Resolution Copper now owns Oak Flat. But Apache Stronghold leader says fight will continue

The battle for Oak Flat has been going on for more than a decade now. And now, it may be nearing the end.

Last month, the 9th U.S. Circuit Court of Appeals turned down one of the last surviving legal efforts to challenge the transfer of land from the Tonto National Forest to Resolution Copper.

And now, drilling is ramping up. There is an estimated 40 billion pounds of copper sitting under Oak Flat — which Resolution Copper says is key to powering a clean-energy future and will be an economic boon to Arizona.

But the land is sacred to the Apache people. One group fought Resolution Copper all the way to the Supreme Court on religious freedom grounds to stop it.

The Show sat down with two people to understand more about Oak Flat.

First, KJZZ’s Indigenous affairs reporter Gabriel Pietrorazio has been to the sacred sites and inside the mine below it. He spoke more more about the potential end of the battle for Oak Flat.

Wendsler Nosie Sr. is the former chairman of the San Carlos Apache Tribe and the founder of Apache Stronghold. He has been the force behind this effort from the beginning. He told The Show he doesn't think it's over yet.

Oak Flat: Past, Present, Future

Oak Flat — an area sacred to generations of Apaches — may soon be home to one of the largest copper mines in the world. A seven-part series from KJZZ's Gabriel Pietrorazio, airing on 91.5 FM from March 17-21, explores the land's past, present and future.

Full conversation with Gabriel Pietrorazio

LAUREN GILGER: So first start with this 9th Circuit decision. What did the ruling say?

GABRIEL PIETRORAZIO: Basically, there were three different separate lawsuits, including some involving Apache people, that the 9th Circuit in a split decision said, you don't have legal standing to challenge the actual land exchange from going through. This was authorized by Congress more than a decade ago.

And so that essentially tossed all these final, consolidated three separate lawsuit, legal challenges out over the actual land exchange involving the Tonto National Forest, which is run by the U.S. Forest Service, and the multinational mining company Resolution Copper.

Joan Meiners

GILGER: Right. This wasn't the absolute last step for Oak Flat, but it does kind of feel like an ending. What else is left here? There are some other legal challenges here and there.

PIETRORAZIO: The land exchange itself is really a major milestone because now that is private property. What was once run by the U.S. Forest Service is now operated by Resolution Copper. They created their own website, which provides bulletins and updates for people. Camping is still ongoing. Recreation opportunities are still available through climbing and things of that sort.

So it's effectively running the same as it was before. But there are going to be legal challenges down the road that deal with whether the company could build a transmission power line, or can they build a road here? And so people, plaintiffs can then go and sue in court essentially to challenge the development of the land.

So while they technically own the property, development could be stalled or delayed due to advancements on that front, with legal challenges for new projects.

GILGER: In the future. OK. I spoke with Apache Stronghold founder Wendsler Nosie Sr. more about this. And he says they're not done yet. And we'll hear more about that in a moment from him.

But first, Gabe, I want to back up and talk about the kind of long road that led us here. This land transfer, as we said, was approved back in 2014, more than a decade ago. And you had groups like Apache Stronghold object, say this land is sacred to us. But let me ask you, why does Resolution Copper want this particular site? Why did they want it to begin with? There are some really major economic implications here, right?

PIETRORAZIO: For sure. This is considered to be potentially the third largest undeveloped copper ore body in North America. It's really a historic mining area. There was a lot of copper mining. There was the old Magma Mine nearby in Superior that went through boom and bust period after global copper prices fell.

And this land was actually protected since Dwight Eisenhower, actually 1955, he created an order that would protect the Oak Flat region campgrounds and recreation area for world renowned rock climbing and things of that sort.

And until the NDAA, the annual defense spending bill, basically added the land exchange as a part of that, which was championed by the late Sen. John McCain.

GILGER: OK. So Resolution Copper and their allies are really kind of arguing all along that this court battle from Apache Stronghold was meritless, that it's just kind of blocking this economic development, this vital industry from moving forward. And that's why they wanted to dig this mine, this massive amount of copper under there.

What have they had to say since their win at the Ninth Circuit? Like, they see this as the end.

PIETRORAZIO: They are aware that there could still be challenges and somewhat cautiously optimistic, I think is the best characterization that I got from when I spoke with Vicky Peacey, who's the general manager and president of Resolution Copper, recently following that decision.

GILGER: Yeah. And what have they said about what they're going to do in terms of managing Oak Flat now, now that it's private land?

