Biden administration attorneys were in court this week to defend a mining project that will obliterate one of the most sacred Apache religious sites in the American Southwest.
In oral arguments Tuesday, the U.S. Forest Service said it was nearing completion of an environmental impact study that will transfer land east of Phoenix to two of the world’s largest mining companies for the purpose of building one of the largest copper mines on the planet. The massive project will hinge on the destruction of Chi’chil Biłdagoteel, a plateau otherwise known as Oak Flat, that is sacred to many Native American tribes, particularly the San Carlos Apache, who consider the area among their most holy of sites.
In a nearly two-hour hearing, an 11-judge panel on the 9th U.S. Circuit Court of Appeals in Pasadena, California, peppered lawyers on both sides of the high-stakes legal fight with an array of complex case law questions raised by the project. Begun nearly two decades ago, the battle for Oak Flat sits at the intersection of Indigenous rights and dispossession, religious liberty, public lands and private sales, and a growing demand for so-called green energy solutions in an era of climate catastrophe.
“As the court is aware, this case is not about an agency action. It’s about an act of Congress, in which Congress considered demands on a piece of property, balanced those interests, and made a decision,” said Joan Pepin, an attorney for the Forest Service, the agency that exchanged the land in a controversial deal nearly a decade ago. “It decided that Oak Flat should be transferred to Resolution Copper so the third-largest copper ore deposit in the world can be mined.”
The legislation in question — the Southeast Arizona Land Exchange and Conservation Act — was the product of a proposal then-Arizona Sens. John McCain and Jeff Flake added to a must-pass defense authorization bill late one night in 2014. The addendum, known as a rider, incurred no congressional debate. Described by the San Carlos Apache as a “midnight backroom deal,” the law transferred Oak Flat to Resolution Copper, a British-Australian concern jointly owned by the extractive giants Rio Tinto and BHP, both of which had sought access to the wildly lucrative ore deposit for years.
The project centers on a 2,200-acre area known as Oak Flat Campground, part of the Tonto National Forest, that has served as a centerpiece of Apache religious ceremony and cosmology since before settler expansion into the West. To access the ore underneath, Resolution Copper will use a technique known as block cave mining, which over several years will turn the sacred mountain into a two-mile-wide crater deep enough to hide a skyscraper.
Initiation of construction hinges on the publication of an environmental impact study from the Forest Service, which, under the law passed in 2014, starts a 60-day countdown before the transfer of the land from the federal government to the mining company must happen.
“A fine is a substantial burden, but here the government is doing something far worse, not just threatening fines, but authorizing the complete physical destruction of Oak Flat.”
Luke Goodrich, the lead attorney for Apache Stronghold, an Arizona-based nonprofit that brought the lawsuit to stop the transfer, told the panel of judges that the destruction of Oak Flat was a direct and flagrant violation of the Religious Freedom Restoration Act. Violation of the statute requires the imposition of a “substantial burden” on a person or group’s ability to practice their faith.
“A fine is a substantial burden, but here the government is doing something far worse,” Goodrich said, “not just threatening fines, but authorizing the complete physical destruction of Oak Flat, barring the Apaches from ever accessing it again and ending their core religious exercises forever.”
In January 2021, five days before leaving office, the administration of President Donald Trump released a study supporting the creation of the Oak Flat mine. Apache Stronghold had filed a federal lawsuit seeking a preliminary injunction to stop the project.
Unsuccessful in the attempt, the group filed an emergency appeal to the 9th Circuit the following month. Six hours before its deadline to respond passed, the Forest Service — by then, in March 2021, under the leadership of President Joe Biden — announced that it was withdrawing the environmental impact study and postponing the land transfer.
A three-judge panel of 9th Circuit dismissed Apache Stronghold’s case in October 2021 but agreed to hear the case again before a full panel last winter. The unusual decision set the stage for Tuesday’s hearing.
While the postponement of the project had given opponents of the mine a moment of respite in the long-running battle, the government’s testimony this week confirmed that the Biden administration is moving forward with a new environmental impact study and stands behind the controversial land swap.
“We said spring,” Pepin told the panel of judges Tuesday. “It could be shading over into early summer by the time that 60-day notice is given, but it is coming out in the near future, so I do believe this case is justiciable.”
While Apache Stronghold’s religious freedom argument has drawn support from an array of faith-based organizations across the country, proponents of the mine argue that the project would bring in 3,700 jobs and add $1 billion each year to Arizona’s economy.
David Debold, an attorney representing extractive industry associations, told the court that a win for the plaintiffs in the case “would erect huge and insurmountable obstacles” to the sale of government land to private entities. “The damage to private enterprise would be profound if the purchaser of federal property could only use that property later as though it were the federal government,” Debold said. “That is the rule that is being argued for here, although not in so many words.”
The judges took the arguments into consideration. The panel has offered no indication when it will rule on the case. Should the judges again rule in favor of the mining companies and the federal government, the plaintiffs are likely to take the case to the Supreme Court.
Following the hearing, defenders of Oak Flat gathered in the rain to debrief and pray. Goodrich, the Apache Stronghold attorney, said there was no disputing the core facts of the case. “This is not a theoretical matter,” he said. “This is a people matter. This is about the people and their freedom: freedom to be Apache, to be Indigenous, to be Americans.”
After the day’s testimony, there was no longer any question where the Biden administration stood. “The government didn’t hold back today,” Goodrich said. “It said it for everyone to hear — everyone in the courtroom to hear, everyone in Indian Country to hear, and everyone in the whole country to hear. The government thinks it has blanket authority to do whatever it wants with the land that it’s taken from Indigenous peoples, even destroying central sacred sites and ending religious exercises forever.”
Wendsler Nosie Sr., former chair and councilmember of the San Carlos Apache and a veteran activist who has spent much of his life fighting the Oak Flat mine, joined in addressing the tribe’s supporters. “This country is a corporate country. It’s not even thinking about our children, the Earth, the things that give us life,” Nosie said. “The corporate world is waiting for this case to finish because they are in line for their exemptions. And if this happens, how we gonna stop that?”
Nosie’s remarks were followed by comments from his granddaughter, Naelyn Pike. Like her grandfather, Pike has devoted her life to stopping the mine. Among its many sacred attributes, the mountain at Oak Flat is used for coming-of-age ceremonies for young Apache women. Having been one of those young women herself, Pike worried that the space would no longer exist for the generations that come after her.
“This land is sacred. This land is holy. It may not have four walls or a steeple. It may not be a mosque, but this is my religion and my spiritual belief from my ancestors and to the yet to be born,” she said. “We have to fight for those who are not here so that they can go to Oak Flat, and they can pray and be one — because the United States government assured us today that their land is their land and that they can take it away, that they can say what I believe in, and what you believe in, does not matter.”