Resolution copper mine goes back before appeals court in a major religious rights case
The fate of a proposed copper mine that Native people say would obliterate a sacred site near Superior and violate their religious rights will be determined before a federal appeals court Tuesday in an unusual rehearing of what could be a groundbreaking First Amendment case.
It's the latest turn in a nearly 20-year-long disagreement between a coalition of tribes, environmentalists and recreationists, and the U.S. government and a mining company over a 2,200-acre tract of land in Pinal County that holds one of the world's biggest copper deposits.
The suit, Apache Stronghold v. United States, was filed in January 2021 in federal court. After it was rejected by a judge in Arizona, the Native rights group took the case to the 9th Circuit Court of Appeals, where a three-judge panel heard arguments in October 2021 and again ruled against Apache Stronghold. In November 2022, the appeals court announced it would rehear the case "en banc," or by the court's full panel of 11 judges.
It has caught the attention of not only Indigenous activists and environmental groups, but religious organizations that see the case as important to First Amendment rights. An assortment of religious leaders ranging from Sikhs, Jews and Muslims to Mennonites, Catholics and Mormons are urging the court to uphold Apache religious beliefs, fearing that a ruling against the tribe could lead to setbacks for their rights.
Meanwhile, pro-development interests and even other Native people have filed "friend of the court" briefs in support of the project, which the mine's owners say would bring about 3,700 jobs and $1 billion annually to Arizona’s economy and open up a store of copper at a time when demand is growing.
While the suit wends its way through the federal court system, two others are waiting in the wings. Those suits, filed by the San Carlos Apache Tribe and a coalition of environmentalists and a mining reform organization, are on hold until the U.S. Forest Service completes a new environmental impact statement, as ordered by the Biden administration.
At the same time, Resolution Copper, which would build and operate the mine, is developing more robust community outreach, including cultural and environmental mitigation as it continues preparations to start work.
And the small town tucked between Apache Leap and Picketpost Mountain say many of its revitalization plans are in limbo as the pro- and anti-mine forces battle in court and Congress.
No matter how it plays out, the battle for Oak Flat won't be settled any time soon. And all of the parties in the dispute have something to say.
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Apaches: 'Save our sacred space'
Opponents of the giant copper mine have been fighting for years to stop the project from obliterating Oak Flat Campground, one of the Apache peoples’ most sacred sites and a culturally significant place to other Southwestern tribes.
Resolution Copper, owned by British-Australian mining companies Rio Tinto and BHP, is developing the mine at the old Magma Mine location overlooking the campground and riparian area.
The mining company had attempted to obtain title to the 2,200-acre site, currently part of Tonto National Forest, for 10 years and overturn a mining ban on the land enacted during the Eisenhower administration.
Resolution offered other environmentally sensitive land in exchange. The land swap was ultimately authorized in a defense appropriations bill in December 2014.
To obtain the copper ore, Resolution will use a method known as block cave mining. The ground beneath the ore body will be excavated, the tunnels will be collapsed and the ore transported through another tunnel to a crushing facility. Eventually, the ground under Oak Flat will subside, leaving behind a crater about 1,000 feet deep and nearly 2 miles across.
The U.S. Forest Service published the final environmental impact statement and draft decision for the copper mine and land swap on Jan. 15, 2021, five days before the end of the Trump administration. That move set off a 60-day clock during which the land swap could be finalized.
On March 1, 2021, the Forest Service withdrew the statement and said it would reinitiate consultations with tribes.
In 2022, the Forest Service asked the Bureau of Land Management to review the environmental impact statement. The BLM assessment released in June 2022, recommended that the document should incorporate more robust information about the effects the mine would have on groundwater, the stabilization of the tailings dam at Skunk Camp southeast of the mine and easier-to-understand language so that lay people could better grasp what the statement says.
In the meantime, the San Carlos Apache Tribe moved to stop the mine by fighting its water permit. In November 2022, the Arizona Court of Appeals ruled in favor of the tribe, finding that, among other issues brought up by the tribe, the mine site is a "new source under the Clean Water Act because Resolution recently sank shaft 10."
