Judge rules against Rosemont copper mine for a second time

February 11, 2020

The U.S. Fish and Wildlife Service was ordered by U.S. District Judge James Soto to redo three parts of its 2016 biological opinion that helped clear the way for final approval of the $1.9 billion Rosemont copper mine project in the Santa Rita Mountains southeast of Tucson, AZ. It marks the second time that Soto has ruled against the proposed project.

In the most recent ruling, the court said the federal wildlife officials applied the wrong standard when assessing whether the mine would likely affect the critical habitat of jaguars and other imperiled species. Soto also threw out a related challenge that Hudbay Minerals, the owner of the Rosemont project, had filed seeking to overturn the wildlife service’s designation of the mine site as jaguar critical habitat.

The U.S. Forest Service approved the project in May 2019 after more than 11 years of review; however, that approval was overturned on July 31, 2019, when Soto overturned the Forest Service’s final approval of the mine project based on where the mine planned to place its tailings. (ME, Aug. 1, 2019

Tucson.com reported that the latest decision puts additional legal burdens on efforts by the mining company and the federal government to overturn Soto’s ruling halting mine construction at the 9th Circuit Court of Appeals.

“While we respect the court’s authority to remand the analysis and findings back to the agencies for further review, Hudbay believes this is unnecessary and remains committed to advancing the project that will benefit the region as a critical economic and employment driver,” Hudbay Minerals said in a statement. “The Forest Service approved the Rosemont project after more than 11 years of careful review and study by 17 cooperating agencies.

“The research and studies all concluded that the potential impacts to endangered species would be insignificant and would comply with the regulations,” Hudbay said. The company said it will “continue following the direction of the government agencies through the permitting process.”

In his ruling, the judge said the wildlife service “improperly used a heightened standard of review” to decide the mine isn’t likely to destroy or otherwise illegally damage jaguar-critical habitat. The service used a dictionary definition of “likely,” finding there was a “high probability” of such damage, Soto ruled, but past federal regulations said the agency must prove only that damage is probable. Soto wrote in the decision that the agency must, using the proper standard, “reconsider whether the Rosemont Mine is ‘likely’ to result in destruction or adverse modification of the jaguar’s critical habitat.”

The judge also sided with conservationists on other arguments, ruling that the wildlife service failed to assess a tipping point for the northern Mexican gartersnake, a threatened species that lives in the area.

The wildlife service predicted a decline of 0.03 to 1.5 m (0.1 to 5 ft) beneath various water bodies including Cienega Creek and Upper Empire Gulch. But the judge said the Forest Service and numerous technical experts concluded that it is impossible to reliably predict ground water declines at levels less than 1.5 m (5 ft).

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