Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Center for Biological Diversity v. United States Fish And Wildlife Service

United States District Court, D. Arizona

July 31, 2019

Center for Biological Diversity, et al., Plaintiffs,
v.
United States Fish and Wildlife Service, et al., Defendants.

          ORDER

          JAMES A. SOTO, UNITED STATES DISTRICT JUDGE

         Pending before the Court are motions for summary judgment filed by Plaintiffs and Defendants, [1] and motions for preliminary injunction filed by Plaintiffs. The litigation in these cases stems from the evaluation and ultimate approval of the Rosemont Mine by various agencies of the federal government. These motions are discussed below.

         PART ONE: OVERVIEW OF THE LITIGATION RELATING TO THE ROSEMONT MINE

         The United States Forest Service (“Forest Service”) gave final approval to Rosemont Copper Company (“Rosemont”) to conduct a large-scale pit-mining operation within the boundaries of the Coronado National Forest. The Santa Rita Mountains lie to the south of Tucson, Arizona and are within the Coronado National Forest, which is managed by the Forest Service. Rosemont's proposed mining operation is projected to impact thousands of acres of the Santa Rita Mountains.

         The open-pit mine itself, which contains the valuable minerals (primarily copper) that Rosemont proposes to extract, will directly impact approximately 955 acres of land.[2]After Rosemont has completed extraction of material from the pit over the next 20 to 25 years, the circular pit will measure approximately 3, 000 feet in depth and 6, 000 feet in diameter.[3] In the course of digging through 3, 000 feet of geologic material, Rosemont will penetrate the wall of the groundwater table lying beneath the Santa Rita Mountains and will need to pump groundwater out of the pit to continue their mining operations. After Rosemont ceases its mining operations in 20 to 25 years, Rosemont will turn off the pumps, and the pit will then act as a hydraulic sink such that the pit will fill with groundwater. To gain access to the valuable copper, molybdenum, and silver in the ore, Rosemont will have to extract approximately 1.2 billion tons of waste rock (i.e., geologic material without economic value) and approximately 700 million tons of tailings (i.e., waste material left over after extracting the valuable fraction from the uneconomic fraction of the ore) (collectively “1.9 billion tons of waste”). The Rosemont Mine will impact approximately 3, 653 acres of the Coronado National Forest. Outside of the 955-acre pit, Rosemont will dump approximately 1.9 billion tons of its waste on approximately 2, 447 acres[4] of the Coronado National Forest.

         The Forest Service found that the Rosemont Mine would not be consistent with the Forest Service's “Coronado National Forest Land and Resource Management Plan” (“Forest Plan”). See Forest Service's Final Environmental Impact Statement for the Rosemont Copper Project (“FEIS”) at 114. The Forest Service found that the Rosemont Mine would be:

         Inconsistent with standards and guidelines [of the Forest Plan] related to the following:

Maintenance, rehabilitation, and enhancement of visual resources
Protection of cultural resources
Maintenance and improvement of wildlife habitat
Maintenance and protection of existing riparian resources
Maintenance of wildlife and plant diversity
Maintaining buffers around watering and feeding areas
Retention of riparian area
Amount of riparian area
Diversity of riparian species
Maintenance of riparian area productivity
Minimizing soil damage
Maintenance of vegetative structure
Loss of horizonal structure
Loss of vertical structure
Delisting threatened and endangered species and reoccupying historic habitat

See FEIS at 115 (“Table 8. Coronado National Forest Plan consistency considerations”).

         As recognized by the Forest Service, among the cultural resources impacted by the Rosemont Mine would be the disturbance and desecration of 33 ancient Native American burial grounds containing, or likely containing, the human remains of ancestors of the Tohono O'odham Nation, Pasqua Yaqui Tribe, and Hopi Tribe (collectively “Tribes”); there is also the potential for additional disturbance and desecration of unmarked and unrecognized graves outside known cemetery areas. See FEIS at 1036-1040. The Forest Service further acknowledged that the Rosemont Mine would adversely impact the Tribes': “historic properties, human burials, sacred sites . . . villages and graves of ancestors and traditional resource gathering areas, would be destroyed . . . These impacts are severe, irreversible, and irretrievable . . . [The Rosemont Mine] would destroy this historical and cultural foundation [of the Tribes], diminish tribal members' sense of orientation in the world, and destroy part of their heritage.” See FEIS at 1036-1037.

