable mineral deposit exists where a “reasonable man” would expend further resources to extract the minerals and whether the minerals can be “extracted, removed and marketed at a profit.” If a claim is invalid (i.e., there is no evidence of valuable mineral deposits on the claimed land), then the claimant has no rights to the federal land.

The judge ruled that the Forest Service erred in by failing to evaluate whether Rosemont’s claim to over 2,000 acres of federal forest land for dumping the waste rock was valid. The Forest Service has a statutory duty under the Organic Act to protect public and national forests from depredation. The Forest Service did not uphold that duty because they did not evaluate whether Rosemont’s claims to the dumping site were valid, and approved the dump site for nearly 2 billion tons of waste material without evaluating whether it would lead to depredation of the Coronado National Forest. The Mining Law of 1872 gives individuals rights to federal lands only where there are valuable mineral deposits. Although they attempted to argue otherwise, the Forest Service’s EIS assumed that the mining claims on the dumping site were valid. The judge noted that logically, an area with valuable mineral deposits would not likely be covered with nearly 2 billion tons of waste rock that would then hinder extraction of the supposedly valuable minerals on the site.

Because the Forest Service did not consult with the Bureau of Land Management on their validity determination, they applied the wrong regulations and failed to consider reasonable alternatives as required by statute. Forest Service regulations allow it to regulate a broad range of activities relating to the mining process. The regulations would allow the Forest Service to regulate and approve the dumping activities incident to the mine if those activities occur to areas of land that are valid under existing law. However, as previously discussed, the claim to the land on which the waste rock would lie was not proven to be valid and therefore the Forest Service cannot regulate or approve those activities. Additionally, the Forest Service did not properly identify alternative courses of action as allowed by its own regulations. In response to public comments against the proposed mine, the Forest Service said it could not deny the project if the project is legally allowed. However, the Forest Service did not recognize its own authority to limit or alter the project if it contravened the public interest. The Forest Service did not properly exercise its authority in its evaluation of the Rosemont Mine project or its proposed dumping site on federal forest land.

Under the Mining Law of 1872, the threshold for asserting a valid mining claim on federally owned land appears quite low. This modern decision addresses one shortcoming of a 19^th Century law in the 21^st Century by pointing out that the 1872 law does nothing to govern the disposal of everything that is left over after the valuable mineral deposits are gone. The issue of waste and how to dispose of it is more and more prevalent in other areas outside of mining; overflowing landfills, plastics in the ocean, and nuclear power plants. By delineating the actual mine itself from the waste it produces, and by ruling that the Mining Law of 1872 only covers the mine, it seems as though Judge Soto is inviting the mining industry to innovate and become more efficient with the waste it produces and its methods for disposing of it. However, others have suggested that the decision will simply spring the mining industry to action to lobby Congress to pass a new law that overturns the decision. Either way, the Rosemont Mine and Judge Soto’s opinion lends support to the proposition that a law passed in 1872 — at a time when the West was largely uninhabited and bountiful with resources, and before a time that negative externalities of resource extraction were fully realized — cannot continue to effectively govern modern day mining projects without significant reform.

Judge Soto’s decision is not the end of the road for the Rosemont Mine project. After indicating that they would appeal the ruling, executives at Hudbay Minerals — Rosemont’s parent company — indicated they would explore other alternatives that do not involve an appeal to the 9^th Circuit Court of Appeals. On September 4, 2019, attorneys for the Mine filed a motion to reconsider, asking Judge Soto to vacate and reverse parts of the decision and refer decision-making power back to the Forest Service. Although judges rarely reverse themselves on a motion to reconsider, and Judge Soto is unlikely to reverse himself here, the future of the mine itself and any potential litigation is still uncertain. As of now, the project is halted until such time the procedural steps are properly taken.