Rising above the Arizona desert, the Santa Rita Mountains cradle 10,000 years of Indigenous history. The Tohono O’odham Nation, Pascua Yaqui Tribe, and Hopi Tribe, among numerous other tribes, have worshipped, foraged, hunted, and laid their ancestors to rest in these mountains for generations.
Mining corporation Hudbay Minerals Inc. proposed to dig a mile-wide open-pit copper mine in the Santa Ritas that would have buried dozens of Tribal sacred sites under 1.8 billion tons of toxic waste. Construction of the mine, called Rosemont, would have destroyed the ancient village and burial grounds of the Hohokam people, ancestors of modern Tribes who lived and farmed the deserts of Southwestern Arizona.
For over four years, Earthjustice has represented the Tribes in fighting Hudbay’s ill-conceived mine. In 2019, the Tribes successfully defeated the company’s attempt to bulldoze the eastern side of the Santa Rita Mountains. That victory was recently upheld by the Ninth Circuit of Appeals, which concluded that the U.S Forest Service “arbitrarily and capriciously” approved the mine based on a fundamental misunderstanding of the governing law.
“This landmark decision further validates that Rosemont’s foreign owners have neither the legal right nor the valid mining claims for their proposed plan to destroy sacred sites beneath a mountain of poisonous mine waste,” said Tohono O’odham Nation Chairman Ned Norris Jr. “The ruling thoroughly dismantles the error-riddled process and reinforces the importance of protecting these sites and the entire region’s water supply. As decisive as this decision is, Rosemont’s foreign investors will likely continue to try and profit through environmental and cultural destruction. We must not allow this to happen.”
The Chairman’s instincts were correct: Hudbay has illegally rushed construction on the western side of the mountains, bulldozing ephemeral streams without notifying the Tribes or complying with the Clean Water Act. When the Tribes sought a preliminary injunction to halt this activity, the company hastily surrendered its Clean Water Act permit to escape judicial review. Although the court accepted the company’s ploy, it underscored the Tribes’ right to bring a Clean Water Act enforcement action.
Tohono O’odham families gather at the sacred sites to reinforce their connection to the desert that has sheltered them for generations. During these gatherings, tribal members will collect yucca, acorns, wild onion, plants for medicinal purposes, or bear grass for basket making.
“When our children were younger, we’d take them to the proposed Rosemont site and the desert to be with nature,” says Austin Nuñez, the previous chairman of the Tribe, whose tenure oversaw the start of the legal challenge. He laughs, remembering the calming effect of the environment. “It’s amazing. When they were out there, the children wouldn’t fight. They’d enjoy it. It’s so peaceful.”
The Santa Rita Mountains are one of Arizona’s most biodiverse regions, with flora and fauna endemic to the Southwest. Undulating mountain ranges, part of the Sky Islands, frame a desert floor spotted with spiky yucca plants. The Santa Ritas are home to several endangered species, including the jaguar and southwestern willow flycatcher.
Critical to this desert ecosystem are freshwater streams, which nourish the land like capillaries through a body. The streams were the lifeblood of the Tohono O’odham’s ancestors, and are considered holy by the Tribes — making Hudbay’s plans to pollute them with heavy metals and deplete the water table especially devastating.
The only way Hudbay could get away with creating a colossal mine on public lands was by an industry sleight-of-hand using an antiquated mining law.
The Mining Law of 1872 grants companies a right to occupy public lands where they have discovered a valuable mineral deposit. Hudbay began its mining venture by filing claims that included valuable minerals, including copper, overlying the proposed mine pit. This process is known as “patenting” a mining claim. But that apparently was not enough for Hudbay’s massive operation: the company also filed hundreds of unpatented claims on adjacent lands that contained no valuable minerals. It asserted a right to dump over a billion tons of toxic waste rock and tailings on those claims. The Forest Service acquiesced to this land grab, assuming Hudbay had a right to these unpatented claims without bothering to check whether Hudbay had discovered the requisite valuable mineral deposit .
This is a common abuse of the Mining Law, especially for gigantic open-pit mines like Rosemont. As mining companies began building massive industrial-scale operations in the 20th century, they twisted the law to fit their need for thousands of acres of additional public lands for waste dumps. The Forest Service has simply turned a blind eye to these baseless rights, letting companies run roughshod over our public lands.
In 2017, the Tribes turned to Earthjustice for help, after being sidelined by the Forest Service during the requisite consultation process for the proposed mine. Through this partnership, the Tribes imparted the deep importance of the Santa Ritas to attorney Stu Gillespie.
“One of the most fulfilling parts of this case was sharing food with the Tohono O’odham leaders, [and] understanding their cultural ways of life and how important the sacred springs are,” says Gillespie. People of all backgrounds can relate to the importance of preserving burial grounds, he notes, saying, “We wouldn’t want someone building a mine in Arlington Cemetery.”
The case moved slowly in the courts, but the company moved quickly to start excavation. As Hudbay brazenly challenged the Tribes by bringing machinery to the mine site, Gillespie could see that he needed to take the bold step of seeking a preliminary injunction to stop any digging from starting. Preliminary injunctions often aren’t granted, because they’re an exceptional remedy of last resort and parties must prove that they face immediate irreparable harm.
Adding to the urgency, Hudbay planned to clear all the lands that are burial grounds for the Tohono O’odham Nation’s ancestors – the Hohokam. In the 1980s, another company prepared to mine the same site and encountered the burial grounds. The Anamax Mining Company soon went bankrupt and abandoned the site, leaving graves and the ancient village grounds open to the elements. As a result of that excavation, some of the Tribes’ ancestral remains were shipped to the University of Arizona, where they were warehoused for thirty years while the Tribes fought to repatriate them. They were only returned to the Tohono O’odham Nation several years ago. The Tribes were adamant about preventing a repeat of history.
The Tribes’ challenge to the eastern mine proposal succeeded. Instead of granting a preliminary injunction, the judge went a step further and definitively ruled on the merits of the Tribes’ case itself. The Court held that the Forest Service made a “crucial error” by assuming Hudbay had a right to use public lands without any evidence of a valuable mineral deposit, and that this error “tainted the Forest Service’s evaluation of the Rosemont Mine from the start.” With this argument, the judge prevented any mining activities from going forward, and called out the Forest Service for abdicating its duty to protect our public lands.
The judge in the case “identified the fatal flaw in the Forest Service’s reasoning,” says Gillespie. “He laid out an unbroken line of Supreme Court decisions, saying, ‘No, you don’t have rights under the Mining Law to pollute this land under billions of tons of waste rock, without evidence of valuable minerals.’”
The mining company hasn’t given up its efforts to raze the Tribes’ ancestral land for profit. Hudbay has expanded its mine plans to include over 3,400 acres on the west side of the Santa Rita mountains – an expanded project called the Copper World Complex. The company has charged forward with its mining activities – again – without informing the Tribes. In May, the Tribes demanded an emergency halt to this new illegal activity, but a judge denied the Tribes a preliminary injunction. Earthjustice and its partners plan to continue fighting the project to ensure Hudbay complies with its legal obligations and halt the company from irreparably destroying cultural and natural resources.
This blog was originally published in November 2019. It was most recently updated in November 2022.