         As referenced above, as the Rosemont Mine would be inconsistent with the preexisting Forest Plan, the Forest Service changed the Forest Plan to accommodate Rosemont's mining plan (“Rosemont Plan”). See Forest Service's Record of Decision (“ROD”) at 32 (“[The Forest Service] determined that modifying [Rosemont's Mining Plan] to comply with the current Coronado [Forest Plan] would materially interfere with [Rosemont's] mineral operations . . . [therefore, the Forest Service amended the Forest Plan] contemporaneously with the approval of [Rosemont's Mining Plan] so that [Rosemont's mining] project or activity will be consistent with the [Forest Plan] as amended.”); see also FEIS at 115 (Table 8: discussing how the Rosemont Plan was inconsistent with the preexisting Coronado National Forest Plan).

         Due to the extensive impact of the R o semont M i n e on t h e Co r o n ado National Forest, numerous parties have filed lawsuits arguing that the approval of the Rosemont Mine violates the law. All of these lawsuits have been consolidated with this Court.

         In CV 17-475-TUC-JAS (“Case 1”), the Center for Biological Diversity (“CBD”) filed suit against the U.S. Fish and Wildlife Service (“FWS”) and the Forest Service. CBD argues that the Forest Service's consultation and reliance on the FWS's Biological Opinion as to the Rosemont Mine is erroneous as the FWS violated the Endangered Species Act (“ESA”) in analyzing the adverse impacts of the mine on threatened and endangered species (including the jaguar, ocelot, Gila chub, Gila topminnow, desert pupfish, Chiricahua leopard frog, northern Mexican garter snake, southwestern willow flycatcher, western yellow-billed cuckoo, lesser long-nosed bat, Huachuca water umbel) and their remaining habitat. Rosemont brought a cross-claim against FWS. In the cross-claim Rosemont argues that FWS exceeded its statutory authority when designating portions of the Santa Rita Mountains as a critical habitat for the jaguar species and that FWS also violated the Endangered Species Act (“ESA”) by failing to review the designation of the jaguar as an endangered species.

         In CV 17-576-TUC-JAS (“Case 2”), Save the Scenic Santa Ritas, Arizona Mining Reform Coalition, Center for Biological Diversity, and the Grand Canyon Chapter of the Sierra Club (collectively “SSSR”) filed suit against the United States, the Forest Service, and several supervisory officials of the Forest Service.

         In CV 18-189-TUC-JAS (“Case 3”), the Tohono O'odham Nation, Pasqua Yaqui Tribe, and Hopi Tribe (collectively “Tribes”) filed suit against the Forest Service, the U.S. Secretary of Agriculture, and several supervisory officials of the Forest Service. In Cases 2 and 3, SSSR and the Tribes both argue that the Forest Service misapplied various statutes and regulations relating to mining and management of federal lands (such as the Mining Law of 1872, the Organic Act of 1897, and the Multiple Use Act of 1955), and therefore failed to properly exercise its broad discretion and authority (and consider project alternatives) to protect the Coronado National Forest from depredations. In Case 2, SSSR also argues that the Forest Service erroneously evaluated its authority, impacts, and mitigation relating to: the mine pit lake (which will form when mining ceases), dewatering of the groundwater table which will dry up surrounding streams, springs, and seeps, and the impact these water issues will have on wildlife that depend on the water. In Case 3, the Tribes also argue that the Forest Service failed to comply with the National Historic Preservation Act (“NHPA”) in failing to protect historic and archaeological treasures that form a core part of the cultural legacy of the Tribes; the NHPA claims are closely connected to the Tribes claims referenced above inasmuch as the Tribes argue that the Forest Service misapplied its discretion and authority from the inception of its analysis of the Rosemont Mine.

