Analysis by Wick Environmental Liaison Dick Kamp 1/27/11
Rosemont and Cheney challenged under same law
The news in late December, 2010 was a bit puzzling, and a different tangent for the controversial Rosemont Mine issue. Save the Scenic Santa Ritas (SSSR) and FICO pecan orchards, joined by the Center for Biological Diversity were challenging the Coronado National Forest over lack of compliance with the 1972 Federal Advisory Committee Act (FACA). FACA is governed by the General Services Administration (GSA).
They asked the Coronado to cease allowing Augusta Resource/Rosemont to attend cooperating (local, tribal, state, fed) agency committee meetings and to establish a FACA committee. They claimed that by allowing Rosemont to attend the agency meetings, with no anti-Rosemont public representation, the Forest Service had an illegal FACA committee.
Assistant Forest Supervisor Reta Ford rather quickly dismissed these grounds as well as their proposal that either a new process begin to develop a draft Environmental Impact Statement (DEIS)-or that a formal FACA process begin A process bureaucratic and formal representing every type of interest likely to be impacted by the mine. The groups reserved the right to take legal action quickly if Coronado didn't resolve the situation.
FICO attorney Dinah Bear said in an email, "The principal exemption... applicable in the context of cooperating agencies is the (1995) provision that exempts meetings attended only by state, local and tribal governmental representatives. There are other exceptions - such as meetings of the CIA ... this situation is a series of intergovernmental meetings that would normally be exempt from FACA ... that we are arguing are not exempt by virtue of Rosemont's regular attendance."
There are very important questions of whether or not the Coronado is adequately addressing substantive issues as geochemistry and centuries long water quality impacts of a potential mine. New Coronado Supervisor Jim Upchurch referred to these in an interview as "the core issues that we have to get a handle on in NEPA and the Draft EIS for Rosemont."
Then there is FACA: not really NEPA but a very twisted public participation issue.
To get a sense of the range of FACA issues that have hit the courts: Several organizations sued Vice President Dick Cheney over his 2001 secret energy policy committee that was strongly influenced by Enron's Ken Lay, Exxon-Mobil, the American Petroleum Institute, etc. Initially the GSA itself questioned the committee but dropped out early in legal disputes, and ultimately in 2005 an appeals court allowed the committee proceedings to remain secret.
The Fish and Wildlife service was successfully sued in the mid-90s for producing a scientific report on a sturgeon, that utilized scientists as a committee to write the report. The courts scrapped the study to not "allow the government to use the product of a tainted procedure (that) would circumvent the very policy that serves as the foundation of [FACA]."
The Forest Service, in creating the 1994 Northwest Forest Plan to protect the spotted owl was successfully sued for accepting policy advice from selected academic advisors who joined agencies, tribes and local governments.
After that case, during the Clinton years, the Forest Service issued guidelines stating that meetings with individuals or single groups can be held "to hear their opinions, views, and advice; however, no group can become a preferred source of advice for the agency without sparking FACA concerns"
The courts and the GSA (who the courts seem to frequently ignore) have given a lot of interpretations to what is the proper implementation of FACA.
A tired-sounding Upchurch rejected reopening the advisor process using FACA as a compromise solution to the groups concerns. "We want to be able to produce a document that addresses core issues to get public comment then we open it up to everybody. When we start to bring in a few representatives under FACA it can be a slippery slope. Everyone should be involved and not a few"
Upchurch added, "I can't read the minds of the groups who wrote us the letter to know whether they will turn this over to the courts."
SSSR attorney Roger Flynn said, "Basically the DEIS will be tainted coming out in coming months; and either it cannot be used, or from here on out they allow a public advisory process to take place."
As Upchurch and the groups dig in their heels the scent of litigation is present.
The courts have ample precedents to decide that the advisory process was carried out in violation of FACA, and perhaps also of NEPA due to Rosemont representing the project proponent at the advisory meetings. Or not. How regular a basis Rosemont sat in meetings will be evident in the documents that Upchurch promises the groups will have by January 31.
Upchurch could change his mind and establish a formal FACA process that would involve pro- and anti-mining interests, along with agency representatives to help him in gathering information to make a yes or no record of decision under the 1872 Mining Act.
As an alternative, [erhaps the cooperating agencies group could start over with a new technically more rigorous process, meet without Rosemont and the public, and take as much time as necessary to ask for more information to develop a DEIS that has an alternatives analysis that is difficult to challenge.
Pima County has complained multiple times that the interadvisory agency process was not leading to a DEIS supporting the development of informed alternative environmental scenarios under NEPA. Rosemont has felt it has all gone fine. They are two players.
All of this back and forth may simply slow down the DEIS process. For decision-maker Upchurch, on a learning curve to address a very serious and controversial issue, this probably is not a bad thing. More time may be just what is needed before the public debates a scientifically complicated and esoteric Rosemont draft EIS.