Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 1 of 37 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Center for Biological Diversity, et al., 10 Plaintiffs, 11 v. 12 United States Fish and Wildlife Service, et al., 13 No. CV-17-00475-TUC-JAS (L) No. CV-17-00576-TUC-JAS (C) No. CV-18-00189-TUC-JAS (C) CONSOLIDATED ORDER Defendants. 14 15 16 Pending before the Court are motions for summary judgment filed by Plaintiffs and 17 Defendants,1 and motions for preliminary injunction filed by Plaintiffs. The litigation in 18 these cases stems from the evaluation and ultimate approval of the Rosemont Mine by 19 various agencies of the federal government. These motions are discussed below. 20 PART ONE: OVERVIEW OF THE LITIGATION RELATING TO THE ROSEMONT MINE 21 22 23 24 25 26 27 28 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. 1 References to Defendants throughout this Order include the Intervenor-Defendant (i.e., Rosemont). Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 2 of 37 1 The open-pit mine itself, which contains the valuable minerals (primarily copper) 2 that Rosemont proposes to extract, will directly impact approximately 955 acres of land.2 3 After Rosemont has completed extraction of material from the pit over the next 20 to 25 4 years, the circular pit will measure approximately 3,000 feet in depth and 6,000 feet in 5 diameter.3 In the course of digging through 3,000 feet of geologic material, Rosemont will 6 penetrate the wall of the groundwater table lying beneath the Santa Rita Mountains and 7 will need to pump groundwater out of the pit to continue their mining operations. After 8 Rosemont ceases its mining operations in 20 to 25 years, Rosemont will turn off the pumps, 9 and the pit will then act as a hydraulic sink such that the pit will fill with groundwater. To 10 gain access to the valuable copper, molybdenum, and silver in the ore, Rosemont will have 11 to extract approximately 1.2 billion tons of waste rock (i.e., geologic material without 12 economic value) and approximately 700 million tons of tailings (i.e., waste material left 13 over after extracting the valuable fraction from the uneconomic fraction of the ore) 14 (collectively “1.9 billion tons of waste”). The Rosemont Mine will impact approximately 15 3,653 acres of the Coronado National Forest. Outside of the 955-acre pit, Rosemont will 16 dump approximately 1.9 billion tons of its waste on approximately 2,447 acres4 of the 17 Coronado National Forest. 18 The Forest Service found that the Rosemont Mine would not be consistent with the 19 Forest Service’s “Coronado National Forest Land and Resource Management Plan” 20 (“Forest Plan”). See Forest Service’s Final Environmental Impact Statement for the 21 Rosemont Copper Project (“FEIS”) at 114. The Forest Service found that the Rosemont 22 2 23 24 25 26 27 28 The 955 acres is a combination of private and public land. This would include 590 acres of private land and 365 acres of the Coronado National Forest (i.e., comprising a total of 955 acres). 3 Rosemont estimates that the pit will produce 5.3 billion tons of copper, 142 million tons of molybdenum, and 79 million ounces of silver; at full production, Rosemont estimates that the mining project will produce 10% of the nation’s domestic copper supply. 4 The 1.2 billion tons of waste rock will be dumped on approximately 1,460 acres of the Coronado National Forest, and the 700 million tons of tailings will be dumped on approximately 987 acres of the Coronado National Forest (i.e., comprising a total of approximately 2,447 acres). The Court notes that the numbers cited throughout this Order (i.e., acres, weight, volume, areas of land, locations and volumes of minerals and mineral formations, etc.) are approximations; for ease of reference, the Court will omit constant references to “approximately.” Unless otherwise noted by the Court, the numbers discussed herein are approximations. -2- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 3 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 -3- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 4 of 37 1 Rosemont’s mining plan (“Rosemont Plan”). See Forest Service’s Record of Decision 2 (“ROD”) at 32 (“[The Forest Service] determined that modifying [Rosemont’s Mining 3 Plan] to comply with the current Coronado [Forest Plan] would materially interfere with 4 [Rosemont’s] mineral operations . . . [therefore, the Forest Service amended the Forest 5 Plan] contemporaneously with the approval of [Rosemont’s Mining Plan] so that 6 [Rosemont’s mining] project or activity will be consistent with the [Forest Plan] as 7 amended.”); see also FEIS at 115 (Table 8: discussing how the Rosemont Plan was 8 inconsistent with the preexisting Coronado National Forest Plan). 9 Due to the extensive impact of the Rosemont Mine on the Coronado National Forest, 10 numerous parties have filed lawsuits arguing that the approval of the Rosemont Mine 11 violates the law. All of these lawsuits have been consolidated with this Court. 12 In CV 17-475-TUC-JAS (“Case 1”), the Center for Biological Diversity (“CBD”) 13 filed suit against the U.S. Fish and Wildlife Service (“FWS”) and the Forest Service. CBD 14 argues that the Forest Service’s consultation and reliance on the FWS’s Biological Opinion 15 as to the Rosemont Mine is erroneous as the FWS violated the Endangered Species Act 16 (“ESA”) in analyzing the adverse impacts of the mine on threatened and endangered 17 species (including the jaguar, ocelot, Gila chub, Gila topminnow, desert pupfish, 18 Chiricahua leopard frog, northern Mexican garter snake, southwestern willow flycatcher, 19 western yellow-billed cuckoo, lesser long-nosed bat, Huachuca water umbel) and their 20 remaining habitat. Rosemont brought a cross-claim against FWS. In the cross-claim 21 Rosemont argues that FWS exceeded its statutory authority when designating portions of 22 the Santa Rita Mountains as a critical habitat for the jaguar species and that FWS also 23 violated the Endangered Species Act (“ESA”) by failing to review the designation of the 24 jaguar as an endangered species. 25 In CV 17-576-TUC-JAS (“Case 2”), Save the Scenic Santa Ritas, Arizona Mining 26 Reform Coalition, Center for Biological Diversity, and the Grand Canyon Chapter of the 27 Sierra Club (collectively “SSSR”) filed suit against the United States, the Forest Service, 28 and several supervisory officials of the Forest Service. -4- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 5 of 37 1 In CV 18-189-TUC-JAS (“Case 3”), the Tohono O’odham Nation, Pasqua Yaqui 2 Tribe, and Hopi Tribe (collectively “Tribes”) filed suit against the Forest Service, the U.S. 3 Secretary of Agriculture, and several supervisory officials of the Forest Service. In Cases 4 2 and 3, SSSR and the Tribes both argue that the Forest Service misapplied various statutes 5 and regulations relating to mining and management of federal lands (such as the Mining 6 Law of 1872, the Organic Act of 1897, and the Multiple Use Act of 1955), and therefore 7 failed to properly exercise its broad discretion and authority (and consider project 8 alternatives) to protect the Coronado National Forest from depredations. In Case 2, SSSR 9 also argues that the Forest Service erroneously evaluated its authority, impacts, and 10 mitigation relating to: the mine pit lake (which will form when mining ceases), dewatering 11 of the groundwater table which will dry up surrounding streams, springs, and seeps, and 12 the impact these water issues will have on wildlife that depend on the water. In Case 3, the 13 Tribes also argue that the Forest Service failed to comply with the National Historic 14 Preservation Act (“NHPA”) in failing to protect historic and archaeological treasures that 15 form a core part of the cultural legacy of the Tribes; the NHPA claims are closely connected 16 to the Tribes claims referenced above inasmuch as the Tribes argue that the Forest Service 17 misapplied its discretion and authority from the inception of its analysis of the Rosemont 18 Mine. 19 Cases 1, 2, and 3 have been consolidated (“Consolidated Case A”) as they partially 20 share a common administrative record and some factual and legal issues overlap (especially 21 Cases 2 and 3). Shortly after the summary judgment motions became fully briefed in 22 Consolidated Case A, two new cases related to the Rosemont Mine were filed with this 23 Court. In CV 19-177-TUC-JAS (“Case 4”), Save the Scenic Santa Ritas, Center for 24 Biological Diversity, Arizona Mining Reform Coalition, and the Grand Canyon Chapter of 25 the Sierra Club (collectively “SSSR”) filed suit against the U.S. Army Corps of Engineers 26 (“Corps”) and a U.S. Army Brigadier General with the Corps. In CV 19-205-TUC-JAS 27 (“Case 5”), the Tohono O’odham Nation, Pasqua Yaqui Tribe, and Hopi Tribe (collectively 28 “Tribes”) filed suit against the same Defendants in Case 4. Plaintiffs in Cases 4 and 5 both -5- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 6 of 37 1 argue that the Corps improperly issued a permit for the Rosemont Mine to discharge 2 “dredged or fill material” into the “Waters of the United States” (“WOTUS”). Plaintiffs 3 argue that the discharges contain toxic pollutants that will seriously degrade numerous 4 waterways connected to, and running like capillaries through, thousands of acres of the 5 Coronado National Forest impacted by the Rosemont Mine. 6 consolidated as they implicate a common administrative record and have some overlapping 7 factual and legal issues (“Consolidated Case B”).5 Cases 4 and 5 were 8 Although the Forest Service is the lead agency in charge of evaluating and 9 ultimately issuing the final approval for the Rosemont Mine to commence operations, the 10 Forest Service would not issue a final approval for the mine until the Corps issued a permit 11 for discharges into the WOTUS. The Corps issued their permit to Rosemont in March of 12 2019, and shortly thereafter, the Forest Service issued its final approval for Rosemont to 13 commence mining activities in the Coronado National Forest. Rosemont filed a notice in 14 these cases indicating that ground-disturbing activities would start in the near future, and 15 after holding a status conference with the parties, Rosemont indicated that such activities 16 would begin on August 1, 2019. In light of these circumstances, all of the Plaintiffs in 17 Consolidated Cases A and B filed separate motions for preliminary injunction. All of the 18 preliminary injunction motions became fully briefed in approximately the second week of 19 July 2019. 20 The Court estimates that just the briefing pertaining to the summary judgment and 21 preliminary injunction motions (i.e., memoranda, responses, replies) exceed a thousand 22 pages (exclusive of the lengthy statements of fact). 23 Consolidated Case A includes more than 50,000 documents, and the administrative record 24 in Consolidated Case B also includes thousands of documents. In all, Plaintiffs argue that 25 Defendants violated numerous laws, including: the Administrative Procedures Act The administrative record in 26 27 28 5 While the focus and legal rulings in this Order only pertain to Consolidated Case A, the Court has included a brief discussion of Consolidated Case B to give a fuller picture of the Rosemont Mine Litigation. From the inception of Consolidated Cases A and B, Rosemont has been an intervenor-defendant in all five cases. The Court will be issuing a separate Order as to the pending motions in Consolidated Case B. -6- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 7 of 37 1 (“APA”), the National Environmental Policy Act (“NEPA”), the Mining Law of 1872, the 2 Organic Act of 1897, the National Historic Preservation Act (“NHPA”), the Clean Water 3 Act (“CWA”), and the Endangered Species Act (“ESA”). 