Oak Flat copper mine lawsuit is headed to the Supreme Court after 9th Circuit ruling

Grassroots group Apache Stronghold will ask the U.S. Supreme Court to hear its plea to preserve Oak Flat from obliteration by a copper mine after the full Ninth U.S. Circuit Court of Appeals on Tuesday refused to review the case.

On April 15, the group asked the entire 29-judge Ninth Circuit panel to review its lawsuit against the United States and Resolution Copper. That move followed an opinion issued by an en banc panel of 11 appeals court judges that ruled narrowly against Apache Stronghold in March. The court asserted that the mine would not pose a substantial burden on Apache people's First Amendment religious rights.

Several religious rights groups and religious leaders called upon the appeals court to move forward with a full 29-judge hearing. Groups ranging from the Mennonite Church to Sikhs, Muslins, religious scholars, tribes and the Christian Legal Society have filed briefs supporting Apache Stronghold.

The 11-justice panel rejected the request in an amended ruling Tuesday.

The opinion and other decisions on Native religious rights on public lands are based on a 1988 ruling by the Supreme Court that held that putting a logging road through a sacred grove of trees did not pose such a burden to their First Amendment rights. That decision was listed by noted Pawnee legal expert Walter Echo-Hawk as one of the 10 worst-ever Indian law decisions.

Oak Flat, or Chi’chil Biłdagoteel, "the place where the Emory oak grows," is at the heart of a struggle that has stretched for more than 20 years and has come to define the issue of religious rights on public lands. The site, listed on the National Register of Historic Places, is home to the ga'an or Mountain Spirits and has been the site of ceremonies for Western Apaches since time immemorial.

But it's also sitting on one of the U.S.'s largest copper deposits.

In December 2014, Congress authorized the U.S. Forest Service to trade the 2,200-acre campground about 60 miles east of Phoenix for parcels of environmentally sensitive private land owned by Resolution Copper, a subsidiary of British-Australian mining companies Rio Tinto and BHP. The legislation also overturned a nearly 60-year mining ban that was enacted to preserve Oak Flat's wetlands, which wildlife depend on, and its recreational uses.

Resolution had sought the land swap for about 10 years before the bill's passage but had been repeatedly denied due to sustained opposition by Native peoples and environmentalists.

Wendsler Nosie Sr., right, leads a group of runners in the final stretch of the 10th annual Oak Flat Run at Oak Flat, a campground that is part of the Tonto National Forest near Miami, AZ, on Feb. 17, 2024.
Wendsler Nosie Sr., right, leads a group of runners in the final stretch of the 10th annual Oak Flat Run at Oak Flat, a campground that is part of the Tonto National Forest near Miami, AZ, on Feb. 17, 2024.

To obtain the copper ore, Resolution will use a method known as block cave mining, in which tunnels are drilled beneath the ore body, and then collapsed, leaving the ore to be moved to a crushing facility. Eventually, the ground will subside, leaving behind a crater about 1,000 feet deep and nearly 2 miles across where Oak Flat and its religious and environmental significance stands.

The U.S. 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. That set off a 60-day clock within which the land deal could have been finalized and Resolution handed the keys.

Protecting history: Indigenous people find legal, cultural barriers to protect sacred spaces off tribal lands

Apache Stronghold filed its lawsuit in January 2021 in federal court to stop the land swap, citing First Amendment religious rights guarantees. Becket Law, a religious freedom nonprofit law firm, accepted the case and, along with two private attorneys, has represented Apache Stronghold, which includes Apache and other Native peoples and their allies.

The Biden administration rescinded the environmental impact statement in March 2021 for further consultation with tribes. That consultation is ongoing.

A Resolution Copper mining site is visible from Oak Flat, a campground that is part of the Tonto National Forest in Miami, Ariz., on Oct. 29, 2021. The site, which is sacred to Apache and other Native peoples, is at risk of destruction by a land swap with the federal government to a copper mining company.
A Resolution Copper mining site is visible from Oak Flat, a campground that is part of the Tonto National Forest in Miami, Ariz., on Oct. 29, 2021. The site, which is sacred to Apache and other Native peoples, is at risk of destruction by a land swap with the federal government to a copper mining company.

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.

A spokesperson for Resolution Copper said the company looks forward to starting work on the mine, bringing lasting economic benefits to the region.

"For over a decade, we have collaborated and co-designed the mine plan with local, state and federal governments, Native American tribes, local communities, civil organizations and organized labor," the spokesperson said, adding that the firm would work to ensure that the copper mine is developed "safely, responsibly, and sustainably.” Resolution Copper was allowed to join the suit as a defendant in 2023.

Wendsler Nosie, head of Apache Stronghold, thanked those who have offered support and prayers as the case heads to Washington.

“Oak Flat is the place where generations of Apaches have come to connect with our Creator, our faith and our land,” he said. “We pray the Supreme Court will take our case and protect Oak Flat the same way it would protect other historic houses of worship across the country.”

In a written statement, Luke Goodrich, vice president and senior counsel at Becket, said that “obliterating the birthplace of Western Apache religion would be a tragic betrayal of our nation’s promise of religious freedom for all. We will ask the Supreme Court take this case, protect Oak Flat, and ensure that Indigenous peoples receive the same protection for religious freedom that all other faith groups enjoy.”

Nosie said that the Indigenous peoples of America have suffered for more than 500 years from capitalism. He said that the world faces a choice between protecting the great gift God has given the world or destroying every human life and the spirit to which Mother Earth gives birth.

"The question is, where will you stand in this moment?"

Becket expects to hear if the high court will take Apache Stronghold's case by Aug. 12.

Debra Krol reports on Indigenous communities at the confluence of climate, culture, and commerce in Arizona and the Intermountain West. You can reach Krol at debra.krol@azcentral.com or follow her on X, formerly known as Twitter, @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 to appeal Resolution copper case to Supreme Court