Court ruling could jeopardize plan for Copper World tailings pipeline

A Superior Court judge has dealt a potentially major blow to plans for a mine tailings pipeline at the Copper World complex in the Santa Rita Mountains southeast of Tucson.

The judge tossed out a state appeals board's approval of the value of a state right-of-way allowing a mine tailings pipeline to pass through state land, saying the approval was done in violation of Arizona's open meetings law.

The question now is whether that ruling also kills the State Land Department's separate approval of the pipeline right-of-way itself, which was not discussed in the new ruling.

If the right-of-way is thrown into question or killed, that would be a big setback for Hudbay Minerals Inc. A mine needs a place to put its tailings. So far, finding a home for the tailings for this project has proven elusive, as it did for Hudbay's previously proposed Rosemont Mine in the Santa Ritas. 

Maricopa County Superior Court Judge Scott Blaney found the State Land Department's Board of Land Appeals violated the open meeting law in December 2022 when it approved the right-of-way's value without disclosing it was for a mine tailings pipeline. 

The appeals board's agenda and minutes for its Dec. 8, 2022 meeting where it approved the right-of-way value were "materially inaccurate and misleading," Blaney ruled.

"Consequently, all legal action transacted by the board during its December 8, 2022 meeting held in violation of the Open Meeting Law's notice and agenda requirements is 'null and void,'" the judge wrote. 

The Land Department subsequently approved the right-of-way itself on Jan. 30, 2023.

Blaney's ruling opens the door for the Land Department's Board of Land Appeals to "ratify" its earlier decision by approving the right-of-way value again after properly disclosing this time that the right-of-way will include a tailings pipeline.

But the judge didn't say if such a ratification is needed to make the right-of-way valid, and the Land Department hasn't yet responded to questions from -the Star on that point.

Hudbay said it believes the broader right-of-way for the pipeline remains valid despite the ruling. Save the Scenic Santa Ritas, the Rosemont opposition group which was a plaintiff in this lawsuit, disagrees.

The company wants to build the pipeline to take its tailings from six planned open pits on its private land holdings in one area of the mining complex to other holdings in another area. Previously it considered, then dropped, plans to build the pipeline through U.S. Bureau of Land Management land. That came after a federal judge killed its original plan to dispose of the tailings for Rosemont on U.S. Forest Service land.  

The Land Department's agenda for the meeting made no mention of a mine tailings pipeline, the judge noted. Instead, the agenda called for a vote on the value of an electric power transmission line, an access road, two water lines and a fiber optic cable line, Blaney wrote. The minutes for that meeting, released afterward, referred to those features and again didn't mention the mine tailings pipeline, he said. The value approved by the appeals board for the right-of-way was $64,089.

"There is no evidence in the record that any member of the board was aware of the inaccuracies in the description" of the right-of-way in the agenda and minutes, Blaney wrote.

Under the open meetings law, the appeals board could revisit the case and approve the value of the right-of-way within 30 days of the Sept. 9 ruling, which was made public Wednesday, after providing an agenda for the meeting that contains "information on how the public may obtain a detailed written description of the action to be ratified."

The judge wrote his order does not address whether the board should now ratify its "null and void" action, "but merely recognizes that the board may ratify such actions."

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Hudbay said in a written statement Thursday it believes the court ruling doesn't affect the legality of the actual right-of-way and that it remains valid.

"The Board of Appeals meeting that was the subject of the lawsuit is not a required part of the Land Department’s process for issuing right-of-ways," the company's statement said.

The company pointed to a passage in Blaney's ruling that it said backed up its view that the appeals board's approval isn't required for the right-of-way to be valid:

"The Arizona Administrative Code provisions governing rights-of-way permit the Department to employ any policy or procedure that does not otherwise conflict with the Code, which is silent regarding any procedure for appraisals of rights-of-way. The Commissioner thus has discretion to seek the board's assessment expertise in approving the Department's valuation recommendations."

Hudbay respects the court decision on "a noticing error related to the State Land Department’s issuance of a right-of-way for the Copper World project," the statement said.

"Our team will work with ASLD (the Arizona State Land Department) to resolve this matter and maintain our rights granted in the right-of-way. The Copper World Project remains on track, and we are confident in its future contributions to local economic growth, job creation, and the supply of responsibly mined copper to support America’s clean energy goals," Hudbay said.

Save the Scenic Santa Ritas said it strongly disagrees with Hudbay's claim the Board of Appeals approval is not a required part of the Land Department's process for issuing right-of-ways.

"The department relies on the Board of Appeals to review and approve the appraised value of rights of way," the group said.

The group said Gov. Katie Hobbs "should ensure that the Board of Appeals takes no action to ratify and then formally revoke" the right-of-way.

A top Hudbay official acknowledged the stakes of the pipeline right-of-way issue in a legal declaration he filed in February 2024, not long after the lawsuit was filed.

Hudbay executive Javier del Rio said, "If plaintiffs prevail in this litigation and obtain a declaration that the (right-of-way) is null and void, it will cause serious injuries to Copper World. Copper World sought the ROW as an access and infrastructure corridor, and the loss of the ROW will have serious adverse impacts on Copper World's future mining operations."

Originally, the company wanted to dispose of tailings from its earlier Rosemont Mine proposal on Forest Service land on the Santa Ritas' east slope. U.S. District Judge James Soto ruled in 2019 that wouldn't be legal.

The company has since moved its initial operations to private lands on the mountains' west slope, including its tailings disposal areas.

At one time, Hudbay planned to run the pipeline through neighboring BLM land to disposal areas on its land. But it eventually opted to run a tailings pipeline through state land, where it won't face what could be a time-consuming federal review under the National Environmental Policy Act.

Hudbay's application to the state in 2022 sought 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 ….”