Lawsuit fights Arizona's OK of Copper World wastes pipeline in Santa Ritas

The Arizona Land Department violated the open meetings law in approving a pipeline to carry mine wastes across a section of ecologically sensitive state land, opponents of a large planned copper mine in the Santa Rita Mountains claim in a lawsuit.

The suit accuses the Land Department of failing to disclose in late 2022 that it was recommending approval of a tailings pipeline to its Board of Land Appeals as part of an application by Hudbay Minerals Inc. for a right-of-way.

The department’s November 2022 recommendation was to allow two “aboveground, 24-inch water pipelines” across a small section of the state-owned Santa Rita Experimental Range. That state parcel abuts private land slated for Hudbay’s planned Copper World complex of multiple open-pit mines southeast of Tucson.

That recommendation was on the agenda for the land board’s Dec. 8 meeting, at which it approved the right-of-way to serve Copper World.

In their lawsuit, the opponents allege that emails written by Land Department officials show the approval allows Hudbay to run the tailings pipeline and five other pipelines with various purposes across an 11-acre section of the 52,000-acre experimental range.

Filing the suit Jan. 19 were the conservation group Save the Scenic Santa Ritas and the Sahuarita-based pecan grower Farmers Investment Company, known as FICO. They’ve both fought Copper World and its predecessor the Rosemont Mine since the latter was first proposed in 2005.

Land Department spokeswoman Lynn Cordova told the Star in an email, “Our department does not comment on pending litigation.”

Hudbay emailed the Star, “We will respond to the lawsuit in due course.”

Document didn’t mention tailings

Under the right-of-way agreement, Hudbay will pay the state close to $64,000 every 10 years, during the right-of-way’s 30-year tenure that expires in December 2052. The pipeline would connect the Copper World complex with non-contiguous, Hudbay-owned land where tailings would be disposed.

After the state land board approved the right-of-way that December, department officials then secretly expanded the pipeline plan from two to six lines, including the tailings pipeline, the lawsuit says. The department gave a final signoff to the right-of-way at the end of January 2023, as shown in a Land Department approval document obtained by opponents through a public records request.

But that document also made no mention of the tailings pipeline. The document said the right-of-way’s purpose was for “a Non Exclusive Access and Service Road(s), Overhead Electric Transmission Lines(s), a 48-count fiber optic communication line for internal purposes only and six above-ground 24" transmission lines.".

“These material revisions to the right-of-way constituted ‘legal action’ taken by defendants outside of a public meeting, and entirely without notice, in violation of the Open Meetings Law,” says the lawsuit.

The opponents base much of their case on emails between an official of Rosemont Copper, Hudbay’s Arizona subsidiary, and a Land Department official from late 2022 and early 2023.

The emails showed that the Rosemont Copper official, Robin Barnes, told the Land Department official, Michael Romero, that the company was proposing a tailings pipeline, prior to the Board of Land Appeals’ vote to approve the right-of-way.

Toxicity, spills potential debated

In the lawsuit and accompanying documents, the opponents said they’re concerned about a spill of tailings into the experimental range if the pipeline were to rupture.

The experimental range, run by the University of Arizona, describes itself as “a world-class facility because of the long-term historical and biological databases” maintained there on “the restoration, protection, and management of semiarid grasslands in the arid Southwest.”

The suit said mine tailings are “finely ground toxic waste created during ore processing. Copper tailings in particular often contain arsenic, lead, cadmium and uranium, among other metals. Tailings pipelines sometimes rupture, leak or otherwise fail, causing environmental harm and hazards to human health.”

To back up its concern about a possible pipeline failure, Save the Santa Ritas gave the Star a 2012 report on copper mine tailings spills and other incidents from the national environmental group Earthworks. It dealt with what it said is the track record of water quality impacts resulting from “pipeline spills, tailings failures and water collection and treatment failures.” It studied 14 copper mines in five Western states, including nine in Arizona.