4 Consolidated Cases A and B were held before this Court on July 23, 2019. Given the 5 important interests and exigent circumstances involved, the Court informed the parties that 6 it would issue an Order by August 1, 2019. 7 PART TWO: SUMMARY OF THE DISPOSITIVE ISSUES IN CASES 2 AND 3 (“DISPOSITIVE CASE”) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Oral arguments as to In light of the extensive briefing, voluminous record, and time constraints, the Court does not address every single argument sprawled across all five cases in this Order. Rather, this Order only focuses on several dispositive issues raised in similar arguments made by both the Tribes and SSSR in Cases 2 and 3 (hereinafter, “Dispositive Case”). Given the sheer volume of information in the Dispositive Case, and the arcane areas of law at issue, Part Two summarizes this Court’s view of the most significant issues and rulings as to the Dispositive Case, and then Part Three goes into a much deeper, extensive discussion of many of these issues. As Part Two is meant to briefly summarize the issues to serve as a roadmap for Part Three, the Court purposely omits legal citations and detailed discussion of language from statutes, cases, regulations, and manuals; this is covered in Part Three. The focus of the Dispositive Case is the arbitrary and capricious actions of the Forest Service. The Court is granting summary judgment in favor of the Tribes and SSSR in the Dispositive Case and vacating and remanding the Forest Service’s ROD and FEIS such that the Rosemont Mine cannot begin operations at this time. As there are no longer exigent circumstances justifying immediate injunctive relief, the Court is denying without prejudice all of the preliminary injunction motions filed in Consolidated Cases A and B.6 While this Order grants relief in the Dispositive Case, the Court will issue a separate Order as to Case 1 on a future date. 6 As referenced above, the Court will issue a separate Order in Consolidated Case B. The Court notes that Consolidated Case B is in its early stages, and no other motions were filed other than the motions seeking injunctive relief. An Order setting the briefing schedule for Consolidated Case B will be filed later in the week. -7- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 8 of 37 1 As to the Dispositive Case, the Court will often collectively refer to the Tribes and 2 SSSR as the Plaintiffs, and all of the Federal Defendants and Rosemont as Defendants. 3 Unless otherwise noted by the Court, all further discussions in this Order pertain only to 4 the Dispositive Case. 5 Pertinent statutory authority7 in this case includes: (1) the Mining Law of 1872 (30 6 U.S.C. §§ 22, 23, 26, 29, 42) (“Mining Law”); (2) the Organic Act of 1897 (16 U.S.C. 7 §§ 478, 482, 551) (“Organic Act”); (3) the Surface Resources and Multiple Use Act of 8 1955 (30 U.S.C. § 612) (“Multiple Use Act”); (4) 30 U.S.C. § 611 (“Common Varieties 9 Act”); (5) the APA and NEPA. Pertinent Forest Service regulatory authority in this case 10 includes: (1) Part 228 (36 C.F.R. §§ 228.1, 228.2, 228.3, and 228.5(d)) (“Mining 11 Regulations”); (2) 36 C.F.R. §§ 261.1(a) and (b), 261.9, and 261.10 (“General Prohibition 12 Regulations”); (3) 36 C.F.R. §§ 251.50, 251.56(a), 251.54(e)(1), (e)(2), and (e)(5) 13 (“Special Use Regulations”). Lastly, instructive Forest Service Manual provisions include: 14 §§ 2813.2(2) and (7), and 2819.1(1). 15 As noted above, all of this statutory and regulatory authority, along with the relevant 16 case law, is discussed in detail in Part Three of this Order. However, a summary of the 17 issues at this point will streamline a fuller understanding of the discussion in Part Three. 18 The primary errors the Forest Service made in this case relate to Rosemont dumping 19 1.9 billion tons of its waste on 2,447 acres of the Coronado National Forest. As Rosemont 20 had unpatented mining claims covering those 2,447 acres, the Forest Service accepted, 21 without question, that those unpatented mining claims were valid. This was a crucial error 22 as it tainted the Forest Service’s evaluation of the Rosemont Mine from the start. 23 The Mining Law of 1872 grants exclusive property rights to miners who have valid 24 unpatented mining claims. To have a valid unpatented mining claim, there must be a 25 valuable mineral deposit8 underlying the claim. If there is a valuable deposit underlying 26 27 28 7 The Court has included citations to the most relevant provisions of the statutes, regulations, and Forest Service Manual. 8 Generally, a mineral deposit is considered valuable if a reasonable person would conclude that the minerals could be sold at a profit considering the costs of extraction, processing, transportation, and other related costs in bringing the mineral to market. -8- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 9 of 37 1 the claim, the miner has the exclusive right to extract and profit from those minerals, and 2 the right to use the surface above those minerals for purposes of mining (even if the 3 minerals and surface are located on federal lands such as the Coronado National Forest). 4 As a practical matter, the process of obtaining unpatented mining claims has been a 5 historically low bar; a miner could simply enter upon federal land, put up some stakes 6 marking the land above a purported valuable mineral deposit (along with some “no 7 trespassing” signs proclaiming the rights to the valuable minerals within the stakes), and 8 record a notice with local authorities setting out the parameters of the purported deposit. 9 However, having a piece of paper reflecting that one has unpatented mining claims does 10 not show that one actually has valid unpatented mining claims. If there is no valuable 11 mineral deposit beneath the purported unpatented mining claims, the unpatented mining 12 claims are completely invalid under the Mining Law of 1872, and no property rights attach 13 to those invalid unpatented mining claims. 14 The administrative record before the Forest Service reflected that there was no 15 location of a valuable mineral deposit underlying the unpatented mining claims covering 16 the 2,447 acres in question; as such, the record reflected that the unpatented claims were 17 invalid. 18 Nonetheless, the Forest Service assumed that the claims were valid, assumed that 19 Rosemont had the right to use those 2,447 acres to support its mining operation (i.e., by 20 dumping 1.9 billion tons of its waste on that land), and from those assumptions attempted 21 to minimize the environmental and cultural impacts stemming from Rosemont’s purported 22 rights connected to their invalid unpatented mining claims. 23 Defendants argue that the Forest Service (which is within Department of 24 Agriculture) had no jurisdiction to issue a final decision as to the validity of Rosemont’s 25 unpatented mining claims; rather, jurisdiction over such claims lies with the Bureau of 26 Land Management (“BLM”, which is within the Department of the Interior). While 27 Defendants are correct as to jurisdiction, that does not mean that the Forest Service had no 28 obligation to assess Rosemont’s surface rights. The Forest Service had no factual basis to -9- Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 10 of 37 1 determine that Rosemont had valid unpatented mining claims giving them property rights 2 over those 2,447 acres of land. Rather, the record strongly indicated the opposite. As a 3 threshold matter, Rosemont’s proposal to bury its 2,447 acres of unpatented mining claims 4 under 1.9 billion tons of its own waste was a powerful indication that there was not a 5 valuable mineral deposit underneath that land. 6 geological maps in the record before the Forest Service indicate there is primarily common 7 sand, stone, and gravel beneath the land at issue; this does not constitute a valuable mineral 8 deposit. Despite no jurisdiction to issue a final ruling as to validity, the Forest Service 9 certainly was not powerless. The Forest Service’s regulations and the Forest Service 10 Manual specifically allow for the Forest Service to consult and request analysis from the 11 BLM as to mining claims on Forest Service land, and the Forest Service can also have its 12 own mineral examiner assess purported mining claims. In addition, there is case law in the 13 Ninth Circuit reflecting that the Forest Service has pursued such options, initiated 14 administrative complaints with the Department of the Interior to successfully declare 15 mining claims on Forest Service land invalid, and these administrative decisions were 16 ultimately affirmed via judicial review on appeal. Furthermore, geological studies and 17 Relying on the Organic Act of 1897 and the Multiple Use Act of 1955, Defendants 18 further argue that the Forest Service correctly recognized the limits of its authority, and 19 therefore properly determined that Rosemont had the right to use those 2,447 acres of the 20 Coronado National Forest to dump its 1.9 billion tons of waste (with the caveat that the 21 Forest Service properly exercised its duties by attempting to limit the adverse 22 environmental and cultural impacts of the waste site). Defendants correctly argue that the 23 Organic Act states that mining cannot be prohibited on National Forest lands, and the 24 Multiple Use Act states that mining and reasonably incidental mining activities are 25 permitted and cannot be materially interfered with on federal lands. As such, Defendants 26 argue that since Rosemont clearly has valuable mineral deposits underlying the 955 acre 27 mine pit, Rosemont therefore has a right to dump 1.9 billion tons of its waste on the 2,447 28 acres of the Coronado National Forest because it is reasonably incident to its valid mining - 10 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 11 of 37 1 claims. Thus, Defendants claim that it is irrelevant if Rosemont’s unpatented mining 2 claims on the 2,447 acres are completely invalid for lack of any valuable mineral deposit. 