The U.S. Supreme Court rejected a petition Tuesday from the nonprofit Apache Stronghold, clearing a major legal hurdle for Resolution Copper to eventually begin mining at Oak Flat.
Apache Stronghold made a religious freedom plea, stressing that Oak Flat – an area within the Tonto National Forest – is sacred and would be “permanently and directly damaged” by copper mining. But the nine justices declined to hear its case, allowing a 6-5 decision to stand from the 9th Circuit Court of Appeals.
That lower court ruling, issued last March, stated that a pending federal land swap between the multinational mining company Resolution Copper and the U.S. Forest Service is not subject to any federal laws protecting religious freedom.
While Oak Flat is currently in public trust, the roughly 2,400-acre federal parcel will become private property once that land exchange – controversially authorized by Congress – is finalized and handed over to Resolution Copper.
Then, the Superior-headquartered company – a joint venture made up of global mining giants Rio Tinto and BHP – can ultimately dig its way to one of the world’s largest undeveloped copper deposits, sitting nearly 7,000 feet beneath the surface.
“I was not surprised at all,” said Bob Miller, who is Eastern Shawnee and with Arizona State University’s Indian Legal Clinic. “The Apache Stronghold case has lost in the lower courts because of the Lyng decision, so I did not really have any hope.”
In 1988, the U.S. Supreme Court already made up its mind on the limitations of Indigenous religious legal rights in a case between then-Secretary of Agriculture Richard Lyng and the Northwest Indian Cemetery Protective Association.
The court’s majority opinion authored by then-Justice Sandra Day O’Connor determined in a 5-3 decision that the Free Exercise Clause did not prohibit the U.S. Forest Service from permitting timber harvesting or building a paved road through a sacred site within California’s Six Rivers National Forest.
This very precedent was also used against the Hopi Tribe in 2018, when bringing a lawsuit before the state Supreme Court over Arizona Snowbowl – a ski resort north of Flagstaff – using recycled water to make snow at the San Francisco Peaks, which is home to many Hopi shrines.
“When the tribes don’t own these lands, it’s pretty hard to tell the federal government how to manage,” added Miller, “and when you’re a minority religion, then it’s especially hard to get anybody to realize, ‘Maybe we shouldn’t destroy this area.’”
With that case law, Miller explained tribal faiths don’t get the same credence as mainstream religions or denominations – a sentiment echoed in Tuesday’s 17-page dissent written by Justice Neil Gorsuch, which was jointly filed with Justice Clarence Thomas.
“Gorsuch says something very interesting,” Miller said. “‘If this was some historic cathedral, I’m certain we would find the time to hear this case.’”
About 1% of all appeals are granted annually. Apache Stronghold’s case was revisited 15 times since November. At least four justices must agree to hear any case, hence the Rule of Four.
The pair of conservative justices – Gorsuch and Thomas – contend that shuffling this case off the court’s docket poses “consequences that threaten to reverberate for generations.”
They also raised concern about the lower court ruling’s “questionable legal footing,” while Resolution Copper president and general manager Vicky Peacey told KJZZ: “We are pleased that the 9th Circuit’s decision will stand.”
“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less,” Gorsuch continued. “They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”
Not doing so was deemed “a grave mistake,” argued Gorsuch, but even if Apache Stronghold had its day in the nation’s highest court, Miller firmly believed: “I would just bet money that they would have lost anyway.”
An Arizona federal judge granted an injunction earlier this month, delaying the federal land transfer – but because the high court has now rejected hearing the nonprofit’s appeal, that temporary order has been lifted. Now the multinational mining company could own Oak Flat as early as next month.
Still, the opposition isn’t stopping.
In a statement, Luke Goodrich with the Becket Fund, which represents Apache Stronghold, characterized the court’s unwillingness to halt the imminent destruction as “a tragic departure from its strong record of defending religious freedom.”
The nonprofit’s founder, Wendsler Nosie Sr., said this decision is “a heavy blow” but added “our struggle is far from over,” urging Congress to “take decisive action to stop this injustice while we press forward in the courts.”