Summarizing its findings, the report said, “At 14 of the 14 mines, pipeline spills or other accidental releases occurred. The most frequent spills were reported at the Ray Mine in Arizona, where over fifty pipeline spills occurred from 1988 to 2012.

“Examples of recent pipeline spills include a 2012 spill at the Ray Mine which washed tailings into the Gila River, and a 2008 pipeline spill at the Morenci Mine of 186,000 gallons of sulfuric acid along two miles of Chase Creek — a tributary of the San Francisco River.”

Hudbay’s email to the Star disputed opponents’ characterization of copper tailings as toxic, saying, “Tailings are not ‘toxic’ under any normal understanding of the word.

“Tailings are ground up rock after all of the recoverable metals have been separated out. They are transported through pipelines as a ‘slurry’, which is simply the ground up rock mixed with water.”

As part of Hudbay’s application for an aquifer protection permit for Copper World from the Arizona Department of Environmental Quality, the company used modeling to describe the mine tailings’ chemical composition, Hudbay said.

“In summary, the seepage from the tailings is expected to meet all (state) aquifer water quality standards and even EPA’s primary drinking water standards,” the company said.

Hudbay also noted the right-of-way it obtained for the pipeline “includes a comprehensive environmental indemnity that would require Copper World to remedy any environmental issues arising from our use of the area and to protect State Land from any damages.”

“Further, the tailings pipelines at Copper World will either be double-lined or located within secondary containment systems to reduce the possibility of any environmental impacts in the unlikely event of a spill. The pipeline will be equipped with multiple redundant systems for leak detection, that would immediately shutdown the system if a leak developed,” Hudbay said.

Opponents emphasize the experimental range’s ecologic importance and their suit asks the Land Department to void its approval of the pipeline.

The range “is one of the most important state-owned land conservation research centers in the United States. The range is managed by the University of Arizona and is legally required to conduct ecological and rangeland research,” said Dick Walden, Farmers Investment Co.’s president and CEO.

“The state should be doing everything in its power to protect the environmental integrity of the range rather than secretly working with a foreign mining company to allow mine tailings pipelines to cross the range with absolutely no environmental review,” he said.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

But Toronto-based Hudbay told the Star, “The Santa Rita Experimental Range was notified about the right-of-way prior to its approval, and didn’t object as it is not expected to have any impact on their research activities.”

Waste disposal key to mine

The pipeline would be central to Hudbay’s ability to operate Copper World.

Hudbay has proposed mining 92,000 tons of copper annually during its first decade of operations, a pre-feasibility study it published on the mine last year said. Hudbay has said it would create 400 permanent, high-paying jobs at the mine, and has projected that income from those jobs and other factors would generate another 3,000 jobs.

It plans to build Copper World first on the west slope of the mountain range using four open pits. That project would be an alternative to its now-shelved Rosemont Mine proposal on the Santa Ritas’ east slope, which was stopped by unfavorable federal court rulings in 2019 and 2022. The company has said that over time, it will return to the east slope to build another pit, and that it will focus its operations on 5,500 acres of its private land on both sides of the mountain range.

It plans to operate the entire Copper World project over 44 years, with the first phase lasting 20 years.

But to operate the mine, Hudbay has to find a way to dispose of its waste rock and tailings. Its attempt to place them on U.S. Forest Service land near the original Rosemont site was rebuffed by a federal judge in Tucson in 2019.

U.S. District Court Judge James Soto ruled in favor of a suit by opponents who alleged the placement of Rosemont tailings on federal land would violate the 1872 Mining Law because those forest lands aren’t known to contain valuable minerals — a requirement for the filing of federal land mining claims.

Later, Hudbay planned to run a tailings pipeline on neighboring U.S. Bureau of Land Management land to take its tailings to disposal areas on its private land on the west slope. But it eventually opted to run a tailings pipeline through state land, where it would not have to face what could be a time-consuming federal review under the National Environmental Policy Act.

“Hudbay made a strategic decision to work with state regulators to secure a right-of-way for the infrastructure that will connect two of Copper World’s private properties, currently separated by BLM and state lands,” the company told the Star.

