In an effort to get rid of the legal pressure against its land-clearing on the Santa Rita Mountains’ west slope, Hudbay Minerals Inc. is giving up a suspended Clean Water Act permit it has had for three years for the neighboring Rosemont Mine site
The Toronto-based company cited the relinquishing of the permit when it asked a federal judge this week to toss out an effort by tribes and environmentalists to get an injunction halting the company’s clearing and grading activity on the west slope for its planned Copper World Mine.
That injunction effort is connected to the Clean Water Act permit even though the permit was for a different mine. That’s because some of the land that would be graded for the Rosemont permit is also at issue for Copper World’s grading.
“Hudbay has decided to relinquish our 404 permit for Rosemont to relieve ourselves and the government of the burden of defending a permit that we do not need in ongoing lawsuits,” the company said Wednesday in a statement to the Star, referring to the permit granted under Section 404 of the Clean Water Act.
“Rosemont’s ploy is nothing more than an attempt to evade judicial review,” Stu Gillespie, an attorney for the three tribes seeking an injunction, said Wednesday.
Lawsuits “moot”
In a brief filed Tuesday for U.S. District Judge James Soto, who is hearing this case, Hudbay’s lawyers said because the company is giving up the permit, “effective relief can no longer be granted by the Court, mooting the lawsuits.”
“Given the status of the permit, including the uncertainty about its reinstatement, Rosemont decided to voluntarily surrender the permit. Accordingly, by letter dated April 28, 2022, Rosemont formally notified the Corps that it surrenders the permit,” Hudbay’s attorneys said. “As a result, the Permit which is the subject matter of the lawsuits no longer exists and is not effective.”
But despite’s Hudbay’s action, the permit remains in effect until it expires or until the Army Corps of Engineers — which issued the permit — modifies, revokes or reissues it, said Gillespie. He represents the Tohono O’odham, Pascua Yaqui and Hopi tribes.
The motion to dismiss the case, filed by Rosemont Copper, Hudbay’s Arizona subsidiary, came after the company, the Army Corps and the tribes posted detailed briefs over the past week, over why Soto should or shouldn’t halt grading and clearing that Hudbay began April 12.
The tribes and several conservation groups have argued that the clearing should be halted until the Army Corps conducts a thorough analysis of Copper World’s impacts. The mining company and the Corps say no such analysis is needed because Hudbay hasn’t filed a formal application with the Corps to grade and because, Hudbay says, the washes that would be graded on the privately owned Copper World site aren’t worthy of federal regulation.
Finding of harm
Hudbay’s decision to give up the permit is based on that same view: that the Copper World and Rosemont sites don’t contain washes over which the federal government has Clean Water Act authority.
“We never believed there were jurisdictional waters in the area and still don’t. Our 404 permitting effort was based on us voluntarily consenting to the Corps’ jurisdiction and accepting a permit for the project rather than contesting jurisdiction,” the company told the Star.
“The only determinations of Clean Water Act jurisdiction that exist are the ones from March 2021 that found no waters of the United States,” Hudbay said, referring to a Corps’ decision that found none of the washes at Rosemont qualify for federal regulation.
“Relinquishing our 404 permit simplifies the permitting and litigation path for the Rosemont project. Hudbay remains committed to developing a domestic supply of the copper we need to build the innovative materials and technologies that will power a greener energy future.”
Gillespie, however, said Corps regulations keep the permit in effect until the agency acts to alter or revoke it. As for the March 2021 Corps decision forsaking authority over Rosemont, it’s no longer valid because the federal rule on which it was based was overturned by another Tucson-based federal judge last August, he said.
District Judge Rosemary Marquez concluded the Trump administration rule, which barred federal authority over ephemeral streams like those at Rosemont which flow only after storms, would cause serious environmental harm. The rule contained “fundamental, substantive flaws that cannot be cured,” Marquez wrote.
Evasion claimed
When Hudbay accepted the Rosemont permit, based on a 2010 preliminary Corps finding that it had jurisdiction over that area’s waters, it agreed that “those are jurisdictional waters of the U.S,” Gillespie said Wednesday. That’s the legal term used in the Clean Water Act to describe water bodies that qualify for federal regulation.
“They know the process here. They are just evading,” Gillespie said of the mining company. “This is exactly why the Corps need to do a comprehensive supplemental environmental impact statement at Copper World, take a hard look at the facts and make a decision. It can’t turn a blind eye.”
The Corps told Hudbay in early 2022 that it can no longer rely on the agency’s March 2021 finding that it lacks authority over the mine site. Yet the agency has rejected efforts by mine opponents to reverse that decision, saying it remains valid for five years from when it was issued.
The Corps didn’t respond Wednesday to questions from the Star about Hudbay’s relinquishing its permit. The agency suspended the permit in August 2019, weeks after Judge Soto tossed out the U.S. Forest Service’s approval of the mine on unrelated grounds. The Corps continues to tell Hudbay that the company shouldn’t violate its terms at Copper World.
Disputed scope
Until now, Hudbay has gone along. Some washes planned for clearing for Rosemont would also be impacted by Copper World’s grading, particularly a utility corridor on which power and water lines for Rosemont will be built.
But last month, the company agreed in a letter to the Corps not to clear wash areas at Copper World that are covered under the Corps’ Rosemont permit.
Much of the mine opponents’ legal case against Hudbay’s Copper World clearing is based on arguments that the clearing violates the National Environmental Policy Act and the National Historic Preservation Act. There also are assertions that the Army Corps failed to do proper environmental analysis and tribal consultation before the clearing began.
Hudbay has argued that those laws only apply to federal actions.
“These statutes do not apply to Rosemont and cannot serve as a basis to enjoin Rosemont’s private land use activities,” Hudbay said in a brief opposing the litigation.
But the tribes have argued that because part of the Copper World area is covered by the now-suspended Rosemont permit, “Rosemont cannot therefore build its project absent a valid Section 404 Permit.”
“Despite the fact that the Corps has not reinstated, modified, or revoked the Section 404 Permit, Rosemont abruptly started grading, clearing, and discharging fill material in furtherance of its expanded mining project,” Gillespie argued, in seeking a halt to the grading.
