Apache Stronghold asks federal judge to halt action on copper mine until high court rules

Yahoo

08-05-2025

Grassroots group Apache Stronghold asked the U.S. District Court in Phoenix on May 7 to temporarily block the Trump administration from moving ahead with plans that would help clear the way for Resolution Copper to take ownership of Oak Flat and begin extracting copper a site considered sacred to Apache and other Native peoples.
Attorneys for the group argued in the hearing that if the government issues a final environmental impact statement and the land exchange is finalized before the U.S. Supreme Court decides if it will hear the case this fall, it would be too late to reverse and return the land to the U.S. Forest Service.
The hearing was the latest turn in an ongoing struggle over a small plot of land in the mountains at the heart of an ongoing national debate about the conflict between First Amendment religious rights, public lands oversight and a 150-year-old mining law's relevance in the 21st century.
The mining company argued that formally blocking the environmental review wasn't necessary because the government's schedule would still give the Supreme Court time to decide if it would take Apache Stronghold's longstanding lawsuit to stop the swap of other environmentally sensitive lands for Oak Flat.
Judge Steven P. Logan, who heard Apache Stronghold's case in 2021 and rejected the group's call to stop the land swap, again oversaw the hearing. Logan said he would issue a decision no later than 5 p.m. May 14.
Land transfer 'is the point of no return'
The judge had some strong questions for all three parties.
He asked Luke Goodrich, vice president and senior counsel at Becket, if Resolution would have the right to exclude Apaches after the transfer is done.
"Yes," Goodrich replied. "There is no legal recourse, no binding obligation on Resolution's part to reserve waters, trees or sacred spaces.
"All Religious Freedom Restoration Act rights will expire."
Goodrich said his firm had serious questions over the merits of the case, including why the government was rushing to reissue the environmental impact statement.
"There is an imminent loss of federally protected rights if the land exchange happens," he said. "At the moment of the land swap, the regulatory ability of the government to affect access (to the property) ceases."
Goodrich also pointed out that the court would not be able to rescind the exchange retroactively.
Resolution Copper wants to extract copper from Oak Flat, a campground that is part of the Tonto National Forest in Miami, Arizona. The method of extraction the mining company wants to use will eventually create a giant sinkhole on land sacred to the Apache.
"Once it happens, it's done and the court can't act any longer," he said. "The transfer is the point of no return."
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A 20-year struggle over a small campground
Also known as Chi'chil Biłdagoteel, "the place where the Emory oak grows," Oak Flat is at the heart of a dispute over what should happen to the 2,200-acre site about 60 miles east of Phoenix.
Naelyn Pike, 25, a citizen of the San Carlos Apache tribe, speaks to protestors at Oak Flat about the importance of environmental protections. Pike and members of Apache Stronghold, gathered to discuss possible actions by the federal government.
A federal agency that oversees and supports permits for public lands projects added Resolution Copper's proposed mine east of Phoenix to a new priority list on April 18, along with nine other mining projects. It is part of the administration's push to increase domestic production of critical minerals through an executive order issued March 20.
The list was posted in the wake of an announcement by the U.S. government on April 17 that it would reissue the final environmental impact statement 60 days later, or June 16. When the document is published, a 60-day window opens to complete the land swap and transfer the site to Resolution.
The Mining Law of 1872 opened federal lands to mineral extraction. U.S. citizens are entitled to explore and purchase mineral deposits on public lands designated as open for mining claims. It's the foundation of mineral extraction laws and hasn't been significantly changed in its 153-year history.
In December 2014, Congress authorized the U.S. Forest Service to trade the site, currently a campground amid big Emory oaks, other trees and plants, for parcels of environmentally sensitive private land owned by Resolution, a company owned by British-Australian mining corporations Rio Tinto and BHP.
Members and supporters of Apache Stronghold, a grassroots advocacy group opposing a land swap that would open Oak Flats to mining, listen to speakers talk about the importance of environmental protections and give updates on the group's legal challenges.
Resolution plans to extract the copper ore using 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 would subside, leaving behind a crater about 1,000 feet deep and nearly 2 miles across where Oak Flat and its religious and environmental significance now stand.
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 first Trump administration in January 2021. The land deal could have been finalized within 60 days of that action.