         Cases 1, 2, and 3 have been consolidated (“Consolidated Case A”) as they partially share a common administrative record and some factual and legal issues overlap (especially Cases 2 and 3). Shortly after the summary judgment motions became fully briefed in Consolidated Case A, two new cases related to the Rosemont Mine were filed with this Court. In CV 19-177-TUC-JAS (“Case 4”), Save the Scenic Santa Ritas, Center for Biological Diversity, Arizona Mining Reform Coalition, and the Grand Canyon Chapter of the Sierra Club (collectively “SSSR”) filed suit against the U.S. Army Corps of Engineers (“Corps”) and a U.S. Army Brigadier General with the Corps. In CV 19-205-TUC-JAS (“Case 5”), the Tohono O'odham Nation, Pasqua Yaqui Tribe, and Hopi Tribe (collectively “Tribes”) filed suit against the same Defendants in Case 4. Plaintiffs in Cases 4 and 5 both argue that the Corps improperly issued a permit for the Rosemont Mine to discharge “dredged or fill material” into the “Waters of the United States” (“WOTUS”). Plaintiffs argue that the discharges contain toxic pollutants that will seriously degrade numerous waterways connected to, and running like capillaries through, thousands of acres of the Coronado National Forest impacted by the Rosemont Mine. Cases 4 and 5 were consolidated as they implicate a common administrative record and have some overlapping factual and legal issues (“Consolidated Case B”).[5]

         Although the Forest Service is the lead agency in charge of evaluating and ultimately issuing the final approval for the Rosemont Mine to commence operations, the Forest Service would not issue a final approval for the mine until the Corps issued a permit for discharges into the WOTUS. The Corps issued their permit to Rosemont in March of 2019, and shortly thereafter, the Forest Service issued its final approval for Rosemont to commence mining activities in the Coronado National Forest. Rosemont filed a notice in these cases indicating that ground-disturbing activities would start in the near future, and after holding a status conference with the parties, Rosemont indicated that such activities would begin on August 1, 2019. In light of these circumstances, all of the Plaintiffs in Consolidated Cases A and B filed separate motions for preliminary injunction. All of the preliminary injunction motions became fully briefed in approximately the second week of July 2019.

         The Court estimates that just the briefing pertaining to the summary judgment and preliminary injunction motions (i.e., memoranda, responses, replies) exceed a thousand pages (exclusive of the lengthy statements of fact). The administrative record in Consolidated Case A includes more than 50, 000 documents, and the administrative record in Consolidated Case B also includes thousands of documents. In all, Plaintiffs argue that Defendants violated numerous laws, including: the Administrative Procedures Act (“APA”), the National Environmental Policy Act (“NEPA”), the Mining Law of 1872, the Organic Act of 1897, the National Historic Preservation Act (“NHPA”), the Clean Water Act (“CWA”), and the Endangered Species Act (“ESA”). Oral arguments as to Consolidated Cases A and B were held before this Court on July 23, 2019. Given the important interests and exigent circumstances involved, the Court informed the parties that it would issue an Order by August 1, 2019.

         PART TWO: SUMMARY OF THE DISPOSITIVE ISSUES IN CASES 2 AND 3 (“DISPOSITIVE CASE”)

         In light of the extensive briefing, voluminous record, and time constraints, the Court does not address every single argument sprawled across all five cases in this Order. Rather, this Order only focuses on several dispositive issues raised in similar arguments made by both the Tribes and SSSR in Cases 2 and 3 (hereinafter, “Dispositive Case”). Given the sheer volume of information in the Dispositive Case, and the arcane areas of law at issue, Part Two summarizes this Court's view of the most significant issues and rulings as to the Dispositive Case, and then Part Three goes into a much deeper, extensive discussion of many of these issues. As Part Two is meant to briefly summarize the issues to serve as a roadmap for Part Three, the Court purposely omits legal citations and detailed discussion of language from statutes, cases, regulations, and manuals; this is covered in Part Three.

