Litigation

Litigation Schedule

February 17, 2021 By santaritas Leave a Comment

Oral arguments for our case before the 9th Circuit Appeals Court were held on February 1, 2021. Because of COVID, the oral arguments were virtual, and we could listen in. You can watch the recording here.

We cannot predict when we will hear a decision, but we expect to have to wait several months.

Below is a recent timeline of events related to the case:

Feds opening brief (filed June 15, 2020)
Hudbay opening brief (filed June 22, 2020)
Amicus briefs supporting Rosemont/Feds (filed June 29, 2020)
Our answering brief (along with Tribes’) (filed September 11, 2020)
Amicus briefs supporting our position (filed September 18, 2020)
Feds optional reply brief (filed November 13, 2020)
Hudbay optional reply brief (filed November 18, 2020)
Oral arguments – held on February 1, 2021

SSSR News: What a year it’s been!

December 18, 2019 By santaritas 2 Comments

What an eventful year this has been! But, let’s back up a bit to 2018.

In January 2018 a newspaper headline declared: “Rosemont Mine ready to build in ’19 if final permit goes through.” Of course, the “final permit” refers to the Clean Water Act 404 permit, which the Army Corps of Engineers is in charge of issuing. It took a while, but the permit was, indeed, issued in early March 2019.

By that time lawsuits, including ours, had been filed challenging the Forest Service for issuing its Record of Decision, which would allow the Rosemont Mine to proceed, pending the granting of the 404 permit. The organizations filing the suits were Save the Scenic Santa Ritas, joined by Sierra Club, Arizona Mining Reform Coalition, and Center for Biological Diversity. Separate suits were also filed by the Tohono O’odham Nation, Pascua Yaqui Tribe and the Hopi Tribe (impacts on cultural resources); and Center for Biological Diversity (impacts on endangered species).

For many months the news was full of Rosemont articles. These included articles discussing the need to fix the 1872 mining law and the impacts the mine would have on our water resources as well as several clever political cartoons, all expressing concern about the mine. Also, there were dozens of letters to the editor with headlines such as “Rosemont devastation is a sacrilege,” “Protect natural world, oppose Rosemont,” and “Jobs temporary, damage permanent.” Also, a few proclaimed the supposed positive side of Rosemont, for example “Rosemont jobs will bring a boost.”

In late March 2019 we (all the organizations and tribes mentioned above) filed another lawsuit to try to overturn the Army Corps’ issuance of the 404 permit. So, two lawsuits had now been filed with the goal of stopping the mine and – WE WAITED, knowing that Hudbay could begin mining activities any day. In fact, in June 2019 Hudbay began clearing all the vegetation from a 30-foot-wide swath along Santa Rita Road where they had intended to put their water pipe. The intent was for the pipe to go from the west side of the Santa Ritas, over the ridgeline, and to the east side of the mountain range. Fortunately, they only cleared about 4 ½ miles when, on July 31, Judge James Soto ruled that the mine could not proceed.

There have been a few minor perturbations since then, but the primary question now is whether Hudbay will appeal Judge Soto’s decision. They have until the end of December 2019 to file an appeal. So, WE ARE WAITING AGAIN.

But, for the moment, at least, the wind is at our back. It will still take some time – may be quite a bit of time — but we feel confident that eventually, we will prevail and this arduous battle will be over. There will be NO MINE. The beauty, biodiversity and cultural resources of the Santa Ritas will be preserved. In the bigger picture, the decision we got from Judge Soto has been widely reported both nationally and internationally. In addition, Congressman Grijalva is moving forward with a long-needed reexamination of the 1872 mining law, which allows foreign mining of American resources on public land with no royalties paid to the United States.

In the meantime, for as long as it takes, we promise to keep up the fight. Your fully deductible contribution will enable us to do that. On behalf of the Board of Directors and Advisory Board of Save the Scenic Santa Ritas, I once again thank you for your support in this epic battle.