PIETRORAZIO: When I had that discussion with her a couple weeks ago, she talked about how the idea that this will remain mostly untouched, that they want to operate the Oak Flat campground region the same as the Forest Service. And that's to the extent that they created that website. They hired a San Carlos Apache small business essentially to manage upkeep of the environment and the recreational areas, the campgrounds and things of that sort, to maintain it as much as possible.

GILGER: OK. And let's hear from her. This is Vicky Peacey, she's the president and general manager with Resolution Copper.

VICKY PEACEY: We're obviously planning to do drilling in the future. We have been out there already for 15 years. And so I don't know if anybody realizes that, but I think that's one of the most important things is that we've been coexisting — exploration, ranching, recreation — for a very long time. And that's exactly what our plan is going into the future.

GILGER: But Gabe, Oak Flat remaining mostly untouched as she's describing it there, that has an expiration point, we think.

PIETRORAZIO: We think that's correct. According to the EIS, which is the Environmental Impact Statement that speaks to projections about the environment and what could happen, by year 41 of mining we're expected to see the cratering effect that a lot of people have been talking about caused by subsidence, that's caused by this block cave mining technique, which is a somewhat cheaper method of extracting minerals, where basically the land will kind of collapse onto itself in a cone of depression.

And last March, when I hosted this panel for the station, Henry Muñoz, who is the chairman of the Arizona Concerned Citizens and Retired Miners Coalition, spoke about what this scale would be for this crater.

HENRY MUÑOZ: That's how wide it's going to be. You could set the Golden Gate Bridge in there. How deep is this toilet bowl? You could put the Eiffel Tower in that hole, and you'd barely be able to see the top.

GILGER: So, Gabe, this fight went all the way to the Supreme Court. As we said, on a religious freedom argument. Apache Stronghold argued that mining on the land violates their ability basically to practice their religion.

And they gathered some kind of unlikely bedfellows to support that argument.

PIETRORAZIO: For sure, there were a lot of religious and conservative organizations that kind of coalesced around Apache Stronghold. And what we saw was in the end, after 15 stays of review of this case, the Supreme Court ultimately declined to hear the case. And two conservative justices, Neil Gorsuch and Clarence Thomas, offered a 17-page dissenting opinion.

And they talked about how essentially Gorsuch likened Oak Flat to a cathedral and talked about how the justices not deciding to even hear the case poses, "consequences that threaten to reverberate for generations." And so being there, talking to Wendsler, he talks about the Gaan, which are these mountain spirits, and he describes them like angels that are tied to Oak Flat.

There are ancestral burial grounds that have been undisturbed for centuries and a lot of ties there to what they call sunrise ceremonies, which are coming of age events for young girls in the Apache culture. And so a lot of that occurs there. And that is what they're trying to protect.

Full conversation with Wendsler Nosie Sr.

WENDSLER NOSIE SR.: You know, I got arrested for praying on a mountain in Mount Graham near Safford. To me, that's when it triggered it all, when once they let me go, they told me to never, ever come back, like my people. And I was reminded to stay on the reservation. And little did I know that all these fights were going to happen with the corporations of mining coming and extracting things and doing what they were doing.

Because in our religion that's important to us, the Mother Earth, the bigger thing was our religion. You know, that's the one thing we have that since the beginning of time that God gave us. And now we find all these sacred places being torn up in America. And when it comes right here to Arizona, you know, we have Oak Flats, Chi’chil Biłdagoteel, where it's a very important part of our identity.

And that's when the fight began.

Gabriel Pietrorazio/KJZZ

GILGER: So this has been a long history for you of kind of realization, it sounds like. Tell me more about the religious significance of this for you personally and for your people.

NOSIE: Well, I always tell people that, yes, we Apaches, we have a long history of how we defended the land. But all of it was because of a woman. Because to us in Apache, we call Mother Earth Nahagosan. And we're taught at the very beginning that this is our mother and that we're taught also that every female is precious and we take care of them.

And so when it came to the religion, our strong religion that we still have, what we still do in our ceremony relates to the women. And so Oak Flat is a place where this also took place at the beginning of time, where it's within our songs, it's within our oral history.

And this is where, how would you say, God touched the earth. This place is where there's deities, angels that we still relate to in our religious practice. It's always been that way. And so now that it's been under attack, now that it may transfer, now that there may be a big hole there, then it wipes away all that identity since the beginning of time.

GILGER: Is there a prayer that you have prayed at Oak Flat or that is about that specific place that you could share with us?

NOSIE: Well, I can just go over a little bit where it's our deities, it's our Gaan people, and our Gaan people tell the story of the beginning, of how God touched this certain place and how the girl came to be and to see the world the way it is. That's what this place holds.

