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Judge blocks Rosemont copper mine
August 1, 2019

A federal judge blocked construction of the $1.9 billion Rosemont Copper Mine south of Tucson, AZ. The ruling overturns a previous approval of the proposed mine plan by the U.S. Forest Service.

Federal District Judge James Soto said in his decision that the U.S. Forest Service “abdicated its duty to protect the Coronado National Forest” when it failed to consider whether Hudbay Minerals held valid unpatented mining claims on 2,447 acres that would be used to place waste rock and tailings.

The Arizona Daily Star reported that Soto’s ruling contradicts longstanding federal policies that say the Forest Service virtually can never say “no” to a mine if it would otherwise meet federal laws. It calls into legal question how the Forest Service has used the 1872 Mining Law to justify its approval of the mine.

The proposed mine has been in the permitting process for 12 years and the decision comes five months after the U.S. Army Corps of Engineers approved a separate, Clean Water Act permit for the project.

In his 37-page decision, Soto hammered almost exclusively at the Forest Service’s approval of Hudbay’s plan to dump mine waste rock and tailings from its 955-acre pit onto 2,447 acres of nearby public land on the Santa Ritas’ eastern slopes.

The judge said the Forest Service had “no factual basis to determine that Rosemont had valid unpatented mining claims” on 2,447 acres, and that the claims are invalid under the Mining Law of 1872.

“The unauthorized dumping of over 1.2 billion tons of waste rock, as well as about 700 million tons of tailings, and the establishment of an ore processing facility no doubt constitutes a depredation upon Forest Service land,” Soto wrote in the decision. He said the agency implemented the wrong regulations, misinformed the public, and “failed to adequately consider reasonable alternatives.”

Soto wrote in his decision that for Hudbay to gain access to valuable copper, molybdenum and silver from the pit, the company would need to extract about 1.2 billion tons of economically worthless waste rock and about 700 million tons of mine tailings.

The Forest Service's primary error in this case was to accept, without question, that Hudbay’s unpatented mining claims on those 2,447 acres were valid, thereby allowing them to be used for placement of the waste rock and tailings, he wrote.

“This was a crucial error, as it tainted the Forest Service’s evaluation of the Rosemont Mine from the start,” Soto wrote.

He wrote that the 1872 Mining Law grants exclusive property rights to miners having valid, unpatented mining claims. To have one, “there must be a valuable mineral deposit underlying the claim,” he wrote

“Hudbay believes that the Court has misinterpreted federal mining laws and Forest Service regulations as they apply to Rosemont,” the company said in a statement. It said the Forest Service issued its decision in 2017 after a “thorough process of 10 years involving 17 co-operating agencies at various levels of government.”

Peter Kukielski, Hudbay's interim president and CEO, said the appeal will proceed as the company evaluates its next steps on the project.

"We are extremely disappointed with the Court’s decision,” Kukielski said. “We strongly believe that the project conforms to federal laws and regulations that have been in place for decades.”

 

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