That shaft is the nearly 7,000-foot shaft that is the starting point of Resolution's block cave mining process. The case is currently under appeal to the Arizona Supreme Court.
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Resolution: 'We want to be good neighbors'
Resolution Copper told The Arizona Republic that the company is committed to being a good neighbor. The environmental impact statement called for the company to undertake environmental and cultural mitigation and work to protect Emory oak groves. Apache and other Native peoples have long relied on the oaks at Oak Flat for their sweet acorns, and Resolution said it took that into account.
In 2022, The Republic visited the JI Ranch, a small homestead a few miles east of Oak Flat, where Emory oak trees and other culturally important plants, including endangered cactuses, are being restored and sustained. Even with U.S. Highway 60 nearby, the area is a quiet, green haven. Native cultural monitors keep watch over that and other projects, though none of them agreed to speak on the record about their work, which includes archaeological assessments and ecological restoration.
Andrew Lye, the former project director for Resolution, said the company recognized some key opportunities to further preserve the cultural history of the area. Funding was also provided for education for tribal members and for cultural preservation. And the company offers internships and apprenticeships to local people, including tribal members, to learn mining-related trades.
He said he was particularly proud of the tribal monitor program.
"Before we built the program, we had the anthropologists walking around there telling the Native Americans what's actually happening around there," Lye said. "This was about placing the tribal people beside the archeologists."
He said that while the archeologists look at the ground to ponder what's happening, others are looking at the sky. "Getting that kind of voice in that tribal perspective into these reports has been really, really amazing."
Lye also said that the ore body under Oak Flat is a completely different situation that calls for a different strategy than techniques like shaft mining, which might work at other sites. The old Magma copper operation moved 25 million tons of rock with a 5% copper content, he said. The current ore is "a declared resource here of 1.8 billion tons (of rock) with 1.5% copper." Lye said block cave mining is the safest means to extract the copper from the current footprint.
Lye said the firm is still open to discussions with the San Carlos Apache Tribe, which has consistently refused any interactions.
In response to statements that most of the copper will be exported to China, Resolution said it would be sent to a mill in Utah.
In a recent statement, Resolution said it would respect the legal process as the 9th Circuit rehears the case.
"At the same time, we believe that settled precedent supports the district court’s rejection of Apache Stronghold’s claims,” the company said.
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Pro-development groups: 'Open the mine'
When the court hears the case Tuesday, justices will have several documents from pro- and anti-mine groups.
The parties who backed Resolution and the U.S., including mining associations, the Arizona Rock Products Association, Pinal Partnership and Valley Partnership, mostly make the same argument in their briefs. They say existing case law affirming federal control over Native sacred places on public lands — including two pivotal decisions, the Lyng case and Navajo Nation v. the United States — created a precedent for the 9th Circuit Court to uphold.
The Arizona Chamber of Commerce and Industry took a different tack: In addition to the usual two cases, it said the Treaty of Santa Fe, enacted in 1852, contained only a vague provision when it called for a reservation to be established for the "Apache Nation of Indians." And, the chamber wrote, since Oak Flat had never formally been land held in trust for any Apache tribe, it belongs solely to the U.S., which can do whatever it wants with its land.
The chamber also argued that other religious practitioners could use a decision in favor of Apache Stronghold to stop virtually any project on public lands.
Two prominent Native people, former Navajo Nation Vice President Myron Lizer and John Tahsuda, a Kiowa tribal member who served as former principal deputy assistant secretary for Indian Affairs in the Trump administration, joined the pro-development groups in their brief to the court supporting the mine.
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Religious leaders and scholars: 'Uphold the First Amendment's protections'
Many mine opponents support the Apache people's assertion that Chi’chil Biłdagoteel, or “the place the Emory Oak grows,” is a sacred place to the tribe's land-based religious practices. Obliterating it would also forever destroy a key home to the ga'an, or Mountain Spirits, they said. These opponents are from a variety of religions, including Jews, Muslims, Sikhs, Mennonites, Catholics, Mormons and various Protestant faiths.
