The appeal hearing can be seen here:
A Peruvian Court has ruled that a security contract between Hudbay Minerals Inc. and police created a bias in favor of the Toronto-based mining company that resulted in the April 2017 illegal detention of InvestigativeMEDIA owner John Dougherty and international mining activist Jen Moore and a subsequent ban prohibiting them from entering the country.
“This decision provides further evidence of how the privatization of security forces in Peru undermines their impartiality and independence, and puts them at the service of companies like Hudbay Minerals creating a grave conflict of interest,” Moore states.
“This creates a highly permissible environment for human rights violations, including the criminalization and violent repression of people exercising their legitimate rights to protest mining projects and related harms,” she said. “Further, as this case demonstrates, it heightens state and company control over the information people have access to, such as through the criminalization of independent researchers and journalists.”
Hudbay is seeking permits to construct the third largest open-pit copper mine in the United States in the Santa Rita Mountains on the Coronado National Forest southeast of Tucson. The project has been stopped pending the outcome litigation in U.S. District Court.
Dougherty and Moore were surrounded by police and ordered into a vehicle after screening Dougherty’s documentary film “Flin Flon Flim Flam” at a downtown Cusco cultural center on April 17, 2017. The film detailed Hudbay’s history of environmental degradation and human rights abuses in Arizona, Canada, Guatemala and Peru.
Dougherty and Moore were held four hours by police who alleged they had violated their tourist visas.
The next day, the Peruvian Interior Ministry issued a statement alleging Dougherty and Moore were inciting violence against mining operations in Peru. HudBay Minerals argued at the time that it had nothing to do with the criminalization of the two, although it admitted to contracting police for security services. Moore’s attorneys filed a habeus corpus motion in May 2017 and a Peruvian court issued its ruling earlier this month.
“In addition to recognizing that the police and Ministry of the Interior were partial to HudBay Minerals’ interests, the ruling finds that sharing information about the negative impacts of mining does not threaten public order nor does it violate migratory law, which were among the accusations made by police,” according to a statement issued earlier this week by Moore.
“On the contrary, the ruling finds that Moore was acting within her rights, and that this process of criminalization constitutes a violation of individual rights to freedom of expression and collective rights to access information.”
In a separate ruling earlier this year, a Peruvian court determined that the Interior Ministry violated Dougherty’s due process rights when it banned Dougherty and Moore from Peru for 10 years prior to even holding a hearing. The court ordered the travel ban lifted.
In the week prior to their detention, Dougherty and Moore were harassed and subject to police surveillance while they were visiting communities affected by HudBay’s Constancia copper mine in the province of Chumbivilcas where they screened the film and distributed DVD copies in Quechua. Police questioned local community leaders about their activities and sought their personal identification from a local hotel where they had stayed without them being present.
While contracts between Peruvian security forces and mining companies are legal, national and international organizations have vociferously opposed these arrangements given their detrimental impacts on the impartiality and independence of the police force, which is necessary to their role in ensuring justice, not facilitating criminalization, violating people’s rights and repressing Indigenous peoples and other mining-affected communities around the country, Moore states.
EarthRights International, the Peruvian Institute for Legal Defense and the National Coordinating Committee for Human Rights in Peru released a recent study in which they found that mining companies and other extractive firms have signed at least 138 contracts with police in Peru from 1995 to 2018.
There are numerous examples of where these privatized police arrangements occur with grave impacts, including where police response to community protests has led to criminalization or where repression has led to injury and death. In the case of Glencore’s Tintaya mine (formerly owned by XStrata), Peruvian citizens brought a civil lawsuit to UK court for violent police repression of Indigenous communities protesting environmental contamination and the company’s broken promises.
Moore notes in a first-person account in Foreign Policy in Focus that she and Dougherty “got off light” compared to the flagrant human rights abuses that have occurred as a result of mining companies having police security contracts.
“In an area not far from Cusco, police repression against Indigenous communities protesting environmental contamination in 2012 ended with dozens injured and two dead. And Peruvians often face much more punitive legal proceedings than we did.
“For instance, the governor of Puno province has been sentenced to six years in jail for allegedly organizing Aymara Indigenous communities to protest mining concessions for the Canadian company Bear Creek Mining in 2011, over very real concerns about the water contamination that results from gold mining.”
InvestigativeMedia owner John Dougherty formally requested today that the Yavapai County Board of Supervisors reinstate the Yavapai County Water Well Code that the board repealed on May 15.
The board’s decision to revoke the water well code reverses its longstanding support for the code which protects private property rights. The board voted after it was provided misleading and incomplete information by the County’s Development Services staff, county records reveal.
The primary beneficiary of the repeal of the water well code is the Montezuma Rimrock Water Company. MRWC has sought since 2006 to operate a high capacity production well that it drilled without a commercial use permit and in violation of the Water Well Code’s 50-foot setbacks between a well and a property line.
The Arizona Corporation Commission sent a criminal referral to the Attorney General in 2014 in connection with false and misleading statements Montezuma submitted to the Commission. There is no record that the Attorney General has closed the investigation. The Commission also found Montezuma in Contempt of the Commission on 12 counts including twice billing customers for “unlawful” surcharges.
The press release follows:
July 24, 2019
Yavapai County Water Well Code Repeal Strips Private Property Rights to Benefit Company Under Attorney General Investigation
RIMROCK, AZ–The Board of Supervisor’s May 15 decision to repeal the Yavapai County Water Well Code strips private property rights while benefiting Montezuma Rimrock Water Company which operates under the shadow of a state criminal investigation for “knowingly” filing “false and misleading information and documents” with the Arizona Corporation Commission.
