33 F.4th 1202
9th Cir.2022Background
- Rosemont proposed a large open‑pit copper mine in the Coronado National Forest: a 3,000‑foot‑deep, 6,500‑foot‑wide pit on land where its mining rights for the pit are undisputed.
- The operation would generate about 1.9 billion tons of waste rock and tailings, which Rosemont planned to deposit on 2,447 acres of adjacent National Forest land (average fill ~700 feet); the administrative record shows no valuable minerals were found on those 2,447 acres.
- The Forest Service approved Rosemont’s Mining Plan of Operations (MPO) in a Final EIS and Record of Decision relying on two rationales: (1) Section 612 of the Surface Resources and Multiple Use Act authorized “uses reasonably incident” to mining even off‑claim; and (2) the Service assumed Rosemont’s mining claims covering the disposal acreage were valid, so Part 228A mining regulations governed.
- Plaintiffs (environmental groups and Tribes) sued under the APA, NEPA, the Mining Law and related statutes; the district court vacated the FEIS/ROD as arbitrary and capricious, holding Section 612 does not expand Mining Law rights and that the Service had no basis to assume claim validity.
- The Ninth Circuit panel affirmed: it held Section 612 grants no rights beyond the Mining Law; concluded the claims were invalid because no valuable minerals had been found on them; and remanded to the Service to decide regulatory questions (Part 228A applicability) in the first instance. Judge Forrest dissented, arguing Part 228A plainly covers the waste‑disposal activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §612 of the Surface Resources and Multiple Use Act authorize waste‑rock disposal on National Forest lands independent of Mining Law rights? | §612 does not expand or create a right to occupy off‑claim land; Service misread statute. | §612 permits uses “reasonably incident” to mining and thus authorizes disposal even off‑claim. (Gov’t later abandoned this on appeal.) | Court: §612 grants no rights beyond the Mining Law; Government abandoned §612 on appeal; Service erred to rely on it. |
| Could the Forest Service permissibly assume the validity of Rosemont’s mining claims covering the disposal area without a formal validity determination? | Claim validity must be established (discovery of valuable minerals); administrative record shows no discovery, so claims are invalid. | Service may treat claims as valid for MPO review; BLM adjudication not required before approval. | Court: Claims are invalid because no valuable minerals have been found; Service acted arbitrarily in assuming validity. |
| Do Part 228A regulations govern placement of mine waste on off‑claim National Forest land (i.e., is waste disposal an activity “in connection with” mining operations)? | Part 228A does not apply to off‑claim waste disposal; Part 251 (special uses) controls and is more protective. | Part 228A’s definition of “operations” (and “in connection with”) covers waste removal/placement as part of mining, on‑ or off‑claim. | Majority: Premature to decide; remand to Service to determine applicability/construction of Part 228A in light of concession and invalid claims. Dissent: Part 228A plainly applies and approval should be evaluated under it. |
| Remedy: Was vacatur and remand appropriate? | Vacatur of FEIS/ROD and remand to agency for proper legal analysis and alternatives. | Sought reversal and remand without vacatur or decision validating approval. | Court: Affirmed district court’s vacatur and remanded for further proceedings informed by holdings that §612 does not expand Mining Law and that Rosemont’s relevant claims are invalid. |
Key Cases Cited
- United States v. Coleman, 390 U.S. 599 (defines “valuable mineral deposit” as mineral extractable and marketable at a profit)
- Union Oil Co. of Cal. v. Smith, 249 U.S. 337 (temporary occupancy for exploration permitted but discovery is essential for valid claim rights)
- Cameron v. United States, 252 U.S. 450 (invalid claim confers no possessory right)
- Best v. Humboldt Placer Mining Co., 371 U.S. 334 (BLM adjudicatory authority over claim validity)
- Waskey v. Hammer, 223 U.S. 85 (discovery must be within claim limits; proximity to discoveries elsewhere insufficient)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (APA arbitrary and capricious standard)
- Michigan v. EPA, 576 U.S. 743 (review limited to the grounds the agency invoked)
- SEC v. Chenery Corp., 318 U.S. 80 (courts generally may not uphold agency action on post hoc grounds)
- Clouser v. Espy, 42 F.3d 1522 (BLM’s role in mining claim validity proceedings)