Thomas C. Berg, a law professor at the University of St. Thomas, a Catholic university in Minneapolis, said the Apache Stronghold case has captured the attention of these various faiths and religious law scholars because of how religion has become a polarizing issue over the past decade.
On the one hand, religious conservatives have been arguing for their religious rights against LGBTQ rights. On the other hand, he said, Muslims grew alarmed when policies like the Trump-era travel ban were enacted and when congregations encountered opposition to mosque construction projects.
Then there's what Berg, a co-author of one brief backing Apache Stronghold, called the "plain, ordinary meaning of words" as noted by the U.S. Supreme Court: substantial burden. Unlike the other two often-cited major religious rights cases, where Native people can still access the sacred grove in Northern California and the San Francisco Peaks in Arizona, Oak Flat will eventually be destroyed, rendering it permanently unavailable for worship.
"If this is not a substantial burden under the ordinary meaning of the words, no Native American claim of sacred lands would be a substantial burden," he said.
Berg also noted that the 9th Circuit may be weighing two different religious protection acts, the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. They each seek to protect certain forms of worship, including the religious rights of prisoners and of faiths that avoid autopsies due to religious beliefs, from different angles.
For example, Berg said, the great spiritual distress that orthodox Jews and the Hmong community feel when their loved ones are cut open over their protests wouldn't be covered as a substantial burden to their religious beliefs under the narrow standard of the 9th Circuit's religious freedom rulings.
These events and others have set off alarm bells in the religious liberty community. Berg said activists there see a danger that religious liberty has become in recent years favorable only to faiths that strike a sympathetic chord or that people do not perceive as dangerous, versus the "other ones" whom the general public view as dangerous.
"I think that a lot of religious believers from even traditional faiths and traditional outlooks have come to realize that it can't be just for them," he said. "If we don't protect religious liberty or everyone under some consistent standard, it's going to end up not being a protection for anyone."
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Congress gets another go at land swap repeal
While the courts wrestle with litigation, six congressional representatives refiled a bill to reverse the land swap. The principal sponsor, Rep. Raúl Grijalva, D-Ariz., has tried to push the bill before, only to be blocked. The Save Oak Flat From Foreign Mining Act is his latest attempt to resolve the issue through legislation.
During his last two attempts, the legislation made it to the House floor only to be pulled because he lacked the votes.
During a meeting with The Republic's editorial board and reporters Wednesday, Grijalva said he does not support the mine.
"Everybody knows that," he said. But, Grijalva said there's a central question to be considered: "Is there any piece of public land that should be sacrosanct to drilling or extraction? I think there is." The prevailing point of view, he said, is that there aren't.
Grijalva said the Oak Flat struggle introduces the important issue of the role that sacred sites and tribal consultation play in decision making on federal land that affects a particular tribe. It's an issue tribes believe is clear.
“Our Tribe has opposed the Resolution Mine for nearly 20 years because it will destroy one of our most sacred sites, Chi’chil Bildagoteel, also known as Oak Flat,” San Carlos Apache Tribe Chairman Terry Rambler said in a statement. “The Save Oak Flat Act would repeal a law that mandates the transfer of federal land on the Tonto National Forest to foreign mining entities that intend to extract copper that will be exported overseas.”
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Superior: "We knew we were on our own"
While attorneys argue their points in court and Congress wrestles with the land swap issue, the small town of Superior has grown frustrated, as many of its plans to revitalize its community and economy remain in limbo.
The 19th-century mining town, perched in the lee of Apache Leap and Picketpost Mountain about 70 miles east of Phoenix, has endured its share of booms and busts. Many of Superior's 2,400 residents are descendants of people who moved to the desert community five, six or seven generations back. Two-thirds are Hispanic.
During Mayor Mila Besich's tenure, Superior has worked to reinvent itself as a destination. Besich said that with the world-class Boyce Thompson Arboretum, the Tonto National Forest on their doorstep, a historic downtown in transition from boarded-up buildings to new boutiques, eateries and even the remodeled Hotel Magma reopening, the small town seeks to build a sustainable economy.
