The race to save Oak Flat: An update

By Jeff Kronenfeld

(Ed. note: The writer's previous piece about Oak Flat can be seen here.)

On Feb. 12, U.S. District Judge Steven P. Logan rejected a lawsuit claiming the US Forest Service surrender of Oak Flat to an Anglo-Australian mining company violates the religious liberty of Native Americans.

Despite this setback, former Chairman of the San Carlos Apache Tribe Wendsler Nosie Sr., his granddaughter Naelyn Pike and many others refuse to give up their struggle to save the sacred mountain oasis. With the land exchange set for March 11, they hope the courts, Congress, or President Joe Biden will act before it’s too late.  

Located roughly 60 miles east of Phoenix, Oak Flat is considered a holy place by nearly a dozen Native American tribes. Known as Chi’chil Bildagoteel in Apache, members of that tribe host religious ceremonies and maintain an indigenous burial ground in the area. They also harvest acorns, berries, cactus fruit, and yucca from its abundant wildlife. However, these centuries-old traditions will come to a screeching halt if a pair of foreign mining companies — Rio Tinto and BHP Billiton — can seize the land and move forward with the construction of what will be North America’s deepest mine.

Wendsler Nosie Sr. by Lily Reeves, the Artistic Director of Reeves Studios.

The USFS projects that the Resolution Copper Mine will cause the formation of a crater 1.8 miles wide and 1,115-feet deep. The impact won’t stop there. A staggering 1.4 billion tons of material will be removed, the vast majority of which will end up as a toxic mining byproduct called tailings. This will be stored nearby behind a 490-foot-tall dam. If this fails, the poisonous runout could spread hundreds of miles downstream, which is exactly what happened when Brazil’s Bruhmadinho Dam failed in 2019, killing 270 people.

The project will also drain local aquifers and contaminate groundwater supplies. Over its operational life, the mine will use roughly 220 billion gallons of water, more than all the water contained within California’s Salton Sea.

For these foreign mining companies, devastating the culture and health of indigenous people is nothing new. Last year, Rio Tinto dynamited a 46,000-year-old site sacred to Australia’s aboriginal people. This caused widespread international outrage and even prompted the company to publicly apologize. Nonetheless, the aggressive push to destroy Oak Flat demonstrates the company’s anti-indigenous policies remain in force.  

A scene from the walk to the Sandra Day O’ Connor U.S. Courthouse following a prayer vigil on Feb. 2. Photo by Jeff Kronenfeld

Apache Stronghold is a nonprofit dedicated to defending Native American holy sites and religious freedom. It has been fighting the corporate giveaway that Sen. John McCain snuck into the military’s annual budget authorization passed in 2014. Since the mine has no connection to the military or national security, this move seems puzzling until considering that McCain received more donations from Rio Tinto than any other lawmaker in that year.

“The bottom line is that they went after this in a cheating way,” Nosie Sr. said in a press conference on Feb 3. “If they were so right, why didn’t they go through NEPA [National Environmental Protection Act]. Why didn’t they let the state of Arizona, the towns, and everybody know about the amount of water that’s going to be affected, about everything that’s going to take place and destroying this holy sacred place.”

Apache Stronghold filed a lawsuit to prevent the land exchange in January. Nosie Sr. and Pike traveled from Oak Flat to the court in Phoenix on foot to testify on behalf of the organization in a hearing held on Feb. 3. They argued the land exchange would infringe on the practice of their religion and that it violates the government’s commitment to the Apache people made in an 1852 treaty.

Oak Flat and Apache Stronghold supporters gather for a prayer vigil in Phoenix on Feb 2. Photo by Jeff Kronenfeld

Nearly 100 supporters of Apache Stronghold from diverse backgrounds attended a prayer vigil and march to the courthouse the night before the hearing. Bianca Hernandez, a 30-year-old member of the Gila River Indian Community, was one such person.

“I know what it’s like to have your land taken without considering how that’s going to affect everyone else in the surroundings,” Hernandez said. “I believe in the sacredness of the land and I just think it’s really important that we fight for that and for our future.”

Their protestations and prayers were mostly unheeded by the court. Judge Logan rejected Apache Stronghold’s case even while acknowledging the mine’s devasting impact on the religious practice of indigenous communities.

“Quite literally, in the eyes of many Western Apache people, Resolution Copper’s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood,” the judge wrote in a ruling that often seemed to contradict itself from one sentence to the next.  

Two other court cases could potentially prevent or delay the land exchange, according to Randy Serraglio, the Southwest conservation advocate for the Center for Biological Diversity. The Center is one of a half dozen environmental groups fighting the land exchange in court.    

“The second lawsuit was filed by the San Carlos Apache tribe, so it’s a formal move by the tribal government to litigate and stop the land exchange because, of course, their interests in Oak Flat are also extremely strong,” Serraglio explained. “The third lawsuit is filed more specifically against the final Environmental Impact Statement that triggered the land exchange clock to start ticking. We believe that the exchange should definitely not be allowed to go through while these legal matters play out in the courts.” 

If the Judicial Branch fails, the Executive and Legislative branches could still stop the giveaway. President Biden can withdrawal the EIS, which the previous administration rushed through in its final days. The Save Oak Flat Act has been proposed in every session of Congress since 2015. Previously it has languished in legislative purgatory, but Serraglio is hopeful that this time will be different.

Oak Flat and Apache Stronghold supporters gather for a prayer vigil in Phoenix on Feb 2. Image Credit: Jeff Kronenfeld

“Once again, we will definitely be pushing for members of Congress to co-sponsor that bill and to move it to the floor for a vote,” Serraglio said. “Now with Mitch McConnell out of the way, there is a good chance of passing that legislation.”

Serraglio thinks either route to saving the sacred area is possible, but only if there is a groundswell in support. For those interested in getting involved or learning more, he recommends they visit Apache Stronghold’s website or that of Arizona Mining Reform Coalition.  

“We definitely need folks to reach out to their members of Congress — their representatives and their senators — to support the Save Oak Flat Act, and also to the Biden administration,” Serraglio said. “Those are two very important things that people can definitely weigh in on, and especially folks that live in Arizona. We need Arizona’s senators to take the lead on this issue and do everything they can to protect Oak Flat.”

Photo by Kenny Eliason on Unsplash

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