Rosemount The U.S. Army Corps of Engineers has pulled back from a previous pledge to consult with three Arizona tribes before deciding whether to abandon its authority over the Rosemont Mine site southeast of Tucson.
The decision could lead to removal of a significant legal hurdle for the proposed mine.
Moreover, as part of the early January decision, the Corps said it also will not consult with any tribe in the United States in deciding if the agency has authority to regulate a company’s discharges into washes.
The action reverses a Corps pledge to three Arizona tribes in early December that it would get their input on whether to continue or revoke its jurisdiction over about 100 acres of washes and creeks leading from the Rosemont site. The Corps has claimed jurisdiction over the mine site for more than a decade, which led to the mine’s need to get a federal Clean Water Act permit to start construction. The permit was granted in March 2019, authorizing the mining company to dredge and fill 42 of those acres for Rosemont construction work.
Abandoning Corps authority would mean Hudbay Minerals Inc. would no longer need the Clean Water Act permit to start construction on the $2 billion open-pit copper mine in the Santa Rita Mountains.
That would then clear the way for mine construction if Hudbay and the federal government can also succeed in overturning, in higher courts, a July 2019 U.S. District Court ruling that halted work on the mine. A hearing on their appeal to the 9th Circuit Court of Appeals is scheduled on Feb. 1.
The Corps’ decisions affecting the mine and tribal consultation nationally were based on a memo from an assistant U.S. Army secretary, which said the agency is not legally required to consult with tribes on its jurisdiction over various washes because such decisions don’t affect tribal governments.
That opinion said the Corps had “substantial” consultation with tribes over its general rule, approved almost a year ago, that set standards by which that agency and the Environmental Protection Agency decide which individual washes merit federal regulatory control over development along them. The Corps says its policies call for tribal consultation in the case of "individual projects, programs, permit applications, real estate actions, promulgation of regulations and policies," but not determinations of whether the agency has regulatory authority over an individual water course.
An attorney for the three tribes involved in the Rosemont case, Stuart Gillespie, criticized the change.
“The Corps’ about-face is an affront to tribal sovereignty and a clear violation of the Corps’ obligation to consult with tribes. The implications are sweeping, not just for the tribes involved in the Rosemont Mine, but for tribes across the nation,” Gillespie said.
This Corps action is “cutting out every tribe in these crucial decision that unquestionably have significant adverse impacts on tribal resources,” Gillespie said. “The Corps entirely overlooks its statutory obligation to consult with the tribes under Section 106 of the National Historic Preservation Act.”