Tribes file for restraining order to block Rosemont mine expansion in Santa Ritas

Rosemont Copper's move to expand its operations in the Santa Rita Mountains south of Tucson faces a new challenge after three Native American tribes asked a federal court to block the company from grading the slopes and dumping fill material in dry washes.

In a 19-page request for a temporary restraining order filed by environmental law firm EarthJustice, the Tohono O'odham Nation, Pascua Yaqui and Hopi tribes asked a federal judge to block Rosemont from tearing through thousands of acres, spanning almost four miles, along the western reach of the Santa Rita Mountains, where the company is attempting to reinvigorate plans for an open-pit copper mine about 30 miles southeast of Tucson.

Hudbay, the Toronto-based company that owns Rosemont Copper, was stymied in its efforts along the east side of the Santa Ritas, but last month, the company told Pima County officials they were ramping up grading and clearing on a 3,500-acre site southeast of Sahuarita, on a chunk of private land known as the Helvetia Mining District. Rosemont told officials with the Pima County Regional Flood Control District they would begin "clearing, grading, stockpiling and other earthwork activities" as part of the project, which would be used "in connection" with future mining and metallurgical operations.

Aerial photos from April 14 showed efforts underway, prompting the tribes to ask U.S. District Judge John A. Soto to block Rosemont from continuing because the company is operating without permit—known as a Section 404 permit—under the Clean Water Act. 

In a statement, EarthJustice said, "this is the second time that Rosemont has attempted to rush construction of its proposed mines" even while judges with the 9th Circuit Court of Appeals review the company's permit as part of a lawsuit.

"Rosemont is once again attempting to push forward with its destructive project, causing permanent harm to sacred sites and waterways," said Tohono O’odham Nation Chairman Ned Norris, Jr. "Their continued disregard for tribal consultation, mitigation, and other obligations under federal law further demonstrates why this latest damaging action must be halted immediately. The nation will continue to work with fellow tribes to protect our cultural and natural resources from reckless destruction by a foreign mining company" he said.

For the last 15 years, the Rosemont mine has been thwarted by fierce response from environmental groups, who argue that the mine—which ultimately could include a mile-wide, half-mile-deep pit across 2,500 acres—would seriously harm the Santa Rita Mountains, and destroy prime habitat for jaguars and other threatened species.

The open-pit mine mine would directly affect more than 950 acres of land, and the company originally planned to dump around 1.9 billion tons of waste rock on nearly 2,500 acres of land in the Coronado National Forest, part of Southern Arizona’s "Sky Islands," and part of the range of the endangered southern jaguar and the ocelot, as well as nearly a dozen other endangered and critical plants and animals. Overall, around 3,653 acres of the Coronado National Forest will be impacted by the mine's operation.

Prelude to lawsuit filed

This is the second challenge filed against Rosemont for its efforts at the Helvetia site in less than a week.

On Thursday, the Tucson-based Center for Biological Diversity filed a notice of intent—a prelude to a lawsuit—because Rosemont Copper violated federal law by dumping debris into dry streams along the western slope of the Santa Ritas.

Allison Melton, senior attorney for the Center for Biological Diversity and Roger Flynn, the director and managing attorney for the Western Mining Action Project, wrote that Rosemont's parent company, the Toronto-based Hudbay Minerals, Inc., violated the Clean Water Act by "filling, grading, and destroying" a network of ephemeral streams—dry river washes that will flood during monsoon rains—at its Copper World Expansion site, and had done so without the federal permit.

The tribes wrote that Rosemont's effort "depends on the company having the necessary Clean Water Act permit," however, following a 2019 court order, the U.S. Army Corps of Engineers suspended Rosemont's permit pending further agency review. Additionally, "neither Rosemont nor the Corps informed the Tribes before ground-disturbing activities commenced."

"In 2019, a judge ruled in favor of the Tribes challenge to the Forest Service’s approval of plans to raze ancestral lands for a mile-wide open-pit copper mine on the east side of the mountains," wrote EarthJustice. "That landmark ruling is currently on appeal and awaiting a decision from the 9th Circuit."

"A temporary restraining order is necessary to prevent additional irreparable harm to cultural and environmental resources in the region," said Stu Gillespie, senior attorney with Earthjustice’s Rocky Mountain office, who filed the motion. "The Army Corps of Engineers had a mandatory obligation to comprehensively evaluate the mine expansion and consult with the Tribes before any ground-clearing activities started so important sites can be identified and protected. The Corps failed to do so, violating the law."

