Posted: Tuesday, February 8, 2011 3:48 pm
Opponents of the proposed Rosemont Copper mine have filed a federal lawsuit to stop the Forest Service from working on a key environmental study until opponents can join Rosemont in meetings with government agencies.
The lawsuit, filed Monday in U.S. District Court in Tucson, alleges the Forest Service violated federal law by regularly including Rosemont, a private entity, in meetings with cooperating government agencies. That means those meetings are subject to the Federal Advisory Committee Act (FACA), which requires public participation, the suit says.
The suit also asks that the Coronado National Forest be required to turn over minutes of all 23 meetings of the cooperating agencies plus other documents in response to a Freedom of Information Act request filed in September.
The plaintiffs include Dick and Nan Walden of Farmers Investment Co., Gayle Hartmann of Save the Scenic Santa Ritas, and Randy Serraglio of the Center for Biological Diversity. The open pit mine would be on the eastern slope of the northern Santa Rita Mountains.
A Forest Service spokeswoman said she could not comment on the lawsuit. Coronado National Forest Supervisor Jim Upchurch said in a Jan. 14 letter to mine opponents that the agency did not violate federal law by allowing Rosemont in meetings and that the agency would respond to the FOIA request by Jan. 31.
However, on Feb. 2, Upchurch sent a letter to Serraglio saying the agency does not have a delivery date and is “in the process of reviewing responsive records for Privacy Act and other information that must be withheld in accordance with FOIA exemptions before we transmit them to you.” Upchurch added that he was “rerouting” the request to the Forest Service Southwestern Region’s FOIA/Privacy Act Service Center in Albuquerque.
Serraglio said a handful of documents have been released.
The Forest Service web site says Rosemont participated in 18 of the 23 meetings of cooperating agencies in 2009 and 2010.
Serraglio said “FACA is very clear what role the proponent (Rosemont) plays. They can come in and give presentations on technical issues to help the cooperating agencies understand the proposal and in a couple of instances they did that, but they definitely are not supposed to be sitting there in the vast majority of meetings, participating in the conversations in which decisions are being made.
“I think it is entirely possible that Rosemont’s presence would have a chilling effect on the kinds of concerns that are brought up, mitigation suggested, further study that needs to be done. There are all kinds of ways that Rosemont’s participation would have a chilling effect, but without the minutes of the meetings or other info from the Forest Service, it’s anybody’s guess,” Serraglio said.
DEIS due out
The Forest Service web site says it expects to publish the draft environmental impact statement (DEIS) on Rosemont this month, with a decision by June 2012, and implementation by October 2012.
However, on Tuesday agency spokeswoman Heidi Schewel said, “We have not yet identified a new timeline for the DEIS (draft environmental impact statement). When we do it will be shared widely.”
Schewel said she hopes to release more information on the Rosemont consideration process in the next few days. Before the Forest Service can rule on the mine request, the DEIS must be published, followed by a 90-day comment period and publication of the final EIS.
The lawsuit asks that the court stop the agency from doing any work on the draft environmental impact statement (DEIS) “until the agency immediately reconstitutes its FACA advisory committee to include Plaintiffs as full committee members with Augusta/Rosemont.”
Augusta Resource, headquartered in Vancouver, British Columbia, owns Rosemont Copper.
The suit asks that the agency turn over all communications between Rosemont and Coronado; a list of all documents that CNF has received from Rosemont and a “privileged list” of documents being withheld under FOIA exemptions, such as including proprietary information.
Raquel Cantu, acting Southwestern Region Forest Service Liason, said on Tuesday, “I know they’ve been working on this FOIA request for a long time but I’ve seen nothing on my end yet.”
In January, Upchurch wrote that FACA applies when “a specific group of individuals is formally designated to collectively advise and/or make recommendations to a Federal agency. This is not occurring in the Rosemont Copper Project environmental review process.
“The cooperating agencies in the NEPA (National Environmental Policy Act) process of the Rosemont Copper Project do not function as a formal, organized group or committee. They are not directed by a group charter or similar document,” Upchurch wrote.
Instead, Rosemont’s participation is to provide technical information,
Upchurch wrote, and its role is governed by a Memorandum of Understanding signed by the mine and the Forest Service.
Serraglio said “this process has been flawed from the very beginning,” arguing the CNF tried to fast-track the consideration of the matter.
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