Hudbay Minerals Inc. had been preparing to start construction of one of the largest copper mines in the country when a federal judge halted the project and overturned the federal government’s approval of the $1.9 billion mine.
The ruling dealt a blow to the company, which saw its stock price drop on Thursday. The decision will prevent Hudbay from moving forward with work on the open-pine mine, which would be blasted and carved into the Santa Rita Mountains southeast of Tucson.
The judge’s decision, issued late Wednesday, represents a major victory for environmental groups and tribes that have been fighting plans for the Rosemont mine for years.
“We’re thrilled,” said Gayle Hartmann of the group Save the Scenic Santa Ritas, who has been battling the project since the early 2000s. “This exceeded our expectations, and I feel like the judge saw and understood the issue and did what was right.”
But while the ruling will freeze the project for the time being, the Toronto- based company plans to appeal. And opponents of the mine say their fight isn’t over.
Federal District Court Judge James Soto said in his decision on Wednesday that the Forest Service “abdicated its duty to protect the Coronado National Forest” when it failed to properly analyze the company’s mining claims.
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. He said the agency’s review and decision were riddled with defects and led to “an inherently flawed analysis” from the proposal’s inception.
Hudbay has proposed to excavate a pit stretching more than a mile wide and more than 2,900 feet deep. In all, the project encompasses 5,431 acres of mountainous terrain, including more than 3,600 acres of Forest Service land, nearly 1,200 acres of private land, and other lands owned by the state and federal government.
In addition to the pit, the company has proposed a processing plant and areas for waste rock and tailings, the finegrained material that’s separated from the ore.
“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 said he was overturning the Forest Service’s decision “such that the Rosemont Mine cannot begin operations at this time.”
Company faces questions after ruling
Several conservation groups had challenged the federal government’s approvals of the mine, arguing it would tear up the landscape, destroy streams and ravage habitats for rare animals, including endangered jaguars that roam the wilds of southern Arizona. The upshot for the company is that they now “have to go back to the drawing board,” Hartmann said. “They have to try to respond to a whole bunch of the judge’s questions. My guess would be that they will not be able to actually respond to those, that it’s not possible to build a mine there and answer Judge Soto’s concerns.”
Hartmann said her group’s work will go on while the company takes the case to the 9th U.S. Circuit Court of Appeals. “It’s certainly not over.”
Hudbay’s stock plunged more than 21% on Thursday on the New York Stock Exchange after the court decision.
The company announced its plan to appeal, saying in a statement that it believes the court “misinterpreted federal mining laws and Forest Service regulations as they apply to Rosemont.” It said the Forest Service issued its decision in 2017 after a “thorough process of ten 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. “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.”
Will ruling force changes in reviews?
The judge focused on the Forest Service’s 2017 decision that the mine would comply with environmental laws.
The agency’s decision drew three legal challenges, which Soto considered together in the ruling. He left one of the cases pending, saying the court will issue a separate order later. The groups that sued included Save the Scenic Santa Ritas, the Center for Biological Diversity, Sierra Club and Arizona Mining Reform Coalition. The federal government’s approval of the mine was also challenged by three Native American tribes: the Tohono O’odham Nation, the Pascua Yaqui Tribe and the Hopi Tribe. The tribes objected to plans to excavate remnants of ancestral Hohokam villages and burial sites and said the mine would dewater springs and seeps they consider sacred. Randy Serraglio of the Center for Biological Diversity called the judge’s decision a “momentous precedent,” saying it makes clear that the Forest Service has been misinterpreting the 1872 Mining Law. “That means that it does not trump all these other environmental laws that have passed since then, and the mining company does not have an automatic right to dump their toxic waste on our public lands,” Serraglio said. “So, the Forest Service going forward is going to have to look at these projects through an entirely new lens.” If the decision stands, he said, “it’s a huge victory for everybody who wants to use public lands for something other than mining company profits.” Representatives of the Forest Service didn’t respond to a request for comment. The tribes’ leaders praised the decision. Robert Valencia, chairman of the Pascua Yaqui Tribe, said the judge’s ruling affirms “the fundamental principle that you can’t get a free pass to destroy public lands.”