Gillespie said that the Santa Rita Mountains are "home to sacred sites, ancestral villages, and burial grounds, and provide plants, animals, and mineral resources critical to maintaining the Tribes’ culture."

"The tribes believe these sites, as well as the seeps, springs, and waters that run throughout the mountains, are sacred, with deep spiritual significance," the group said. Federal officials have  "acknowledged that filling ephemeral streams, which is actively occurring on the site, causes 'cascading and cumulative downstream effects'... resulting in significant, actual environmental harms.' Filling these streams cuts off the lifeblood of downstream waters, such as the Santa Cruz River," and "degrades habitat' used by migrating songbirds. Further, Rosemont's operations will "impact critical habitat for the last jaguar population in the United States," Gillespie said.

In the request for a restraining order, the tribes wrote that even while Rosemont's Section 404 permit is suspended, the company has "significantly expanded the proposed Rosemont Mine to encompass at least 3,503 additional acres on the west side of the Santa Rita Mountains, which it has marketed as the Copper World Expansion."

Rosemont told Pima County about plans

Last month, Hudbay executive Javier Del Rio outlined the company's plans to officials with Pima County's Regional Flood Control District. In his letter, Del Rio told the district that the company was submitted the plans for "review and comment only," citing an Arizona law, which keeps the district's board from limiting the construction of waste disposal areas for mining operations.

Pima County Administrator Jan Lesher told the Pima County Board of Supervisors that hard rock mines "enjoy exemption from most regulations and Pima County's permitting authority is limited."

"While the Regional Flood Control District Board has some permitting authority over portions of the mine, state law exempt tailings and waste rock storage from permitting, she said, "although plans must be submitted for review and comment." Del Rio's notice was an attempt to satisfy those requirements. The county "does not dispute that tailings or waste rock storage enjoy exemption from floodplain management regulations," however, she said information given to the district was "incomplete and not sufficient to make a determination" about Rosemont's plans.

Del Rio also told the district that he would meet with Lesher and members of the district, but while he would overview Rosemont's stormwater management plans, "considering the amount of planning and commercial commitments involved with this work, I am not able to delay it any further."

"Our initial notice of this exempt work was sent to the [Flood Control District] on March 10, 2022 and the first work in designated floodplains starts today," Del Rio said in an email Tuesday. "As emphasized in my prior letters, this work is entirely on Rosemont's private property and will not involve any significant stormwater diversions that could impact adjacent property owners."

Tribes request details, ignored

Gillespie told the court that the new efforts "overlaps the same waters of the United States identified in the Section 404 permit" that was rescinded by the Army Corps of Engineers. 

"For example, Rosemont plans to construct a waste rock pile/heap leach pad, tailings facility, and processing facility on top of the ephemeral streams identified in the Section 404 permit," he wrote.  "The viability of the Copper World Expansion thus depends upon the Section 404 Permit, which remains suspended."

"Despite that clear reality, Rosemont sent a letter to the Pima County Flood Control District outlining its imminent plan," wrote Gillespie. "According to the figures, the expanded mine would span the entire width of the Santa Rita Mountains from west to east and stretch almost four miles from north to south."

Once the tribes were given a copy of Del Rio's letter, they "immediately requested additional details from the company on April 1, 2022, including whether it had a valid Section 404 permit," but "received no response." The tribes also informed officials with the Army Corps of Engineers about Rosemont's "imminent plans" to grade the entire site, and as Gillespie wrote, the agency told Rosemont that the Section 404 permit "remains suspended."

"Faced with the Corps letter, Rosemont admits that it cannot 'impact any washes covered by this permit until it is either revoked or reinstated.'" he wrote. "Nonetheless, Rosemont started preemptively clearing and grading for its expanded mining project before the Corps conducted any further review or reissued, modified, or revoked the Section 404."

Rosemont did not tell the tribes about this activity, however, the tribes were given aerial photos on April 14 showing "bulldozers actively grading huge swaths of the site, including the ephemeral streams braided throughout the area," wrote Gillespie. "The Tribes warned the company to cease these unpermitted activities, which violate the Clean Water Act."

"The company has refused to do so, insisting on grading the site before the Corps has conducted any further review of its expanded mining project and without authorization under a Section 404 permit," he wrote.