CTR. FOR BIOLOGICAL DIVERSITY V. USFWS, No. 19-17585 (9th Cir. 2022)
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Rosemont Copper Company sought to dig a large open-pit copper mine in the Santa Rita Mountains just south of Tucson, Arizona. The United States Forest Service (“the Service”) approved Rosemont’s mining plan of operations (“MPO”) on two separate grounds. The district court held that neither ground supported the Service’s approval of Rosemont’s MPO.
The Ninth Circuit affirmed the district court’s judgment that the Service acted arbitrarily and capriciously in approving the entirety of Rosemont Copper Company’s MPO. The court 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. The court 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. The court 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 court’s holding that Rosemont’s mining claims on the 2,447 acres were invalid under the Mining Law. The court further 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.
Court Description: 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 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 5 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 6 CENTER FOR BIOLOGICAL DIVERSITY V. USFWS 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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