3 These arguments are unpersuasive, however, as the Organic Act and Multiple Use Act did 4 not create freestanding mining rights outside of the specific parameters of the Mining Law 5 of 1872. The Organic Act simply recognized that the Forest Service could not prohibit 6 mining activities on Forest Service land allowed by the Mining Law. Likewise, as relevant 7 here, the Multiple Use Act also simply recognized that the United States could not prohibit 8 mining activities allowed by the Mining Law on federal lands; in fact, the Multiple Use 9 Act was specifically passed to curb abuses of the Mining Law (i.e., individuals and 10 companies using fraudulent mining claims to monopolize federal land at no cost for non- 11 mineral extraction purposes; in a report submitted to Congress related to the proposed 12 Multiple Use Act, the Department of Agriculture estimated that likely no more that 40% 13 of unpatented mining claims on Forest Service lands were valid). As the Organic Act and 14 Multiple Use Act did not create rights independent of the Mining Law, and the record 15 before the Forest Service reflects that Rosemont’s mining claims on the 2,447 acres in 16 question are invalid under the Mining Law, the Forest Service improperly found that 17 Rosemont had the right to dump 1.9 billion tons of its waste on that land. 18 Lastly, Defendants argue that the Forest Service regulations allow Rosemont to use 19 the 2,447 acres to dump its 1.9 billion tons of waste. However, the regulations state that 20 mining activities on Forest Service land are permitted only as specifically authorized by 21 the Mining Law of 1872. As Rosemont has no rights under the Mining Law as to the land 22 at issue, it follows that the regulations certainly do not create independent rights that do 23 not exist under the Mining Law. 24 As referenced above, the issues summarized in Part Two of this Order are discussed 25 in extensive detail below. 26 PART THREE: DETAILED ANALYSIS OF THE DISPOSITIVE ISSUES 27 I. Patented and Unpatented Mining Claims, the Location of Minerals, and the Administrative Process with the Forest Service Leading to Approval of the Mine 28 Rosemont owns 132 patented mining claims within the boundaries of the Coronado - 11 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 12 of 37 1 National Forest. See Conrad Huss, NI 43-101 Technical Report, 1 (2009). Rosemont owns 2 these claims in fee simple and they do not belong or attach to the National Forest land. 3 Additionally, Rosemont owns 949 unpatented claims located upon Forest Service land. Id. 4 The parties dispute the legal rights as to this land as described in the Forest Service’s FEIS. 5 As referenced above, to access and develop the copper ore within its claims, 6 Rosemont plans to dig an open-pit mine that will unearth 1.2 billion tons of waste rock and 7 700 million tons of tailings. The FEIS defined waste rock as rock that “contains no ore 8 metals or contains ore metals at levels below the economic cutoff value and must be 9 removed to recover the ore.” FEIS at 1344. Additionally, the FEIS described the amount 10 of waste rock removed by rock type and the formation in which it lay. Id. at 173 (Table 11 15). Rosemont proposed to dump this 1.9 billion tons of waste to the east and southeast of 12 the mine pit on Forest Service lands. Id. at 81 (Figure 17); ROD at 31. 13 Several rock formations underlie the areas Rosemont proposes to use for ore 14 processing, and tailings and waste rock storage. Beneath the ore processing facilities area 15 lies mainly Willow Canyon Formation as well as a strip of Mafic Lava. FEIS at 157. 16 Beneath the tailings pile lies mainly Willow Canyon Formation and Apache Canyon 17 Formation as well as some Gila Conglomerate, Mount Fagan Rhyolite and Schellenberger 18 Formation to the east. Id. at 159. Finally, beneath the waste rock pile area lies mainly Gila 19 Conglomerate with a strip of Older Alluvium that runs through the tailings pile area as 20 well. Id. at 157. 21 Rosemont purports to maintain an interest in copper sulfide and copper oxide within 22 their claims. Id. at 155-56. The sulfide ores exist “in potentially economic concentrations” 23 as “Horquilla Limestone, Colina Limestone, quartz monzonite porphyry, and the Earp 24 Formation.” Id. (relative percentages and citation omitted). The copper oxide appears “in 25 potentially economic concentrations” within “Willow Canyon arkose, quartz monzonite 26 porphyry, and quartz latite porphyry and andesite. Id. at 156 (relative percentages omitted). 27 Rosemont intends to extract over 641 million tons of copper oxide located primarily within 28 the Willow Canyon Formation and 156 million tons of “Tertiary Gravels.” Id. at 156, 166, - 12 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 13 of 37 1 173 (Table 15). 2 “potentially economic concentrations” and then later as “waste rock.” Id. Moreover, 3 within the Willow Canyon Formation, “[p]rimary copper mineralization is confined to rare 4 localized areas of weak quartz veining that contain sparse very-fine grained bornite and 5 chalcopyrite.” William J. Daffron et. al., Arizona Geological Society, Rosemont Mine 6 Tour, 6 (2007). The FEIS alternatively described this copper oxide as existing in 7 Regarding the tertiary gravels, under a subsection entitled “Rosemont Deposit 8 Geology,” the FEIS describes four rock formations as pertaining to the tertiary period. 9 FEIS at 156. Among these it describes the Gila Conglomerate as “[l]ight brown, 10 medium- to thick-bedded, conglomerate, pebbly sandstone, and sandstone with a 11 calcareous matrix.” Id. This section also acknowledges the conglomerate contains clasts 12 of limestone, along with four other minerals. Id. The abundance of these clasts “varies, 13 depending on the composition of nearby upslope areas.” Id. The administrative record 14 contains no information regarding whether the limestone within the Gila Conglomerate 15 exists at economic concentrations. 16 Mount Fagan Rhyolite and Schellenberger Canyon Formation underlie the Gila 17 Conglomerate to the east of the tailings pile. Id. at 159. Neither formation lists any of the 18 host rocks purported to contain copper sulfide or oxide in potentially economic quantities. 19 Id. at 160-01. The Schellenberger Formation contains a thin layer of “Mural limestone” 20 less than 20 feet thick. Id. at 160. This limestone exists in the lower half of a formation 21 that runs 2,500 feet deep, and which underlies two other layers that run at least 1000 ft. 22 deep. Id. at 159-61. Rosemont does not contend that this limestone appears in potentially 23 economic quantities. Id. at 155-56. 24 Likewise, the Apache Canyon Formation does not contain any of the minerals 25 Rosemont contends host copper sulfide or oxide in potentially economic quantities. Id. 26 at161. The FEIS describes the formation as “dominated by mudstone and arkosic-lithic 27 sandstone” and “distinguished by its . . . dark, typically laminated, nonfossiliferous, fetid, 28 micritic limestone.” Id. The FEIS does not posit that any mineralization appears within - 13 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 14 of 37 1 this formation. Id. Neither do the Defendants contend that this limestone hosts any 2 economically viable mineralization. Id. at 155-56. 3 The administrative record shows no evidence of any mineralization within the Mafic 4 Lava, nor the Older Alluvium. Id. at 156, 161. The Mafic Lava “are calcite and quartz and 5 typically very fine grained.” Id. at 161. Whereas the Older Alluvium contains “medium- to 6 thick-bedded, sandy, pebble-cobble gravel with rare boulders, deried from upslope or 7 upstream units.” Id. at 156. Again, the Defendants do not contend that these formations 8 host any economically viable mineralization. Id. at 155-56. 9 In addition to the Rosemont deposit, located at the site of the proposed mine pit, 10 Rosemont claims two other “identified deposits or potential deposits at Peach-Elgin and 11 Broadtop Butte.” Rosemont Resp. ¶ 60. The Broadtop Butte deposits lies to the north of 12 the Rosemont deposit while the Peach-Elgin deposit lies to the north west. See Rosemont 13 Mine Tour at Claim Map, Sec. 4(c). Both deposits lie in patented land owned in fee simple 14 by Rosemont. Id. The Willow Canyon and Gila Conglomerate Formations lie to the east 15 and southeast. FEIS at 158. 16 In February of 2008, Rosemont submitted to the Forest Service a Mining Plan of 17 Operations (“MPO”). ROD at 3. n. 4. In October of 2011, the Forest Service published a 18 Draft Environmental Impact Statement (“DEIS”). See FEIS at i. From October 11, 2011 19 to January 31, 2012, the Forest Service received 24,845 public comments in connection 20 with the DEIS. Id. at G-3. In December of 2013, the Forest Service published the FEIS. 21 See ROD at 1. In June of 2017, the Forest Service issued a final ROD approving one of 22 the alternatives considered in the FEIS. See ROD at 33-37. 23 II. Relevant Statutory and Regulatory Law 24 25 As referenced above, numerous statutes and regulations are relevant to understanding the dispute in this case; this authority is discussed below. 26 A. The Administrative Procedures Act (“APA”) 27 The APA provides that “a person suffering legal wrong because of agency action, 28 or adversely affected or aggrieved by agency action within the meaning of a relevant - 14 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 15 of 37 1 statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA requires the Court 2 to “hold unlawful and set aside agency action, findings, and conclusions found to be 3 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . .” 4 Id. § 706(2)(A). Furthermore, the APA grants the Court authority to “decide all relevant 5 questions of law, interpret constitutional and statutory provisions, and determine the 6 meaning or applicability of the terms of an agency action.” Id. § 706 7 A court may invalidate agency action as arbitrary and capricious if the agency: 1) 8 bases its decision “on factors which Congress has not intended it to consider”; 2) entirely 9 ignored or “failed to consider an important aspect of the problem”; 3) proffers “an 10 explanation for its decision that runs counter to the evidence” considered; or 4) proffers an 11 explanation “so implausible that it could not be ascribed to a difference in view or the 12 product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto 13 Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”).9 14 Generally, the Court must treat agency decisions with deference, particularly “when 15 the agency is making predictions, within its special expertise, at the frontiers of science . . 16 .” Forest Guardians v. U.S. Forest Service, 329 F.3d 1089, 1099 (9th Cir. 2003). However, 17 when an agency’s actions are inconsistent with its own policies, the Court will examine 18 first “whether the agency has actually departed from its policy,” and second, “whether the 19 agency has offered a reasoned explanation for such departure.” Bahr v. EPA, 836 F.3d 20 1218, 1229 (9th Cir. 2016). Furthermore, the Court cannot sustain an agency action 21 founded upon “an erroneous view of the law” rather than “the agency’s own judgment . . 22 .” Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985), see also SEC v. Chenery Corp., 318 23 U.S. 80, 94 (1943) (declaring “an order may not stand if the agency has misconceived the 24 law”). 25 Moreover, before deferring to an agency’s interpretation of its own regulations, a 26 “court must carefully consider the text, structure, history, and purpose of a regulation” as 27 this practice “will resolve many seeming ambiguities out of the box” without a need for 28 9 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing case law throughout this Order. - 15 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 16 of 37 1 deference. See Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). These inquiries “establish 2 the outer bounds of permissible interpretation” and help cabin any question as to the 3 interpretation’s reasonableness. Id. at 2416. Additionally, the Court must consider 4 whether the “character and context of the agency interpretation entitles it to controlling 5 weight” as well as whether the interpretation “in some way implicate[s] its substantive 6 expertise.” Id. Lastly, courts need not defer to an agency interpretation when “an agency 7 interprets a rule that parrots the statutory text.” Id. at 2417 n. 5. 