Public Land Victory
in Court of Appeals

Ninth Circuit rejects land-exchange decision
expanding open-pit mine
in Arizona

This week, we received great news in our longest-running legal battle. The Ninth Circuit Court of Appeals has just ruled on our challenge of a proposed land exchange between the Bureau of Land Management (BLM) and the mining corporation Asarco. The court ruled that the BLM had violated the law in approving the land trade, which would give Asarco more than 10,000 acres of federal land to expand its operations at the Ray Mine in central Arizona. In turn, the public would receive 7,300 acres of inholdings Asarco owns.

With our co-plaintiffs, the Center for Biological Diversity and the Sierra Club, we began our challenge in 2001 with an appeal to the Interior Board of Land Appeals, followed by a lawsuit filed in Federal District Court, which ruled against us in 2007. In all of these actions we have been represented by Roger Flynn and Jeff Parsons at the Western Mining Action Project in Lyons, Colorado.
The land Asarco wants to acquire, most of which is adjacent to the existing mine, variously comprises habitat for the federally-listed desert tortoise and the desert bighorn sheep; abuts an Area of Critical Environmental Concern; and contains 70+ archaeological sites.  The land would be used mostly for dumping mine waste and running equipment--as attorney Roger Flynn says, "about the worst purpose you can think of for trading away public lands."

Ray Mine

On September 14, 2009 the Ninth Circuit ruled that the BLM had violated the National Environmental Policy Act (NEPA) by failing to properly analyze the impact of mining at the site with versus without the exchange.  Without the trade, Asarco would have the right (under the antiquated Mining Law of 1872) to expand the mine, but its operations would have to comply with federal laws due to public ownership of the surface rights. With the trade, the company would own both the surface and subsurface and could proceed with mining under more lax state regulation, without a federally-required Mining Plan of Operations that could establish restrictions to prevent "undue degradation" at the site.  

The court further ruled that the BLM violated the Federal Land Policy and Management Act, because its decision that the exchange would serve the public interest was based on the faulty assumption that mining would occur in the same manner whether or not the exchange occurred.

The BLM must now redo its NEPA analysis. It must then reconsider whether the exchange is in the public interest.

One judge on the three-judge panel filed a strongly-worded dissent-based largely on his opinion that the decision did not give due deference to the BLM's expertise-and stated that his colleagues demonstrate "a clear distrust of Asarco and the BLM."

While the land exchange proposal may not be entirely abandoned, we are encouraged by the majority decision and its implications for public land in Arizona and elsewhere.

Read a news article on the case

Read the Ninth Circuit decision