Western Apaches return to Ninth Circuit to defend holy land

PHOENIX (CN) — For the third time in five years, Western Apaches appeared before the Ninth Circuit to prevent the construction of a copper mine set to swallow their ancestral holy land in a two-mile-wide crater.

Though the government says its hands are tied by an act of Congress mandating that the patch of land in eastern Arizona be transferred to the private mining company Resolution Copper, San Carlos Apaches and a coalition of environmentalists argued Wednesday that a preliminary injunction is required to address serious flaws in the U.S. Forest Service’s final environmental impact statement.

Before a three-judge panel in Phoenix, the San Carlos Apache Tribe argued the Forest Service ignored expert testimony regarding the environmental effects of mining waste. Resolution Copper plans to pump more than 1.4 billion tons of tailings and other waste to a small body of water known as Skunk Camp, directly upstream from the Gila River Indian Community and other small towns.

“Statistically speaking, a pipeline failure is a near certainty,” tribe attorney Bernardo Velasco told the panel. “Dam failure is a question of when.”

Velasco said the Forest Service’s plans contain no consideration of corrosion or other causes of pipeline failure and no dam breach analysis.

After initial legal challenges, the Forest Service rescinded its final environmental impact statement to address the tribe’s concerns and rereleased it in June 2025. At that time, Velasco said no meaningful consultation occurred between the Forest Service and the tribe.

Robert Stander, representing the Forest Service, countered that it added an 89-page pipeline safety report to the public record in direct response to the tribe’s concerns.

“We have here a claim that just flatly ignores this,” Stander said.

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.

In May, the U.S. Supreme Court declined to hear the appeal.

Now, a group of Apache women led by Gouyen Brown Lopez brings the same arguments, reasoning that a recent Supreme Court decision has changed the legal landscape. In Mamhoud 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.

Representing Brown Lopez, attorney Miles Coleman said the case sets a new precedent for preventing “objective religious interference.”

The judges seemed unconvinced.

“This issue went to the Supreme Court, which spent months deliberating whether to take the case and didn’t do so,” U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, told Coleman. “You’ve preserved this for further review, but it’s tough to accept the position that we could just reach a different result on what’s essentially the same claim.”

Stander said the religious freedom claim is dead on arrival.

“The fact that they chose today to start with Lopez’s attempt to relitigate Apache Stronghold tells you everything you need to know about the strength of their claims,” he said.

Brown Lopez sued in June after the Supreme Court declined to hear the Apache Stronghold case. She, the San Carlos Apache Tribe and the Arizona Mining Reform Coalition filed new motions for preliminary injunction after the Forest Service released the new final environmental impact statement. U.S. District Judge Dominic Lanza denied the motions after a joint hearing in August. The Ninth Circuit heard all three appeals simultaneously.

Roger Flynn, representing the Arizona Mining Reform Coalition, said the final environmental impact statement must be rescinded because it incorrectly appraised the value of the land set to be transferred.

While Resolution Copper owns mining claims beneath Oak Flat, Flynn says federal mining claims are nullified when public land is transferred into private ownership, which is what the Forest Service intends to do with Oak Flat. At that point, those mining claims don’t exist, and the land needs to be reappraised based on the future market value, not the current value, including the claims.

“If you find that the mining law and the claims exist on private lands, we lose,” Flynn said. “But if you find that the mining law and the claims do not survive the exchange and do not apply on private lands, then respectfully, we win.”

Stander disagreed, arguing the appraisal must be made based on the value of the land currently owned by the government, not the future value.

Judges appeared confused by both sides of the argument.

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 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 cannot prevent the eventual land transfer and mine construction.

U.S. Circuit Judges Milan Smith Jr., a George W. Bush appointee, and Johnnie Rawlinson, a Bill Clinton appointee, rounded out the panel.

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