In do-over, Arizona board gives go-ahead for Copper World tailings pipeline

In a do-over, a State Land Department board gave a crucial go-ahead Tuesday for a mine tailings pipeline passing through a slice of state land to serve the Copper World project over strenuous objections of mine opponents.

The Board of Land Appeals reapproved a previously approved value of a state right-of-way for the tailings pipeline.

Tuesday’s vote was an effort to overcome a judge’s ruling that the right-of-way value the board approved nearly two years ago was “null and void” because the approval process violated the state Open Meetings Law by failing to disclose it was for a mine tailings pipeline. The ruling was handed down Sept. 9 by Maricopa County Superior Court Judge Michael Blaney.

Officially, the board’s vote was to “ratify” the original December 2022 approval of the right-of-way’s $64,089 value, meaning it will stay the same and the appraisal that produced that value won’t have to be redone. The State Land Department approved the actual right-of-way in January 2023.

The right of way covers 11 acres of state land on the Santa Rita Experimental Range, an ecological research area run by the University of Arizona.

After Tuesday’s meeting, the executive director of mine opposition group Save the Scenic Santa Ritas said the board’s new action doesn’t legally resolve the violation cited in last month’s court ruling.

“We believe the board’s agenda did not meet the legal requirements to cure an Open Meetings Law violation. We will consider all of our legal options to ensure the Board to complies with state law,” Executive Director Rob Peters said in a prepared statement.

The opponents’ successful lawsuit, challenging the original approval of the right-of-way value, is what forced the board to take Tuesday’s action.

Hudbay Minerals Inc., Copper World’s developer, said after the board meeting it is pleased the Board of Appeals ratified its 2022 decision regarding the right-of-way.

“We respect Judge Blaney’s earlier ruling on a noticing error in documents provided to the board at its December 8, 2022 meeting,” the company said in a written statement. “However, as the board affirmed today, the error did not impact the valuation under review or the validity of the right-of-way. This decision confirms that the right-of-way was validly issued.”

“Hudbay remains committed to advancing the Copper World project in a responsible and transparent manner. The project will deliver significant benefits to southern Arizona, including economic growth, job creation, and a reliable supply of domestically mined copper, which is critical to supporting America’s clean energy future,” the company said. The project is slated to dig six open pits on private land in the Santa Rita Mountains southeast of Tucson.

The pipeline is a crucial aspect of the project because Hudbay needs a way to get its tailings from one section of its mine site to another section for disposal.

The company’s likely alternative to running the pipeline through state land would be to run it through U.S. Bureau of Land Management land. That would require a lengthy environmental review and approval process, governed by the highly complex National Environmental Policy Act.

The board’s 3-1 vote Tuesday, with member Travis Bard dissenting, came after a written warning sent to it the day before by Save the Scenic Santa Ritas and another Copper World opponent, Farmers Investment Co., that the action would still be in violation of the Open Meetings Law.

Board members gave no explanation for their votes. They did ask a State Land Department official some questions about whether the right-of-way’s appraised value was based on how it would be used.

Deputy Land Commissioner Jim Perry’s response was that the appraised value isn’t based on how the right-of-way’s land will be used and that it’s just a tool to establish the value.

Board Chairwoman Keri Silvyn, of Tucson, asked Perry if this is the way the land agency generally comes up with values for rights-of-way that it issues.

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“There’s nothing unusual about the approach here based on everything I’m reading so far,” said Silvyn, a land use attorney.

Agreeing, Perry termed the department’s original request for a valuation approval a “routine request.”

Silvyn said the board received about 300 emails from people urging it to not ratify the December 2022 approval of the right of way value because of the Land Department’s decision to approve the right of way itself. But “that’s not in the board’s purview,” Silvyn said of the department’s decision.

Blaney found the board in violation of the Open Meetings Law in part because it gave no advance notice to the public prior to its December 2022 vote that the right-of-way would include a tailings pipeline as well as other pipelines.

The judge wrote that one way for the board to address the problems he found in the original approval would be to ratify that approval at another public meeting.

But opponents’ letter this week said the board’s action still didn’t follow the Open Meetings Law because its agenda announcing Tuesday’s meeting didn’t say the ratification was for a mine tailings pipeline right-of-way. Its only mentions of the pipeline came in accompanying documents about the previous approval and the lawsuit.

The letter also hammered at how the Land Department had handled Hudbay’s 2022 right-of-way request.

First, it accused the department of “purposely” withholding material information about the plan for a tailings pipeline when it recommended approval of the right-of-way valuation to the Board of Land Appeals in fall 2022.

Then, after the Board of Appeals’ December 2022 vote to approve right-of-way value, Land Department staff “made material changes to the Right of Way Section Recommendation” without notifying or seeking approval from the board, the letter said.

The changes expanded the number of pipelines from two that were mentioned in the appeals board’s vote to six, including the tailings pipeline, in the final right-of-way that the Land Department approved on Jan. 30, 2023, the letter said.

The opponents contended that “staff’s deceptive actions ... prevented the public and the board from knowing that Copper World was, in fact, seeking six pipelines rather than two and that one of the uses was for mine tailings pipelines which pose a major environmental threat to State Trust Land.”

In an email Tuesday to the Arizona Daily Star, Land Department official Lynn Cordova said the opponents’ letter was responded to by Deputy Land Commissioner Perry’s comments at the board meeting and by a Sept. 27 letter to the opponents by Land Commissioner Robin Sahid.

Sahid was replying to a request from Save the Scenic Santa Ritas to revoke the pipeline right-of-way entirely. She wrote, “I am not empowered to intervene in the proceeding of the board at this stage.

“The board only approves, and would be ratifying only its determination, that the appraised value at which the right-of-way was issued was sufficient. The Board approves an appraisal based on the value of the land, which is not dependent on the proposed uses,” Sahid wrote.

She also noted that the judge’s September ruling “also confirmed that the Board was not asked, and does not have the authority, to approve the pipeline or the right of way.”

The department charges rent for the right-of-way based on the appraised value multiplied by a percentage representing the intensity of the proposed uses as established by department policy, she wrote.

“In this case, all of the proposed uses, including all the pipelines, were accounted for when the department set the rent (Hudbay would pay) at 99% of the appraised value, which is the highest possible percentage (other than 100% for an outright sale of the property),” Sahid wrote.