But then Resolution came knocking. "Copper will be mined here no matter what," she said. "Our ore body is far too rich and far too valuable to the global economy."
But Superior's leaders also realized that when it came to ensuring that their community wouldn't have to deal with yet another round of boom and bust, they would have to deal with the mine on its own.
"At the end of the day, the federal government really doesn't care what happens to Superior," Besich said. "They care what happens to the federal lands."
She said that there is a gray line where the Forest Service noted that the town would be affected and that they were a community in need of environmental justice. But, Besich said, the government wouldn't be able to advocate for the small town.
The state reaps the greatest reward from the estimated $88 to $133 million the mine would provide in annual taxes, Besich said. Pinal County would get about $30 million, but because of how state revenue sharing with municipalities is structured, Superior would only receive about $13,000 a year.
"The communities of impact, the communities that truly have environmental justice issues do not receive the moneys back in any type of way that compensates us to accommodate the billion-dollar industries that are sitting in our backyards," she said.
"So we had to take that advocacy and those negotiations into our own hands, hold the company accountable when it came down to it, especially water and the socioeconomic impacts."
The town embarked on what it called an "arranged marriage" with the multinational mining company. Superior Town Manager Todd Pryor said it was important to avoid emotional responses while developing policies.
"We need to be both be good community partners and neighbors," Besich said. "We really work very hard at maintaining that."
That meant traveling to London to visit Rio Tinto's CEO to ensure the company understood that Superior is their home and that the town and Resolution must communicate on a regular basis. They also reached various agreements that will last even if Resolution's parent company sells to another firm. And, Besich said, they're working to avoid letting emotions get in the way.
"It's been a pretty incredible road that we've had to pave," Besich said. "This is America's largest and most complex federal environmental impact statement ever processed, and there weren't a lot of resources for us to navigate that process."
She said most small towns would have probably have been overwhelmed.
Resolution is already providing funding for water mitigation, economic development, schools and emergency services, said Pryor. The company has provided more than $6 million over the past five years.
The town also leveraged some mitigation funds to open an economic and community development nonprofit, which addresses issues like blight, business attraction and retention and marking. It also supports the local food bank and has a role in the Superior Enterprise Center.
The town is also raising matching funds provided by Resolution to repurpose the original high school into a new town hall, community center and vocational training center.
"We're already building out programs to do welding and plumbing and electrical job training that this region, our public education system, really couldn't offer fully," Besich said. "It'll attract the high school students, but also those who are adjusting their careers."
The town is also hoping to become a sustainability center, with a desert foods laboratory and other such projects. And, Besich said, the town wants to keep more young people home and build on Superior's history of multigenerational family life.
But a good number of those projects are stalled as the legal process winds its way through courtrooms and reams of briefs. They're doing what they can on their own, but, Besich said, "It's fair to say that many of our plans are held up until the Record of Decision (the document that finalizes the land swap) is signed."
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Apache Stronghold continues its tactics: prayer, public relations
Wendsler Nosie, the former chairman of the San Carlos Apache Tribe and the head of Apache Stronghold, continues to engage how he always has: through prayer and public relations. He's visited with Indigenous peoples, elected officials, religious leaders and Native leaders such as Fawn Sharp, the president of the National Congress of American Indians, to garner support to make the mine go away.
And he and Apache Stronghold are continuing that mission. They are making their way to Pasadena, where the hearing is. They will be stopping along the way to pray with other Indigenous people and their allies for not only the continued existence of Oak Flat but other Indigenous sacred places.
“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,” Nosie said. “It has been sacred to us since long before Europeans came to this continent, and it is imperative that it be protected for generations — so our children, grandchildren, and great-grandchildren can continue our religious ceremonies that make us Apaches.”
Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at email@example.com. Follow her on Twitter at @debkrol.
Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.
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This article originally appeared on Arizona Republic: Apache Stronghold's appeal to be reheard in 9th Circuit Court