New lawsuit on Arizona copper mine and jaguars

The Coronado National Forest has been sued by the Center for Biological Diversity for approving the Rosemont copper mine.  The U. S. Fish and Wildlife Service is also a defendant because the issues involve ESA consultation on the mine.

The Rosemont Mine would “significantly impact a number of endangered species and their remaining habitat, including one of the three known wild jaguars in the United States,” said the center.

The mine’s footprint lies “squarely in jaguar critical habitat” important for the survival and recovery of jaguars in the United States, the Center said, cutting through the home territory of “El Jefe,” one of three jaguars spotted in Arizona’s mountain, the center said.

In the lawsuit, the center said that the mine would affect 5,431 acres of land in the Coronado National Forest, including hundreds of acres used as a “dumping site” for more than a billion tons of waste rock and tailings facilities. Approved by the Forest Service, the Rosemont Mine would also include hundreds of acres of fencing that would present a “permanent barrier to wildlife movement.”

“The Rosemont Mine would turn thousands of acres of the Coronado National Forest into a wasteland,” wrote Marc Fink, an attorney for the group. “Even though the agencies found it would permanently damage endangered species and precious groundwater resources, they’re letting the mine proceed,” he said.

The decision to permit the mine required a forest plan amendment.  The Forest Service provided this rationale:

“I have decided to amend the 1986 Coronado forest plan by creating a new MA that provides for
mining of privately held mineral resources while allowing other forest uses to the degree that they are safe, practical, and appropriate for an active mining or postmine environment. Standards and
guidelines have been developed specifically for this new MA (MA 16). See the FEIS, pp. 117–120,
for details. In so doing, this project meets the requirements of 36 CFR 219.

I have determined that this programmatic amendment of the 1986 forest plan is not significant
because it would not significantly alter the multiple-use goals and objectives for long-term land and resource management for the forest as a whole.”

The requirements of “36 CFR 219” it allegedly satisfied were those from the 1982 planning regulations.  The amendment was allowed to proceed under the old regulations because it was initiated prior to the 2012 Planning Rule.   However, both sets of regulations require that forest plans provide for recovery of listed species.  There could be an NFMA violation as well.

6 thoughts on “New lawsuit on Arizona copper mine and jaguars”

  1. So, how does one reconcile protecting species with the rights of the mineral estate owner? Is this a wicked problem to which no answer exists without some adverse outcome to one side of the conflict?

  2. Mining rights can be difficult to sort out, but there is a legal answer that defines what ownership entitles the miner to do. The rights of a mineral estate owner end where the permit requirement begins, and enforcement of federal laws ends at valid existing private rights. If there is a permit required, the government must have the right to deny it, but that may just mean they have to negotiate different terms for the permit that align with the legal rights and obligations.

  3. I am not familiar with the Forest Service action here – was a permit issued as part of the decision? If so, what action exactly was permitted? Was any aspect of developing this private mineral estate under Forest Service authority, thus providing the opportunity to issue a permit?

  4. I’m not that familiar with the mine permitting process, but this permit is for a plan of operations (MPO). Per the ROD, “The selected action contains changes and additions to the preliminary MPO (“Alternative 2 – Proposed Action”) and includes design modifications, operational components, and mitigation and
    monitoring plans intended to minimize the risk of adverse impacts to the environment.” There are a lot of mitigation and monitoring requirements, all presumably intended to protect the surface resources owned by the U.S. Alternatives addressed things like where to put the tailings, how steep slopes should be, where to put roads, and how to manage wastewater. Mining other locations was an “alternative eliminated from detailed study.”

  5. An additional lawsuit has been filed by three Native American tribes. The tribes’ lawsuit quotes the Forest Service’s 2013 final Rosemont environmental impact statement as saying damages to cultural sites and prehistoric and historic archaeological sites would be “severe, irreversible and irretrievable.”

    “Consider what it would be like if a foreign company proposed excavating Arlington National Cemetery,” Tohono O’odham tribal Chairman Edward Manuel said in a news release announcing the lawsuit. “All Americans treasure this cemetery, just like our tribes treasure the land this mine will desecrate.”

    Like one of the earlier suits, this one directly challenges the Forest Service’s continued assertion that it legally can’t say “no” to a mine under the 1872 Mining Act. That view is a fundamental error that led to a “tainted process” illegally prejudicing Forest Service decision-making, and to a host of violations of other federal laws, contends Heidi McIntosh, an attorney for the group Earthjustice that’s representing the tribes.

    The lawsuit asserts that the 1872 mining law gives people a right to occupy and use public lands for unpatented mining claims — the kind Hudbay has on Rosemont’s national forest lands — only when they contain a valuable mineral deposit. There’s no evidence of any mineral deposits on the lands where waste rock and tailings will go, the suit says.

    “Say you are doing business and it results in some kind of waste. You can’t just put it in a neighbor’s land. You have to accommodate it on your own property, or find a place to get rid of it, without causing an environmental threat,” attorney McIntosh said on behalf of the tribes. “You can’t put it on public lands and say the Forest Service can’t say no.”


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