8 B. The National Environmental Policy Act (“NEPA”) 9 NEPA mandates federal agencies prepare an environmental impact statement before 10 engaging in a “major Federal action[]” that will “significantly affect[] the quality of the 11 human environment.” 42 U.S.C. § 4332(2)(C). NEPA instructs the Forest Service to 12 “inform decisionmakers and the public of the reasonable alternatives which would avoid 13 or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. 14 § 1502.1. Under NEPA, an agency must take a “hard look” at the environmental 15 consequences of a proposed action. Nat. Res. Def. Council v. U.S. Forest Service, 421 F.3d 16 797, 813-14 (9th Cir. 2005). 17 As part of this procedural duty, an agency must “study, develop, and describe 18 appropriate alternatives” to any proposed action. 42 U.S.C. § 4332(2)(E). In doing so, an 19 agency should “rigorously explore and objectively evaluate all reasonable alternatives.” 20 40 C.F.R. § 1502.14(a). Among these, an agency must include a “no action” alternative. 21 Id. § 1502.14(d). These considerations comprise “the heart of the environmental impact 22 statement.” Id. § 1502.14. Through this process, an agency decisionmaker will “have 23 before them and take into proper account all possible approaches to a particular project 24 (including total abandonment of the project) which would alter the environmental impact 25 and the cost-benefit balance” before issuing a final decision. Bob Marshall All. v. Hodel, 26 852 F.2d 1223, 1228 (9th Cir. 1988) (emphasis in the original) (alternations omitted). 27 In discussing these alternatives, the Forest Service must state how the alternatives 28 “will or will not achieve the requirements of . . . other environmental laws and policies.” - 16 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 17 of 37 1 40 C.F.R. § 1502.2(d). A failure to consider viable alternatives or “present complete and 2 accurate information to decision makers and to the public” regarding these alternatives will 3 not meet the requirements of the NEPA. See Nat. Res. Def. Council, 421 F.3d at 813-14. 4 C. Mining Law of 1872 5 The Mining Law of 1872 granted citizens the right to enter upon public land to 6 prospect and, upon discovery, locate a mining claim. See 30 U.S.C. §§ 22, 23; Davis v. 7 Nelson, 329 F.2d 840, 844-45 (9th Cir. 1964). A mining claim “is a parcel of land 8 containing precious metal in its soil or rock.” St. Louis Smelting & Ref. Co. v. Kemp, 104 9 U.S. 636, 649 (1881). Such a claim grants a claimant an alienable property interest. See 10 U.S. v. Shumway, 199 F.3d 1093, 1099 (9th Cir. 1999). Furthermore, a valid mining claim 11 grants its locator with an “exclusive right of possession and enjoyment of all the surface 12 included within the lines of their locations.” 30 U.S.C. § 26 (emphasis added). These 13 rights “are not conferred by agency action; they are acquired by the miner’s own actions 14 of location and discovery.” Havasupai Tribe v. Provencio, 906 F.3d 1155, 1162 (9th Cir. 15 2018) (emphasis in original). 16 i. Discovery and Location 17 A claimant must first discover a valuable mineral deposit to assert a mining claim. 18 See 30 U.S.C. §§ 22, 23 (no location of a mining claim shall be made until discovery of the 19 vein or lode); Davis, 329 F.2d at 845 (explaining “discovery of [a] valuable mineral is the 20 sine qua non of an entry to initiate vested rights against the United States”). This statutory 21 prerequisite arose out of unregulated mining customs in the early to mid-1800s where “the 22 finder of valuable minerals on government land [was] entitled to exclusive possession of 23 the land for purposes of mining and to all the minerals he extracts.” Shumway, 199 F.3d at 24 1097-99. 25 To determine whether a claim contains valuable minerals, courts use a 26 “prudent-man test” and complimentary “marketability test.” U.S. v. Coleman, 390 U.S. 27 599, 602 (1968). The prudent-man test asks whether “a person of ordinary prudence would 28 be justified in the further expenditure of his labor and means, with a reasonable prospect - 17 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 18 of 37 1 of success, in developing a valuable mine . . .” Castle v. Womble, 19 L.D. 455, 457 (1894). 2 The marketability test helps refine this question by asking whether the minerals may be 3 “extracted, removed and marketed at a profit.” Coleman, 390 U.S. at 600. 4 Discoveries of “common varieties of sand, stone, gravel, pumice, pumicite, or 5 cinders” do not qualify as valuable mineral deposits and therefore do not confer validity 6 upon a mining claim. See 30 U.S.C. § 611. Through section 611, Congress intended to 7 remove the disposition of lands containing only common minerals from the Mining Laws. 8 See Coleman, 390 U.S. at 604. As Senator Clair Engle explained: 9 10 11 12 13 14 The reason we have done that is because sand, stone, gravel, pumice, and pumicite are really building materials, and are not the type of material contemplated to be handled under the mining laws, and that is precisely where we have had so much abuse of the mining laws, because people can go out and file mining claims on sand, stone, gravel, pumice, and pumicite taking in recreational sites and even taking invaluable stands of commercial timber in the national forests and on the public domain. See 101 Cong.Rec. 8743. 15 After discovery, a claimant must locate their claim. See 30 U.S.C. § 23. The act of 16 location entails “staking the corners of the claim, posting a notice of location thereon and 17 complying with the state laws concerning the filing or recording of the claim in the 18 appropriate office.” United States v. Curtis-Nev. Mines, Inc., 611 F.2d 1277, 1281 (9th 19 Cir. 1980). An individual claim may run “one thousand five hundred feet in length along 20 the vein or lode” and extend no more than “three hundred feet on each side of the middle 21 of the vein at the surface, . . . .” 30 U.S.C. § 23. While a claimant may “locate, mark and 22 record the boundaries of the claim,” before discovery, their rights are good against only a 23 “forcible, fraudulent or clandestine intrusion upon” the location. See Davis, 329 F.2d at 24 455. The Government treats such locators as licensees or tenants at will. See id. 25 A claimant may not use the deposit present in one location to lend validity to an 26 adjacent location. See Waskey v. Hammer, 223 U.S. 85, 91 (1912) (“A discovery without 27 the limits of the claim, no matter what its proximity, does not suffice.”); Lombardo 28 Turquoise Milling & Mining Co. v. Hemanes, 430 F. Supp. 429, 443 (D. Nev. 1977). - 18 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 19 of 37 1 Likewise, a claimant may not draw the lines of their claim so large as to encompass both 2 the deposit and land beyond the acreage allowable by statute. See Walton v. Wild Goose 3 Min. & Trading Co., 123 F. 209, 218 (9th Cir. 1903) (approving a jury instruction that 4 excised land from mining claim larger than 20 acres); Belk v. Meagher, 104 U.S. 279, 284 5 (1881) (“The right of location upon the mineral lands of the United States is a privilege 6 granted by Congress, but it can only be exercised within the limits prescribed by the 7 grant.”) 8 ii. Unpatented and Patented Claims 9 Possessory rights to an unpatented mining claim vest with a claimant upon 10 discovery and completion of the minimum requirements of location. See Davis, 329 F.2d 11 at 845. An unpatented claim confers upon the locator a unique possessory interest in which 12 the United States may hold title to the land while the locator retains a right to the minerals 13 beneath. See Best v. Humboldt Placer Min. Co., 371 U.S. 334, 335-36 (1963). So long as 14 a claimant complies with the mining laws, “their right to the unpatented claim . . . is vested 15 even though the Department of the Interior has as yet taken no action at all on their 16 application for a patent.” Shumway, 199 F.3d at 1103. The Government does not retain 17 plenary power over such a claim, even in the absence of an application for patent. See id. 18 However, “no right arises from an invalid claim of any kind.” Best, 371 U.S. at 337. 19 Therefore, discovery and location of a mining claim entitles the claimant to a possessory 20 right “unless their claim was a sham or otherwise invalid or they failed to observe Forest 21 Service regulations in such a way as to invalidate their claim.” Shumway, 199 F.3d at 1103. 22 Subject to the 1955 Multiple Use Act, the United States retains the right “to manage 23 surface resources and for the Government and whomever it permits to do so to use the 24 surface, so long as they do not endanger or materially interfere with prospecting, mining, 25 or processing.” Shumway, 199 F.3d at 1101; see 30 U.S.C. § 612. Thus, mining law limits 26 a claimant’s use of an unpatented mining claim to “activities that are reasonably incident 27 to prospecting, mining and processing operations, and subject to the right of the United 28 States to manage surface resources.” U.S. v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012). - 19 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 20 of 37 1 In enacting the Multiple Use Act, Congress “did not intend to change the basic 2 principles of the mining laws.” Curtis-Nevada Mines, Inc., 611 F.2d at 1280. Before 3 enacting the Multiple Use Act, Congress emphasized that the United States “would be 4 authorized to manage and dispose of surface resources, or to use the surface for access to 5 adjacent lands, so long as and to the extent that these activities do[] not endanger or 6 materially interfere with mining, or related operations or activities on the mining claim.” 7 H.R. Rep. No. 730, 84th Cong., 1st Sess. 1955, Reprinted in 1955 U.S.C.C.A.N. 2474, 8 2483 (emphasis added). 9 Upon discovery and location, a claimant may prove the validity of their claim 10 through an application with the Department of the Interior and subsequent administrative 11 procedures. See 30 U.S.C. § 29; Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993). If 12 approved, the claimant holds a fee simple interest (i.e., a patented mining claim) in both 13 the surface of the claim and the minerals beneath. See McMaster v. U.S., 731 F.3d 881, 14 885 (9th Cir. 2013). 15 D. Organic Act of 1897 16 The Organic Act of 1897 delegates to the Secretary of Agriculture the ability to 17 “make provisions for the protection against destruction by fire and depredations upon the 18 public forests and national forest.” 16 U.S.C. § 551. In exercising this power, the Secretary 19 may “make such rules and regulations and establish such service as will insure the objects 20 of such reservations, namely, to regulate their occupancy and use and to preserve the forests 21 thereon from destruction.” Id. Congress limited this power by proscribing the Secretary 22 from prohibiting “any person from entering upon such national forests for all proper and 23 lawful purposes, including that of prospecting, locating, and developing the mineral 24 resources thereof.” Id. § 478. Therefore, “the Secretary may adopt reasonable rules and 25 regulations which do not impermissibly encroach upon the right to the use and enjoyment” 26 of valid mining claims. U.S. v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981). However, 27 “prospecting, locating, and developing of mineral resources in the national forests may not 28 be prohibited nor so unreasonably circumscribed as to amount to a prohibition.” Id. - 20 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 21 of 37 1 E. Forest Service Mining and Special Use Regulations 2 i. Part 228 - Mining Regulations 3 In its Part 228 regulations, the Forest Service “set forth rules and procedures through 4 which use of the surface of National Forest System lands in connection with operations 5 authorized by the United States mining laws (30 U.S.C. 21–54[Mining Law of 1872]), . . . 