Law360 (August 22, 2022, 8:22 PM EDT) — The full Ninth Circuit has rejected Rosemont Copper Co.’s bid for a rehearing after the Hudbay Minerals Inc. subsidiary asked the appellate court to reconsider a decision nixing the company’s plans for a proposed copper mine waste site in Arizona.

A split three-judge panel of the appellate court on Monday denied Rosemont Copper’s petition for panel rehearing and rehearing en banc following the same panel’s May 12 split decision that affirmed an Arizona federal court order blocking the major copper mining project. The panel in its May decision found that mining law does not permit contentious plans to dump nearly 2 billion tons of waste in national forests.

Judges William A. Fletcher and Eric D. Miller voted to deny both the petition for panel rehearing and the petition for rehearing en banc, while Judge Danielle J. Forrest voted to grant both petitions, according to Monday’s two-page order. And no judges on the full court expressed interest in taking up Rosemont Copper’s bid for a rehearing, the order said.

“The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc,” the order said.

Rosemont Copper asked the Ninth Circuit for reconsideration on July 27, saying the split three-member panel that blocked the project earlier this year misinterpreted a key federal law and abdicated its judicial review responsibilities.

The company, which got approval from the U.S. Forest Service in 2013 to dump the mining waste on 2,447 acres of federal land, argued in its rehearing bid that panel majority Judges Fletcher and Miller when invalidating the proposal on May 12 had taken an “unduly constricted reading” of the Mining Law of 1872.

The split May 12 decision said the 1872 law does not authorize Rosemont Copper to dump nearly 2 billion tons of waste in national forests. The panel majority said the statute extends mining rights only to land where valuable minerals have already been found. The panel remanded the issue to the Forest Service to determine where Rosemont Copper may legally discard its waste.

But according to Rosemont Copper, the appellate majority erred in finding that the law permits mining-related operations only where valuable minerals have been found. The company said the 19th-century statute contains a broad authorization of exploration activities.

The interpretation by the Ninth Circuit “creates needless uncertainty” over plans to use federal land for such operations and could increase the costs and time involved in future mining projects, the company claimed.

Judge Forrest said in dissent on May 12 that the Forest Service rules do, in fact, make the company’s waste-disposal plan lawful. She said she would have reversed the district court ruling and given it the case again.

The suit was lodged in 2017 when a coalition of environmental and Native interests, including the Center for Biological Diversity and the Hopi, Pasqua Yaqui and Tohono O’odham tribes, sued the Forest Service and other federal entities over their approval of the proposed Rosemont Copper project, which would be located in the Santa Rita Mountains.

The company’s Copper World mining site is estimated to contain 5.9 billion pounds of copper ore, 80 million ounces of silver and 194 million pounds of molybdenum, a heat-resistant element used in various industries.

Rosemont Copper and the government have maintained in court filings that concerns about waste from the proposed open-pit mine are misplaced, claiming that federal mining law ensures broad development rights where mineral resources exist.

However, U.S. District Judge James A. Soto for the District of Arizona rejected that stance in his August 2020 ruling, saying the Forest Service had conducted an “inherently flawed analysis” in approving the dumping plans. The issue was appealed shortly afterward.

Hudbay Minerals said in a statement Monday that it continues to believe that the Ninth Circuit should have answered “the central question” of the case: Which regulations apply to mining operations on Forest Service land?

“We are evaluating options for seeking further review and focused on advancing our Copper World project on private land,” Hudbay said.

Marc Fink, a senior attorney at the Center for Biological Diversity, said in a statement Monday that the appeals court “wisely ruled” that public lands aren’t the mining industry’s dumping grounds.

“We’re pleased it’s rejected Rosemont once again,” Fink said. “The Santa Rita Mountains aren’t a sacrifice zone for toxic mine waste. They’re a critically important water source for Tucson and home to jaguars, ocelots and many other rare plants and animals.”

A lawyer for the tribes, Heidi McIntosh of Earthjustice, said in a statement Monday that the Ninth Circuit’s decision reaffirms the panel’s ruling that blocked Rosemont Copper from destroying sacred tribal sites and the region’s water supply.

“Not one judge, other than the panel judge who dissented, asked for a rehearing en banc,” McIntosh wrote. “The court’s decision is well-reasoned and consistent with longstanding statutes and case law. As a result of the ruling, Rosemont will have to take responsibility for disposing of its 1.9 billion ton mountain of mine waste instead of foisting the problem on the tribes and the public, whose lands and cultural resources Rosemont’s plan would have ruined.”

The federal government did not immediately respond Monday to a request for comment.

The environmental groups are represented by Marc D. Fink and Allison N. Melton of the Center for Biological Diversity and Roger Flynn and Jeffrey C. Parsons of the Western Mining Action Project.

The tribes are represented by Heidi McIntosh, Stuart Gillespie and Caitlin Miller of Earthjustice.

The federal defendants are represented by Amelia G. Yowell of the U.S. Department of Justice’s Environment and Natural Resources Division.

Rosemont Copper is represented by Theodore J. Boutrous Jr., Julian W. Poon, Bradley J. Hamburger, Daniel R. Adler and Virginia L. Smith of Gibson Dunn & Crutcher LLP and Norman D. James of Fennemore Craig PC.

The case is Center for Biological Diversity et al. v. U.S. Fish and Wildlife Service et al., case number 19-17585, in the U.S. Court of Appeals for the Ninth Circuit.

–Additional reporting by Caleb Symons. Editing by Jay Jackson Jr.

https://www.law360.com/appellate/articles/1523342/9th-circ-won-t-revisit-ruling-against-ariz-copper-mine

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