Last month, both the Ninth Circuit Court of Appeals and the Arizona Court of Appeals issued decisions that continue to delay the development of a copper mine on the Tonto National Forest. The mine would provide significant economic benefits to Superior, a nearby town that was founded to mine for silver and eventually copper deposits. The proposed location of the mine is known as Oak Flat, or Chi’chil Biłdagoteel in Western Apache, and contains spiritual sites that are sacred to Apache and other Arizona tribes. The mine proposal has been plagued with questions about both land rights and environmental impact.
Starting with the 1852 Treaty of Santa Fe, many federal agreements have influenced which parties possess the area in question. The treaty is vague about reservation boundaries. However, due to the inherent sovereignty of Native American tribes, there is a presumption that tribal property rights would remain so long as the Apache tribes did not transfer ownership to the federal government in the treaty. Next, in 1955, President Eisenhower declared Oak Flat and the 700 surrounding acres as closed to mining and designated the area as public land. In 1971, President Nixon renewed the mining ban, but also made the land eligible to be traded in an administrative or legislative land exchange. A company took advantage of this loophole in 2014, when a provision included in the National Defense Authorization Act allowed for the swap of Oak Flat with land owned by Resolution Copper, a joint venture owned by foreign mining companies Rio Tinto and BHP. Arizona Senators John McCain and Jeff Flake introduced the provision the night before Congress voted on the military spending bill. Both senators had received campaign contributions from Rio Tinto, and Flake was a former lobbyist for the mining company.
To ensure that the town of Superior would receive numerous benefits from the proposed mine, Resolution Copper spent years working with the mayor of Superior and the Superior Town Council. According to the company, of the 3,700 jobs that the proposed operation will provide, 1,400 jobs will go to workers in the Superior area. Further, since 2016, the company has provided $1.65 million for the town’s police, firefighting, and related emergency services. Nationally, the proposed mine could provide up to 25 percent of the US copper demand; however, due to a lack of domestic copper smelters, the copper concentrate would be exported to China and other countries for processing. 
Resolution Copper plans to use a new mining technique – panel caving – that involves digging underneath the ore zone and setting off explosives to catch the copper, creating a crater two miles wide and as deep as the Eiffel Tower. Because this method would involve digging more than 7,000 feet into the Earth, the mine would use up to 250 billion gallons of water for cooling and other mining activities. Waste from the mine would be piped to the Gila River watershed and stored in a dam made of mine waste, and eventually cover almost 4,000 acres.
Apache tribal leaders have protested the land exchange since 2015. Apache identity is intricately tied to Chi’chil Biłdagoteel, with countless rituals and ceremonies taking place on the land. Messengers between people and the creator – similar to the Holy Spirit in Christianity – dwell in the area. It is only here that prayers of the tribes can go to the creator, and so the destruction of the land will make it impossible for the tribes to practice their religion.
Apache Stronghold – a coalition that has arisen from the movement to protect the land from mining – filed a motion for a temporary restraining order and preliminary injunction to prevent the land exchange. The group states that the land exchange violates the Religious Freedom Restoration Act, the Free Exercise Clause of the First Amendment, and the trust obligation imposed by the 1852 Treaty of Santa Fe. A three-judge panel from the Ninth Circuit Court of Appeals denied the motion, reasoning that, even if the land exchange makes worship on Chi’chil Biłdagoteel impossible, this does not impose a substantial burden. However, on November 17th, the Ninth Circuit announced that the panel decision was vacated and an 11-judge panel will rehear the case.  The panel will be made of Chief Judge Mary Murguia and ten additional judges drawn by lot from the 29 active judgeships. Of those judges, sixteen were appointed by Democratic presidents and thirteen by Republican presidents, though this is not necessarily indicative of how a judge may rule.
Two days before this ruling, Resolution Copper was issued another setback by the Arizona Court of Appeals. The Court of Appeals declared that the mine qualifies as a new source under the Clean Water Act. This designation requires Resolution Copper to adopt a daily limit of discharges that the mine expels into a nearby creek, a creek with already impaired water quality. Although the Arizona Department of Environmental Quality initially renewed Resolution Copper’s permit to discharge liquids such as treated mine water into the creek, the new source designation requires Resolution Copper to adopt the daily limits before such a permit may be issued.
The never-ending legal battles have frustrated all parties involved. Since 2004, Resolution Copper has wanted to mine the area and promised the town of Superior this economic opportunity. The Apache people – who were essentially imprisoned on a nearby reservation and unable to visit these sacred lands from 1872 to 1929 – want to peacefully practice their religion without interference from the federal government. The continuation of the nine-year struggle will either result in an opportunity provided to a mining giant and struggling town or compassion granted to Indigenous groups whose wellbeing has been under attack for centuries.
 David F. Briggs. History of the Magma Mine, Superior, Arizona. Arizona Daily Independent News Network. July 19, 2015.
 Emma Gibson. A Conversation with Law Expert About Oak Flat and Treaties. Arizona Public Media. Feb. 11, 2021.
 Center for Biological Diversity. Congress Must Pass Save Oak Flat Act to Protect Sacred Land in Arizona from Massive Copper Mine. July 8, 2021.
 Katharine E. Lovett, Not All Land Exchanges Are Created Equal: A Case Study of the Oak Flat Land Exchange, 22 Colo. Nat. Resources, Energy, and Envtl. L. Rev. 354, 363 (2017).
 16 USCS §539; Asa Burroughs. The Mine at Oak Flat: A Timeline of Government Bad Faith. Moyers. Dec. 29, 2020.
 Tony Dokoupil. A Battle Over Land Sacred for Apache and Lucrative for a Mining Company. MSNBC. July 20, 2015.
 James Hodl. Superior Town Council Accepts a Mutually-Beneficial Agreement with Resolution Copper; Mining Company to Pay Superior $1.65 Million for Police, Fire Services through 2021. Copper Area News. Feb. 13, 2016.
 San Carlos Apache Tribe v. Arizona, 520 P.3d 670, ¶ 1 (Ariz. App. 2022).
 US Geological Survey, Mineral Commodities Summary (Jan. 2021), https://pubs.usgs.gov/periodicals/mcs2021/mcs2021-copper.pdf.
 San Carlos Apache Tribe, supra at ¶ 12.
 David Abbott. New Study: Resolution Copper Mine Will Use 250 Billion Gallons of Water as Drought Ravages Arizona. Arizona Mirror. Oct. 1, 2021.
 Alejandra Molina. Why Oak Flat in Arizona is a Sacred Space for the Apache and Other Native Americans. National Catholic Reporter. March 16, 2021.
 Emergency Mot. for an Injunction, 5, 14, Apache Stronghold v. US, No. 21–15295 (9th Cir.)
 Apache Stronghold v. United States, 38 F.4th 742, 751. (9th Cir. 2022).
 Stronghold v. United States, 2022 U.S. App. LEXIS 31772 (9th Cir. 2022).
 Alejandra Molina. Apaches Get Rehearing in Fight to Preserve Oak Flat, a Sacred Site in Arizona. Nov. 23, 2022.
 San Carlos Apache Tribe, supra at ¶ 30.
 Roger Hill. The Apache Way: The March to Oak Flat. Truthout. March 4, 2015.