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.
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.
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."
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 caseRead the Ninth Circuit decision