6 shall be conducted so as to minimize adverse environmental impacts on National Forest 7 System surface resources.” 36 C.F.R. § 228.1 (emphasis added). The Forest Service 8 emphasized that “[t]hese regulations apply to operations hereafter conducted under the 9 United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq.), as they 10 affect surface resources on all National Forest System lands . . .” Id. § 228.2 (emphasis 11 added). The Forest Service defined “operations” as “[a]ll functions, work, and activities 12 in connection with prospecting, exploration, development, mining or processing of mineral 13 resources and all uses reasonably incident thereto, including roads and other means of 14 access on lands subject to the regulations in this part, regardless of whether said operations 15 take place on or off mining claims.” Id. § 228.3(a) (emphasis added). The regulations 16 further define a “mining claim” as “any unpatented mining claim or unpatented millsite 17 authorized by the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 18 et seq.).” Id. § 228.3(d) (emphasis added). 19 Save for a few exceptions, the Forest Service must approve a plan of operations 20 before a claimant may dispose of surface resources upon an unpatented mining claim in 21 National Forest lands. See U.S. v. Doremus, 888 F.2d 630, 633 (9th Cir. 1981); 36 C.F.R. 22 § 228.4(a). The Forest Service may prohibit conduct not reasonably necessary to mining, 23 even assuming a claimant conducts their operation on a valid mining claim. See Backlund, 24 689 F.3d at 996; U.S. v. Richardson, 599 F.2d 290, 295 (9th Cir. 1979). 25 Ordinarily, the Forest Service need not inquire into the validity of a mining claim 26 before considering a plan of operations. See Solicitor’s Opinion, M-37012, Legal 27 Requirements for Determining Mining Claim Validity Before Approving a Mining Plan of 28 Operations, 2005 WL 7139266, *1-2 (Nov. 14 2005). The Forest Service does not make - 21 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 22 of 37 1 determinations; it merely expresses “statements of belief” regarding validity. See Forest 2 Service Manual, § 2819 – “Mining Claim Contests”. However, the Forest Service requires 3 a claimant “meet the requirements as specified or implied by the mining laws” to “use a 4 claim for prospecting and mining.” See Forest Service Manual, § 2813.2 – “Obligations”. 5 Forest service policy and mining law “require a claimant . . . [d]iscover a valuable mineral 6 deposit” and “[b]e prepared to show evidence of mineral discovery.” Id. Additionally, the 7 Forest Service acknowledges an “obligation to ensure that unauthorized uses of mining 8 claims are eliminated.” Id. § 2814.23 – “Prevent Violations of Laws and Regulations”. 9 This obligation includes the “unlawful use of buildings and other structures and the taking 10 of common varieties of mineral materials.” Id. 11 Operations on National Forest lands must comply with all Federal and State air and 12 water quality standards. See 36 C.F.R. § 228.8(a), (b). Furthermore, “[a]ll tailings, 13 dumpage, deleterious materials, or substances and other waste produced by operations shall 14 be deployed, arranged, disposed of or treated so as to minimize adverse impact upon the 15 environment and forest surface resources.” Id. § 228.8(c). The regulations further provide, 16 where practicable, for the protection of scenic values, fisheries, and wildlife habitat. See 17 id. § 228.8(d), (e). 18 Finally, and “at the earliest practicable time,” the Forest Service requires that, where 19 practicable, an operator must “reclaim the surface disturbed in operations by taking such 20 measures as will prevent or control onsite and offsite damage to the environment and forest 21 surface resources.” Id. § 228.8(g). Unless otherwise agreed to, this includes the removal 22 of “all structures, equipment and other facilities and clean up [of] the site of operations.” 23 Id. at § 228.10 24 ii. Part 251 - Special Use Regulations 25 Restrictions on operations are not limited to Part 228 of the Forest Service 26 regulations merely because they relate to the extraction and development of minerals. See 27 Doremus, 888 F.2d at 631-633. While the Part 228 regulations exclusively apply to mining 28 operations, Part 261 prohibitions (which list prohibited activities on Forest Service land, - 22 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 23 of 37 1 and when a “special use” permit may authorize such activities) apply to all surface uses, 2 including mining operations. See id.; 36 C.F.R. § 261.10. Moreover, “all uses of National 3 Forest System lands, improvements, and resources, except those authorized by the 4 regulations governing . . . minerals (part 228) are designated ‘special uses’” and require a 5 “special use authorization.” 36 C.F.R. § 251.50(a) (emphasis added); § 251.53(a) (permits 6 governing occupancy and use).10 7 Initial screening of a special use request for use and occupancy of Forest System 8 Lands must meet several minimum requirements including: that “the proposed use is 9 consistent . . . with other applicable Federal law, and with applicable State and local health 10 and sanitation laws; that the use must not “pose a serious or substantial risk to public health 11 or safety”; that it must not “create an exclusive or perpetual right of use or occupancy”; 12 and that it must not “involve disposal” of “other hazardous substances.” Id. 13 § 251.54(e)(1)(i), (iii), (iv), (ix). Should any proposed use not meet these minimum 14 requirements, it “shall not receive further evaluation and processing.” Id. § 251.54(e)(2). 15 After initial screening, the Forest Supervisor must conduct a second level of 16 screening in which they “shall reject any proposal, including a proposal for commercial 17 group uses, if . . . the proposed use would not be in the public interest.” 18 § 251.54(e)(5)(ii). Any proposed use which cannot meet this standard “does not require 19 environmental analysis and documentation.” Id. § 251.54(e)(6). 20 III. Discussion of the Dispositive Errors Made by the Forest Service 21 22 A. The Forest Service Abdicated Its Duty to Protect the Coronado National Forest from Depredation and Preserve the Forest from Destruction when It Failed to Consider Whether Rosemont Held Valid Unpatented Mining Claims 23 The Organic Act imposes upon the Forest Service a duty to “make provisions for 24 the protection against . . . depredations upon the public forests and national forests.” 16 25 U.S.C. § 551. The Forest Service cannot protect the forest from depredation without first 26 determining who may, as a right, use the surface. Any determination of a claimant’s Id. 27 28 10 The Court notes that there are other uses (i.e., grazing, etc.) that are also excepted from special uses, but have been omitted, as they are not relevant to this dispute. - 23 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 24 of 37 1 surface rights upon Forest Service land must begin with a discussion of the validity of their 2 claims. See Best, 371 U.S. at 337 (“[N]o right arises from an invalid [mining] claim of any 3 kind. All must conform to the law under which they are initiated; otherwise they work an 4 unlawful private appropriation in derogation of the rights of the public.”); Cameron v. 5 United States, 252 U.S. 450, 412 (1920) (same); Waskey, 223 U.S. at 90-91 (“The [Mining 6 Law of 1872] make the discovery of mineral within the limits of the claim a prerequisite 7 to the location of a claim . . . the purpose being to reward the discoverer and to prevent the 8 location of land not found to be mineral. A discovery without the limits of the claim, no 9 matter what its proximity, does not suffice.”); Lara v. Secretary of the Interior, 820 F.2d 10 1535, 1537 (9th Cir. 1987) (“A mining claimant has the right to possession of a claim only 11 if he has made a mineral discovery on the claim.”). This discussion necessarily must 12 include whether the claimant discovered a valuable mineral deposit within the boundaries 13 of their claim. See Best, 371 U.S. at 337; Waskey, 223 U.S. at 91; Lara, 820 F.2d at 1537; 14 see also Davis, 329 F.2d at 845.11 Any decision made without first establishing a factual 15 basis upon which the Forest Service could form an opinion on surface rights would entirely 16 ignore an important aspect of this problem. See State Farm, 463 U.S. at 43. Likewise, a 17 grant to use the surface when the administrative record shows such a right does not exist 18 would contravene the Forest Service’s duty to protect the forest from depredations and 19 offer an opinion that runs contrary to the evidence. See id. 20 The Mining Law of 1872 explicitly authorizes several federal land uses pursuant to 21 a valid claim. These rights may be grouped according to where they may occur. For ease 22 of reference, the Court uses the term “intralimital” rights to refer to those activities the 23 Mining Law authorizes within the boundaries of a claim and uses the term “extralimital” 24 25 26 27 28 11 As previously referenced, while the Forest Service’s 1897 Organic Act directs the Forest service to protect the forest from depredations, it also recognizes that the Forest Service cannot prohibit preexisting mining rights created by the Mining Law of 1897. See 16 U.S.C. § 478 (“Nor shall anything in [the Organic Act] prohibit . . . entering upon such national forests for . . . prospecting, locating, and developing the mineral resources thereof.”); 16 U.S.C. § 482 (“[A]ny mineral lands in any national forest . . . subject to entry under the existing mining laws [i.e., the Mining Law of 1872] . . . shall continue to be subject to such location and entry . . .”). The Organic Act did not create new mining rights outside of the Mining Law of 1872. - 24 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 25 of 37 1 rights to refer to actions a claimant may take outside the boundaries of a mining claim. 2 Surface rights pursuant to the Mining Law of 1872 begin with exploration and 3 prospecting on public lands not withdrawn. See 30 U.S.C. § 22. Upon discovery of a 4 valuable mineral deposit, the Mining Law authorizes the occupation and purchase of 5 federal land. See id. A claimant may then stake out 1500 feet along the length of the vein 6 or lode and 300 feet on either side from the center of the same, an amount equal to about 7 20 acres. See id. § 23. After a claimant sets the boundaries of their location, they may 8 claim “possession and enjoyment of all the surface included within the lines of their 9 locations.” Id. § 26 (emphasis added). Additionally, a claimant may locate and patent five 10 acres of “nonmineral land not contiguous to the vein or lode” which they may use or occupy 11 “for mining or milling purposes.” Id. § 42. Furthermore, in connection with the Forest 12 Service’s Organic Act, a claimant retains a right of ingress to and egress from their mining 13 claim. See 16 U.S.C. § 478. 