“Working with the Arizona State Land Department offered a more timely and predictable process for obtaining this authorization while also providing funding for Arizona’s public school system.” The Land Department puts money it receives from sale or lease of its land into public schools.

“This is super huge for us”

Mine opponents’ case against the Land Department rests on a series of emails and other documents they obtained from the department via public records requests. But while they filed such requests in April and June 2023, they said they didn’t get a lot of the most important records they requested until December.

That came after they hired David Bodney, a longtime Phoenix lawyer with an extensive background in dealing with public records, and after Bodney notified the department of possible litigation, they said.

The only mention made of the tailings pipeline in any record they got from the state — other than in email correspondence between Land Department and Hudbay officials — was found in a Sept. 1, 2022 letter from an archeological compliance specialist for the department to Michael Romero, the department’s Rights of Way Project Leader.

The letter said Hudbay’s Arizona subsidiary, Rosemont Copper Co., had filed a right-of-way application to gain use of 11.4 acres of state land for “installation and maintenance of an access road, fresh water pipeline, tailings pipeline, process water return pipeline, electrical services and telecommunications... .”

But on Nov. 28, 2022, Robin Barnes of Rosemont Copper emailed Romero that the description of the project in the Land Department’s formal application form “does not match the current projected uses of the right of way.

“Our application provides for 3 above-ground pipelines and we expect to have 3 above-ground pipelines for tailings, sand, reclaimed water and other uses. Do these need to be included in the recommendations being described to the Board?” asked Barnes, Rosemont Copper’s land manager, referring to the Land Department’s Board of Appeals that was scheduled to hear the company’s application on Dec. 8, 2022.

Romero quickly emailed back, “No, the Board only reviews the value. I can change the description in our system.”

On Dec. 6, Romero wrote to Barnes, “We will correct the water line numbers in our system. Since the number of water lines does not affect the value, we’re ok. The Board’s purpose is to approve the valuation.”

Two minutes later, Barnes replied, “The current no. of pipelines is 6. I am not sure my prior email was clear. Thank you.”

Romero replied, “Noted.”

The department’s official agenda for that meeting again described Hudbay’s project as only including an access road, an electric transmission line, the fiber optic line and two 24-inch water transmission lines. This item, like two other right-of-way proposals, was placed on that meeting’s consent agenda. Consent agendas are typically reserved by most government bodies for routine, non-controversial items.

After the board approved the right of way on Dec. 8, Romero emailed Barnes, “Congratulations.”

Barnes emailed back, “I can’t thank you enough. This is super huge for us.”

Asked by the Star about that comment, Hudbay replied, “It was an important step in our development process and she was showing appreciation to Department staff who had worked on the project.”

“Not aware of the true purpose”

In a declaration filed as part of the opponents’ lawsuit, Save the Santa Ritas’ President Thomas Nelson wrote that if the group had known in advance of the “true purpose” of Hudbay’s proposed right of way, it would have communicated its concerns to the Land Department. Nan Walden, vice president of FICO, echoed Nelson’s statement in her declaration for the lawsuit.

“Because the Board of Appeals’ agenda referred to the right-of-way as including water pipelines rather than a tailings pipeline, we were not aware of the true purpose and scope of the proposed use for the right-of-way. I only learned the true scope and purpose of the right-of-way via documents the Land Department provided in response to SSSR’s public records requests as late as December 2023,” Nelson wrote.

Board of Appeals Chairman Travis Bard and Vice Chairman Bruce Francis declined to tell the Star how they would have voted or otherwise responded if the Land Department agenda had mentioned that the right of way for Hudbay would be for a mine tailings pipeline.

On Friday, Francis responded by email, “Whenever there is ongoing litigation we refer all inquiries to the Land Department’s Public Information Officer, Lynn Cordova. I hope this is helpful.”

On Thursday, Bard said in a telephone interview, “That’s been 14 months ago. I don’t remember specific details of that. I don’t really have a comment. The details of that are a chapter past me. Last year was a different chapter.”