It’s possible you’ve heard the phrase “Protect Oak Flat” in recent years, or maybe you’ve seen it in a mural, or scrawled in a piece of graffiti on a Phoenix wall. Well, the battle over Oak Flat is in its final stage, and its fate lies in the hands of the U.S. Supreme Court.
Oak Flat is a swath of high desert land about 70 miles east of Phoenix that is sacred to the Western Apache and other Indigenous people. And it’s the site of a valuable copper mine owned by a company called Resolution Copper.
They’re in the process of extracting 40 billion pounds of copper from the mountain in support of a green energy future. But the nonprofit Apache Stronghold has been fighting to stop them for nearly a decade, and now they’re asking the Supreme Court to protect the site in the name of religious freedom.
It’s a case that’s bringing together some strange bedfellows. KJZZ reporter Gabriel Pietrorazio joined The Show to explain.
Full conversation
LAUREN GILGER: So what does Oak Flat mean to the Apache people to begin with? Why have they fought for so long to try to protect this place?
GABRIEL PIETRORAZIO: I think what’s unique about Oak Flat is that much like other communities, it’s not a monolith. So some Apaches see it as sacred, and others don’t. From the conversations that I’ve had with various Apaches, from San Carlos to White Mountain to Yavapai Apache Nation to the Tonto, it has different meanings.
But in general, members of the San Carlos community — particularly with Apache Stronghold, which is a nonprofit and not representative of the tribal government itself — say that the Gaan — which are essentially angels in their interpretation, mountain spirits — reside there. And should this mining occur, that would disturb the soil and the earth where they rest, essentially.
And so I was recently there a month or so ago, helping build a sweat lodge with Wendsler Nosie Sr., who is in charge, who leads to the nonprofit, and so got to personally see firsthand the significance of it. They do sweats with coming of age ceremonies there and things of that sort, and I was invited to participate in helping with that process.
GILGER: So right now, though, Resolution Copper is already underway, right? They’re already getting the area ready for mining in the future. You’ve been in that mine, in fact.
PIETRORAZIO: Yeah. Recently I took a trip down. It was the deepest mine shaft in North America. It’s about 6,844 feet to the surface. They’re currently not extracting the ore because they actually haven’t reached it yet.
And I recently spoke with Vicky Peacey, who’s the project manager for Resolution Copper. And she described it as building a city over a decade.
So once this moves forward, if Resolution Copper is allowed to continue without any Supreme Court objections, then it would be about a decade or so to build an underground city, effectively laying concrete to reach this copper ore body that’s about a mile or so away from that shaft that they had sunk.
GILGER: OK, so way under there and a whole lot of copper, as we said. So let’s talk more about this case from Apache Stronghold. It was rejected by the 9th U.S. Circuit Court of Appeals in the spring. And now they’re asking the U.S. Supreme Court to reconsider. Tell us about their argument.
PIETRORAZIO: Yeah. Essentially, the argument is, can tribal faiths be allowed to practice on land? So essentially, can land be at the center of faith and religion? And that’s what they’re arguing for, that Oak Flat is a site of sacred significance, and therefore it shouldn’t be disturbed or destroyed, otherwise that would irreversibly harm their religion and the way that they practice their faith.
Part of the petition process was them taking a prayer journey across the United States, meeting with tribal communities but other religious groups to build a broad coalition of support that culminated in actually filing their cert in person at the Supreme Court in September or so.
GILGER: Right. OK. So let’s talk about that broad coalition, because this is where this gets really interesting. It might have seemed like a long shot, right, for them to go to the U.S. Supreme Court and say, “Please reconsider this decision. Religious freedom grounds,” right?
But there are reasons, it seems, that it might not be as much of a long shot. And it has to do with that question of religious freedom and that coalition that they’ve built. What does it look like?
PIETRORAZIO: There’s a broad swath of people, some you can identify politically as left and right. There are some people who are environmental activists and advocates who are on the left side of the social justice issue of this is an equity problem that San Carlos and the Apache stronghold community should have access to Oak Flat, and that shouldn’t be disturbed.
And then you have certain entities like Utah Republican Sen. Mike Lee and the Young America’s Foundation who are behind this, filing supporting amicus briefs with Apache Stronghold and the Becket Fund, who is their legal representation, is a D.C. public interest religious freedom law firm who’s basically arguing that this is a First Amendment case in some respects, about the right to faith and to practice your religion freely.
Superior Mayor Mila Besich basically described it as strange bedfellows recently to me. This is what she also had to say about that.
MILA BESICH: We believe the Becket Fund is doing this in a way to win a religious freedoms case that then can upend everything that maybe we worked for, whether it be gay marriage, interracial marriage, further abortion restrictions. That’s what keeps me up at night as mayor of Superior is hoping that this does not upend our democracy and our true freedoms of religion.
GILGER: And Gabe, the list of religious and pro religious freedom groups who are supporting Apache Stronghold at this point is pretty long. Tell us who else is backing them from the right.
PIETRORAZIO: For sure. You know, the Knights of Columbus and the Christian Legal Society, the Religious Freedom Institute and the Sikh Coalition, as well as other entities like the Presbyterian Church of the United States, the Mennonite Church of the United States are also signed on to their support for this case to be heard.
And Becket Fund has a track record of bringing high profile cases to the Supreme Court on the religious freedom argument. This kind of complicates the crystal ball seeing into the future of what is to come as early as Friday now. This case has been punted a few times already.
GILGER: Do you think there’s a good chance here that they could convince the Supreme Court, as it stands now, which is a relatively conservative Supreme Court, to take it up?
PIETRORAZIO: I think there’s a stronger chance for this case to be taken on the religious freedoms issue. I think what’s interesting is this narrative that we’ve heard from people like the mayor of Superior that talk about land as land, like the cake issue with the Supreme Court.
GILGER: Right, the case about a cake maker who didn’t want to make a cake for a gay wedding.
PIETRORAZIO: That’s right. Yeah, similar kind of logic, but around land and whether or not someone could essentially have access to land because it’s sacred to them. So it is interesting, and it’s comparable to what the court has looked at before. So it wouldn’t be too surprising if the Supreme Court would take this on. I think it’s far more likely than we would have been talking about compared to other cases.
GILGER: Yeah. So if that happens, what does that mean for Oak Flat and for the copper mining operation that’s already underway there?
PIETRORAZIO: Under the current conditions at this point in time, essentially all that needs to be issued is the environmental impact study, which was originally issued under Trump in his first term but then was withdrawn under the Biden administration. It’s currently, there’s a record for it, meaning that that would approve the project. It could be signed at any time. It’s assumed that Trump, that he would approve this.
If the Supreme Court takes on the case, that complicates the project moving forward. But if it’s denied, the chances of the project moving forward increase tremendously based on that, that there aren’t as many legal avenues or opportunities for the Apache Stronghold or the San Carlos Apache Tribe to challenge this case in the court.
GILGER: So kind of a last stand for Apache Stronghold here.
PIETRORAZIO: It seems to be.
