Apache Stronghold appeals Oak Flat case to full court

Proposed copper mine at center of dispute

Grassroots group Apache Stronghold took the next step in its fight to prevent a proposed copper mine from destroying Oak Flat, one of the Apache peoples’ most sacred sites, asking the entire 29judge panel of the 9th U.S. Circuit Court of Appeals to review its lawsuit.

The request delays, at least for now, an appeal to the U.S. Supreme Court. An 11-judge panel of the appeals court narrowly denied Apache Stronghold’s most recent appeal March 1, letting stand an earlier ruling by a smaller three-judge panel.

“It gives us another bite at the apple,” said Ryan Colby, a spokesperson for Becket Law, which specializes in religious liberty cases.

He said the move indicated a slight change in tactics, though the final goal will be an appeal to the Supreme Court if the full 29-judge panel declines to rehear the case. They expect the appeals court to decide by fall 2024 if it will rehear the case.

Oak Flat, or Chi’chil Bildagoteel, “the place where the Emory oak grows,” is at the heart of a struggle now entering its third decade.

In December 2014, Congress authorized the U.S. Forest Service to trade the 2,200-acre site, currently a 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.

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

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.

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.

Apache Stronghold filed its lawsuit in January 2021 in federal court to stop the land swap, citing the First Amendment’s religious rights guarantee. The Biden administration rescinded the environmental impact statement in March 2021 for further consultation with tribes.

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.

“Oak Flat is the heart and soul of the Apache — the place where generations of my people have come to connect with our Creator and perform our most sacred ceremonies,” said Wendsler Nosie, the former San Carlos Apache chairman who now heads Apache Stronghold. “We pray the court will protect Oak Flat the same way the government protects other houses of worship and religious landmarks across the country.”

Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. 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.