Thursday, August 1, 2019

Rosemont mine stopped by federal judge - questions Forest Service use of 1872 mining law

Federal judge bars Rosemont Mine construction reports Tony Davis at the Daily Star.

A federal judge stopped the planned Rosemont Mine in a ruling Wednesday evening, halting plans to start building the $1.9 billion project in August.

U.S. District Judge James Soto’s ruling in Tucson overturned the U.S. Forest Service’s 2017 decision approving the mine and its 2013 final environmental impact statement clearing the way for that approval.

His ruling, if it survives expected appeals to higher courts, would drive a stake into 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 Rosemont — and by extension other mines on its land.

Soto’s decision called the Forest Service approval “arbitrary and capricious.” He sided with environmentalists and tribes that sued to stop the Hudbay Minerals Inc. project.

The ruling caps a 12-year, polarizing debate on the proposed mine. It comes five months after the U.S. Army Corps of Engineers approved a separate, Clean Water Act permit for the project — an approval that now has no immediate legal bearing as long as the judge’s ruling against the Forest Service stands.

The open pit mine, which would cover more than 4,500 acres of private and public lands in the Santa Rita Mountains southeast of Tucson, would be the third largest copper mine in the U.S.

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.

Opponents’ lawsuits argued that only public lands directly above valuable mineral deposits are covered by the federal 1872 mining law’s definition of mining rights.

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.

“If there is a valuable deposit underlying the claim, the miner has the exclusive right to extract and profit from those minerals, and the right to use the surface above those minerals for purposes of mining,” even when on federal lands, Soto wrote.

Historically, obtaining unpatented mining claims has been a “low bar,” he wrote. A miner could simply enter federal land, put up stakes marking a claim and record a notice with local authorities setting out the parameters of the purported mineral deposit, Soto wrote.

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