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The Forest Service said it declined to release the draft to the tribe, the Environmental Protection Agency and “other agencies and parties� that had asked for it, in part because officials felt parts of the draft would need to change. Also, letting other parties comment would have also taken significant extra time when completion of the biological opinion was on a tight legal deadline, the Forest Service said in its statement to the Star.

The opinion, whose final publication was needed for the mine’s approval, lays out what the wildlife service believes will be impacts on 12 imperiled species living near the mine site in the Santa Rita Mountains.

Publicly released in May, the final biological opinion said the mine won’t jeopardize species’ existence or illegally damage their critical habitat. An opposition group, the Center for Biological Diversity, has notified the wildlife service of its intent to sue to have the opinion overturned.

“Promoting exclusion�

The Star learned of the requests to release the draft opinion — and the Forest Service’s refusals — through the federal Freedom of Information Act. Drafts of the opinion were published last fall and earlier this year, but haven’t been released. The Forest Service says it’s preparing to release them through FOIA.

“I appreciate that you may be new to this process, but this does not constitute appropriate consultation with the tribes� as called for in numerous federal laws, regulations and orders, Tohono O’odham Tribal Chairman Manuel wrote to Coronado Forest Supervisor Kerwin Dewberry, who started on the supervisor’s job last year. Manuel sent the letter after learning from the Star that the wildlife service had requested the tribes be given the document.

In an interview, Dewberry said that had he released the document and then it changed, that could have confused the public.

Confusion also could occur “because people might think they should comment on it like they commented� on the draft Rosemont environmental impact statement, added Heidi Schewel, a Coronado National Forest spokeswoman.

“The document is really not my document. It’s a document from the Fish and Wildlife Service,� Dewberry said. “They gave me an opportunity to review the document before it was finalized. I provided back to them my comments.�

Tribal chairman Manuel noted in his letter that the Tohono tribe is one of numerous agencies that has participated in planning for the mine with the Forest Service, and that it had reviewed an earlier draft Rosemont biological opinion, prepared in 2013.

At the time, the Forest Service gave copies of that draft to several cooperating agencies, and the Star obtained the document from one of them. The current opinion was a major revision of the 2013 opinion, made necessary by the discovery of an endangered ocelot near the mine site and the listing of two new threatened species since 2013, officials have said.

“The actions by your office here would appear to be promoting exclusion, rather than inclusion, of multiple parties that absolutely have a direct interest in the outcome of this process,� Manuel wrote. He requested that Dewberry meet with interested tribes to discuss how to address their concerns.

In its statement to the Star, the Forest Service said it “has met and will continue to meet with the tribes� throughout the prolonged approval process for this mine. The firm legal timeline the agencies had to finalize the biological opinion didn’t allow for an opportunity to have other entities participate, the service said.

“Opportunities to comment remain until the (Rosemont) decision is made,� the statement said.

Deadline extended

Tribes have a special “government to government� relationship with the federal government when it comes to reviewing environmental impacts of projects like Rosemont, said Patrick Parenteau, an environmental law professor at Vermont Law School. The Ninth Circuit Court of Appeals has ruled that when federal agencies consult with tribes about projects, discussions should be “conducted in a manner sensitive to the concerns and needs of the Indian tribe.�

That doesn’t mean the Forest Service was obligated to show tribes the opinion, Parenteau said, “but it sure raises questions about whether the Coronado understands the nature of the special obligation it has to include the tribes to be affected by Rosemont in all of the critical decisions.�

“Saying that there wasn’t enough time under the Coronado’s self-imposed schedule is a pretty weak excuse,� he said. “This project has been in the planning process for years. What was the hurry on the biological opinion?�

Although the biological opinion is supposed to be completed in 135 days after work begins on it, extensions are granted regularly, he said. The Rosemont deadline was extended more than once.

Late last year, Fish and Wildlife Service official Jean Calhoun sent the Forest Service a lower-level wildlife service official’s recommendation to send leaders of the Tohono, Hopi, Ak-Chin and other tribes copies of the draft biological opinion.

“Please let me know what role, if any, the Forest would like FWS to play in this tribal discussion. I’m happy to assist any way that is helpful,â€� wrote Calhoun, the ÃÛèÖÖ±²¥-based assistant field supervisor for the wildlife service, in a Dec. 2 email.

That day, the Forest Service’s Mindy Vogel replied to Calhoun that the Coronado would update tribes on the opinion’s status, but would not give it to them or seek their comments. Vogel is the Coronado forest’s minerals and geology program manager.

Legal, but not wise

EPA’s Kathleen Johnson requested the draft opinion in an October 2015 email to the Forest Service and the wildlife service.

EPA must consider whether to refer decisions on the mine by regional offices of the Forest Service and Army Corps of Engineers to higher levels of government, “and the findings of the (opinion) will be important to both. … We would appreciate the early look,� said Johnson, EPA’s San Francisco office’s enforcement division director.

In its statement, the Forest Service noted that a lead federal agency reviewing a proposed project isn’t required to share the draft opinion with anyone but the applicant — in this case, Hudbay Minerals Inc. of Toronto — and other agencies participating in the review. The lead agencies were the Forest Service and the Army Corps of Engineers, which must approve a separate permit for the mine.

Had the tribes and EPA seen the opinion’s first draft, published last November, they would have read of a series of fairly tough mitigation measures the wildlife service was planning. Among them was a requirement that Rosemont Copper backfill the mine once it’s closed and that it guarantee protection of nearby watersheds from non-native species for 150 years.

The Forest Service objected to those measures, partly because the agency felt they were not within its power to impose, and they were pulled.

“Soliciting comments regarding mitigation measures that were not … feasible would have been counterproductive,� the Forest Service statement said.

EPA, which has mostly stayed silent on Rosemont in recent months, declined to comment on the Forest Service’s refusal to provide the draft opinion.

While the Forest Service’s refusal to provide EPA the opinion is legal, it’s not wise, said law professor Parenteau, who gave the Center for Biological Diversity some paid legal advice on another Rosemont issue two years ago.

“It may be that some aspects of the biological opinion are related to water quality and/or the impact of the mine on aquatic species� said Parenteau, a former EPA counsel who also worked briefly for the wildlife service in the 1990s. “EPA is more of an expert on water quality aspects than even the Fish and Wildlife Service. Why wouldn’t you want the agency with the most expertise on the problem in the room?