For decades, the U.S. Forest Service has said it can’t say “no” to a mine on its land.
Now, the recent federal court ruling overturning approval of the Rosemont Mine on service land near Tucson will make it harder for the Forest Service to say “yes.”
Legal experts say U.S. District Judge James Soto’s July 31 ruling, if upheld in higher courts, will have national repercussions.
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The ruling could chill the hard-rock mining industry that has lived under a generally favorable legal climate since Congress passed the 1872 Mining Law to encourage mineral exploration of public lands.
Mining industry lawyers say the ruling usurps the role of government agencies in making such decisions, could bring chaos to federal mining reviews and will add more delays in permitting to an industry already having some of the longest permit times for new mines in the Western world.
Environmental law professors say the ruling is well-grounded factually and could end a century-old practice by mining companies of skirting or dodging federal law by dumping mining wastes on federal lands without proper reviews.
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Soto’s order is “likely the most significant federal court decision on federal mining law in several decades,” mining industry lawyers James Allen and Michael Ford of the Phoenix-based law firm Snell and Wilmer wrote in an online article.
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In the meantime, the ruling, if upheld, would make opening a big new mine in the United States on public lands very hard, said Leshy, professor emeritus at the University of California-Hastings College of Law.
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Soto overturned the Forest Service’s approval of the mine, which would create 500 full-time jobs at high wages and 2,500 construction jobs, but would disturb 3,653 acres of national forest.
Rosemont also would disturb and desecrate 33 ancient Native American burial grounds containing or likely containing human remains of ancestors of the Tohono O’Odham, Pascua Yaqui and Hopi tribes, the judge wrote, as he ruled on two lawsuits, filed by four environmental groups and the other by the three tribes.
The opponents’ lawsuits successfully argued that only public lands directly above valuable mineral deposits are covered by the federal 1872 Mining Law’s definition of mining rights.
The judge found that the Forest Service had erred in approving Rosemont without determining the validity of the mining claims on 2,447 acres of public land where Hudbay Minerals Inc. wants to dump the mine’s waste rock and tailings.
To prove validity under the 1872 law, Soto wrote, Hudbay would have had to show that the land contained valuable mineral deposits, which he said the company had failed to do.
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Soto’s ruling effectively holds that the feds cannot say “yes” to a proposal to dump mine tailings on invalid mining claims, said Mark Squillace, a University of Colorado law professor. Mining claims can only be used to extract the minerals located there, he said.
“Since dumping tailings on the claims could make it difficult or almost impossible to develop the claims going forward, Rosemont seems to be admitting that the claims do not contain valuable minerals and thus are not valid claims,” Squillace said.
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Since the 1872 Mining Law passed, mining companies have legally dealt with their need to dispose of waste rock and tailings in two ways.
They have placed them, as Hudbay wants to do, on federal land on which they have filed “unpatented” mining claims, on which they don’t own the land but own its mineral rights.
Or, they have created what are known as mill sites to let them put wastes on those lands. That doesn’t require proof of a valuable mineral deposit but is limited to 5 acres per mining claim.
Legal experts on both sides of the issue say the use of unpatented claim land for mine wastes without a check on their validity has survived largely unchallenged until now.
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The exceptions would occur when a mining company wants to operate on land where the service has already forbidden mining; when someone applies to “patent” a claim by getting it as their property; and when the service determines that a company’s proposed land use isn’t related to mining.
Nearly seven years later, in the final Rosemont environmental impact statement, the service said that putting waste rock and tailings on forest land is considered to be connected to mining under federal rules.
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Soto’s ruling bought into Huckelberry’s arguments, saying Rosemont’s proposal to bury its unpatented claim land with waste “was a powerful indication that there was not a valuable mineral deposit underneath that land.”
Geological studies and maps indicate primarily common sand, stone and gravel lie beneath the land: “This does not constitute a valuable mineral,” Soto wrote.
He noted that the Forest Service and Hudbay cited two federal laws passed a half-century apart that say mining can’t be prohibited on federal lands. One, the Multiple Use Act of 1955, also prohibits interfering with “reasonably incidental mining activities” on federal lands, which Rosemont says its waste disposal would be.
But those laws only protect mining activities permitted under the 1872 Mining Law, which isn’t the case for Rosemont’s dumping tailings and waste rock on non-valid claimed land, the judge wrote.
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Attorney Jensen’s view is what former Interior Solicitor Leshy said he expects will be the industry and government’s arguments during an appeal.
“It’s basically saying, the government can stick its head in the sand and not look at the obvious, and the courts should not intervene to stop it. It’s kind of a ‘prosecutorial discretion’ argument — the government gets to decide when and whether to challenge the validity of mining claims,” he said.
But although the government gets a good deal of deference, it can’t act “arbitrarily and capriciously,” said Leshy, citing a phrase from Soto’s ruling.
“It is arbitrary and capricious for the government to close its eyes to the plain facts in front of it — these mining claims used for tailings piles do not have minerals that can be profitably mined and are therefore invalid, and that means the company does not have a right to use them for that purpose.”
Here is hoping that this ruling survives appeal.
