Each month, One Green Planet tracks major legal developments that are improving (or, in some cases, threatening) the lives and well-being of animals. Because the law so poorly under-protects animals, these updates trace a range of legal approaches to protecting animal rights and welfare. While some legal efforts pertain directly to animals by addressing, for example, animal cruelty or endangered species protections, some of the most effective legal advocacy is less direct.

This month, we are highlighting a battle over mining in the Coronado National Forest—a case that will impact wildlife over thousands of acres of national land.  After, we provide a quick update on Happy the elephant and his petition for release from the Bronx Zoo.

1. The Fight Against the Rosemont Copper Mine

Since 2007, the Center for Biological Diversity (“CBD”) has been fighting to stop the proposed Rosemont Copper Mine—a massive open-pit mine outside Tucson, Arizona.  According to CBD, the mine would be “a mile wide, a mile-and-a-half long and more than 3,000 feet deep.” 

But the mine itself is only a sliver of the problem for wildlife.  Mining produces “waste rock,” which is a rock with non-valuable minerals.  And over 20-25 years, Rosemont plans to produce between 1–2 billion tons of waste rock—and to dump that waste on 2,447 acres of National Forest land.  The plan would permanently destroy thousands of acres of habitat, and all the diverse wildlife that lives there.

Efforts to fight the Rosemont mine include challenges under the Endangered Species Act and the Clean Water Act.  But the threshold challenge, which CBD recently won in the Ninth Circuit Court of Appeals, concerned the rights that Rosemont has to dump waste in the first place, under the Mining Law and related regulations.

What is Mining Law?

It’s shocking to think that a mining company could just dig up a national forest, and then dump its waste.  But the Mining Law of 1872 is somewhat shocking.  Effectively, the Mining Law allows U.S. Citizens to look for and mine valuable minerals on federal lands, essentially free of charge.

Since 1872, the scope of the law has been narrowed; for example, it no longer applies to certain protected areas like Yellowstone National Park, and the definition of “valuable minerals” has been curtailed.  Even so, the law gives mining companies tremendous leeway to lay waste to natural areas.

How much power do agencies have to regulate mining under the Mining Law?

The U.S. Fish and Wildlife Service and the U.S. Forest Service are the agencies that oversee mining operations.  Therefore, when a mining operation is likely to cause significant disturbance of surface resources, the mining company must submit a plan (called an “MPO”) for approval.  The big picture, legal question is how much power the agencies have to regulate and restrict an MPO.

In short, the Service believed it had virtually no power to reject Rosemont’s plan—so it approved the MPO, proclaiming that its hands were tied.   While the Service was concerned about environmental impacts, it wrote that Mining Law gave Rosemont a right to dump its waste—even if the mining claims were ultimately invalid!  CBD, alongside other environmental groups and Native American tribes, challenged the Service’s decision.

Earlier this month, the Ninth Circuit handed down a major win for wildlife and the environment.  Agreeing with CBD, the Court held that the Mining Law does not give Rosemont the right to dump its waste rock on thousands of acres of National Forest land on which it has no valid mining claims.

Where does the decision leave us?

Well, the Service has to start from scratch and evaluate Rosemont’s plan.  Ultimately, it can still side with Rosemont and allow Rosemont to dump its waste.  But the law is now clear that the Service can also reject Rosemont’s plan—and that mining companies have slightly less leeway to wreck national forests under a law from 1872.

2. Happy the Elephant — Quick Update

One Green Planet has been covering a major, animal law case that is now before New York’s highest state court—the case of Happy the Elephant.  The NonHuman Rights Project is fighting to release Happy from the Bronx Zoo using “habeas corpus,” the same, legal writ that lawyers used to free slaves before they were considered legal persons.

This month, the Court heard oral arguments in Happy’s case. While it’s always hard to read tea leaves about what a court is thinking, many of the questions focused on the practical ramifications of a ruling in favor of Happy.  Specifically, the Court wanted to know what other animals could use habeas corpus.  Just Happy?  All elephants?  Chimpanzees?  Autonomous animals? (And, if so, how to define autonomous?)  All animals?

If I had to guess right now, the Court could duck the major question in the case—which is whether habeas can ever be used to free animals from captivity.  Whatever the outcome, One Green Planet will provide updates as they come.  If the Court grants Happy a right to habeas, Happy’s case could be the biggest animal rights case in history.

For previous Animal Law Updates on One Green Planet:

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