Court halts Asarco's swap for mining land - East Valley Tribune: News

Court halts Asarco's swap for mining land

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Posted: Monday, September 14, 2009 6:07 pm | Updated: 12:43 am, Sat Oct 8, 2011.

A federal appeals court halted efforts by Asarco to obtain nearly 11,000 acres of federal land to expand its copper mining operations near Kearney.

In a divided ruling Monday, the majority said the U.S. Bureau of Land Management did not conduct a "meaningful analysis" of the potential environmental impacts of putting that property into private hands for mining. Judge William Fletcher specifically said BLM violated federal law "by failing to take a 'hard look' at the environmental consequences of the land exchange."

In fact, Fletcher said, the agency found only advantages in permitting the swap, with no disadvantages at all.

But the judge said that was based on an incorrect assumption that, trade or not, Asarco would be able to mine it in exactly the same way.

"This assumption is unreasonable," Fletcher wrote.

It is true that companies are entitled to mine on federal lands. But the judge pointed out that the rules are different than if a firm owns the land outright.

"If the proposed exchange does not occur, the land will continue to be owned by the United States," he said. "In that event, Asarco would not be permitted to conduct mining operations on the land unless it complies with the Mining Law of 1872."

Specifically, Fletcher said, Asarco could not conduct new mining on federal land without first submitting "detailed information" to the Bureau of Land Management on the operation, management, monitoring and environmental impacts. And the operation could not be expanded unless BLM first gave its approval, something it could not do before considering the environmental impacts.

"By contrast, if the selected lands are conveyed ... Asarco will be able to conduct its mining operations without being constrained in any way" by the federal law.

All that is significant, Fletcher said, because federal law requires BLM, when weighing a land exchange, to consider how the public interests would be served, not only if the land swap is approved but also if it is denied. Here, he said, the federal agency did not consider the public interests in keeping the land under public control - and requiring Asarco to comply with the requirements of the federal mining law.

A company spokesman did not immediately return phone calls.

According to court records, Asarco's Ray mine is the second largest copper producer in the state and the third biggest in the nation.

Company officials first proposed acquiring the additional federal lands back in 1994. The plan, amended since then, would give the government about 7,300 acres of private lands.

Fletcher said the lands the company wants include "important plant and wildlife habitat," including a reintroduction habitat for desert bighorn sheep, more than 6,800 acres of endangered desert tortoise habitat and potential habitat for threatened or endangered birds.

But the U.S. Environmental Protection Agency, asked to evaluate the swap, said more study is needed to see how expanded mining would affect the area and whether there are alternatives to how the facility would be operated to mitigate those effects.

"We have strong objections to the opposed project because we believe there is potential for significant environmental degradation that could be corrected by project modification or other feasible alternatives," the letter stated.

When BLM decided to approve the swap, several environmental groups filed suit. But their case was thrown out of federal court, resulting in this appeal.

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