Last week, the Ninth Circuit issued its opinion in Center for Biological Diversity v. US Fish & Wildlife Service, which challenged the mining plan of operations for the proposed Rosemont Copper mine in Arizona. The court upheld the district court’s conclusion that the US Forest Service was arbitrary and capricious in approving Rosemont’s mining plan of operations.
Rosemont Copper Company had proposed to dig a large open-pit copper mine in the Santa Rita Mountains just south of Tucson, Arizona, partially within the Coronado National Forest. Because pit mining produces large amounts of waste rock, Rosemont had proposed to dump 1.9 billion tons of waste rock near its pit on 2,447 acres of National Forest land. By the time operations cease in twenty to twenty-five years, the waste rock on the 2,447 acres would be 700 feet deep and would permanently occupy the land. The Forest Service approved Rosemont’s mining plan of operations, including the use of National Forest lands to dump waste rock in its entirety.
The federal district court in Arizona held that the Forest Service improperly approved the mining plan of operations, which the Ninth Circuit majority upheld. The Ninth Circuit concluded that the Mining Law of 1872 does not permit Rosemont to permanently dump waste rock on National Forest lands for which it lacks valid mining rights. Although Rosemont had located mining claims on 2,447 acres of National Forest land throughout the designated disposal site, the court concluded that even if it was appropriate to dump waste rock on unpatented mining claims, the claims were not valid because “undisputed evidence show[ed] that no valuable minerals [were] found on the claims.” Thus, the court agreed with the District Court that the Mining Law only extends rights to lands where valuable minerals have been found, which it concluded was not true of the location where Rosemont planned to dump its waste. The majority remanded the issue to the Forest Service to determine whether the agency could and should authorize a mine waste dump under its existing regulations.
One judge dissented and would have held that the Forest Service properly approved the mining plan of operations proposal to dump mine waste Forest Service regulations.
Firm attorneys Lori Potter and Sarah Judkins filed the amicus brief on behalf of a group of environmental and natural resources law professors in support of affirming the district court’s decision.
Click here to read the Ninth Circuit’s decision. Click here to read the amicus brief.
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