The U.S. government says there has been no doubt that it intends to proceed with a land exchange in Arizona for a planned multibillion-dollar copper mine, telling the U.S. Supreme Court that its recent notice of publication of a final environmental impact statement for the project does not constitute urgent review.
There is nothing about the 60-day notice, which was filed in an Arizona federal court and published in the Federal Register on April 17, that supports claims by the Apache Stronghold that there may have been some uncertainty about the federal government’s intent to move forward with the land transfer, the government told the high court in a Monday letter.
The Southeast Arizona Land Exchange and Conservation Act, which was approved in 2014, authorizes the secretary of the U.S. Department of the Interior to convey federal lands to Resolution Copper Co. even if the Apache Stronghold is correct that the government’s disposition of its own lands could constitute a cognizable burden for Religious Freedom Restoration Act purposes, the U.S. government said in the letter.
The mandatory command of the later-enacted and more specific land-exchange statute must be given effect, the federal government argued.
“As the notice explains, the agency anticipates moving forward with publication of the final environmental impact statement if the petition for a writ of certiorari in this matter has been denied by the end of the 60-day notice period, but the agency may reevaluate how to proceed if the petition remains pending,” it said.
The Supreme Court distributed the nonprofit’s September petition for conference on April 17, according to court records. However, the date had been rescheduled several times since November.
At the crux of the dispute is Oat Flat, a site where the Apache people “have worshiped and conducted ceremonies for centuries,” according to the nonprofit.
If allowed to proceed, the proposed copper mine would decimate the sacred Indigenous religious site, it said, blowing a hole 2 miles wide and more than 1,000 feet deep, cratering Oak Flat.
On Friday, Apache Stronghold, the nonprofit behind the effort to save Oat Flat from destruction, urged the justices to quickly rule on its petition after the federal government published its notice of a final environmental impact statement, or FEIS.
The federal government’s notice to the district court confirms the urgent need for the high court’s review because, until now, there may have been some doubt about its intent to move forward with the transfer and destruction of Oak Flat, it told the court.
“But this notice removes all doubt: the government intends to move forward, and to do so quickly,” Luke Goodrich, an attorney for the Becket Fund for Religious Liberty, told the justices.
The federal government admits that the impacts of the project would be “immediate, permanent and large in scale,” according to Goodrich, and Ninth Circuit precedent often makes rescinding a completed land transfer futile. Therefore, the attorney said, the only thing standing between Western Apaches and the permanent end of their age-old rituals is Supreme Court intervention.
Resolution Copper, which is backing the federal government in its bid to oppose the nonprofit’s petition, argued in a separate letter Monday to the Supreme Court that the 60-day notice leaves ample time for the deliberative process.
As the notice makes clear, the government will take no action on the FEIS until June 16 at the earliest, the company said.
If the petition remains pending, or is granted by June 16, the government will reevaluate how to proceed. But even then, Resolution Copper said, the FEIS is only the next step in the process because it triggers another 60-day window for the government to complete the land exchange.
“Yet without the notice, the government would be bound to wait 60 days before issuing the FEIS, even after a denial of certiorari. That waiting period would only further delay a project that Congress directed the executive to “expedite” in 2014 … and which President Trump’s administration already approved over four years ago,” the company said.
That delay, it told the high court, would come at a time when the country’s need for domestic copper “is greater than ever.”
On Friday, the White House said the Resolution Copper project is one of 10 “critical mineral production projects” that the Trump administration is advancing “to facilitate domestic production of America’s vast mineral resources to create jobs, fuel prosperity, and significantly reduce our reliance on foreign nations,” according to the company’s letter.
“The Forest Service’s notice simply avoids further, gratuitous delay to a vitally important project that Congress and three presidents have defended as necessary to the national interest,” it added.
Apache Stronghold is asking the Supreme Court to overturn a Ninth Circuit ruling from March that said the U.S. government’s 2021 transfer of nearly 2,500 acres within the Tonto National Forest in Arizona to Resolution Copper Co. in exchange for double that acreage nearby is allowed under the Religious Freedom Restoration Act, according to its September petition.
In April 2024, the nonprofit asked the appellate court for an en banc rehearing on that decision, arguing that Ninth Circuit panels have twice tried to define “substantial burden” in the case’s context, and, given the vast power it holds over the lives of Native Americans, unique circumstances warrant a full-court review. That petition was denied in May, with no judge requesting a vote on rehearing the matter.
The nonprofit sued the federal government in 2021 to block the transfer of the land, which the U.S. Forest Service estimates contains deposits that could yield around 40 billion pounds of copper.
Counsel for Apache Stronghold could not immediately be reached for comment on Tuesday.
Apache Stronghold is represented by Luke W. Goodrich, Diana Verm Thomson, Rebekah P. Ricketts, Joseph C. Davis, Daniel L. Chen, Amanda L. Salz and Amanda G. Dixon of the Becket Fund for Religious Liberty, Erin E. Murphy of Clement & Murphy PLLC, Stephanie Hall Barclay of Georgetown Law School, Michael V. Nixon and Clifford Levenson.
Resolution Copper is represented by Lisa S. Blatt, Charles L. McCloud, Aaron Z. Roper, Andrew T. Guiang and Madeline C. Prebil of Williams & Connolly LLP and Michael R. Huston, Christopher D. Thomas, Andrea J. Driggs, Diane M. Johnsen, Janet M. Howe and Samantha J. Burke of Perkins Coie LLP.
The federal government is represented by Adam R.F. Gustafson, Erika Norman and Angela Ellis of the U.S. Department of Justice‘s Environment and Natural Resources Division.
The case is Apache Stronghold v. U.S. et al., case number 24-291, in the Supreme Court of the United States.