Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.

• Decision Date: 31 July 2019
• Docket Number: No. CV-17-00475-TUC-JAS (L),No. CV-18-00189-TUC-JAS (C),No. CV-17-00576-TUC-JAS (C),CV-17-00475-TUC-JAS (L),CV-17-00576-TUC-JAS (C),CV-18-00189-TUC-JAS (C)
• Citation: 409 F.Supp.3d 738
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Arizona

409 F.Supp.3d 738

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.

No. CV-17-00475-TUC-JAS (L)

No. CV-17-00576-TUC-JAS (C)

No. CV-18-00189-TUC-JAS (C)

United States District Court, D. Arizona.

Signed July 31, 2019

Allison N. Melton, Pro Hac Vice, Center for Biological Diversity, Crested Butte, CO, Brendan Ridgely Cummings, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, Jeffrey C. Parsons, Pro Hac Vice, Roger Flynn, Pro Hac Vice, Western Mining Action Project Lyons, CO, Marc D. Fink, Pro Hac Vice, Center for Biological Diversity, Duluth, MN, for Plaintiff.

Andrew Allen Smith, US Dept of Justice, Albuquerque, NM, Lila Clarissa Jones, Nicole Marie Smith, Simi Bhat, US Dept of Justice, Brian M. Collins, US DOJ ENRD Natural Resources Section, Washington, DC, for Defendant.

ORDER

Honorable James A. Soto, United States District Judge

Pending before the Court are motions for summary judgment filed by Plaintiffs and Defendants,¹ and motions for preliminary injunction filed by Plaintiffs. The litigation in these cases stems from the evaluation and ultimate approval of the Rosemont Mine by various agencies of the federal government. These motions are discussed below.

PART ONE: OVERVIEW OF THE LITIGATION RELATING TO THE ROSEMONT MINE

The United States Forest Service ("Forest Service") gave final approval to Rosemont Copper

Company ("Rosemont") to conduct a large-scale pit-mining operation within the boundaries of the Coronado National Forest. The Santa Rita Mountains lie to the south of Tucson, Arizona and are within the Coronado National Forest, which is managed by the Forest Service. Rosemont's proposed mining operation is projected to impact thousands of acres of the Santa Rita Mountains.

The open-pit mine itself, which contains the valuable minerals (primarily copper

) that Rosemont proposes to extract, will directly impact approximately 955 acres of land.² After Rosemont has completed extraction of material from the pit over the next 20 to 25 years, the circular pit will measure approximately 3,000 feet in depth and 6,000 feet in diameter.³ In the course of digging through 3,000 feet of geologic material, Rosemont will penetrate the wall of the groundwater table lying beneath the Santa Rita Mountains and will need to pump groundwater out of the pit to continue their mining operations. After Rosemont ceases its mining operations in 20 to 25 years, Rosemont will turn off the pumps, and the pit will then act as a hydraulic sink such that the pit will fill with groundwater. To gain access to the valuable copper, molybdenum, and silver in the ore, Rosemont will have to extract approximately 1.2 billion tons of waste rock (i.e., geologic material without economic value) and approximately 700 million tons of tailings (i.e., waste material left over after extracting the valuable fraction from the uneconomic fraction of the ore) (collectively "1.9 billion tons of waste"). The Rosemont Mine will impact approximately 3,653 acres of the Coronado National Forest. Outside of the 955-acre pit, Rosemont will dump approximately 1.9 billion tons of its waste on approximately 2,447 acres⁴ of the Coronado National Forest.

The Forest Service found that the Rosemont Mine would not be consistent with the Forest Service's "Coronado National Forest Land and Resource Management Plan" ("Forest Plan"). See Forest Service's Final Environmental Impact Statement for the Rosemont Copper Project ("FEIS") at 114. The Forest Service found that the Rosemont Mine would be:

Inconsistent with standards and guidelines [of the Forest Plan] related to the following:

Maintenance, rehabilitation, and enhancement of visual resources

Protection of cultural resources

Maintenance and improvement of wildlife habitat

Maintenance and protection of existing riparian resources

Maintenance of wildlife and plant diversity

Maintaining buffers around watering and feeding areas Retention of riparian area

Amount of riparian area

Diversity of riparian species

Maintenance of riparian area productivity

Minimizing soil damage

...

Maintenance of vegetative structure

Loss of horizonal structure

Loss of vertical structure

Delisting threatened and endangered species and reoccupying historic habitat

See FEIS at 115 ("Table 8. Coronado National Forest Plan consistency considerations").

