Judge overturns right-of-way for Copper World across Santa Rita Experimental Range

A judge in Maricopa County ruled that state officials violated open meeting law when it approved the value of a right-of-way for the Copper World mine project, located 35 miles southeast of Tucson in the Santa Rita Mountains.

Owned by the Toronto-based Hudbay Inc., Copper World has faced a barrage of criticisms and legal challenges from environmental groups, who have argued the open pit mine would seriously affect the Santa Ritas and the Santa Cruz River. Proponents have argued the mine’s $1.7 billion investment will generate nearly $250 million in property taxes, and create more than 400 direct jobs and up to 3,000 indirect jobs in Arizona.

In a 13-page opinion, Judge Scott A. Blaney ruled the Arizona State Land Department’s Board of Appeals violated state law when they failed to disclose in a public meeting notice the right-of-way would include pipelines that would transport mining waste, or tailings, across a portion of the state-owned Santa Rita Experimental Range—a 52,000-acre section of protected rangeland managed by the University of Arizona. 

In December 2022, the Arizona State Land Department’s Board of Appeals agreed to the easement. However, the environmental advocacy group Save the Scenic Santa Ritas Association—a long opponent of the mine—filed suit arguing state officials failed to properly describe how the company would use their easement across the protected Experimental Range. SSSR was joined by Farmers Investment Co., a Sahuarita pecan farming operation. 

Blaney ruled the meeting was held in violation of state law because the notice and agenda for the meeting, and meeting minutes, “were materially inaccurate and misleading.” He also ruled the Board’s valuation of the easement “null and void” and ordered the state to pay attorney’s fees. 

Blaney gave state officials 30 days to cure the open meetings law violation by holding a new public meeting that includes a revised agenda. 

“We are delighted that the court ruled there was clear violation of the Open Meetings Law and we urge the state Land Department to immediately revoke the right-of-way,” said Rob Peters, the executive director of Save the Scenic Santa Ritas.  

“The open meeting violation is just the first step in addressing possible additional wrongful actions taken by state land department employees in connection with issuing this right-of-way that should be investigated by top state elected officials including Governor Katie Hobbs and Attorney General Kris Mayes,” Peters added. 

A Hudbay spokeswoman said the company “respects the recent court decision on a noticing error related to the State Land Department’s issuance of a right-of-way for the Copper World project.” 

“However, as pointed out in the decision, the Board of Appeals meeting that was the subject of the lawsuit is not a required part of the Land Department’s process for issuing right-of-ways,” she said. “Therefore, the ruling did not vacate the right-of-way itself and does not affect its validity.”

“Our team will work with Arizona State Land Department to resolve this matter and maintain our rights granted in the right-of-way,” she said. “The Copper World Project remains on track, and we are confident in its future contributions to local economic growth, job creation, and the supply of responsibly mined copper to support America’s clean energy goals.” 

Lynchpin

In April 2022, Copper World—then known as Rosemont Copper—sought a right-of-way across part of the experimental range along its own property. The company said it would use the right-of-way to build an access road, a fresh-water pipeline, a tailings pipeline, a “process-return” pipeline, as well as transmission lines. 

Originally, the company considered running a route across land owned by the Bureau of Land Management, but shifted to the west into state-owned land. 

Under state law, the Arizona State Land Department—which manages millions of acres of land held in trust—may grant right-of-way access without an auction for up to 50 years, and the department has a five member board to recommend the value of the easement. After Rosement, née Copper World, applied for access to state land, the board decided the land was worth $64,089 for the access road, electrical transmission line, and a fiber-optic line. 

However, Rosemont officials told a state land manager the recommendation to approve the easement was missing key details, specifically Rosemont’s plan to install pipelines that would carry tailings. Before the Dec. 8 meeting, Rosemont officials told him his description of the proposed use was “inaccurate.” 

The company told Romero to be accurate, the description needed to list three pipelines, not two. Two days before the meeting, before the 24-hour window to make changes and publish an “accurate notice and agenda” Copper World told Romero the project actually called for six pipelines, not two. 

Romero told Copper World he would make the changes in his department’s systems, but “chose not to correct the information provided to the Board and the public.” 

However, the record was not corrected and an early version of the right-of-way description from November was given to the Board who approved it as part of their consent agenda. By January, the department corrected the document. 

Following the board’s decision, Save the Scenic Santa Ritas Association and Farmers Investment Co., a Sahuarita pecan farming operation, filed a lawsuit demanding the court revoke the approval of right-of-way, “a lynchpin in Hudbay’s mining plan to dump millions of tons of tailings on its private property.” 

