Published: March 5, 2024 |

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A federal appeals court on Friday narrowly rejected a bid by the grassroots group Apache Stronghold to block a land swap that would allow copper mining at Oak Flat, one of the Apache peoples’ most sacred sites.

The 9th U.S. Circuit Court of Appeals agreed with a lower court’s ruling that the mine would not pose a substantial burden to First Amendment religious practice rights, setting up a likely showdown at the U.S. Supreme Court. The decision to deny a request for a preliminary injunction to block the land swap came on a 6-5 vote in a case that was argued nearly a year ago.

The suit, Apache Stronghold v. United States, was filed in January 2021 in federal district court. After losing that ruling, the Native rights group took the case to the appeals court, where a three-judge panel rejected Apache Stronghold’s assertion that the mine would pose a substantial burden to their First Amendment religious practice rights.

The case went to the full circuit court last March. The ruling won’t allow Resolution Copper to begin mining copper from Oak Flat, a step that requires the completion of the land swap. The company’s plans could be further delayed by two other lawsuits related to a revised environmental impact statement, as well as the expected appeal of this ruling to the Supreme Court.

Resolution promises the mine, near Superior southeast of Phoenix, will bring jobs and economic growth to the once-active mining region, but opponents say it would obliterate a sacred site and desecrate places where Indigenous people have prayed and lived for centuries.

Wendsler Nosie, the head of Apache Stronghold, said opponents would continue to fight all the way to the U.S. Supreme Court.

“Oak Flat is like Mount Sinai to us — our most sacred site where we connect with our Creator, our faith, our families, and our land. Today’s ruling targets the spiritual lifeblood of my people, but it will not stop our struggle to save Oak Flat,” Nosie said.

“We vow to appeal to the Supreme Court,” Nosie added.

Resolution Copper President and General Manager Vicky Peacey applauded the decision.

““We welcome the Ninth Circuit’s decision to uphold the lower court’s ruling. There is significant local support for the project, which has the potential to supply up to one quarter of U.S. copper demand, add up to $1 billion a year to Arizona’s economy, and create thousands of local jobs in a region where mining has played an important role for more than a century,” Peacey said.

“As we deliver these benefits to Arizona and the nation, our dialogue with local communities and Tribes will continue to shape the project as we seek to understand and address the concerns that have been raised, building on more than a decade of government consultation and review.”,” Peacey added.

The mining company said it would continue to work with local communities and tribes to shape the project as it seeks to understand and address the concerns that have been raised. Peacey noted that there has already been a decades of consultation and review.

MINE CASE DATES BACK TWO DECADES

It’s the latest in a decades-long battle that began in December 2014, when Congress authorized the U.S. Forest Service to trade the 2,200-acre Oak Flat Campground, also known by its Apache name of Chi’chil Biłdagoteel, for parcels of environmentally sensitive private land owned by Resolution, a subsidiary of British-Australian mining companies Rio Tinto and BHP.

Resolution had sought the land swap for about ten years but had been repeatedly denied due to sustained opposition by Native peoples and environmentalists.

The Forest Service published the final environmental impact statement and draft decision for the copper mine and land swap five days before the end of the Trump administration in January 2021. Apache Stronghold filed a lawsuit in January 2021 in federal court to stop the land swap citing the First Amendment’s religious rights guarantee.

The San Carlos Apache Tribe and a coalition of environmentalists followed with more litigation. Those two lawsuits are on hold but can be restarted upon the release of a new environmental impact statement.

On March 1, 2021, the Forest Service withdrew the statement and said it would reinstate consultations with tribes. 

Rep. Raul Grijalva, D-Ariz., said Friday the appeals court latest ruling was wrong.

“This land transfer was a bad deal enacted in bad faith, and the courts must see it for the environmental and human rights disaster that it is,” Grijalva said.

Apache Stronghold has 90 days to appeal to the Supreme Court.

Source: AZ Central

The Resolution Copper project is a proposed underground mine 60 miles east of Phoenix, Arizona, near the town of Superior. The project is a joint venture owned by Rio Tinto (55 percent) and BHP (45 percent).

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