14 Intralimital rights include the right to exclusive possession and enjoyment of the 15 surface of a valid mining claim. See 30 U.S.C. § 26. Pursuant to this right, a claimant may 16 use the surface of their claim to access the mineral deposit located beneath. This right must 17 include the ability to perform reasonably necessary mining activities upon the surface. 18 The Multiple Use Act makes this point abundantly clear. In enacting the Multiple 19 Use Act, Congress meant to clarify the types of uses it intended to permit upon unpatented 20 mining claims. See Curtis-Nevada Mines, Inc., 611 F.2d at 1280. As explained in 21 Curtis-Nevada Mines, Inc., “Congress did not intend to change the basic principles of the 22 mining laws when it enacted the Multiple Use Act.” Id. 23 The plain language of the Multiple Use Act illustrates that Congress did not intend 24 to expand reasonably incidental uses beyond the boundaries of a claim. First, it clarifies 25 “[a]ny mining claim . . . shall not be used, prior to issuance of patent therefor, for any 26 purposes other than prospecting, mining or processing operations and uses reasonably 27 incident thereto.” 30 U.S.C. § 612(a) (emphasis added). Nothing in this subsection 28 expands the right of occupancy and enjoyment of the surface to lands beyond the claim - 25 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 26 of 37 1 boundaries. This subsection references only the mining claim itself. 2 Moreover, pursuant to the Multiple Use Act, “[r]ights under any mining claim . . . 3 shall be subject, prior to issuance of patent therefor, to the right of the United States to 4 manage and dispose of the vegetative surface resources thereof and to manage other 5 surfaces resources thereof.” Id. § 612(b) (emphasis added). Here, “thereof” refers to the 6 surface resources upon a mining claim. This language appears again in subjecting “[a]ny 7 such mining claim . . . to the right of the United States, its permittees, and licensees, to use 8 so much of the surface thereof as may be necessary for such purposes or for access to 9 adjacent land.” Id. (emphasis added). Once again, “thereof” refers only to the surface of 10 the mining claim. Finally, the Multiple Use Act provides “any use of the surface of any 11 such mining claim by the United States, its permittees or licensees, shall be such as not to 12 endanger or materially interfere with prospecting, mining or processing operations or uses 13 reasonably incident thereto.” Id. Again, the act refers explicitly to “the surface of any such 14 mining claim.” Id. Nothing within the Multiple Use Act grants an implied right to use the 15 surface outside of a claim. It merely clarifies allowable uses of the surface of an unpatented 16 mining claim and balances competing uses of the same.12 17 12 18 19 20 21 22 23 24 25 26 27 28 As referenced above, the Multiple Use Act was passed to curb abuses of the Mining Law of 1872. See Curtis-Nevada Mines, 611 F.2d at 1280-1282 (“The Multiple Use Act was corrective legislation, which attempted . . . to alleviate abuses that occurred under the [Mining Law of 1872]. . . . As a practical matter, mining claimants could remain in exclusive possession of [mining] claim[s] without ever proving a valid [mineral] discovery . . . It was to correct this deficiency in the mining law that Congress in 1955 enacted the Multiple Use Act.”). Examples of these abuses included purported mining claimants staking fraudulent mining claims on federal land, asserting exclusive possession by posting “no trespassing” signs to their claims, and using the area to obtain free timber, or a free private fishing or hunting camp. See id. at 1282. Reports from the Department of Agriculture (which encompasses the Forest Service) when the Multiple Use Act legislation was being considered by Congress highlighted the rampant level of abuse of the Mining Law of 1872. See id. at 1286 n. 7 (“A report from the Department of Agriculture. . . concerning the proposed [Multiple Use Act] stated that as of January 1, 1952 there were 84,000 unpatented claims, covering 2.2 million acres of national forest . . . [P]robably no more than 40% [of these unpatented mining claims] could be considered valid. As of January 1, 1955 there were an estimated 166,000 claims covering 4 million acres [i.e., the number of unpatented mining claims and acres covered thereby nearly doubled in three years presumably due to the looming passage of the Multiple Use Act which was meant to curb Mining Law abuses].”). Defendants’ position that the Multiple Use Act gives Rosemont the right to dump 1.9 billion tons of their waste on 2,447 acres of the Coronado National Forest is unpersuasive; the record indicates that Rosemont’s unpatented claims on that land are invalid as there is no valuable mineral deposits beneath that land. Accepting Defendants’ position would make an end-run around the requirements of the - 26 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 27 of 37 1 The Mining Law of 1872 specifies the parameters of extralimital rights. Section 26 2 allows a claimant to pursue a vein downward past the side lines of a location, but not past 3 the end lines. See 30 U.S.C. § 26. Additionally, a claimant may locate and patent five 4 acres of “nonmineral land not contiguous to the vein or load . . . for mining or milling 5 purposes.” Id. § 42. However, as already shown, extralimital rights extend no further. 6 The Forest Service predicated its decision regarding Rosemont’s entitlement to 7 process ore and dump waste rock and tailings on federal land upon the validity of 8 Rosemont’s unpatented mining claims. See FEIS at 101. Under this presumption, the 9 Forest Service believed that “Rosemont . . . has a possessory interest for mining purposes 10 in unpatented mining claims on the land where the project is proposed.” See id.; see also 11 ROD at 31 (“[The Forest Service] cannot select the no action alternative . . . because 12 Federal law provides the right for [Rosemont] . . . to use the surface of its unpatented 13 mining claims for mining and processing operations and reasonably incidental uses . . . 14 [The Forest Service] cannot reject outright the proposed project”); FEIS at 94 (“The [Forest 15 Service] may impose reasonable conditions to protect surface resources but cannot 16 materially interfere with reasonably necessary activities under the General Mining Law [of 17 1872] that are otherwise lawful.”) (emphasis added); FEIS at 10 (“The Forest Supervisor’s 18 decision space is constrained . . . the Forest Service cannot categorically prohibit mining 19 or deny reasonable and legal mineral operations under the law.”); ROD at 32 (“[The Forest 20 Service] determined that modifying [Rosemont’s Mining Plan] to comply with the current 21 Coronado [Forest Plan] would materially interfere with [Rosemont’s] mineral operations . 22 . . [therefore, the Forest Service amended the Forest Plan] contemporaneously with the 23 approval of [Rosemont’s Mining Plan] so that [Rosemont’s mining] project or activity will 24 be consistent with the [Forest Plan] as amended.”). These statements could accurately 25 reflect the Mining Law of 1872 if the administrative record before the Forest Service 26 reflected that Rosemont held valid unpatented mining claims in these areas. 27 However, the administrative record shows no basis upon which the Forest Service 28 Mining Law of 1872, and would encourage abuses of the Mining Law of 1872 that the Multiple Use Act of 1955 was designed to abolish. - 27 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 28 of 37 1 could find Rosemont discovered a valuable mineral deposit within the facilities, tailings, 2 and waste rock areas. In fact, the evidence in the FEIS shows the absence of any such 3 deposit within those lands. 4 Regarding the Willow Canyon Formation, which underlies the facilities and tailings 5 areas, the Forest Service offers contradictory information. First, the Forest Service states 6 that the Willow Canyon Formation contains copper oxide ore in “potentially economic 7 concentrations.” Id. at 156. Rosemont intends to unearth more than 600 million tons of 8 copper oxide, all of which the FEIS describes several pages later as “waste rock.” Id. at 9 173 (Table 15). By the FEIS’s own definition, waste rock either “contains no ore metals 10 or contains ore metals at levels below the economic cutoff value.” 11 Furthermore, the Arizona Geological Society review of Rosemont’s plan and property, in 12 which Rosemont actively participated, states that “copper mineralization is confined to rare 13 localized areas.” See Rosemont Mine Tour at 6. Id. at 1344. 14 Considering this factual basis, the Forest Service could not determine that the 15 Willow Canyon Formation contained an economically viable amount of copper oxide 16 which would lend validity to Rosemont’s mining claims. Rosemont’s own geological 17 survey purported to find only “rare localized areas” of copper mineralization within this 18 formation. See id. The evidence within the FEIS that lends support to claim validity in 19 this formation amounts to two sentences: one sentence claims the formation as a host rock 20 and then describes it as “predominately arkosic siltstone, sandstone, and conglomerate”; 21 and another sentence claims it contains “mafic or andesitic flows, which host minor 22 mineralization.” See FEIS at 155. The Forest Service’s own description and Rosemont’s 23 proposed treatment of over 600 million tons of this copper oxide as “waste rock” belie 24 these assertions. 25 Likewise, the administrative record provides, at best, internally inconsistent 26 evidence of a valuable mineral deposit within the Gila Conglomerate beneath the waste 27 rock area. The FEIS described the Gila Conglomerate as containing “conglomerate, pebbly 28 sandstone, and sandstone with a calcareous matrix.” Id. at 156. It noted, among several - 28 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 29 of 37 1 other minerals, the presence of limestone clasts within this conglomerate the abundance of 2 which, “varies, depending on the composition of nearby upslope areas.” Id. However, 3 none of the host rocks which the Defendants purport may exist in potentially economic 4 quantities appear within this formation. Rosemont proposed to excavate over 150 million 5 tons of tertiary gravel, the group to which the Gila Conglomerate pertains. Id. at 173. In 6 fact, Rosemont must remove a layer of Gila Conglomerate to access the copper sulfide 7 within the mine pit. Id. at 159. The Forest Service classified the entirety of this excavated 8 tertiary gravel as waste rock. See id. at 173. 9 Furthermore, according to the maps provided in the FEIS, Mount Fagan Rhyolite 10 and Schellenberger Canyon Formation underlie the Gila Conglomerate east of the tailings 11 pile. See id. at 159. The FEIS gives a passing description of these formations and none of 12 the minerals purported to appear in potentially economic quantities appear within these 13 descriptions. See id. at 160-61. The lower portion of the Schellenberger Canyon Formation 14 does contain a layer of “Mural limestone.” Id. at 160. However, this limestone exists 15 within the lower portion of a formation that runs 2,500 feet deep. See id. at 160-61. 