         The focus of the Dispositive Case is the arbitrary and capricious actions of the Forest Service. The Court is granting summary judgment in favor of the Tribes and SSSR in the Dispositive Case and vacating and remanding the Forest Service's ROD and FEIS such that the Rosemont Mine cannot begin operations at this time. As there are no longer exigent circumstances justifying immediate injunctive relief, the Court is denying without prejudice all of the preliminary injunction motions filed in Consolidated Cases A and B.[6]While this Order grants relief in the Dispositive Case, the Court will issue a separate Order as to Case 1 on a future date.

         As to the Dispositive Case, the Court will often collectively refer to the Tribes and SSSR as the Plaintiffs, and all of the Federal Defendants and Rosemont as Defendants. Unless otherwise noted by the Court, all further discussions in this Order pertain only to the Dispositive Case.

         Pertinent statutory authority[7] in this case includes: (1) the Mining Law of 1872 (30 U.S.C. §§ 22, 23, 26, 29, 42) (“Mining Law”); (2) the Organic Act of 1897 (16 U.S.C. §§ 478, 482, 551) (“Organic Act”); (3) the Surface Resources and Multiple Use Act of 1955 (30 U.S.C. § 612) (“Multiple Use Act”); (4) 30 U.S.C. § 611 (“Common Varieties Act”); (5) the APA and NEPA. Pertinent Forest Service regulatory authority in this case includes: (1) Part 228 (36 C.F.R. §§ 228.1, 228.2, 228.3, and 228.5(d)) (“Mining Regulations”); (2) 36 C.F.R. §§ 261.1(a) and (b), 261.9, and 261.10 (“General Prohibition Regulations”); (3) 36 C.F.R. §§ 251.50, 251.56(a), 251.54(e)(1), (e)(2), and (e)(5) (“Special Use Regulations”). Lastly, instructive Forest Service Manual provisions include: §§ 2813.2(2) and (7), and 2819.1(1).

         As noted above, all of this statutory and regulatory authority, along with the relevant case law, is discussed in detail in Part Three of this Order. However, a summary of the issues at this point will streamline a fuller understanding of the discussion in Part Three.

         The primary errors the Forest Service made in this case relate to Rosemont dumping 1.9 billion tons of its waste on 2, 447 acres of the Coronado National Forest. As Rosemont had unpatented mining claims covering those 2, 447 acres, the Forest Service accepted, without question, that those unpatented mining claims were valid. This was a crucial error as it tainted the Forest Service's evaluation of the Rosemont Mine from the start.

         The Mining Law of 1872 grants exclusive property rights to miners who have valid unpatented mining claims. To have a valid unpatented mining claim, there must be a valuable mineral deposit[8] underlying the claim. If there is a valuable deposit underlying the claim, the miner has the exclusive right to extract and profit from those minerals, and the right to use the surface above those minerals for purposes of mining (even if the minerals and surface are located on federal lands such as the Coronado National Forest). As a practical matter, the process of obtaining unpatented mining claims has been a historically low bar; a miner could simply enter upon federal land, put up some stakes marking the land above a purported valuable mineral deposit (along with some “no trespassing” signs proclaiming the rights to the valuable minerals within the stakes), and record a notice with local authorities setting out the parameters of the purported deposit. However, having a piece of paper reflecting that one has unpatented mining claims does not show that one actually has valid unpatented mining claims. If there is no valuable mineral deposit beneath the purported unpatented mining claims, the unpatented mining claims are completely invalid under the Mining Law of 1872, and no property rights attach to those invalid unpatented mining claims.

         The administrative record before the Forest Service reflected that there was no location of a valuable mineral deposit underlying the unpatented mining claims covering the 2, 447 acres in question; as such, the record reflected that the unpatented claims were invalid.

         Nonetheless, the Forest Service assumed that the claims were valid, assumed that Rosemont had the right to use those 2, 447 acres to support its mining operation (i.e., by dumping 1.9 billion tons of its waste on that land), and from those assumptions attempted to minimize the environmental and cultural impacts stemming from Rosemont's purported rights connected to their invalid unpatented mining claims.