The board’s decision to repeal the water well code is a stunning reversal of Supervisors previous position in a 2012 lawsuit brought by Montezuma seeking repeal of the water well code’s requirement that wells be drilled at least 50-feet from a property line. Supervisors vigorously defended the water well code against Montezuma’s legal challenge.
“The purpose of this restriction (50-foot setback) is to prevent placement of wells next to a property line…which would result in the serious reduction or elimination of building envelopes on adjacent properties, significantly reducing the value of the neighboring property or rendering it useless,” Supervisors stated in a legal memorandum filed by the Yavapai County Attorney.
“The Water Well Code ensures equal development opportunity for all property owners and ensures orderly and sanitary placement of wells and septic systems,” the memo stated (emphasis added.)
Yavapai County Development Services did not request a legal review of the impacts of repealing the water well code prior to the board’s May 15 vote. This action prevented Supervisors from having full information about the water well code’s purpose and the board’s previous legal support.
The water well code has been used by property owners, surveyors, well drillers, developers, realtors and lenders to ensure safe and orderly development on thousands of lots throughout the county since it was enacted in 2003. The water well code is used so often that the county has a link on its website for property owners to obtain affidavits waiving the 50-foot setback requirement from neighboring properties.
Yavapai property owners have filed affidavits voluntarily waiving the 50-foot well set back at least 169 times between 2015 and 2017, county records show. The water well code gave property owners the option to give up property rights. The Supervisors decision to revoke the water well code eliminates that property right.
“The Board’s decision to repeal the water well code eliminates fundamental private property protections for thousands of citizens who own undeveloped lots across the county,” says John Dougherty, a Rimrock property owner who uncovered numerous illegal actions by Montezuma during lengthy proceedings before the Arizona Corporation Commission.
“The primary, and perhaps only, beneficiary of the repeal of the water code is Montezuma Rimrock Water Company,” Mr. Dougherty, an award-winning investigative journalist, says.
“The Board of Supervisors should immediately reinstate the water well code to protect private property rights rather than do the bidding of a disreputable water company under the cloud of a criminal investigation,” Mr. Dougherty says.
Montezuma has long wanted the well code repealed so it could operate a high-capacity, 400-foot well it drilled in 2006 without a commercial use permit and in violation of the well code’s 50-foot setback requirement with three neighboring properties in the Montezuma Estates subdivision. Yavapai County Superior Court rejected Montezuma’s 2012 legal challenge and upheld the water well code.
Montezuma then filed an appeal with Supervisors seeking to allow it to operate the well in violation of the water well code. Supervisors denied Montezuma’s request in 2012. Montezuma then filed an appeal with an administrative hearing officer, which upheld the board’s decision in December 2012. (See Development Service’s memo to Board of Supervisors in support of Hearing Officer’s decision and board’s vote to uphold the Hearing Officer’s decision.)
Montezuma now appears to have persuaded Development Services staff to convince Supervisors to revoke the water well code by providing misleading and incomplete information to the board.
Development Services Director Dave Williams told Supervisors during a May 1 hearing that the water well code’s 50-foot set-back requirement was “unnecessary” and that state regulations requiring a 100-foot set back between wells and septic systems was sufficient to protect the public. Development Services staff then incorrectly stated in its May 15 memorandum to Supervisors and the public that the water well code has only been used once despite the fact it’s been used hundreds if not thousands of times since 2003.
Development Services staff improperly characterized the supposed single instance as a “neighbor dispute which was personally motivated”, apparently referring to neighborhood objections to Montezuma’s illegally drilled well.
“Development Services clearly shows inappropriate bias against property owners who followed the county’s prescribed appeals process that successfully stopped Montezuma from using a well it illegally drilled in violation of county regulations,” Mr. Dougherty says. “This bias extends to the fact that Development Services failed to provide Supervisors with complete and accurate information about the water well code prior to the board’s vote to repeal the code.”
Six weeks after the board repealed the water well code, Montezuma filed a June 25 request with the county for a use permit to operate its commercial well. The permit is tentatively scheduled to go before the Planning & Zoning Commission on Aug. 22.
Mr. Williams knew that Montezuma’s owner, Patricia Olsen, would quickly seek a use permit once the well code was repealed. Eight days after the board repealed the water code on May 15, Mr. Williams sent an email to Development Service’s senior planner Tammy DeWitt requesting information on fees that Montezuma would be required to pay to submit a request for a use permit.
“She’s (Olsen) is going to move forward now that the well code has been repealed,” Williams stated in a May 23 email to Ms. DeWitt obtained under the state’s public records law.
In 2014 the Arizona Corporation Commission issued a decision after a five-day hearing before an administrative law judge stating that Montezuma filed false and misleading documents related to the controversial well and financing for an arsenic treatment facility.
The Commission referred the matter to the Attorney General for further investigation, which has prevented Montezuma from obtaining federally and state subsidized loans. The investigation has not been closed, according to ACC records.
The Commission also found Montezuma in Contempt of the Commission on 12 counts and fined the company and Ms. Olsen $18,000. Two of the contempt violations were related to Montezuma improperly charging customers for “unlawful” surcharges.
Montezuma’s commercial well is within 300 feet of Wet Beaver Creek, which is suitable habitat for several endangered species, and Montezuma Well National Monument. The U.S. Environmental Protection Agency ruled that Montezuma needed to prepare an Environmental Impact Statement (EIS) before it could obtain federal funds to connect the well to an arsenic treatment system.
Montezuma Well National Monument stated in a 2011 letter to the Corporation Commission it opposes Montezuma’s proposed operation of the well without first conducting an EIS. Montezuma has never conducted the study.
The New York Times has an excellent report on how wildfires are exploding into infernos. Check it out here.