Federal court order sought to block Hudbay's Santa Ritas grading

Three tribes want a federal judge to stop the ongoing work of Hudbay Minerals Inc. in grading and land-clearing on the west slope of the Santa Rita Mountains south of Tucson.

Filed late Tuesday, the tribes’ request for a temporary restraining order seeks to prevent Hudbay from continuing its work toward building mine tailings and waste rock disposal facilities until a judge can rule on a request for a long-term injunction barring construction.

The Tohono O’odham, Pascua Yaqui and Hopi tribes filed the request, and received support from conservation groups.

Hudbay began work on its private land on the west slope on April 14 as a step toward building its Copper World project there. When complete, Copper World also will include five open pits, a processing plant, a heap leach pad and settling and stormwater ponds, the company’s map of the area shows.

The tribes’ attorney, Stu Gillespie. said in a legal filling that the tribes “have already suffered, and continue to suffer, irreparable harm due to Rosemont Copper’s grading and clearing of the Copper World site.” Rosemont Copper is an Arizona subsidiary of Toronto-based Hudbay.

“On or before April 14, 2022, Rosemont started bulldozing the ephemeral streams braided across the property, discharging fill material into these waters,” the tribes’ motion said of the streams, which carry water only after rains.

“These ephemeral tributaries are of unique importance to the tribes as they convey storm flows down from the Santa Rita Mountains to the Santa Cruz River that flows across the Tohono O’odham’s San Xavier Reservation,” the motion said.

Hudbay and the U.S. Army Corps of Engineers, named as defendants in the restraining order request, hadn’t filed formal responses as of mid-afternoon Wednesday. U.S. District Judge James Soto has ordered all parties to attend a status conference on the request Friday morning at the federal courthouse at 405 W. Congress St.

The Corps declined to comment on the restraining order request. Agency spokeswoman Dena O'Dell said, "We can't comment on pending litigation."

But in a statement to the Star, the mining company called the tribes’ request a “legal maneuver,” nothing more than an attempt to get around procedural rules blocking them from filing a related federal lawsuit for 60 days after giving notice.

That lawsuit, once filed, will allege the mining company’s grading violates the federal Clean Water Act. the tribes said in their notice of intent to use, filed on April 4. Environmental groups filed a notice last Thursday.

“The federal agencies have the primary responsibility for enforcing the Clean Water Act and they have not indicated any concerns about what we are doing,” Hudbay said.

Also, “the legal filings we received last night contain numerous mischaracterizations and are based on extremely strained legal theories and we look forward to explaining this to the court,” Hudbay’s statement said.

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Hudbay particularly took issue with the tribes’ calling Copper World an “expansion” of the company’s proposed Rosemont Mine on the Santa Ritas’ east slope, a project that’s been stalled for nearly three years by an injunction that Soto issued. Copper World is “an alternative mine plan,” Hudbay said.

Replying to Hudbay’s first criticism, Gillespie said this restraining order request has an entirely difficult legal foundation than the notices of intent to sue. The notices allege violations of the Clean Water Act while the restraining order request alleges violations of separate federal laws, the National Environmental Policy Act and the National Historic Preservation Act, Gillespie said.

The Corps has failed to carry out a “mandatory duty” to prepare a supplemental environmental analysis under the environmental policy act before deciding whether to reissue, revoke or modify the Clean Water Act permit the agency issued to Hudbay in 2019 for the Rosemont Mine site, he said.

“They needed to do that before construction activity occurred. They didn’t. That violates NEPA right now,” said Gillespie, using a common abbreviation for the National Environmental Policy Act.

He said Hudbay’s clearing and grading violates the National Historic Preservation Act because tribes weren’t consulted. He said this was needed for full consideration by the Corps to decide on whether to revoke, reinstate or modify its Clean Water Act permit for Rosemont, which he said covers part of the area Hudbay plans to grade on the west slope.

Defending the description of Copper World as an expansion of the Rosemont Mine, Gillespie noted that both projects will depend on the same utility corridor to deliver water and electricity.

Also, Rosemont has described in a news release the “synergies” across the mines, their functional overlap, and efforts to develop “the Copper World deposit in conjunction with the Rosemont deposit,” Gillespie wrote in a memorandum to the court explaining the tribes’ restraining order request.

“Copper World is functionally, economically, and physically an interdependent part of the larger Rosemont Mine,” he wrote.

Hudbay said it took the time to survey the area for threatened and endangered species, historic artifacts, and prehistoric archeological sites and relocated all special status plants prior to clearing, even though those activities aren’t legally required.

“Our activities have not impacted any prehistoric archaeological features,” Hudbay said.

Gillespie’s memo contended Hudbay’s Copper World work will destroy an ancient Hohokam village site and other areas eligible for listing on the National Register of Historic Places.

While the Hohokam site is in an area Hudbay has pledged not to grade until the Corps acts more fully on the Clean Water Act permit, “there’s no question they’re going to have to do it eventually,” because it lies in the utility corridor needed for both mines, the tribes’ attorney said.