“The value and integrity of the Santa Rita Mountains is of the utmost importance,” Valencia said. “And as a tribe, we feel that we need to continue to fight to really protect these places from being destroyed.”
Area is home to imperiled species
The Center for Biological Diversity has said a dozen threatened or endangered species would be harmed by the mine, among them a guppy-like fish called the Gila topminnow; birds such as the southwestern willow flycatcher and the Western yellow-billed cuckoo; the Chiricahua leopard frog and endangered wildcats including the jaguar and the smaller ocelot.
One jaguar, nicknamed “El Jefe,” was photographed repeatedly with remote cameras in the mountains several years ago, including at one location about a quarter-mile from the edge of the mining area. At least one ocelot has also been photographed traipsing through the area multiple times.
The Center for Biological Diversity sued the federal Fish and Wildlife Service to challenge its determination that the mine wouldn’t jeopardize threatened or endangered species. In that case, a decision is still pending.
Opponents of the Rosemont mine argue it would wipe out streams and desert washes in a zone that helps recharge groundwater supplies for the Tucson area.
Hudbay has disputed those concerns, stressing that the project has gone through a thorough vetting process lasting more than 12 years, with a long list of studies that examined the potential effects on the environment.
The company says the Forest Service and state regulators require testing of surface water and groundwater, and there would be regular checks of monitoring wells drilled around the site.
Mine would yield ore, revenue
Rosemont would be the third-largest copper mine in the United States, after the Morenci mine in Arizona and the Bingham Canyon mine in Utah. Hudbay has projected the mine would yield about 10% of the country’s total copper production, while also extracting molybdenum, silver and gold.
The company has touted the economic benefits, saying the mine would employ up to 2,500 workers during the peak of construction. Throughout the 19 years of mining, the company says, Rosemont would employ an average of 500 full-time workers and would generate more than $350 million in local tax revenues.
Business groups that have voiced support include the Arizona Chamber of Commerce and Industry, the Tucson Hispanic Chamber of Commerce and the Southern Arizona Business Coalition.
It’s unclear how the court decision might affect other proposed mining projects. Steve Trussell, executive director of the Arizona Mining Association, said the organization is evaluating the court’s opinion.
Until the ruling, the company had appeared close to starting work on the mine. In March, the U.S. Army Corps of Engineers cleared the way for construction to begin when it approved a Clean Water Act permit. The Forest Service then issued the mine’s operations plan, which was the final step in the permitting process.
Hudbay’s lawyers had said in a document submitted to the court they intended to start initial work on the mine in June. The company’s lawyers later said in court that they would hold off until August to give the judge additional time to consider the issues and rule on several motions.
In recent weeks, crews of volunteers from the Tucson Cactus and Succulent Society helped remove cactuses and other desert plants from a “utility corridor” where the company planned to install power lines and water pipes. Richard Wiedhopf, the society’s president, said the volunteers “rescued” the plants along 7-8 miles of road and on a 20-acre site around a pump station.
The nonprofit group is often invited to do this work, removing plants that would otherwise be destroyed in development projects and saving them to be used in landscaping. Wiedhopf said the volunteers have almost finished their work removing plants from the roadside strip. But the judge made clear in the decision that no work on the mine may proceed.
Democratic Rep. Raúl Grijalva applauded the ruling and said it’s “the ultimate emperor-has-no-clothes moment.”
“Congress, federal agencies, and most of all the American public no longer have to live with the industry-backed fiction that the law gives them a blank check to mine and dump wherever they please,” Grijalva said in a statement. He has proposed legislation that would make various changes to mining law, including ending the system of claimstaking and patenting, and collecting royalties on mining operations.
Ian James
Arizona Republic USA TODAY NETWORK