Apache Stronghold filed for an emergency injunction April 24 in response to a letter from the administration to the U.S. Supreme Court on April 18 that it intended to issue the final environmental impact statement 60 days later, as soon as June 16. The high court has been debating since late 2024 if it would accept the case.
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Resolution was granted permission to join the lawsuit in 2023.
After being turned down by the federal district court and the 9th U.S. Circuit Court of Appeals, Apache Stronghold appealed to the Supreme Court in 2024. The high court has continued to consider the case, but as of May 5, has not yet decided if it will hear the group's appeal.
Resolution Copper, whose attorneys also participated in the hearing, said before the hearing it understands and respects that not everybody approves of the mine. However, a spokesperson said the company has been consulting with tribes and communities for almost a decade.
"The information collected and the two-way dialogue with Native American tribes and communities in a co-design approach has significantly reshaped the project," he said. "The company has agreed to forego portions of the ore body and major facilities have been completely relocated to avoid dozens of areas of cultural significance and hundreds of ancestral sites, medicinal plants, seeps and springs."
Apache Leap has been placed in permanent protection, and Oak Flat campground will remain open and accessible for decades, he said.
Resolution officials detail site costs
Logan asked Victoria Peacey, Resolution Copper's president and general manager to clarify the firm's assertion that it was spending about $11 million a month in carrying costs, and if it would be paying those costs after construction commences.
Peacey said the current figure was to maintain the two tunnels the company has already drilled, to maintain and shore up older tunnels from the mine's Magma Mine days, to wrap up rehabilitating waste piles in and around Superior and repurposing at least one site into a water treatment plant for the town, and for payroll for Resolution's current 400-employee roster.
She said most of those employees are local to Arizona's Copper Triangle, including San Carlos Apache members, and include biologists, cultural resource specialists, technicians and engineers.
She said some of those costs, such as keeping the major mine shafts clear, would be incurred through the mine's anticipated 40-year lifespan. And some costs, like lighting, she said, would actually increase.
The judge asked Julia Morgan, attorney for the U.S. government, if the high court had reviewed any petition as many times as Apache Stronghold's, but then ended up refusing to deliberate the case. Morgan said she wasn't aware of any.
Logan then asked both parties to list their opponents' strongest arguments and state their counterarguments.
Goodrich said the biggest argument would be the large copper deposit — estimated to be about 40 billion pounds — but Congress also passed legislation affirming Native people's right to practice their religions. He said Apache Stronghold is just asking for a halt to the land swap process until the Supreme Court decides if they will take the case.
"If the Supreme Court says no the government loses nothing."
He asked Morgan, the attorney for the government, what she felt was Apache Stronghold's main argument and the government's counterargument.
"The Stronghold's argument is the surface destruction, the ultimate destruction of lands that will disrupt their religious practice," she said. "However, that harm won't occur in the next 14 days or 30 days."
Morgan added that the harm to the land won't occur before the courts are done deliberating, "thus there is no need for an injunction" to halt the land swap process.
After the hearing, a Resolution spokesperson said the mine is vital to securing America's energy future, infrastructure needs and national defense with a domestic supply of copper and other critical minerals.
"We are encouraged by the significant community support for the project, which has the potential to become one of the largest copper mines in America, add $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."
"(The government) knows that the Apache people are still today engaging in sacred practices there that they can't engage in anywhere else," Goodrich said after the hearing. "And yet it told the court today it wants to rush ahead with a mine that will completely swallow Oak Flat in a crater and end centuries of Apache religious practices forever."
"Today, I heard Resolution Copper say that they spent $11 million (a month) to maintain the assets," said Naelyn Pike of Apache Stronghold. "My religion, my way of life, my culture, is not an asset. It is our way of life that we've had since time immemorial, and it is priceless."
Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at [e-mail]. Follow her on X @debkrol.
Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.
This article originally appeared on Arizona Republic: Apache Stronghold asks judge to halt action on Resolution copper mine