Forest Service claims no authority over public land degradation caused by private wells

Conservationists say the federal government violated the National Environmental Policy Act and Endangered Species Act by approving the expansion of the Pinto Valley Mine without placing limits on the amount of groundwater it pumps in from nearby private wells.PHOENIX (CN) — A federal judge appears split on a bid to stop the expansion of a pit mine in eastern Arizona that has reduced the flow of a nearby creek by more than 90% in the last decade.The Pinto Valley Mine uses more than 5 trillion gallons of water per year, extracting copper from the Tonto National Forest east of Miami, Arizona, and consequently reducing subflow of Pinto Creek, home to at least two species of endangered birds. Because the mine extracts most of its water from privately owned wells on private land outside Forest Service jurisdiction, the government claims it has no authority to limit how much water the mine can pump.In a Phoenix courtroom Tuesday afternoon, Thomas Delehanty said the federal government can and should regulate activity on private land if the result of that activity materially harms conditions on nearby public land.“If there’s a connection to forest resources, the Forest Service can impose reasonable conditions,” the Earthjustice attorney argued. “It’s not a stretch to say the Forest Service has some regulatory authority.”He said Forest Service regulations require the agency to protect its natural resources and federal law requires mine operators to “take all practical measures” to maintain and protect fisheries and habitats affected by the operation. In the Forest Service’s final environmental impact statement approving an expansion of the mine in 2021, the agency recognized that use of the private wells is “consolidated and authorized under the mine operations,” rather than a separate, private venture.Delehanty said that means the agency can regulate it.The Grand Canyon Chapter of the conservation group the Sierra Club challenged that approval in a 2024 lawsuit, accusing the Forest Service and U.S. Fish and Wildlife Service of violating both the National Environmental Policy Act and the Endangered Species Act by allowing the mine to overpump and ignoring evidence of harm to the yellow-billed cuckoo and the southwestern willow flycatcher.“The Forest Service knew harm was occurring and it did nothing,” Delehanty said on behalf of the Sierra Club. “It facilitated the destruction of the creek it was tasked with protecting.”Asking U.S. District Judge Dominic Lanza to grant the agency summary judgment, Department of Justice attorney Andrew Smith acknowledged all mining operations degrade the land around them to some extent.“If you have an open pit mine, that’s going to obliterate that National Forest Service land,” he said. But eventual destruction is not an end-all-be-all argument if preventing it means interfering with a private operation’s exercise of its own state-granted water rights, he added.The state, not the feds, regulates groundwater pumping from private wells. Recognizing Pinto Creek’s overall flow decreased by 82% from 2013 to 2018, the Forest Service asked the Arizona Department of Water Resources in 2019 to declare the mine’s water use in violation of the Forest Service’s instream water right, which was established in 1999 for the exact purpose of preventing mining operations from degrading the creek.The department declined, leaving the Forest Service with what it characterizes as no other option but to approve the water use and the subsequent request to expand the operation.Representing the mine, owned and operated since 2013 by Capstone Copper, Dorsey & Whitney attorney Norm James said even if Lanza vacated the Forest Service’s approval of the mine expansion, nothing would stop his client from continuing to pump water from the private wells.In its own motion for summary judgment, the Sierra Club says the agency excluded more than 90% of the portion of the creek protected by its instream water right when considering negative impacts of the mine, including the area just downstream of the mine itself.Smith said the agency only analyzed effects on what it calls a “drawdown area,” where the underground water table is expected to sink more than five feet. In other areas, the deep roots of the willow trees that line the creek will still be able to reach the groundwater and won’t be imperiled like those in the drawdown area.James added no drawdown could occur downstream of the identified area because the impermeable granite beneath the stream halts subflow altogether.“It just doesn’t propagate downstream like plaintiffs are insisting,” he said.Because of the downstream granite bed, Delehanty explained all subflow is forced to the surface and into the creek itself. If the water table upstream is reduced, he said that would still affect the overall flow downstream of the area analyzed.Lanza, a Donald Trump appointee, said he will rule as soon as possible, but the 2.5 hours of oral argument may take time to parse through. In a tentative ruling posted on Sept. 2, Lanza sided with the Forest Service on the private well question, but with the Sierra Club regarding the agency’s analysis of subflow effects.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads