Ctr. for Biological Diversity v. United States Fish & Wildlife Serv.

Decision Date12 May 2022
Docket Number19-17586,19-17585
PartiesCenter for Biological Diversity; Save the Scenic Santa Ritas; Arizona Mining Reform Coalition; Grand Canyon Chapter of the Sierra Club; Tohono O'odham Nation; Hopi Tribe; Pascua Yaqui Tribe of Arizona, named as Pascua Yaqui Tribe, Plaintiffs-Appellees, v. United States Fish and Wildlife Service; United States Forest Service; United States of America; Kurt Davis, Acting Supervisor of the Coronado National Forest; Calvin Joyner, Regional Forester; Randy Moore, Chief of the U.S. Forest Service; Thomas J. Vilsack, U.S. Secretary of Agriculture, Defendants-Appellants, and Rosemont Copper Company, Intervenor-Defendant. Center for Biological Diversity; Save the Scenic Santa Ritas; Arizona Mining Reform Coalition; Grand Canyon Chapter of the Sierra Club; Tohono O'odham Nation; Hopi Tribe; Pascua Yaqui Tribe of Arizona, named as Pascua Yaqui Tribe, Plaintiffs-Appellees, v. United States Fish and Wildlife Service; United States Forest Service; United States of America; Kurt Davis, Acting Supervisor of the Coronado National Forest; Calvin Joyner, Regional Forester; Randy Moore, Chief of the U.S. Forest Service; Thomas J. Vilsack, U.S. Secretary of Agriculture, Defendants, and Rosemont Copper Company, Intervenor-Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Argued and Submitted February 1, 2021 Phoenix, Arizona

Appeal from the United States District Court for the District of Arizona Nos. 4:17-cv-00475-JAS, 4:17-cv-00576-JAS 4:18-cv-00189-JAS James Alan Soto, District Judge, Presiding

Amelia G. Yowell (argued), Andrew C. Mergen, Andrew A. Smith, and Sommer H. Engels, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington D.C.; Stephen A. Vaden, General Counsel, United States Department of Agriculture; Washington, D.C.; for Defendants-Appellants.

Julian W. Poon (argued), Theodore J. Boutrous Jr., Bradley J Hamburger, and Virginia L. Smith, Gibson Dunn & Crutcher LLP, Los Angeles, California; Katherine C. Yarger, Gibson Dunn & Crutcher LLP, Denver, Colorado; Norman D. James Fennemore Craig P.C., Phoenix, Arizona; for Intervenor-Defendant-Appellant.

Heidi McIntosh (argued), Stuart Gillespie, and Caitlin Miller, Earthjustice, Denver, Colorado, for Plaintiffs-Appellees Tohono O'odham Nation, Hopi Tribe, and Pascua Yaqui Tribe.

Roger Flynn (argued) and Jeffrey C. Parsons, Western Mining Action Project, Lyons, Colorado; Marc D. Fink, Center for Biological Diversity, Duluth, Minnesota; Allison N. Melton, Center for Biological Diversity, Crested Butte, Colorado; for Plaintiffs-Appellees Center for Biological Diversity, Save the Scenic Santa Ritas, Arizona Mining Reform Coalition, and Grand Canyon Chapter of the Sierra Club.

Ronald W. Opsahl, Opsahl Law Office LLC, Lakewood, Colorado, for Amicus Curiae Southern Arizona Business Coalition.

R. Timothy McCrum and Elizabeth B. Dawson, Crowell & Moring LLP, Washington, D.C.; Katie Sweeney, Executive Vice President and General Counsel, National Mining Association, Washington, D.C.; for Amici Curiae National Mining Association (including Member State Mining Associations) and Chamber of Commerce of the United States of America.

Alison C. Hunter, Holland & Hart LLP, Boise, Idaho; Laura K. Granier, Holland & Hart LLP, Reno, Nevada; for Amicus Curiae American Exploration and Mining Association.

Matthew N. Newman, Native American Rights Fund, Anchorage, Alaska; David L. Gover, Native American Rights Fund, Boulder, Colorado; Joel West Williams, Native American Rights Fund, Washington, D.C.; for Amicus Curiae National Congress of American Indians, Inter-Tribal Association of Arizona, Association of American Indian Affairs, and Two Federally Recognized Tribal Nations.

Derrick Beetso, National Congress of American Indians, Washington, D.C., for Amicus Curiae National Congress of American Indians.

Lori Potter and Sarah C. Judkins, Kaplan Kirsch & Rockwell LLP, Denver, Colorado, for Amici Curiae Law Professors.

Regina L. Nassen and Victoria Buchinger, Deputy County Attorneys, Civil Division, Pima County Attorney's Office, Tucson, Arizona, for Amici Curiae Pima County and Pima County Regional Flood Control District.

