May 2022: Animal law updates that made the world a better place for animals this month


Each month, One Green Planet tracks major legal developments that improve (or, in some cases, threaten) the lives and welfare of animals. Because the law so poorly underprotects animals, these updates chart a range of legal approaches to protecting animal rights and welfare. While some legal efforts relate directly to animals by addressing, for example, animal cruelty or the protection of endangered species, some of the most effective legal advocacy is less direct.

This month we highlight a battle over mining in the Coronado National Forest— a case that will impact wildlife on thousands of acres of national land. Next, we provide a quick update on Happy the Elephant and his petition to free the Bronx Zoo.

1. The fight against the Rosemont copper mine

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

But the mine itself is only part of the problem for wildlife. Mining produces “waste rock”, that is, rock containing worthless minerals. And over 20 to 25 years, Rosemont plans to produce between 1 and 2 billion tons of waste rock and dumping 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 combat 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 Appealsdealt with Rosemont’s rights to landfill waste in the first place, under the Mining law and related regulations.

What is mining law?

It is shocking to think that a mining company could simply dig up a national forest and then dump its waste. But the mining law of 1872 is somewhat shocking. Indeed, the Mining Act allows US citizens to search for and mine valuable minerals on federal lands, essentially for free.

Since 1872, the scope of the law has been restricted; for example, it no longer applies to certain protected areas such as Yellowstone National Park, and the definition of “precious minerals” has been reduced. Despite this, the law gives mining companies considerable leeway to devastate natural areas.

What power do agencies have to regulate mining under the mining law?

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

In short, the Service believed it had virtually no power to reject Rosemont’s plan. So he endorsed DFO, claiming his hands were tied. While the Service was concerned about environmental impacts, it wrote that the Mining Act gave Rosemont the right to bury its waste, even if the mining claims were ultimately invalid! CBD, along with other environmental groups and Native American tribes, challenged the Service’s decision.

Earlier this month, the Ninth Circuit scored a major victory for wildlife and the environment. In agreement with the 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 concession.

Where does the decision leave us?

Well, the Service needs to start from scratch and assess Rosemont’s plan. Ultimately, it can always 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 destroy national forests under an 1872 law.

2. Happy the Elephant — Quick Update

One Green Planet covered a major animal rights case that is now before New York State’s highest court – the Happy the Elephant case. The Non-human rights project fights to free Happy from the Bronx Zoo using “habeas corpus,” the same legal act lawyers used to free slaves before they were considered corporations.

This month, the Court heard argument in the Happy case. While it’s always hard to read tea leaves about what a court thinks, many of the questions focused on the practical ramifications of a ruling in Happy’s favor. 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 now, the Court might be dodging the main issue of the case, which is whether habeas can ever be used to free animals from captivity. Regardless of the outcome, One Green Planet will provide updates as they arise. If the court grants Happy a right of 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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