Site of the proposed Rosemont open-pit copper mine in the Santa Rita Mountains southeast of Tucson. 

 Mamta Popat / Arizona Daily Star 2013

The U.S. Army Corps of Engineers has pulled back from a previous pledge to consult with three Arizona tribes before deciding whether to abandon its authority over the Rosemont Mine site southeast of Tucson.

The decision could lead to removal of a significant legal hurdle for the proposed mine.

Moreover, as part of the early January decision, the Corps said it also will not consult with any tribe in the United States in deciding if the agency has authority to regulate a company’s discharges into washes.

Iran released 52 Americans it had held hostage for 444 days, minutes after the presidency had passed from Jimmy Carter to Ronald Reagan, and more events that happened on this day in history.

The action reverses a Corps pledge to three Arizona tribes in early December that it would get their input on whether to continue or revoke its jurisdiction over about 100 acres of washes and creeks leading from the Rosemont site. The Corps has claimed jurisdiction over the mine site for more than a decade, which led to the mine’s need to get a federal Clean Water Act permit to start construction. The permit was granted in March 2019, authorizing the mining company to dredge and fill 42 of those acres for Rosemont construction work.

Abandoning Corps authority would mean Hudbay Minerals Inc. would no longer need the Clean Water Act permit to start construction on the $2 billion open-pit copper mine in the Santa Rita Mountains.

That would then clear the way for mine construction if Hudbay and the federal government can also succeed in overturning, in higher courts, a July 2019 U.S. District Court ruling that halted work on the mine. A hearing on their appeal to the 9th Circuit Court of Appeals is scheduled on Feb. 1.

The Corps’ decisions affecting the mine and tribal consultation nationally were based on a memo from an assistant U.S. Army secretary, which said the agency is not legally required to consult with tribes on its jurisdiction over various washes because such decisions don’t affect tribal governments.

That opinion said the Corps had “substantial” consultation with tribes over its general rule, approved almost a year ago, that set standards by which that agency and the Environmental Protection Agency decide which individual washes merit federal regulatory control over development along them. The Corps says its policies call for tribal consultation in the case of "individual projects, programs, permit applications, real estate actions, promulgation of regulations and policies," but not determinations of whether the agency has regulatory authority over an individual water course.

An attorney for the three tribes involved in the Rosemont case, Stuart Gillespie, criticized the change.

“The Corps’ about-face is an affront to tribal sovereignty and a clear violation of the Corps’ obligation to consult with tribes. The implications are sweeping, not just for the tribes involved in the Rosemont Mine, but for tribes across the nation,” Gillespie said.

This Corps action is “cutting out every tribe in these crucial decision that unquestionably have significant adverse impacts on tribal resources,” Gillespie said. “The Corps entirely overlooks its statutory obligation to consult with the tribes under Section 106 of the National Historic Preservation Act.”

Plus, the Army’s statement that decisions over its authority to regulate an individual wash don’t affect tribes is flatly refuted by the facts, Gillespie said.

“Revoking jurisdiction would allow Rosemont to construct a massive mine with devastating, irreversible impacts on tribal cultural resources,” he said. He represents the Tohono O’Odham, Hopi and Pascua-Yaqui tribes, which say the mine area is part of their ancestral homelands.

But the Army said the relevant action that may affect tribes is when the Corps determines how it defines which kinds of rivers and washes merit federal regulation, “rather than a separate determination that a given water meets the regulatory definition.”

That Jan. 4 memo was written by R.D. James, assistant Army secretary for civil works.

Gillespie said last week, prior to the Presidential transition, that he’s concerned this decision means the Army Corps will revoke its jurisdiction over the Rosemont site in the final hours of the Trump administration.

Mike Petersen, an Army Corps spokesman, said Jan. 13 that a decision on its jurisdiction over the mine site was expected “soon.”

There was no last-minute action on this issue by the Corps on Wednesday morning, Jan. 20, Inauguration Day, however. That means a decision on Rosemont jurisdiction will fall upon the Biden administration.

The Corps approved a Clean Water Act permit for Rosemont on March 8, 2019. The tribes and environmental groups later sued to overturn it. The Corps suspended the permit last August because of the separate court ruling that halted the mine construction.

2019 letters to the editor about Rosemont Mine:

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Contact reporter Tony Davis at tdavis@tucson.com or 349-0350 or 806-7746. On Twitter@tonydavis987.