Before: William A. Fletcher, Eric D. Miller, and Danielle J. Forrest, Circuit Judges.

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SUMMARY[*]
Mining Law

The panel affirmed the district court's judgment that the U.S. Fish and Wildlife Service acted arbitrarily and capriciously in approving the entirety of Rosemont Copper Company's mining plan of operations ("MPO") in its Final Environmental Statement and Record of Decision.

Rosemont seeks to dig a large open-pit copper mine in the Santa Rita mountains south of Tucson, Arizona. Rosemont owns valid mining rights on the National Forest land where it would dig its proposed pit mine. The Mining Law of 1872 allows mining companies to occupy federal land on which valuable minerals have been found, as well as non-mineral federal land for mill sites, essentially free of charge. The Service has promulgated regulations that govern surface uses of forest land relating to mining. 36 C.F.R. Part 228, Subpart A. Rosemont asked the Forest Service to authorize it to permanently occupy with its waste rock 2, 447 acres of additional National Forest land on which it does not have valid mining rights.

The Service approved the MPO on two separate grounds. First, the Service concluded that Section 612 of the Surface Resources and Multiple Use Act of 1955 gave Rosemont the right to dump its waste rock on open National Forest land, without regard to whether it has any mining rights on that land. Second, the Service assumed that under the Mining

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Law, Rosemont had valid mining claims on the 2, 447 acres it proposed to occupy with its waste rock. The district court held that neither ground supported the Service's approval of Rosemont's MPO.

The panel agreed with the district court's holding that Section 612 of the Multiple Use Act granted no rights beyond those granted by the Mining Law. In fact, the Government abandoned on appeal any argument that Section 612 supported the Service's decision. The panel also agreed with the district court's holding that the Service had no basis for assuming that Rosemont's mining claims were valid under the Mining Law. For different reasons, the panel also agreed with the district court's holding that the claims were invalid. The panel held that the claims were invalid because no valuable minerals had been found on the claims. The panel remanded to the Service for further proceedings as it deems important, informed by the Government's concession that Section 612 grants no rights beyond those granted by the Mining Law, and by the panel's holding that Rosemont's mining claims on the 2, 447 acres were invalid under the Mining Law. The panel noted that it did not know whether the Service would have decided that Part 228A regulations were applicable to Rosemont's proposal to occupy invalid claims with its waste rock, and, if applicable, whether the Service would have construed those regulations to allow such occupancy. These are decisions that must be made in the first instance by the Service.

Dissenting, Judge Forrest would hold that the regulations that the Service adopted to fill in the gaps left by the Mining Law established that: (1) the lawfulness of waste-rock disposal did not depend on whether the mine operator had valid mining claims to the disposal area; and (2) it was not

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arbitrary and capricious for the Service to apply the Part 228A regulations to Rosemont's proposed deposit of waste rock because on their express terms they applied to this activity as a matter of law. She would reverse and remand for the district court to assess the Service's decision under Part 228A.

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OPINION

W. FLETCHER, CIRCUIT JUDGE

Rosemont Copper Company seeks to dig a large open-pit copper mine in the Santa Rita Mountains just south of Tucson, Arizona. The proposed mining operation would be partly within the boundaries of the Coronado National Forest. The pit would be 3, 000 feet deep and 6, 500 feet wide, and would produce over five billion pounds of copper. No one disputes that Rosemont has valid mining rights on the land where the pit would be located.

Pit mining produces large amounts of waste rock. Rosemont proposes to dump 1.9 billion tons of waste rock near its pit, on 2, 447 acres of National Forest land. The pit itself will occupy just over 950 acres. When operations cease after twenty to twenty-five years, waste rock on the 2, 447 acres would be 700 feet deep and would occupy the land in perpetuity.

The United States Forest Service ("the Service") approved Rosemont's mining plan of operations ("MPO") on two separate grounds. First, the Service concluded that Section 612 of the Surface Resources and Multiple Use Act

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of 1955 ("Multiple Use Act") gives Rosemont the right to dump its waste rock on open National Forest land, without regard to whether it has any mining rights on that land, as a "use[] reasonably incident" to its operations at the mine pit. Second, the Service assumed that under the Mining Law of 1872 ("Mining Law") Rosemont has valid mining claims on the 2, 447 acres it proposes to occupy with its waste rock. Based on that assumption, the Service concluded that Rosemont has the right to occupy those claims.

Relying on these two grounds, the Service approved Rosemont's MPO, concluding under Section 612 of the Multiple Use Act and under the Mining Act that it had only the authority contained in its Part 228A regulations to regulate Rosemont's proposal to occupy its mining claims with its waste rock. The Service suggested...

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