Sincerely, Gayle Hartmann, President

Hudbay’s Motion for Reconsideration Denied

November 1, 2019 By Lisa Froelich 2 Comments

On Friday, 25 October, Judge James Soto’s issued his response to Hudbay’s motion for reconsideration. He only took 1 ½ pages to deny it. He briefly summarized the law on the subject and made several statements including:

“motions for reconsideration should be granted only in rare circumstances,”
“nor may a motion for reconsideration repeat any argument previously made in support of or in opposition to a motion,” and
“mere disagreement with a previous order is an insufficient basis for reconsideration.”

His conclusion: “The Court has reviewed the record in this case. The Court finds no basis to reconsider its decision. Accordingly, IT IS ORDERED that Rosemont’s motion for reconsideration is …denied.”

He also denied Rosemont/Hudbay’s request for oral argument by saying, “Because the briefing (that is, what was presented in writing and verbally in court) is adequate and oral argument will not help in resolving this matter, oral argument is denied.”

Judge Soto’s decision was not really a surprise, but we are pleased to see it. It seemed as if Rosemont/Hudbay was just using the request for reconsideration as a stalling tactic. But, now the 60-day clock starts ticking; i.e., Rosemont/Hudbay have 60 days to file an appeal with the 9th Circuit Court of Appeals of Judge Soto’s 31 July decision. They will very likely do that. It is our understanding that the 9th Circuit Court of Appeals is very backlogged and, thus, this case will not be heard for at least 18 months. Our legal beagle guys and gals are keeping a close eye on everything.

For more info, see the latest news article in the Arizona Daily Star:

https://tucson.com/news/local/judge-won-t-reconsider-his-ruling-stopping-the-rosemont-mine/article_f57a0ac1-58a2-50a6-b3b8-d3ee6cff978b.html

Federal Judge Halts Construction of Rosemont Mine in Arizona

July 31, 2019 By santaritas 4 Comments

FOR IMMEDIATE RELEASE:
PDF version can be downloaded here

Federal Judge Halts Construction of Rosemont Mine in ArizonaTUCSON, Ariz.— A federal judge today overturned the U.S. Forest Service’s approval of a controversial open-pit copper mine in southern Arizona’s Santa Rita Mountains, citing the agency’s “inherently flawed analysis from the inception of the proposed Rosemont Mine.” The ruling blocks Toronto-based Hudbay Minerals from beginning construction on the proposed $1.9 billion mine in the Coronado National Forest, 30 miles southeast of Tucson. “We are heartened that the federal judge recognized that the Forest Service fell short in their duty to protect public lands and resources,” said Gayle Hartmann, president of Save the Scenic Santa Ritas. “Our public lands are a public trust, and we must not allow them to be illegally used to enrich a foreign mining company.”

Rosemont site, looking east, by Gooch Goodwin

Save the Scenic Santa Ritas, the Center for Biological Diversity, the Arizona Mining Reform Coalition and the Sierra Club’s Grand Canyon Chapter filed a lawsuit in November 2017 challenging the Forest Service’s approval of the mine. The Center also sued the U.S. Fish and Wildlife Service over its determination that the mine would not jeopardize threatened and endangered species. A decision in that case is pending. “This is a crucial victory for jaguars and other wildlife that call the Santa Ritas home,” said Randy Serraglio, conservation advocate at the Center. “The judge’s ruling protects important springs and streams from being destroyed. We’ll move forward with everything we’ve got to keep protecting this southern Arizona jewel from this toxic mine.” In 2017 the Forest Service issued a “record of decision” for the Rosemont Mine, saying the project complies with environmental laws and regulations and should proceed. The decision authorized Hudbay to build and operate the mine for its projected life of 30 years. Today’s decision overturns the record of decision and the underlying environmental analysis for the mine project, sending both back to the Forest Service.
“Whether your concern is this proposed mine’s excessive water use, mountain of toxic mine tailings and waste rock and the harm it would do to the watershed for outstanding waters Davidson Canyon and Cienega Creek; the destruction of thousands of acres of public land; or the negative impacts to habitat for jaguars and other endangered species, this decision is good news,” said Sandy Bahr, chapter director for Sierra Club’s Grand Canyon (Arizona) Chapter. “This decision means the Santa Rita Mountains are about more than lining the pockets of a foreign mining company.”