16 Moreover, two other formations overlie the Schellenberger Canyon Formation, which run 17 at least 1000 feet deep themselves. Id. at 159. Finally, in its discussion of copper sulfide 18 host rock, the FEIS names several limestone formations, but does not name the Mural 19 limestone among them. Id. at 155. 20 The Apache Canyon Formation suffers from the same inadequacies. The formation 21 contains limestone of which Defendants do not purport to host mineralization. Id. at 22 155-56, 161. 23 economic concentrations of copper sulfide or copper oxide within the Mafic Lava or Older 24 Alluvium. Moreover, Rosemont’s intention to bury the Apache Canyon Formation and 25 Older Alluvium beneath tons of waste rock and tailings provides further evidence that they 26 host no economically viable mineralization. Likewise, the administrative record shows no evidence of potentially 27 The unauthorized dumping of over 1.2 billion tons of waste rock, as well as about 28 700 million tons of tailings, and the establishment of an ore processing facility no doubt - 29 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 30 of 37 1 constitutes a depredation upon Forest Service land. The administrative record shows no 2 basis upon which the Forest Service could find the Mining Laws would authorize this 3 activity. The Mining Law authorizes occupation of the surface only within a claim. The 4 record contains no information to show Rosemont discovered a valuable mineral deposit 5 within the ore processing, or tailings and waste rock pile areas. Therefore, despite the 6 location of these areas as a mining claim, the Forest Service could determine at best that 7 Rosemont maintained status as a tenant at will of the United States upon these lands. In 8 the absence of any statutory right on the part of Rosemont, the Forest Service could deny 9 Rosemont’s off claim activities as part of the Forest Service’s Organic Act obligations. 10 The Forest Service argues that it is not required to conduct a validity determination 11 before approving a mining plan of operations. However, a validity determination differs 12 significantly from establishing a factual basis upon which the Forest Service can determine 13 rights. A validity determination invokes a separate administrative procedure carried out 14 by the BLM (which is within the Department of the Interior). In contrast, the Forest Service 15 (which is within the Department of Agriculture) merely needed a factual basis to support 16 Rosemont’s assertion of rights. Such a finding would not preclude another individual from 17 bringing an adverse proceeding to determine mineral rights, or the Government from 18 initiating a validity determination. As referenced above, the fact that Rosemont proposed 19 to dump 1.9 billion tons of waste on its unpatented claims on 2,447 acres of the Coronado 20 National Forest was a potent indication that Rosemont’s unpatented claims on the land in 21 question were invalid (i.e., if Rosemont was voluntarily proposing to bury its unpatented 22 claims under 1.9 billion tons of its own waste, there is a strong inference that there is no 23 valuable mineral deposit lying below the waste site). 24 regulations and the Forest Service Manual indicate that such matters should be evaluated, 25 and otherwise empower the Forest Service to gather facts to make an informed decision as 26 to surface rights stemming from mining claims; in fact, there is case law from the Ninth 27 Circuit reflecting that the Forest Service has successfully pursued such matters in the past. 28 See, e.g., 36 C.F.R. § 228.5(d) (in reviewing mining operation plans, “the Forest Service - 30 - Furthermore, Forest Service Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 31 of 37 1 will arrange for consultation with appropriate agencies of the Department of the Interior . 2 . . with respect to mineral values, mineral resources, and mineral reserves.”); Forest Service 3 Manual § 2813.2(2) and (7) (a mining “claimant must meet the requirements as specified 4 or implied by the mining laws . . . these require a claimant to: . . . Discover a valuable 5 mineral deposit . . . Be prepared to show evidence of mineral discovery.”); § 2819.1(1) 6 (“When administrative problems of a mineral nature arise or unauthorized use of a mining 7 claim is believed to exist . . . A Forest Service mineral examiner . . . may go on an 8 unpatented mining claim to make a mineral investigation.”); Clouser, 42 F.3d at 1525 9 (“[T]he Forest Service conducted a mineral examination [of mining claims on Forest 10 Service land] . . . and initiated contest proceedings in the Department of the Interior to have 11 the claims declared void, on the ground that no valuable mineral deposits had been 12 discovered [prior to withdrawal of the land from mineral entry] . . . An Interior Department 13 (“ALJ”) held the claims null and void.”); Lara, 820 F.2d at 1537-1538 (“[A] Forest Service 14 mining engineer [(“Boswell”)] took samples from [defendant’s mining claims on Forest 15 service land] . . . On the basis of Boswell’s [] tests the Forest Service filed administrative 16 complaints contesting the validity of the [mining] claims”; administrative proceedings 17 before the Department of Interior found that the claims were invalid based on Boswell’s 18 testimony, and these decisions were affirmed on appeal such that defendant was ordered to 19 vacate the claims). 20 Defendants also argue that the Forest Service must allow these extralimital activities 21 because Rosemont owns valid claims in the mine pit area. However, as explained, a 22 separate discovery must support each claim. See Best, 371 U.S. at 337; Waskey, 223 U.S. 23 at 91; Lara, 820 F.2d at 1537. Discovery in one claim cannot lend validity to an adjacent 24 claim in which no valuable mineral deposit exists. See id. Rosemont’s extralimital rights 25 springing from its valid claims in the mine pit do not permit surface occupancy outside the 26 boundaries of these claims. See 30 U.S.C. § 26. No limiting principle would conscript 27 surface use under the Forest Service’s interpretation of the Mining Law. This interpretation 28 would render the act of location moot – an individual would need only discover a deposit - 31 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 32 of 37 1 before gaining a right to all the surface of public lands not withdrawn. This simply does 2 not comport with the plain language of the Mining Law. 3 In the Mining Law of 1872, Congress anticipated that claimants would need more 4 than the land directly above a deposit to extract minerals. See 30 U.S.C. §§ 23, 42. Where 5 Congress anticipated such use, it provided for such use. See id.13 Some present-day mining 6 operations may exceed the rights granted, and limitations imposed, by the Mining Law of 7 1872; the Forest Service’s application of its regulations to mining operations cannot grant 8 rights outside the bounds of the Mining Law of 1872. Defendants’ remedy lies with 9 Congress, not the courts. 10 11 12 13 14 15 16 17 B. The Forest Service Implemented the Wrong Regulations, Misinformed the Public and Failed to Adequately Consider Reasonable Alternatives The Forest Service’s Part 228 regulations do not allow for denial of an otherwise reasonable mining operation unless it violates some other substantive environmental law. These regulations further define “operation” to encompass essentially any mining activity, even those “reasonably incidental” to mining, regardless of whether they occur on or off a mining claim. See 36 C.F.R. § 228.3(a). This definition does not, on its face, run afoul of the Mining Law. In fact, defining operation so broadly as to encompass mining activity regardless of 18 19 20 21 22 23 24 25 26 27 28 13 For example, as referenced above, § 42 of the Mining Law of 1872 specifically provides for the use of non-contiguous, non-mineral land to be used in support of mining operations that are extracting valuable minerals on a wholly separate piece of land. See 30 U.S.C. § 42(a) (“Where nonmineral land not contiguous to the vein or lode [containing valuable minerals] is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such nonadjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith . . . but no location . . . of such nonadjacent land shall exceed five acres.”) (emphasis added). A very simplified example illustrates this point: (1) A mining claimant (“Smith”) has five separate and valid mining claims containing silver; (2) Each of Smith’s five valid mining claims is approximately 20 acres (i.e., § 23 limits the maximum size of mineral veins to 1500 feet by 600 feet which is about 20 acres) for a total of 100 acres; (3) Smith has the ability to patent up to 5 acres of non-contiguous, non-mineral land in conjunction with each valid mineral claim which can be up to 20 acres (see § 42(a)); (4) After showing that the five separate 20 acre mining claims are valid, Smith pays $5 per acre to the United States to obtain fee title to the mineral land containing the silver, and Smith pays an additional $5 per acre to the United States to obtain fee title to the non-mineral land which will be used to support extraction from the mineral land (see §§ 29, 42); (5) Smith has fee title to use 25 acres of separate non-mineral land to support extraction of silver from his 100 acres of mineral land (see §§ 42, 23, 29). - 32 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 33 of 37 1 its location on or off a claim makes sense. The Mining Law of 1872 authorizes activities 2 which necessarily must occur off a mining claim. These activities - exploration, 3 prospecting, ingress to and egress from a claim – will generally occur outside the 4 boundaries of a claim. Defining operation to only apply to activities that occur on a claim 5 would limit the Forest Service’s ability to regulate these activities. See Clouser v. Espy, 6 42 F.3d at 1525-26; Richardson, 599 F.2d at 290-91. 7 The definition’s inclusion of reasonably incidental mining activities maintains a 8 certain amount of logic as well. The construction of a stable for pack animals does not 9 itself constitute a mining activity, but when the Forest Service prescribes that a mine must 10 use pack animals as a means of transport through the forest, it may then qualify as 11 reasonably incidental to the mining. See Clouser, 42 F.3d at 1525-26. It does not require 12 much imagination to conceive of other activities which themselves do not involve the 13 extraction or processing of ore, but which may become ancillary to that work. This 14 definition allows the Forest Service to reach all those activities which relate to mining and 15 may occur on a claim. 16 However, it does not follow that the Forest Service must use these Part 228 17 regulations merely because an action falls within the regulation’s definition of operations. 18 The Forest Service’s reliance on its definition of operations ignores the purpose of its own 19 regulations. Part 228 regulates “use of the surface of National Forest System lands in 20 connection with operations authorized by the United States mining laws (30 U.S.C. 21-54 21 [Mining Law of 1872]).” 36 C.F.R. § 228.1. Therefore, authorization under the Mining 22 Law of 1872 acts as a precursor to any regulation through Part 228. 