Destruction of sacred Apache land now imminent
Joe Duhownik
PHOENIX (CN) — Defenders of a swath of Apache holy land marked for doom may be out of options after a federal judge again denied motions for preliminary injunction.
While acknowledging in a 94-page ruling that the transfer of eastern Arizona’s Oak Flat into the hands of a private copper mine will permanently destroy the tribe's historical place of worship, devastate the area with a huge amount of toxic waste and draw enormous quantities of water from an already drought-stricken area, U.S. District Judge Dominic Lanza found that the San Carlos Apache Tribe and conservation groups challenging the transfer have not established a likelihood of success on their claims, giving the U.S. Forest Service the green light to hand the land over to Resolution Copper.
The transfer is authorized by a last-minute amendment to a 2014 national defense bill, passed by Congress in the final hours of the session and signed by then-President Barack Obama. The amendment says the Oak Flat must be transferred to Resolution Copper within 60 days of the Forest Service's issuance of its final environmental impact statement, which assesses potential impacts of any action taken by the agency, including transferring land ownership. That 60-day window will close on Tuesday.
Though the plaintiffs raise numerous issues with the impact statement including a lack of copper consultations and violations of the National Environmental Policy Act, Lanza, a Donald Trump appointee, says none of those claims can override a congressional decision.
“Here, Congress chose to pursue the land exchange despite the existence of many significant tradeoffs and the president chose to ratify Congress’ choice by signing the law into effect,” Lanza wrote. “As a result, the court must accept that this choice advances the public interest and operate from that premise.”
The legal fight for Oak Flat, which spans across four court cases, began in 2021 after the Forest Service first issued its final environmental impact statement, triggering the land exchange. But the Forest Service rescinded its statement soon after, promising to go back to the drawing board. Meanwhile, the case found itself twice in the audience of the Ninth Circuit and once before the U.S. Supreme Court, which ultimately declined to hear arguments regarding the Religious Freedom Restoration Act.
The Forest Service reissued its final environmental impact statement in June, and intended to move forward with the exchange before the plaintiffs could challenge it. Lanza blocked their efforts, ordering them to wait the full 60 days so that defenders of the Oak Flat could lodge new complaints via new motions for preliminary injunction. The extra time turned out to be in vain.
Conservationists with the Arizona Mining Reform Coalition argued in federal court on Aug. 6 that the Forest Service failed to properly consult the affected tribes, failed to consider expert opinions offered by the plaintiffs on the environmental impacts of the proposed mine, didn’t properly evaluate groundwater modeling and underestimated groundwater use, and improperly appraised the value of the copper beneath the ground. But Lanza found none of those arguments enough to challenge Congress’ intention to transfer the land despite negative effects.
“Nevertheless, statute contemplates that the land exchange will occur within 60 days of, and regardless of the analysis set forth in, the FEIS,” Lanza wrote “This has the feel of a ‘ready, fire, aim’ approach because it suggests, as Resolution Copper’s counsel acknowledged during oral argument, that the land exchange must go forward even if the Forest Service determines it will result in catastrophic environmental consequences.”
Lanza considered four factors standard to granting motions for preliminary injunction: likelihood of success on the merits of one’s claims, likelihood of immediate irreparable harm, balance of equities and public interest.
Lanza sided with the defendants on the first factor, but ceded the second factor, irreparable harm, to the plaintiffs.
Though Resolution Copper has promised to maintain access to most of the Oak Flat campground for the first 10 to 16 years of the project, Lanza points out that nothing can stop the mining company from changing its mind and allowing no access once the ownership is transferred.
“More importantly, it is undisputed that once the land exchange is completed, Resolution Copper will begin changing Oak Flat in irreversible ways,” he added.
Lanza went on to discuss the last two factors, noting that in most cases, the balance of equities and public interest would tip sharply in the favor of religious liberty, meaning, in this case, toward the plaintiffs. But because Congress considered all possibilities, he said “it follows that there is a public interest in allowing the land exchange to proceed on the expedited timetable Congress contemplated.”
“The presence of a preliminary injunction request does not give the court license, under the guise of evaluating the third and fourth Winter factors, to second-guess the political branches’ wisdom in deciding how to balance those considerations,” he wrote. “A court sitting in equity cannot ignore the judgment of Congress, deliberately expressed in legislation.”
The plaintiffs immediately appealed to the Ninth Circuit following the release of Lanza’s order. It’s unclear if the Ninth Circuit will pause the land transfer, set for Tuesday, while it contemplates the appeal. Once the transfer is complete and the Oak Flat is in private hands, it may be too late to stop the mine.