In today’s ruling, U.S. District Judge James Soto determined that the Forest Service violated federal mining and public land laws in approving the massive waste rock and tailings piles that would be located on Forest Service lands. Judge Soto said no work on the mine could begin due to the fundamental violations of federal law. “Given the magnitude of the errors,” Judge Soto wrote, “allowing the Rosemont Mine to proceed while the Forest Service conducts further proceedings… is unwarranted.” “Today’s decision by Judge Soto will help ensure that Arizona’s communities and the environment will be protected from the ravages of this ill-conceived and devastating mining proposal,” said Roger Featherstone, director of the Arizona Mining Reform Coalition. “Future generations will look back at these proceedings and marvel that our organizations and tribal governments needed to go to court to force the U.S. Forest Service to do what they are chartered to do — protect our water and natural heritage.” Hudbay wants to blast a mile-wide, half-mile-deep pit in the Santa Rita Mountains and pile toxic mine tailings and waste rock hundreds of feet high across nearly 2,500 acres in the headwaters of Davidson Canyon, a tributary to Cienega Creek, which replenishes Tucson’s groundwater basin.

“The court correctly found that the Forest Service violated federal law in giving rights to Rosemont that the law does not recognize, making their entire decision approving the project illegal,” said Roger Flynn, director and managing attorney for the Western Mining Action Project, one of the attorneys representing the environmental groups. More than 5,000 acres would be harmed by the mine, including nearly 4,000 acres of public land that would be covered by the mine’s waste dumps, processing plant and infrastructure.

The pit and waste dumps would remain as a permanent scar and environmental hazard. The mine would also destroy prime jaguar habitat, land that’s critical to the survival and recovery of jaguars in the United States. The Rosemont Mine faces additional legal challenges not addressed by today’s ruling. The judge has not yet ruled on the merits of the groups’ March lawsuit challenging the U.S. Army Corps of Engineers’ issuance of a Clean Water Act permit for the mine. The mine, which would threaten critical water resources and wildlife habitat, cannot be constructed without the permit.
In September 2017 the Center sued to challenge a biological opinion from the U.S. Fish and Wildlife Service that determined the mine would not jeopardize threatened and endangered species in the area. The Forest Service relied on the Fish and Wildlife Service’s opinion in its decision to approve the mine. In today’s ruling, the judge said he will issue a separate order at a later date for this case. The Court’s also ruled in favor of the three American Indian tribes ― the Tohono O’odham, Pascua Yaqui and Hopi ― that filed a similar lawsuit challenging the Forest Service’s approval of the mine. Like the environmental groups, the tribes have filed a lawsuit challenging the U.S. Army Corps issuance of the Clean Water Act permit. The tribes are represented by Earthjustice.

Save the Scenic Santa Ritas is a nonprofit organization working to protect the Santa Rita and Patagonia Mountains from environmental degradation caused by mining and mineral exploration activities.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.4 million members and online activists dedicated to the protection of endangered species and wild places.

Founded in 1892, the Sierra Club is a national nonprofit environmental organization with approximately 2.7 million members and supporters, including more than 60,000 in Arizona. Sierra Club’s mission is “to explore, enjoy, and protect the wild places of the earth; to practice and promote the responsible use of the earth’s ecosystems and resources; and to educate and enlist humanity to protect and restore the quality of the natural and human environment.

The Arizona Mining Reform Coalition represents 16 local, regional, and national organizations working in Arizona to improve state and federal laws, rules, and regulations governing hard rock mining to protect communities and the environment. We work to hold mining operations to the highest environmental and social standards to provide for the long term environmental, cultural, and economic health of Arizona.

The groups are represented by the Western Mining Action Project, a public interest law firm specializing in litigation on mining issues in the western states.

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Court Order Sought to Stop Rosemont Mine Construction in Arizona

May 16, 2019 By santaritas 6 Comments

PDF version can be downloaded here

TUCSON, Ariz.— Conservation groups and tribes yesterday asked a federal court to prevent construction from starting on the Rosemont Copper Mine in southern Arizona until a judge rules on pending lawsuits filed by the parties.

