Hudbay Minerals and Justice Department file appeal of Rosemont Mine ruling

July 7, 2020

In an appeal filed with the 9th Circuit Court of Appeals, Hudbay Minerals Inc. and the U.S. Justice Department said a federal judge misread federal laws and regulations in 2019 by overturning approval of the Rosemont Mine.

Hudbay Minerals and the Justice Department contend that federal laws and rules don’t require the Forest Service to determine that Hudbay had valid mining claims on federal land where it wanted to dump waste rock and mine tailings. U.S. District Judge James Soto’s ruling halted work on the project based on his ruling that the company need the claims on lands where it planned to store its waste rock.

“No other court has ever reached such a conclusion, and for good reason, because it runs counter to the plain meaning of the pertinent statutory and regulatory provisions, which broadly permit entry onto open federal lands for the purposes of mining and mining-related activities and expressly contemplate that such activities may ‘take place on or off mining claims,’” Hudbay said in its legal brief in the case.

The U.S. government said Hudbay has the right under the 1872 Mining Law to occupy federal land for its mining operations even if it had no mining claims on it, Tucson.com reported.

Nothing in the 1872 law requires a miner to secure a property right to federal lands before exercising the statutory right to enter, use and occupy them for mining purposes, the Justice Department said — a view denounced by a law professor and public lands expert in an interview as “a shocking misstatement of the law.”

Hudbay also said the mining industry’s future on federal lands is at stake in this case.

Soto’s ruling, if upheld, would prevent mining companies from extracting and processing valuable minerals underneath valid mining claims “unless all operations are confined entirely to the four corners of the claims,” Hudbay said.

That rule would preclude most, if not all, significant mining operations on federal lands “despite over 100 years of congressional intent to encourage mining on those lands,” Hudbay said.

The federal government and Hudbay are appealing Soto’s July 31, 2019, ruling, handed down the evening before mine construction was to start in the Santa Rita Mountains southeast of Tucson.

The mine would create 600 long-term, high-paying jobs, but it would also disturb 2,198 ha (5,431 acres) of Madrean forest and pump 5,000 acre-ft a year of ground water.

The site of the proposed openpit copper mine consists of 484 ha (1,197 acres) owned by Hudbay, 232 ha (574 acres) of state land and 1,478 ha (3,653 acres) of Forest Service land.

 

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