The Coronado National Forest promoted âexclusion, rather than inclusionâ by refusing requests from the Tohono Oâodham nation and the Fish and Wildlife Service to share a draft copy of the Rosemont Mine biological opinion, Tribal Chairman Edward Manuel wrote to the forestâs supervisor.
The Forest Service said it declined to release the draft to the tribe, the Environmental Protection Agency and âother agencies and partiesâ that had asked for it, in part because officials felt parts of the draft would need to change. Also, letting other parties comment would have also taken significant extra time when completion of the biological opinion was on a tight legal deadline, the Forest Service said in its statement to the Star.
The opinion, whose final publication was needed for the mineâs approval, lays out what the wildlife service believes will be impacts on 12 imperiled species living near the mine site in the Santa Rita Mountains.
Publicly released in May, the final biological opinion said the mine wonât jeopardize speciesâ existence or illegally damage their critical habitat. An opposition group, the Center for Biological Diversity, has notified the wildlife service of its intent to sue to have the opinion overturned.
âPromoting exclusionâ
The Star learned of the requests to release the draft opinion â and the Forest Serviceâs refusals â through the federal Freedom of Information Act. Drafts of the opinion were published last fall and earlier this year, but havenât been released. The Forest Service says itâs preparing to release them through FOIA.
âI appreciate that you may be new to this process, but this does not constitute appropriate consultation with the tribesâ as called for in numerous federal laws, regulations and orders, Tohono Oâodham Tribal Chairman Manuel wrote to Coronado Forest Supervisor Kerwin Dewberry, who started on the supervisorâs job last year. Manuel sent the letter after learning from the Star that the wildlife service had requested the tribes be given the document.
In an interview, Dewberry said that had he released the document and then it changed, that could have confused the public.
Confusion also could occur âbecause people might think they should comment on it like they commentedâ on the draft Rosemont environmental impact statement, added Heidi Schewel, a Coronado National Forest spokeswoman.
âThe document is really not my document. Itâs a document from the Fish and Wildlife Service,â Dewberry said. âThey gave me an opportunity to review the document before it was finalized. I provided back to them my comments.â
Tribal chairman Manuel noted in his letter that the Tohono tribe is one of numerous agencies that has participated in planning for the mine with the Forest Service, and that it had reviewed an earlier draft Rosemont biological opinion, prepared in 2013.
At the time, the Forest Service gave copies of that draft to several cooperating agencies, and the Star obtained the document from one of them. The current opinion was a major revision of the 2013 opinion, made necessary by the discovery of an endangered ocelot near the mine site and the listing of two new threatened species since 2013, officials have said.
âThe actions by your office here would appear to be promoting exclusion, rather than inclusion, of multiple parties that absolutely have a direct interest in the outcome of this process,â Manuel wrote. He requested that Dewberry meet with interested tribes to discuss how to address their concerns.
In its statement to the Star, the Forest Service said it âhas met and will continue to meet with the tribesâ throughout the prolonged approval process for this mine. The firm legal timeline the agencies had to finalize the biological opinion didnât allow for an opportunity to have other entities participate, the service said.
âOpportunities to comment remain until the (Rosemont) decision is made,â the statement said.
Deadline extended
Tribes have a special âgovernment to governmentâ relationship with the federal government when it comes to reviewing environmental impacts of projects like Rosemont, said Patrick Parenteau, an environmental law professor at Vermont Law School. The Ninth Circuit Court of Appeals has ruled that when federal agencies consult with tribes about projects, discussions should be âconducted in a manner sensitive to the concerns and needs of the Indian tribe.â
That doesnât mean the Forest Service was obligated to show tribes the opinion, Parenteau said, âbut it sure raises questions about whether the Coronado understands the nature of the special obligation it has to include the tribes to be affected by Rosemont in all of the critical decisions.â
âSaying that there wasnât enough time under the Coronadoâs self-imposed schedule is a pretty weak excuse,â he said. âThis project has been in the planning process for years. What was the hurry on the biological opinion?â
Although the biological opinion is supposed to be completed in 135 days after work begins on it, extensions are granted regularly, he said. The Rosemont deadline was extended more than once.
Late last year, Fish and Wildlife Service official Jean Calhoun sent the Forest Service a lower-level wildlife service officialâs recommendation to send leaders of the Tohono, Hopi, Ak-Chin and other tribes copies of the draft biological opinion.
âPlease let me know what role, if any, the Forest would like FWS to play in this tribal discussion. Iâm happy to assist any way that is helpful,â wrote Calhoun, the Tucson-based assistant field supervisor for the wildlife service, in a Dec. 2 email.
That day, the Forest Serviceâs Mindy Vogel replied to Calhoun that the Coronado would update tribes on the opinionâs status, but would not give it to them or seek their comments. Vogel is the Coronado forestâs minerals and geology program manager.
Legal, but not wise
EPAâs Kathleen Johnson requested the draft opinion in an October 2015 email to the Forest Service and the wildlife service.
EPA must consider whether to refer decisions on the mine by regional offices of the Forest Service and Army Corps of Engineers to higher levels of government, âand the findings of the (opinion) will be important to both. âĻ We would appreciate the early look,â said Johnson, EPAâs San Francisco officeâs enforcement division director.
In its statement, the Forest Service noted that a lead federal agency reviewing a proposed project isnât required to share the draft opinion with anyone but the applicant â in this case, Hudbay Minerals Inc. of Toronto â and other agencies participating in the review. The lead agencies were the Forest Service and the Army Corps of Engineers, which must approve a separate permit for the mine.
Had the tribes and EPA seen the opinionâs first draft, published last November, they would have read of a series of fairly tough mitigation measures the wildlife service was planning. Among them was a requirement that Rosemont Copper backfill the mine once itâs closed and that it guarantee protection of nearby watersheds from non-native species for 150 years.
The Forest Service objected to those measures, partly because the agency felt they were not within its power to impose, and they were pulled.
âSoliciting comments regarding mitigation measures that were not âĻ feasible would have been counterproductive,â the Forest Service statement said.
EPA, which has mostly stayed silent on Rosemont in recent months, declined to comment on the Forest Serviceâs refusal to provide the draft opinion.
While the Forest Serviceâs refusal to provide EPA the opinion is legal, itâs not wise, said law professor Parenteau, who gave the Center for Biological Diversity some paid legal advice on another Rosemont issue two years ago.
âIt may be that some aspects of the biological opinion are related to water quality and/or the impact of the mine on aquatic speciesâ said Parenteau, a former EPA counsel who also worked briefly for the wildlife service in the 1990s. âEPA is more of an expert on water quality aspects than even the Fish and Wildlife Service. Why wouldnât you want the agency with the most expertise on the problem in the room?â