Yesterday’s motion for a preliminary injunction, filed in U.S. District Court in Tucson, pertains to five lawsuits filed over the past two years by Save the Scenic Santa Ritas, the Center for Biological Diversity, the Arizona Mining Reform Coalition, the Sierra Club’s Grand Canyon Chapter, and the Tohono O’odham, Pascua Yaqui and Hopi tribes. The lawsuits seek to overturn a series of federal approvals greenlighting the controversial open-pit copper mine in the Santa Rita Mountains.

“The Rosemont mine would cause irreparable and permanent damage to our water and mountains,” said Gayle Hartmann, president of Save the Scenic Santa Ritas. “Allowing Rosemont to commence construction activities prior to a judge addressing the serious issues in our suit would deny southern Arizonans the justice to which they are entitled under the law.”

The lawsuits say that federal agencies violated fundamental environmental laws, including the Clean Water Act and the Endangered Species Act, when they approved the massive Rosemont Mine. The mile-wide, 3,000-foot-deep mine would dry up critical water sources, harm a number of endangered species and destroy thousands of acres of public land in the Coronado National Forest.

Hudbay Minerals, the project’s owner, has announced plans to begin ground-disturbing activities in July.

“It’s senseless to allow Rosemont to start shredding our public lands before the judge has a chance to rule whether this is legal,” said Randy Serraglio, conservation advocate at the Center for Biological Diversity. “Thousands of acres of prime jaguar habitat, a scenic highway and critically important springs and streams are at immediate risk of irreparable harm.”

If the preliminary injunction is granted, mine construction would be prevented until a federal judge rules on the underlying lawsuits.
Hudbay Minerals, Rosemont’s Canadian owner, wants to blast a mile-wide, half-mile-deep pit in the Santa Rita Mountains and pile toxic mine tailings and waste rock hundreds of feet high in the Davidson Canyon/Cienega Creek watershed, which directly replenishes Tucson’s groundwater supply.

More than 5,000 acres would be destroyed by the mine, including nearly 4,000 acres of public land that would be covered by the mine’s waste dumps, open pit, processing plant and infrastructure. The pit and waste dumps would remain as permanent scars and environmental hazards on the landscape.

The mine also would destroy thousands of acres of federally protected jaguar critical habitat — land that’s been formally designated as essential to the survival and recovery of jaguars in the United States. This area includes the former home territory of the famous jaguar named “El Jefe” by Tucson schoolchildren.

The groups are represented by the Western Mining Action Project, a public interest law firm specializing in litigation on mining issues in the western states, and Marc Fink and Allison Melton of the Center for Biological Diversity. The Tribes are represented by Heidi McIntosh, Stu Gillespie and Caitlin Miller of Earthjustice.

Background

In 2016 the U.S. Fish and Wildlife Service issued a “biological opinion” declaring that the Rosemont Mine would not unduly harm jaguars, ocelots or any of a dozen endangered species threatened by the mine.

In 2017 the U.S. Forest Service approved a “record of decision” for the Rosemont Mine, declaring that the project complies with all applicable environmental laws and regulations and should proceed. These decisions were challenged by three lawsuits filed in late 2017 and early 2018.

In March two more lawsuits were filed in federal court challenging the U.S. Army Corps of Engineers’ issuance of a Clean Water Act permit for the mine, which was the final outstanding permit Rosemont needed to begin construction. In 2016 the Army Corps district engineer in Los Angeles formally recommended denial of the permit, concluding that the mine would violate water-quality standards and a number of laws and was not in the public interest. But under the Trump administration, the agency reversed its position and issued the permit in March 2019.

All five lawsuits have been consolidated before U.S. District Judge James Soto in Tucson, Ariz.

Save the Scenic Santa Ritas is a nonprofit organization working to protect the Santa Rita and Patagonia Mountains from environmental degradation caused by mining and mineral exploration activities.

Litigation Schedule

SSSR News: What a year it’s been!

Hudbay’s Motion for Reconsideration Denied

Federal Judge Halts Construction of Rosemont Mine in Arizona

Court Order Sought to Stop Rosemont Mine Construction in Arizona

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