Ninth Circuit thwarts attempt to halt copper mine on Apache land

PHOENIX (CN) — Western Apaches in Arizona took another loss in federal court Friday when the Ninth Circuit again denied a motion to halt the construction of a copper mine set to swallow one of the most sacred sites in Apache culture.

Acknowledging the transfer of eastern Arizona’s Oak Flat into the hands of a private copper mine will permanently destroy the tribe’s historical place of worship, a three-judge panel agreed with a trial judge that the San Carlos Apache Tribe and a coalition of conservation groups challenging the transfer have not established a likelihood of success on their claims, giving the U.S. Forest Service the green light to hand the land over to Resolution Copper.

In a 40-page opinion, U.S. Circuit Judge Milan Smith wrote for the panel that the Forest Service met its responsibilities under the National Environmental Policy Act by analyzing environmental impact and considering possible alternatives in its final environmental impact statement, which the plaintiffs challenged.

“The record shows that the agency adequately considered possible alternatives and reasonably rejected them due to technical and economic infeasibility,” Smith, a George W. Bush appointee, wrote. “As the agency noted, if alternative techniques were used on the Oak Flat deposit, an estimated 80% of the copper tonnage would have to be abandoned, as it would be uneconomical to mine.”

Saying the impact statement is not the “final agency action” affirming the decision, the Forest Service argued the plaintiffs lacked standing to challenge it in the first place.

The panel disagreed the plaintiffs lacked standing, but nonetheless decided the claims would likely not succeed on the merits.

The plaintiffs argued the Forest Service failed to adequately consult with the affected tribes as obligated under the Land Exchange Act. But as long as the agency engaged in some consultation, the plaintiffs cannot challenge the efficacy or outcome of those consultations, the judges concluded.

“Over the course of two decades, the government engaged in thorough consultation with the tribe, both electronically and in person,” Smith wrote. “The tribe’s attempt to discount the pre-2021 consultation efforts fails because it fails to explain how that earlier portion of the consultation process was at all deficient or irrelevant.”

The first challenge to the mine to reach the Ninth Circuit came from the coalition Apache Stronghold in 2021. It argued the land transfer would violate the Religious Freedom Restoration Act by preventing the Apaches from conducting their most sacred religious practices after the site’s destruction. The Ninth Circuit ruled against the plaintiffs in 2022 and again in an en banc decision in 2024.

This time around, a group of Apache women led by Gouyen Brown Lopez, brought the same arguments, reasoning that a recent Supreme Court decision has changed the legal landscape. In Mahmoud v. Taylor, the high court ruled public schools must allow parents to opt their children out of lessons, including LGBTQ-inclusive themes, if those lessons interfere with the children’s religious upbringings.

The plaintiffs argued the case set a new precedent for preventing “objective religious interference.”

The appeals court disagreed, reasoning that it is bound by its previous decision in Apache Stronghold, which the U.S. Supreme Court declined to review.

“Because Apache Stronghold involved neither education nor an attempt by the government to affirmatively coerce or indirectly compel behavior at odds with the plaintiffs’ religious beliefs, it is not ‘clearly irreconcilable’ with Mahmoud,” Smith wrote. “Apache Stronghold therefore bars the Lopez plaintiffs’ identical claims here."

The land transfer to Resolution Copper is mandated by the Southeast Arizona Land Exchange and Conservation Act of 2014, which was snuck into a larger defense bill by Republican Senators Jeff Flake and John McCain and signed by then-President Barack Obama. Though the plaintiffs can challenge the validity of the environmental impact statement, the Forest Service says those legal claims will not prevent the eventual land transfer and mine construction.

“We nonetheless recognize that this land transfer will fundamentally alter the nature of the land, including destruction of those sites sacred to the tribe, the Lopez plaintiffs and similarly situated Native individuals,” Smith conceded. “Despite those grave harms to Native religious practice, Congress has chosen to transfer this land, and plaintiffs have not raised any viable challenges to that decision.”

U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee, dissented from the majority only in part.

One group of plaintiffs led by the Arizona Mining Reform Coalition challenged the legality of the land appraisals made on the potential value of copper in the mine.

The coalition claimed that once public land is transferred into private hands, mining claims are nullified. The court concluded that reasoning “would force Resolution Copper, as part of the land exchange, to pay the federal government for the copper it effectively already owns the exclusive right to mine.”

Rawlinson will write his dissent in forthcoming amended opinion. U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, joined Smith in the majority.

“This is devastating news for Oak Flat and everyone who loves this sacred place,” Russ McSpadden, Southwest conservation advocate at the Center for Biological Diversity, said in a press release. “The fight isn’t over, even if Oak Flat becomes the property of a multinational mining giant. I’m hopeful this treasured place will be returned to the people once the legal problems with the land exchange get a full airing in court. We’ll use every tool we have to push back and protect Oak Flat once and for all.”

McSpadden added the land slated for exchange also provides habitat for endangered and threatened species, including ocelots and Arizona hedgehog cacti, and offers significant recreational and ecological benefits to the public.

Left with no other options, an appeal to the U.S. Supreme Court may be the plaintiffs’ last remaining hope.

The Forest Service did not immediately respond to a request for comment.

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