From Route 83 in southern Arizona, the Rosemont Valley spreads towards the Santa Rita Mountains like a rumpled carpet. Lying mostly within the Coronado National Forest south of Tucson, it is dappled with juniper and stitched together by small washes, a picturesque backcountry where the hush is broken only by the occasional plane.
But for all this seeming tranquility, Rosemont has long been bitterly contested. Hikers treasure its pristine beauty. Local businesses love the swelling ecotourism trade. And powerful international corporations such as Hudbay Minerals Inc. hunger for the sea of copper lurking below.
Until recently, it seemed that Hudbay, which had planned to open a copper mine on land it owns bordering Coronado National Forest, had won. But barely a day before the Canadian-based company was to begin digging what could become the nation’s third largest open-pit copper mine, a federal court slammed on the brakes.
In a decision that could lead to profoundly greater protections for public lands, U.S. District Judge James Soto ruled that Hudbay could not dump waste rock and tailings on its claims in the adjacent Coronado, because those claims had not been proven valid. Soto chided Forest Service officials for approving the project, calling their decision “arbitrary and capricious.”
Judge Soto’s ruling not only made the project infeasible for Hudbay, but also jolted an industry more accustomed to getting its way in our national forests. The judge’s order is “likely the most significant federal court decision on federal mining law in several decades,” blogged Phoenix-based mining industry lawyers James Allen and Michael Ford. It “will likely be received with shock and dismay throughout the U.S. hard-rock mining industry.”
Judge Soto’s ruling jolted an industry accustomed to getting its way in our national forests.
But for others, the real surprise was that such an obvious conclusion took decades to prevail. “On the one hand, the ruling seems quite significant,” says Mark Squillace, a professor of natural resources law at the University of Colorado. “On the other hand, it’s just applying the mining law in the way it was written.”
If Judge Soto’s decision survives appeal, it would upend a century-old interpretation of the General Mining Act of 1872, and could help defeat similarly questionable mining projects across the country. It would deliver a firm rebuke to a law written to encourage frontier development, but which has become terribly destructive today. According to the Environmental Protection Agency, the 1872 Mining Act is to blame for polluting nearly half of western river headwaters, leaving behind more than 500,000 abandoned mining sites, and saddling taxpayers with cleanup costs surpassing $50 billion.
It would also mark a sea change for the U.S. Forest Service, which typically does not question mining company’s assertions that a claim on public land is valid—that is, that it is known to contain valuable minerals. Oftentimes, companies claim plots they never analyze but plan to use for waste. In this case, Hudbay would dig the mine on its own property, and would also cover 2,500 acres of its Forest Service claims in tailings and scrap rock.
“They thought they could just use those old claims for disposing of their waste,” says Squillace. “That leads me to conclude that the company doesn’t believe those are valid claims, because they wouldn’t bury valuable minerals—and it should have led the Forest Service to conclude the same thing.”
Forest Service officials instead approved the mine in June 2017, despite the severe impact it would have on surrounding streams and endangered species. Soto ruled that this move undermined Coronado’s environmental impact statement for the project, a thousand-page document that took more than a decade to complete.
Some Forest Service employees have tried to push back. Among them is Jeanine Derby, who was Coronado’s supervisor when the Rosemont Mine was under consideration. Now retired, Derby says she was rebuffed by higher-ups when she and her staff raised concerns about the project in a conference call with agency lawyers.
“Maybe a day or so later, I was called into my supervisor’s office in Albuquerque and counseled to not pursue our questions,” she says. “I felt that I had been given a warning.”
Today, Derby says she feels vindicated by Soto’s decision. “Finally someone stood up to address those questions that were never answered.”
Gayle Hartmann is president of Save the Scenic Santa Ritas, an opposition group that joined the 2017 lawsuit against the Forest Service’s approval of the mine that led to Soto’s decision. She says the ruling “means the law does not allow mining companies to do whatever they want on public land. They have to stick to where there are actually ore bodies.”
Hudbay has announced plans to appeal the decision with the Ninth District Court of Appeals in San Francisco. The company did not respond to a request for comment. Citing ongoing litigation, the Forest Service’s Regional Office in Albuquerque declined to discuss the case as well.
The 1872 Mining Act is to blame for polluting nearly half of western river headwaters and continues to be used to do damage to public lands. It needs an overhaul.
Meanwhile, Soto’s decision—and Derby’s choice to come forward—has fueled an investigation by the U.S. House Committee on Natural Resources. The panel is chaired by Democratic Congressman Raúl Grijalva. His committee has requested documents related to the mine’s approval, and to concerns raised by the EPA.
“If we have to compel them with a subpoena, we will,” he says. “That’s where we’re at.”
On October 23, the committee gave preliminary approval to a measure introduced by Grijalva to overhaul the 1872 Mining Law. A companion Senate bill was released by Democratic Senator Tom Udall of New Mexico. For the first time, companies would be required to pay royalties on ore extracted from public lands. They would be barred from tribal lands, sacred sites, and national parks, and mandated to contribute to a remediation fund. Finally, the law would allow land managers far more power to reject harmful mining proposals.
“We need to bring mining activity on public lands into the twenty-first century,” Grijalva tells me. “These mining companies are totally taking advantage of our public lands, and they don’t pay a penny for the resources they extract.”