Supreme Court clears way for copper mine on Apache sacred land

The Supreme Court declined Tuesday to hear an Apache religious challenge to the construction of a massive copper mine on Oak Flat, a swath of untouched federal land in Arizona that tribe members consider sacred and irreplaceable.

The decision, which leaves intact a lower court’s ruling against the tribe members, marked a major loss for Apache Stronghold, a group that has long argued that the mine’s construction would violate their religious rights by permanently wiping out a unique sacred site used for Apache religious ceremonies.

It allows the U.S. Forest Service to move forward with plans to issue a final environmental impact report and hear a last round of public comment before issuing a decision on transferring the land to Resolution Copper, a joint venture by the multinational mining companies Rio Tinto and BHP Group.

Wendsler Nosie Sr., an Apache elder and leader of the Apache Stronghold, said in a statement that his group would continue to defend the land about 70 miles east of Phoenix — including through other court battles challenging the mine and an appeal to Congress to intervene.

“We will never stop fighting — nothing will deter us from protecting Oak Flat from destruction,” Nosie said. “We urge Congress to take decisive action to stop this injustice while we press forward in the courts.”

Vicky Peacey, Resolution Copper’s general manager, said in a statement that the company was pleased the lower court’s decision will stand.

“The Resolution Copper mine is vital to securing America’s energy future, infrastructure needs, and national defense with a domestic supply of copper and other critical minerals,” Peacey said.

She said the project has “significant community support” and “the potential to become one of the largest copper mines in America, add $1 billion a year to Arizona’s economy, and create thousands of local jobs in a region where mining has played an important role for more than a century.”

The high court’s majority did not articulate a stance in the case, but by declining to hear it sided with a heavily divided panel of judges in the U.S. 9th Circuit Court of Appeals that ruled against the Apache in March 2024.

However, Justice Neil M. Gorsuch wrote a dissent — joined by his fellow conservative, Justice Clarence Thomas — saying the majority’s decision not to take the case was “a grievous mistake” and “one with consequences that threaten to reverberate for generations.”

Gorsuch said he had “no doubt” that the high court would have heard the case “if the government sought to demolish a historic cathedral” rather than a Native American sacred site.

“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less,” Gorsuch wrote. “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.”

Gorsuch said no one could “sensibly” argue against the significance of the case. “As the government has made plain, it intends to clear the way for Resolution Copper to begin the destruction of Oak Flat imminently,” he wrote.

Justice Samuel A. Alito Jr., another conservative, did not participate in the conversation or decision in the case, though a reason was not provided.

The case touches on a host of politicized issues, including federal land use, religious liberty and efforts to balance corporate interests with limited natural resources and environmental degradation. It also has confounded traditional political divides, including by uniting conservative religious organizations and liberal environmental groups behind the Apache.

The fight between Apache Stronghold and Resolution Copper has been ongoing for years.

Nosie and other Stronghold members have traveled the country since the 9th Circuit ruling against them to raise awareness about their effort. Resolution Copper has continued billions of dollars’ worth of preparations for the mine in the surrounding area, where it has other mining operations, and provided substantial financial support to local officials in the nearby town of Superior, Ariz. — which is braced for an influx of mining employees and their families and the accompanying strains on infrastructure.

At the core of the Apache challenge to the mine is their argument that the mine would not just hamper their ability to practice their religion, but obliterate it.

Oak Flat, on the edge of the Tonto National Forest about an hour outside Phoenix and not far from the San Carlos Apache Indian Reservation, is used by the Apache for sweats and for coming-of-age ceremonies known as Sunrise Dances, where young girls are ushered into womanhood. The Apache believe the land is blessed by their creator and home to spiritual guardians akin to angels, and researchers have found the site is archaeologically significant not just to the Apache but to Hopi, O’odham, Yavapai and Zuni tribes.

Oak Flat also sits atop one of the world’s largest untapped copper ore deposits — with enough estimated copper to supply up to a quarter of U.S. copper demand. Such demand has exploded with the proliferation of telecommunications networks, electric vehicles and other technologies that use the element.

The land in question had been under federal protection for decades, until Republicans added language allowing the federal government to sell or swap the land to the mining companies into a must-pass defense bill in 2014. Federal planning records show that extracting the deposit would over the course of several decades turn Oak Flat — which the Apache call Chí’chil Bildagoteel — into a nearly two-mile-wide, 1,000-foot-deep industrial crater.

(Paul Duginski / Los Angeles Times)

Resolution Copper has said it has worked closely with Native American advisors and worked to avoid important Apache sites in its planning, including nearby Apache Leap. Peacey said the company has been working for more than a decade to “preserve and reduce potential impacts on Tribal, social, and cultural interests,” and will continue to do so.

Apache Stronghold asked the Supreme Court to take up the case after an 11-judge panel of 9th Circuit judges split 6-5 in favor of the federal government’s right to use its land as it chooses. Such splits in circuit decisions often get the attention of the high court, but not always.

Judge Daniel P. Collins, an appointee of President Trump, authored the majority opinion. He wrote that Apache Stronghold’s religious claims failed because, while the federal government’s transfer of Oak Flat to Resolution Copper might interfere with the Apaches’ practice of their religion, it did not “coerce” them into acting contrary to their beliefs, “discriminate” or “penalize” them, or deny them privileges afforded to other citizens.

He wrote that Apache Stronghold had essentially asked the government to give them “de facto” ownership of a “rather spacious tract” of public land, which had to be rejected.

Collins was joined by four other Trump appointees and an appointee of President George W. Bush.

In his dissent Tuesday, Gorsuch wrote that the 9th Circuit “encompasses approximately 74% of all federal land and almost a third of the nation’s Native American population,” so its ruling that the government could destroy a sacred native site on federal land would now govern most if not all “sacred-site disputes” in the country moving forward.

He said that ruling would not just threaten native sites, but all religious sites on federal land — including many churches.

Luke Goodrich, an attorney for Apache Stronghold and senior counsel at the religious rights law firm Becket, said it was “hard to imagine a more brazen attack on faith than blasting the birthplace of Apache religion into a gaping crater,” and the court’s “refusal to halt the destruction is a tragic departure from its strong record of defending religious freedom.”

Times staff writer David G. Savage in Washington contributed to this report.