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Environment News Service, September 14, 2009

Court Strikes Down Arizona Copper Mine Public Land Exchange

SAN FRANCISCO, California - In a ruling with national implications for public lands, the U.S. Court of Appeals for the Ninth Circuit today overturned the federal government's approval of a land exchange with mining giant Asarco, Inc.

In a 2-1 decision, the three-judge panel ruled that the federal Bureau of Land Management violated several federal laws in agreeing to trade public land with Asarco. The company first proposed acquiring the public land 15 years ago as part of a planned expansion of its Ray copper mine in Arizona.

To protect wildlife habitat in the area and in nearby wilderness, three conservation groups sued in federal court in Arizona to overturn the BLM's approval of the land exchange. When District Judge Roslyn Silver declined to reverse the BLM, the groups appealed.

Writing for the majority, Judge William Fletcher today held that the BLM's actions were "arbitrary and capricious" and that the agency had not taken the "hard look" at the exchange's environmental impacts that is required by the National Environmental Policy Act.

The court faulted the BLM's assumption that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred.

As a result of this assumption, the BLM's final environmental impact statement and its Record of Decision on the land exchange contain no comparative analysis of the environmental consequences for the different alternatives proposed as the law requires.

"The court correctly found that BLM violated numerous federal laws, including the requirement the BLM fully review the environmental impacts from future mining and that the land exchange be ‘in the public interest'," said Roger Flynn, an attorney with Western Mining Action Project who represented the groups. "The company would use the land mostly for dumping waste and running equipment. It's about the worst purpose you can think of for trading away public lands."

The plaintiff groups - Center for Biological Diversity, Western Lands Project, and Sierra Club - declared the ruling an important victory for the protection of public lands.

"This is a great win for the public's lands and the public interest," said Don Steuter, conservation chair for the Sierra Club's Grand Canyon (Arizona) Chapter.

"Federal land trades are supposed to serve the public interest, but the projects are often driven by private interests seeking access to federal land and resources," Steuter said. "In this case, the public land slated for trade contains rare perennial waters and a priority reintroduction site for bighorn sheep."

Located on Mineral Creek, a tributary of the Gila River, the Ray Mine has been an open-pit operation since 1948. Environmental contamination at Ray has been so severe that Asarco has been cited for repeated violations of the Clean Water Act.

The Ray Mine complex includes a 265,000 ton-per-day open pit copper mine, a copper smelter with an acid plant, solution extraction/electrowinning plants, mills, concentrators, leaching systems, and related support facilities. Ore from the mine is transported 18 miles to the Hayden Smelter for processing.

The Ray Mine is the second most productive copper mine in Arizona and the third most productive copper mine in the United States.

"The court upheld a longstanding principle of the National Environmental Policy Act: The public has a right to an unvarnished evaluation of the impacts of a proposal," said Chris Krupp, Western Lands Project staff attorney. "Here, the record shows that the Bureau's analysis was so biased that a sister agency – the Environmental Protection Agency – chastised the BLM for its one-sided review."

In January 1999, during the Clinton administration, after having reviewed the BLM's draft environmental impact statement the U.S. EPA wrote in a letter to its sister agency, "We have strong objections to the proposed project because we believe there is potential for significant environmental degradation that could be corrected by project modification or other feasible alternatives."

If the proposed land exchange eventually occurs, Asarco would take fee simple ownership of the land and the company's use of the land would not be subject to the requirements of the Mining Law of 1872.

If the proposed exchange does not occur, the land will remain in possession of the United States and its use will be governed by the Mining Law of 1872.

Asarco could still conduct a new mining operation on the land but not without first submitting a Mining Plan of Operations to the BLM. The plan would have to include detailed information about the operations, management, monitoring, and environmental impacts of the proposed mining activities. The BLM would have to approve the MPO before new mining could proceed.

The selected lands provide important wildlife and plant habitat, including high priority reintroduction habitat for desert bighorn sheep, 6,860 acres of endangered desert tortoise habitat, and potential habitat for threatened and endangered birds, the appeals court acknowleged.

Upland plant communities cover 99.2 percent of the selected lands and include riparian plant communities and three plant species designated for special status by the BLM.

Some of the selected lands are immediately adjacent to the White Canyon Area of Critical Environmental Concern, and some are adjacent to or near the White Canyon Wilderness. The selected lands include 78 archaeological sites, of which 40 are regarded as eligible for nomination to the National Register of Historic Places.

"At stake in today's decision were habitats for desert bighorn sheep, endangered desert tortoise habitat, and other threatened and endangered species," said Taylor McKinnon, public lands campaigns director with the Center for Biological Diversity. "This is a victory for them - a victory that will save lives."

But in his dissent, Judge Richard Tallman, said, "the holding today undermines a congressionally authorized land exchange that, until now, has been approved at every stage of its 15-year history."

Judge Tallman said the majority opinion, "culminates in a novel and unworkable legal standard that not only effectively precludes beneficial land exchanges between the federal government and private or public landowners but also impairs the BLM's ability to effectively manage the public lands in a manner that furthers the public interest."

"Finally," wrote Judge Tallman, "it gives no credence to the ability of the State of Arizona to manage lands under its regulatory jurisdiction nor consideration to the substantial federal and state environmental and land use laws that will be nonetheless applicable whether or not the land exchange is approved."

Copyright Environment News Service, ENS, 2009.

Photo © Paul S. Hamilton