23 As discussed above, the Mining Law of 1872 explicitly authorizes several land uses. 24 The Forest Service may regulate exploration and prospecting anywhere upon the surface 25 of its lands because the Mining Law authorizes these activities. It may also regulate the 26 possession and use of a mining claim as, again, the Mining Law authorizes them. However, 27 the Forest Service attempts to circumvent the statutory law by applying its regulations 28 through its definition of “operations” to unauthorized activities. The facilities area, tailings - 33 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 34 of 37 1 pile, and waste rock pile would all fall under the Part 228 regulations if they occurred on a 2 valid mining claim. However, the Forest Service approved these activities on lands the 3 administrative record showed did not contain a valuable mineral deposit. Therefore, the 4 Mining Law does not authorize these activities as they would occur outside the boundaries 5 of Rosemont’s mining claims. The Forest Service could not apply its Part 228 regulations 6 to these activities because the Mining Law did not authorize them. 7 In contrast, the Forest Service’s Part 251 regulations apply to “all uses of National 8 Forest System lands, improvements, and resources.” 36 C.F.R. § 251.50. Any use not 9 regulated under the Part 228, or several other groups of Forest Service regulations, falls 10 into the Part 251 special use regulations. See id. These regulations provide a dual screening 11 process in which the Forest Service may deny any activity that does not meet several 12 standards or otherwise comport with the public interest. See id. § 251.54(e). The Part 251 13 regulations provide significant authority and discretion to prohibit activity on Forest 14 Service lands, whereas the Part 228 regulations merely balance competing interests. 15 Turning to the FEIS and appended public comments, the Forest Service repeatedly 16 states that it “cannot categorically prohibit mining or deny reasonable and legal mineral 17 operations under the law.” FEIS at 10. The Forest Service emphasized that its “decision 18 space is constrained by Forest Service regulations that govern locatable mineral activities 19 on NFS lands.” Id. Based on the administrative record, the Forest Service improperly 20 applied its Part 228 regulations to actions not authorized under the Mining Law of 1872. 21 This mistake infected the FEIS and led to the Forest Service misinforming the public and 22 failing to consider reasonable alternatives within the scope of its duties under the Organic 23 Act. 24 For example, in response to a public comment requesting the Forest Service “give 25 true consideration to selection of the No Action Alternative”, the Forest Service responded: 26 “The Forest Service may reject an unreasonable Mine Plan of Operation but cannot 27 categorically prohibit mining or deny reasonable and legal mineral operations under the 28 mining laws.” Id. at G-10. In response to a comment requesting the Forest Service - 34 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 35 of 37 1 “consider other locations for copper mining”, the Forest Service responded: “The Forest 2 Service lacks the authority to deny Rosemont Copper’s proposal if it can be legally 3 permitted.” Id. at G-12. And in response to a comment that the Forest Service “should 4 scale down the size of the project or limit it to private lands only”, the Forest Service 5 repeated: “The Forest Service may reject an unreasonable Mine Plan of Operation but 6 cannot categorically prohibit mining or deny reasonable and legal mineral operations under 7 the mining laws.” Id. These examples did not occur in isolation. Rather, they illustrate 8 how heavily the Forest Service relied upon this rationale14 in its decision-making process.15 9 14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In light of its flawed assumptions, the Forest Service primarily evaluated only five “action” alternatives, and all of these action alternatives were largely the same. See ROD at 16 (“Because there were relatively few significant differences between the overall impacts of the action alternatives, [the Forest Service’s] decision came down to a few substantive differences or factors . . .”); ROD at 64 (discussing the numerous common features of the action alternatives); ROD at 69-70 and FEIS at 100-114 (discussing alternatives that were considered, but eliminated from detailed study). 15 This improperly constrained consideration and analysis of alternatives was evident when the Forest rejected the fee simple alternative. See Forest Service Record, Bates #0282389 (Table 3) (“Limited project – limit to fee simple and patented mining claims . . . The largest contiguous parcel of land consists of a combination of patented land and BLM administered land and is located north and west of the pit area. After evaluating storage volume of this area, it would fit, at the most, 852 million cubic yards. This is insufficient for this operation [which requires an estimated 1.1 billion cubic yards] . . . This is technically and financially infeasible.”) (emphasis added); Id. at Bates #0149259 (Rosemont’s response to the fee simple option reflecting the estimates as to 852 million and 1.1 billion). As discussed throughout this Order, the administrative record before the Forest Service reflects that Rosemont did not have valid surface rights for thousands of acres of its unpatented mining claims. Thus, rather than summarily rejecting this claim as “technically and financially infeasible,” further consideration and evaluation of this alternative was warranted as it greatly reduced the impacts to the Coronado National Forest. Furthermore, the Court notes that numerous cases have affirmed the Forest Service’s authority and discretion to closely regulate mining related operations even if particular mining activities are prohibited and rendered technically and financially infeasible. See Clouser, 42 F.3d at 1530 (“Virtually all forms of Forest Service regulation of mining claims - for instance, limiting the permissible methods of mining and prospecting in order to reduce incidental environmental damage - will result in increased operating costs, and thereby will affect claim validity [in terms of whether minerals can be profitably extracted] . . . However, [it is] clear that such matters may be regulated by the Forest Service”; affirming the Forest Service’s authority to bar motorized access to mining claims, and to limit transportation to the claims via pack mules); Public Lands for the People v. United States Department of Agriculture, 697 F.3d 1192, 1197 (9th Cir. 2012) (“We have upheld Forest Service decisions restricting the holders of mining claims . . . [to using] non-motorized means to access their claims . . . No statutory provision gives the Miners an unfettered right to access their mining claims . . .”); Bohmker v. Oregon, 903 F.3d 1029, 1041 (9th Cir. 2018) (in the context of finding that an Oregon law, that prohibited motorized means to extract gold on valid unpatented claims on Forest Service land, from the bottom of streams and rivers containing endangered salmon, did not conflict with federal laws in an as-applied preemption challenge, the court emphasized that “[b]ecause [v]irtually all forms of . . . regulation of mining claims . . . will result in increased operating costs . . . virtually every environmental regulation will render - 35 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 36 of 37 1 Under the Part 251 regulations, the Forest Service could limit the mine to any of the 2 above options if it found they ran afoul of the public interest. The Forest Service failed to 3 take the requisite hard look at these alternatives by informing the public that it could not 4 truly consider any alternative that rejected the MPO or substantially modified it as to make 5 the mine economically unfeasible. See Nat. Res. Def. Council, 421 F.3d at 813-14. A 6 “thorough discussion of the significant aspects of the probable environmental 7 consequences” will include the regulatory framework in which the Forest Service analyzes 8 those consequences. See California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). No 9 amount of alternatives or depth of discussion could “foster[] informed decision-making 10 and informed public participation” when the Forest Service bases its choice of alternatives 11 on an erroneous view of the law. See Westlands Water Dist. v. U.S. Dep’t of Interior, 376 12 F.3d 853, 868 (9th Cir. 2004). 13 IV. Conclusion 14 Throughout the administrative process, the Forest Service improperly evaluated and 15 misapplied: 1) Rosemont’s right to surface use; 2) the regulatory framework in which the 16 Forest Service needed to analyze those surface rights; and 3) to what extent the Forest 17 Service could regulate activities upon Forest Service land in association with those surface 18 rights. These defects pervaded throughout the FEIS and ROD, and led to an inherently 19 flawed analysis from the inception of the proposed Rosemont Mine. The Court grants 20 summary judgment in favor of SSSR and the Tribes in Cases 2 and 3, vacates and remands 21 the Forest Service’s FEIS and ROD, and denies Defendants’ cross-motions for summary 22 at least some mining claims commercially impracticable, and virtually every environmental regulation would therefore be preempted under a commercial impracticability test . . . A commercial impracticability theory, moreover, would require the preemption analysis to turn on each miner’s individual financial circumstances: the law would be preempted as to some miners but not as to others. Indeed, a commercial impracticability test would give the greatest protection to the least profitable mining operations, and it would handcuff regulators from restricting even the most environmentally destructive mining methods. So long as a particularly destructive method of mining – such as blasting – presented the only commercially practicable means of extracting minerals, regulators would be barred from restricting that practice. We do not read [the Supreme Court’s decision in] Granite Rock as supporting that result . . . [F]ederal law does not show that Congress viewed mining as the highest and best use of federal land wherever minerals were found.”). 23 24 25 26 27 28 - 36 - Case 4:17-cv-00475-JAS Document 248 Filed 07/31/19 Page 37 of 37 1 judgment in cases 2 and 3.16 See 5 U.S.C. § 706(2)(A) (“[t]he reviewing court shall . . . 2 hold unlawful and set aside” unlawful agency actions).17 The Clerk of the Court shall enter 3 judgment. 4 In light of this Order, there are no exigent circumstances necessitating emergency 5 injunctive relief; as such, all of Plaintiffs’ motions seeking a preliminary injunction in 6 Consolidated Cases A and B18 are denied without prejudice. 7 Dated this 31st day of July, 2019. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 As these issues are dispositive, the Court declines to address the other arguments made by Plaintiffs and Defendants in Cases 2 and 3. On a later date, the Court will issue a separate Order as to the remaining case (i.e., Case 1) and the corresponding summary judgment motions (which primarily address the ESA) still pending in Case 1. 17 Given the magnitude of the errors discussed herein, allowing the Rosemont Mine to proceed while the Forest Service conducts further proceedings on remand is unwarranted. 18 The Court will issue a separate Order to this effect in Consolidated Case B. - 37 -