         Defendants argue that the Forest Service (which is within Department of Agriculture) had no jurisdiction to issue a final decision as to the validity of Rosemont's unpatented mining claims; rather, jurisdiction over such claims lies with the Bureau of Land Management (“BLM”, which is within the Department of the Interior). While Defendants are correct as to jurisdiction, that does not mean that the Forest Service had no obligation to assess Rosemont's surface rights. The Forest Service had no factual basis to determine that Rosemont had valid unpatented mining claims giving them property rights over those 2, 447 acres of land. Rather, the record strongly indicated the opposite. As a threshold matter, Rosemont's proposal to bury its 2, 447 acres of unpatented mining claims under 1.9 billion tons of its own waste was a powerful indication that there was not a valuable mineral deposit underneath that land. Furthermore, geological studies and geological maps in the record before the Forest Service indicate there is primarily common sand, stone, and gravel beneath the land at issue; this does not constitute a valuable mineral deposit. Despite no jurisdiction to issue a final ruling as to validity, the Forest Service certainly was not powerless. The Forest Service's regulations and the Forest Service Manual specifically allow for the Forest Service to consult and request analysis from the BLM as to mining claims on Forest Service land, and the Forest Service can also have its own mineral examiner assess purported mining claims. In addition, there is case law in the Ninth Circuit reflecting that the Forest Service has pursued such options, initiated administrative complaints with the Department of the Interior to successfully declare mining claims on Forest Service land invalid, and these administrative decisions were ultimately affirmed via judicial review on appeal.

         Relying on the Organic Act of 1897 and the Multiple Use Act of 1955, Defendants further argue that the Forest Service correctly recognized the limits of its authority, and therefore properly determined that Rosemont had the right to use those 2, 447 acres of the Coronado National Forest to dump its 1.9 billion tons of waste (with the caveat that the Forest Service properly exercised its duties by attempting to limit the adverse environmental and cultural impacts of the waste site). Defendants correctly argue that the Organic Act states that mining cannot be prohibited on National Forest lands, and the Multiple Use Act states that mining and reasonably incidental mining activities are permitted and cannot be materially interfered with on federal lands. As such, Defendants argue that since Rosemont clearly has valuable mineral deposits underlying the 955 acre mine pit, Rosemont therefore has a right to dump 1.9 billion tons of its waste on the 2, 447 acres of the Coronado National Forest because it is reasonably incident to its valid mining claims. Thus, Defendants claim that it is irrelevant if Rosemont's unpatented mining claims on the 2, 447 acres are completely invalid for lack of any valuable mineral deposit. These arguments are unpersuasive, however, as the Organic Act and Multiple Use Act did not create freestanding mining rights outside of the specific parameters of the Mining Law of 1872. The Organic Act simply recognized that the Forest Service could not prohibit mining activities on Forest Service land allowed by the Mining Law. Likewise, as relevant here, the Multiple Use Act also simply recognized that the United States could not prohibit mining activities allowed by the Mining Law on federal lands; in fact, the Multiple Use Act was specifically passed to curb abuses of the Mining Law (i.e., individuals and companies using fraudulent mining claims to monopolize federal land at no cost for non-mineral extraction purposes; in a report submitted to Congress related to the proposed Multiple Use Act, the Department of Agriculture estimated that likely no more that 40% of unpatented mining claims on Forest Service lands were valid). As the Organic Act and Multiple Use Act did not create rights independent of the Mining Law, and the record before the Forest Service reflects that Rosemont's mining claims on the 2, 447 acres in question are invalid under the Mining Law, the Forest Service improperly found that Rosemont had the right to dump 1.9 billion tons of its waste on that land.

         Lastly, Defendants argue that the Forest Service regulations allow Rosemont to use the 2, 447 acres to dump its 1.9 billion tons of waste. However, the regulations state that mining activities on Forest Service land are permitted only as specifically authorized by the Mining Law of 1872. As Rosemont has no rights under the Mining Law as to the land at issue, it follows ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.