Two days after a Phoenix hearing to consider the request, an Arizona federal judge granted a temporary injunction Friday to delay the land transfer of Oak Flat between the U.S. Forest Service and multinational mining company Resolution Copper.
In his ruling, Arizona District Court Judge Steven Logan wrote that the nonprofit Apache Stronghold’s focus on fundamental freedoms being at stake was more compelling than the defense’s “unpersuasive” financial arguments.
Logan also sided with their concerns about the likelihood of Oak Flat — an Apache holy site nestled within the Tonto National Forest — suffering irreparable harm without the injunction, adding that plaintiffs “presented serious questions on the merits that warrant the Supreme Court’s careful scrutiny, should it agree to grant cert.”
In a statement, Resolution Copper told KJZZ “the short-term order simply maintains the status quo, but changes nothing about the merits of the legal issues currently before the Supreme Court.”
For now, this narrow injunction remains in place until a day after the nation’s highest court has made its decision on Apache Stronghold’s pending petition, which has been rescheduled 13 times since November.
Full conversation
SAM DINGMAN: So, Gabe, you've actually been to Oak Flat. Can you give us a little description of what it looks like there?
GABRIEL PIETRORAZIO: For sure thing. The Apaches refer to Oak Flat as “Chi'chil Bildagoteel,” which is a sacred land spot that essentially Apaches have been going western Apaches have been going to forage oak, acorns and use sacred springs there for a long time. I had conversations with Chairman Terry Rambler from the San Carlos Apache tribe and other communities that various Apache communities would move nomadic throughout the land in connection with the seasons and the cycles of nature to use the land, for those purposes and for ceremonial, spiritual, and cultural purposes.
There are a number of burial sites there that were even acknowledged in the federal government study, through the U.S. Forest Service as a part of the preparation needed to do the land transfer that you mentioned. And so, there are a lot of oak trees, there's a lot of springs there that will be impacted, as the report says, should the mining project proceed as planned.
DINGMAN: And what is Resolution Copper's interest here? What do they see in this?
PIETRORAZIO: For sure. They see a 1.4 billion metric ton copper ore body that is seen to be one of the largest undeveloped copper resources in the world. And it would take about 60 years for this mine to operate in full. 40 years of production, 10 years of construction, and 10 years of post closure plans, essentially to effectively extract that copper, which they say would be used for American domestic need for copper and help with the renewable energy transition and also compete with the national security interests and things of that nature as we try to wean off of foreign dependency of these minerals from places like China that we're in a trade war with.
DINGMAN: So, this transfer was temporarily blocked by virtue of this injunction. Was this a surprise? Did anybody see this coming?
PIETRORAZIO: I think it's a shock that it happened so quickly. The judge said that they would rule by no later than this Wednesday. So, two days after the hearing was a bit shocking. Over the weekend, as I mentioned, Chairman Rambler said that he believes that this decision was actually a turning point in a 20 year fight to, essentially, protect Oak Flat.
The judge in his ruling, basically brought up that there were serious questions about the merits of the Supreme Court case. The company, Resolution Copper, told us that they don't see the merits changing as a result of the injunction being issued, and that this doesn't effectively change anything, but it just delays effectively the land transfer. We believe that the court in the nine justices may rule by no later than July, which is the end of their current Supreme Court session, before they go on recess. And between now and then, this effectively, this injunction will take place until they decide on this case.
To give you a bit of context, the court has already rescheduled this decision 13 times, which is, in its own way, somewhat unprecedented. During the oral arguments on Wednesday of last week, the plaintiffs argued that they couldn't find a cert that had been rescheduled 13 times and was denied after that. The defense didn't say otherwise, but they noted that there have been cases that have been reviewed a dozen times, 10 times, 11 times, but then were denied. And then, their own internal analysis by the US government basically said that they found that about 62% of cases that had been rescheduled five times or more were denied subsequently. But, this is pretty unprecedented in its own way. That it's been rescheduled 13 times since November, and we still don't have an answer on where they stand to hear this case or not.
DINGMAN: Well, so the injunction extends at least through the Supreme Court proceedings. What happens after that to the injunction?
PIETRORAZIO: So, the injunction actually stays only until a day after the decision is made. So, if the court will say, “we'll take this on,” it will still continue from our understanding, if the court rejects their petition, the injunction will remain in place until a day after that. Under the status quo. Right now, the Trump administration can sign the record of decision for the final Environmental Impact Statement, which they have pledged to release within the 60 day time period. That could be as early as mid-June, when they could sign technically, the land transfer, which would take lands which Oak Flat is on within the Tonto National Forest federal public lands and turn those into private property, essentially, that resolution Copper would own. And that was kind of a big part of the sticking argument is, religious freedom case that they have enshrined rights, under public federal law, whereas if this land transfer does go through, it could affect their right to practice their faith on those lands, because now it’s private property, essentially.
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Resolution Copper could get Oak Flat as early as June 16, but the Becket Fund remains hopeful that the U.S. Supreme Court will weigh in on Apache Stronghold’s petition in July before its session ends. Until then, the Arizona district judge is supposed to make an injunction decision by no later than Wednesday, May 14.