GILGER: So your fight as Apache Stronghold against this copper mine at Oak Flat has created a really interesting kind of legal debate as well about freedom of religion in the country, right?

And one that's kind of crossed party lines in interesting ways. You've seen groups like the Notre Dame Law School come out in favor of you. And so has Justice Neil Gorsuch, who said that he wanted to hear this case, he thought it was a mistake not to hear your case at the Supreme Court level.

So it's not just environmental groups, not just liberal groups who are supporting what you're doing. What do you make of that and sort of the religious freedom aspect of this?

NOSIE: Well, I think of it as a crisis because you have to have some kind of humanity. You gotta have some kind of a spirit of you to make those moral decisions. We gotta wake up to what we're facing.

So the way the Apache Stronghold has gone was this is a religious, spiritual movement. This is to show the world what you're doing wrong. You're hurting Mother Earth. You're hurting the rest of the people. And with that movement, it goes back to, like, the beginning of time when we talk about creation.

So this is where the Christian and all the different denominations really began to understand that it's important for them, too.

So let me take you back to the conversation I had with the U.S. Forest Service. We did submit comments. And so I asked a white lady who lives in Superior, who knows Oak Flats and has this spiritual connections. So when we're able to meet, we're able to share. And I was able to help her identify those dreams, those movements, those feelings that she was having at Oak Flat.

So we asked her if she could put one together, and she did. When our comments were submitted, hers was missing. So when I visited the Forest Service with their attorney, I asked them: There's this document missing. Why is it missing? And they told me, she's a white lady. And I said, I know she's a white lady. But why did you take it out then?

That's when they told me that the only ones that can claim any kind of spiritual connection to the earth is the Indian people. Then I got off my chair and I opened the door and I said, does all these white people know that? And they just smiled at me.

And so that's when I began to meet with a lot of different denominations and tell them this is what they're saying. I mean, I don't know. I said, I don't believe that. I think everybody has a connection to the earth. But for them to say if you're not Native, you have no connection.

Then I understood it. I understood now why a lot of people can't help us in this fight. Because there's nowhere in there that gives non-Natives an opportunity to argue this. And this is one of the reasons why a lot of the churches join, because they want to hear that from the United States.

GILGER: Let me ask you lastly, Wendsler, you said you will not stop fighting on all the legal fronts that are left, and there are a few, as well as legislation, potential legislation that's been introduced by Adelita Grijalva.

But most importantly, you said you will not ever stop fighting spiritually. And I wonder what that means to you. Like, does this feel like a personal loss that Oak Flat is now being mined?

NOSIE: Well, I guess the feeling is a lot of different combinations. One is the children. What does it mean for them when there's going to be a big hole sitting there, and by the time they're 40, 50 years old, there's nobody there except a big hole?

And then as far as what's going to happen with the surrounding communities and just that effect, and then the identity. So as a father and grandfather, I mean, that hurts me to see what we're going to leave behind.

The prayer has to be far and beyond because not only here are we facing these issues, bu by fighting this fight, I've learned it's all over the world. I'm coming. Like I told them, this isn't over because all the wrong that has been done is going to be pushed to be questioned now.

Statement from Resolution Copper

"The U.S. Court of Appeals for the Ninth Circuit has ruled in favor of Resolution Copper and the federal government and denied the plaintiffs’ requests to stop the Resolution Copper land exchange, which is now complete. We appreciate the courts’ thoughtful work on this important case. Judge Lanza’s case-management order simply leaves the case pending while the appellate process plays out.   

Settled law supports the Congressionally directed land exchange and advancement of this project. Courts at every level have consistently ruled in favor of Resolution Copper, and three different presidential administrations have supported this project. It is time for the meritless litigation to end. 

Over the past 11 years, the Resolution Copper project has undergone a rigorous, independent review under the National Environmental Policy Act, led by the U.S. Forest Service. This review has included extensive consultation and collaboration with numerous Native American Tribes, local communities, civil society organizations, and a dozen federal, state, and county agencies. The collaborative co-design process has directly led to major changes to the mining plan to preserve access to Oak Flat and physically avoid areas of cultural significance identified by Tribes. We are encouraged to see so much local support for the Resolution Copper project, and our ongoing dialogue will continue to shape the approach moving forward.  

Resolution Copper is a large brownfield redevelopment of a historic underground copper mine and has the potential to become one of America's biggest copper producers, contributing $1 billion annually to Arizona’s economy and creating thousands of local jobs in a region where mining has played an important role for more than a century. Copper is a crucial resource for America's energy future, modern infrastructure needs, and national defense. Ensuring a domestic supply of this critical mineral supports not only Arizona’s economy but also the nation’s broader economic and security goals.”