As recognized by the Forest Service, among the cultural resources impacted by the Rosemont Mine would be the disturbance and desecration of 33 ancient Native American burial grounds containing, or likely containing, the human remains of ancestors of the Tohono O'odham Nation, Pasqua Yaqui Tribe, and Hopi Tribe (collectively "Tribes"); there is also the potential for additional disturbance and desecration of unmarked and unrecognized graves outside known cemetery areas. See FEIS at 1036-1040. The Forest Service further acknowledged that the Rosemont Mine would adversely impact the Tribes': "historic properties, human burials, sacred sites ... villages and graves of ancestors and traditional resource gathering areas, would be destroyed ... These impacts are severe, irreversible, and irretrievable ... [The Rosemont Mine] would destroy this historical and cultural foundation [of the Tribes], diminish tribal members' sense of orientation in the world, and destroy part of their heritage." See FEIS at 1036-1037.

As referenced above, as the Rosemont Mine would be inconsistent with the preexisting Forest Plan, the Forest Service changed the Forest Plan to accommodate Rosemont's mining plan ("Rosemont Plan"). See Forest Service's Record of Decision ("ROD") at 32 ("[The Forest Service] determined that modifying [Rosemont's Mining Plan] to comply with the current Coronado [Forest Plan] would materially interfere with [Rosemont's] mineral operations ... [therefore, the Forest Service amended the Forest Plan] contemporaneously with the approval of [Rosemont's Mining Plan] so that [Rosemont's mining] project or activity will be consistent with the [Forest Plan] as amended."); see also FEIS at 115 (Table 8: discussing how the Rosemont Plan was inconsistent with the preexisting Coronado National Forest Plan).

Due to the extensive impact of the Rosemont Mine on the Coronado National Forest, numerous parties have filed lawsuits arguing that the approval of the Rosemont Mine violates the law. All of these lawsuits have been consolidated with this Court.

In CV 17-475-TUC-JAS ("Case 1"), the Center for Biological Diversity ("CBD") filed suit against the U.S. Fish and Wildlife Service ("FWS") and the Forest Service. CBD argues that the Forest Service's consultation and reliance on the FWS's Biological Opinion as to the Rosemont Mine is erroneous as the FWS violated the Endangered Species Act ("ESA") in analyzing the adverse impacts of the mine on threatened and endangered species (including the jaguar, ocelot, Gila chub, Gila topminnow, desert pupfish, Chiricahua leopard frog, northern Mexican garter snake, southwestern willow flycatcher, western yellow-billed cuckoo, lesser long-nosed bat, Huachuca water umbel) and their remaining habitat. Rosemont brought a cross-claim against FWS. In the cross-claim Rosemont argues that FWS exceeded its statutory authority when designating portions of the Santa Rita Mountains as a critical habitat for the jaguar species and that FWS also violated the Endangered Species Act ("ESA") by failing to review the designation of the jaguar as an endangered species.

In CV 17-576-TUC-JAS ("Case 2"), Save the Scenic Santa Ritas, Arizona Mining Reform Coalition, Center for Biological Diversity, and the Grand Canyon Chapter of the Sierra Club (collectively "SSSR") filed suit against the United States, the Forest Service, and several supervisory officials of the Forest Service.

In CV 18-189-TUC-JAS ("Case 3"), the Tohono O'odham Nation, Pasqua Yaqui Tribe, and Hopi Tribe (collectively "Tribes") filed suit against the Forest Service, the U.S. Secretary of Agriculture, and several supervisory officials of the Forest Service. In Cases 2 and 3, SSSR and the Tribes both argue that the Forest Service misapplied various statutes and regulations relating to mining and management of federal lands (such as the Mining Law of 1872, the Organic Act of 1897, and the Multiple Use Act of 1955), and therefore failed to properly exercise its broad discretion and authority (and consider project alternatives) to protect the Coronado National Forest from depredations. In Case 2, SSSR also argues that the Forest Service erroneously evaluated its authority, impacts, and mitigation relating to: the mine pit lake (which will form when mining ceases), dewatering of the groundwater table which will dry up surrounding streams, springs, and seeps, and the impact these water issues will have on wildlife that depend on the water. In Case 3, the Tribes also argue that the Forest Service failed to comply with the National Historic Preservation Act ("NHPA") in failing to protect historic and archaeological treasures that form a core part of the cultural legacy of the Tribes; the NHPA claims are closely connected to the Tribes claims referenced above inasmuch as the Tribes argue that the Forest Service misapplied its discretion and authority from the inception of its analysis of the Rosemont Mine.

Cases 1, 2, and 3 have been consolidated ("Consolidated Case A") as they partially share a common administrative record and some factual and legal issues overlap (especially Cases 2 and 3). Shortly after the summary judgment motions became fully briefed in Consolidated Case A, two new cases related to the Rosemont Mine were filed with this Court. In CV 19-177-TUC-JAS ("Case 4"), Save the Scenic Santa Ritas, Center for Biological Diversity, Arizona Mining Reform Coalition, and the Grand Canyon Chapter of the Sierra Club (collectively "SSSR") filed suit against the U.S. Army Corps of Engineers ("Corps") and a U.S. Army Brigadier General with the Corps. In CV 19-205-TUC-JAS ("Case 5"), the Tohono...