“Hudbay does not have direct access to the tailings dump property and must cross U.S. Bureau of Land Management property or bypass federal land through the SRER,” they wrote. The group’s added “using a right-of-way for three or six pipelines rather than two is a substantial and material difference.” 

“Whether or not they can be properly termed ‘toxic’ mine tailings are substantially and materially different than water, as they contain waste products from ore processing. A tailings pipeline, therefore is substantially and materially different from a water line,” they said. 

Hudbay officials have said the loss of the right-of-way “will have serious adverse impacts on Copper World’s future mining operations.””

Omission of tailings ‘material’ to valuation

Blaney signed his ruling on Sept. 9, but the decision wasn’t publicly available until Tuesday. 

Blaney ruled using a right-of-way for three to six pipelines rather than two is a substantial and material difference.” Without the right information “neither the Board nor the public could accurately evaluate whether $69,089 was a reasonable valuation of the Rosemont Copper ROW without knowing that its uses would include up to six pipelines, not two, that would carry mine tailings and other substances, not only water.” 

“Even if the Board agreed that the additional pipelines and inclusion of mine tailings did not affect the assessed valuation, the public could not evaluate the decision without that material information,” Blaney wrote, adding SSSR and Farmers have been “specifically concerned about mine tailings, and therefore the omission of any mention of tailings from the agenda was material to their understanding of the ROW’s valuation.” 

“Although the notice and agenda for a public meeting need not provide ‘every detail of the recommended decision on which a vote is about to occur’ the public body must convey sufficient information for the public to ‘discover and investigate further the background or specific facts of the decision,” Blaney wrote. He added the notice and agenda must be accurate because any ‘misleading element inherent in the notice given’ for a public meeting violates the Open Meetings Law.  

“Here interpreting the Open Meetings Law’s requirements broadly in favor of open meetings leads to the conclusion that the notice and agenda for the December 8, 2022 meeting were materially inaccurate and misleading and therefore violated the Open Meetings Law,” Blaney wrote. 

As part of the Copper World project, Hudbay wants to establish six open pits over the next 15 years, removing and processing up to 277.4 million tons of sulfide ore. The company will generate about 477 million tons of waste rock, which will be kept on site in tailing ponds.

After production, the agency will backfill three pits with waste rock, including the Broadtop Butte Pitt, which straddles the ridgeline, while the Heavy Weight and Copper World pit are located along the west side of the Santa Ritas.

Last year, Hudbay began carving roads, drill pads and clearing ground for tailings piles on the property. This included filling ephemeral stream beds and disturbing habitat in anticipation of final approvals for the Copper World complex.

Hudbay originally sought to build the Rosemont Mine, planning a half-mile deep pit across nearly 2,500 acres in the Santa Rita Mountains. However that effort faced fierce opposition from environmental groups who argued the mine and its tailings in the Coronado National Forest would bury thousands of acres within the range of the endangered northern jaguar and the ocelot, as well as nearly a dozen other endangered and critical plants and animals. 

With that project moribund over legal challenges, Hudbay shifted its efforts to the western slopes of the Santa Rita Mountains on a chunk of private land once known as the Helvetia Mining District.

‘Painstakingly obvious’ 

While Blaney agreed state officials violated the law, he made it clear he did not determine whether the proposed pipelines will carry toxic substances. 

He found state employees made “material” hand-written changes to the recommendation to approve the right-of-way, including altering the number of pipelines approved by the board from two to six and removing the word “water,” which advocates argued cleared the way for tailings pipelines. 

SSSR said emails show Hudbay officials were “very concerned the right-of-way would not be signed” by Land Commissioner Lisa Atkins, who was appointed by former Arizona Governor Doug Ducey and was leaving office in mid-January as the administration moved to Gov. Katie Hobbs who was elected in November 2022.  Hobbs appointed Robyn Sahid to serve as state Land Commissioner in early January 2023. 

“The actions by state Land Department employees that hid the true purpose of the right-of-way from the Board of Appeals and the public, secretly changed an official state document, and bypassed the governor’s newly appointed land commissioner have seriously undermined public confidence in the land department,” Peters argued. “It is painstakingly obvious that the actions of the land department staff behind the scenes served the interests of a foreign mining company that plans to destroy a treasured mountain range and deplete our groundwater rather than the public interest.”