Phoenix, Arizona, United States – Indigenous and environmental groups in the United States are suing the US Forest Service (USFS) to try to prevent the transfer of more than 9.7 square kilometres (2,400 acres) of land in Arizona to a mining company for potential development.
The co-plaintiffs in the case, including the Inter Tribal Association of Arizona and the Grand Canyon Chapter of the Sierra Club, on January 22 filed a lawsuit against a proposed copper mine about 100km east of Phoenix that they say would harm the local environment.
“Without a doubt, the proposed mine presents a huge threat to water quality and water supplies for our region,” said Shan Lewis, vice chairman of the Fort Mojave Indian Tribe and president of the Inter Tribal Association of Arizona in a written statement.
“For our 21 member tribes, the COVID-19 pandemic has put a magnifying glass on the fundamental need to protect and preserve healthy water supplies in Arizona.”
Resolution Copper, a subsidiary of multinational mining giants Rio Tinto and BHP, has proposed to build a mine to excavate an undeveloped copper deposit approximately two kilometres underground. They say the mine will produce 120,000 tonnes of ore per day.
The US Department of Agriculture also says the copper deposit is one of the largest in the world, containing an estimated 1.7 billion metric tonnes.
Arnaud Soirat, Rio Tinto’s chief executive of copper and diamonds, said the company has not yet committed to fully investing in the project as that decision will depend on permitting processes and a feasibility study that will be conducted over several years.
“Rio Tinto is committed to ongoing engagement with Native American Tribes over the coming years to seek consent, before any potential decision by the partners to invest in developing this project,” Soirat told Al Jazeera in an email.
But this month’s lawsuit is not the first or only challenge to proposed development in the area.
Several Indigenous groups, including the San Carlos Apache Tribe, the Tonto Apache Tribe and the Yavapai-Prescott Indian Tribe, consider Chi’chil Bildagoteel, also known as Oak Flat, sacred land.
The Oak Flat parcel is in Tonto National Forest, just east of the mining town of Superior, Arizona, where Resolution Copper is based. For thousands of years, tribes have visited the area’s Emory oak groves to conduct religious and coming-of-age ceremonies and gather traditional medicines.
Rio Tinto is committed to ongoing engagement with Native American Tribes over the coming years to seek consent, before any potential decision by the partners to invest in developing this project
In documents previously submitted to Congress, John Welch, a former historic preservation officer for the White Mountain Apache Tribe and professor at Simon Fraser University in Canada, has called the area “the best set of Apache archaeological sites ever documented, period, full stop”.
Resolution Copper’s mining proposal includes block caving, a method that involves drilling a shaft and excavating the ground underneath the ore body, causing it to collapse underneath its own weight. The crushed ore would then be transported underground for processing.
At the surface, the USFS says the technique would result in a crater at least 2.8 kilometres across and more than 300 metres deep.
Indigenous groups say that would destroy much of Oak Flat and threaten nearby petroglyphs, burial sites, and Apache Leap, a cliff where Apache warriors leaped to their death in the 1870s to avoid capture by the US military.
Apache Stronghold, a grassroots Indigenous organisation led by Wendsler Nosie Sr, former chairman of the San Carlos Apache Tribe, sued the US government on January 12 over the proposed development.
The lawsuit, separate from the one filed on January 22, alleges the US government violated the Western Apache Peoples’ “due process and of trust and fiduciary duties” on their “religious freedom rights, the treaty rights, and land rights” by moving ahead with the land exchange process.
In an effort to protect the land from damage until their case is heard, Apache Stronghold also filed a property lien in an Arizona court on January 13, asserting that the US has no legal right to transfer the land.
In court documents, the San Carlos Apache Tribe say their land claims to the area are designated in the 1852 Treaty of Santa Fe, which drew on historical maps showing much of the current state of Arizona, including Oak Flat, as territory belonging to the Apache, or Ndee (the People) as they call themselves.
“The United States government never legally took Chi’chil Bildagoteel away from us. It is still Apache land,” Nosie said in a written statement attached to the court filing.
“What was once gunpowder and disease is now replaced with bureaucratic negligence and mythologised past that treats us, as Native people, as something invisible or gone,” Nosie said. “We are not.”
On January 21, the Arizona court honoured the lien, effectively protecting the land until the case is decided, including after any potential appeals. But the court denied a request to block the USFS from publishing a final environmental impact statement until the lawsuit is resolved.
A day later, the department released the final environmental impact report on the project, which kickstarted the clock for handing over Oak Flat to Resolution Copper. A 45-day period of public comment has begun. Following recent rulings, the Oak Flat parcel cannot be handed over before March 11.
Apache Stronghold is scheduled to present its demand for a preliminary injunction on February 3 to prevent the transfer of Oak Flat to the mining company. The injunction would block the land transfer, which otherwise must take place by March 16, until the full lawsuit is heard – which could take months or even years.
The US Department of Agriculture told Al Jazeera it does not comment on continuing litigation.
While the future of the project and pending litigation remains unclear, some US lawmakers have already said they intend to try to stop the planned land exchange from going forward.
Arizona Representative Raul Grijalva, chair of the Natural Resources Committee, told Al Jazeera in an email that he plans to introduce the Save Oak Flat Act in Congress “to stop this destructive special interest giveaway”.
“We believe the Forest Service understands that this should not be rushed and that no mining should occur on this sacred land,” Grijalva said.
President Joe Biden’s administration did not respond to requests for comment on the project.
When he previously met with Arizona tribal leaders, Biden said Indigenous nations would “have a seat at the table” at the highest levels of government, however, and he has also promised to “restore tribal lands, address climate change and safeguard natural and cultural resources”.
Meanwhile, Indigenous leaders are waiting on the court cases, while hoping for action from the US government. “We hang on to faith all the time,” Nosie said in a press conference earlier this month. “But how many times has the right thing been done?”