The San Carlos Apache Tribe is taking its longstanding fight against the Resolution Copper project to the US Supreme Court after the Arizona state court ruled in favour of the Rio Tinto-BHP joint venture.
This week, the Tribe asked the US Supreme Court to review an earlier decision by the Arizona Supreme Court to allow Resolution to discharge copper and other contaminants into Queen Creek. The project currently sits on federally owned Oak Flat Campground, a place the Apache consider home to deities.
The argument centers on whether the Resolution’s plan to construct what would be one of the largest copper mines in the world constitutes a “new source of pollution” under the Clean Water Act, or an “existing source.”
A “new source” determination would impose the most stringent Clean Water Act regulations on the proposed copper mine, and Resolution would need to prove to the Arizona Department of Environmental Quality (ADEQ) that Queen Creek could return to compliance with clean water standards even with additional discharges.
An “existing source” determination, however, would allow Resolution to discharge copper-contaminated water into Queen Creek without meeting the strongest protections under the Clean Water Act.
The ADEQ had previously treated Resolution as an “existing source”, and this was later affirmed by the Maricopa County Superior Court.
The Apache Tribe subsequently fought and won its case with the Arizona Court of Appeals in 2022.
However, the Arizona Supreme Court’s June 2024 decision sided with the ADEQ determination, giving Resolution a major win in its quest to mine the some 40 billion pounds of copper metal. The ruling, according to the court, was based Resolution’s plans to reuse a small number of tunnels and mineshafts that the Magma Copper Company constructed for a defunct mine that was exhausted in 1996.
In its statement, the Apache Tribe said the Arizona Supreme Court made “an egregious error” when it ruled that Resolution Copper could avoid meeting the most rigorous Clean Water Act regulations.
“It’s absurd to consider Resolution an existing source when most of Resolution’s mining operations have yet to be built and the copper lode is a mile underground and has never been mined,” Terry Rambler, the Tribe’s chairman, said.
“The Arizona Supreme Court twisted itself in knots to pretend Resolution’s mostly unbuilt mining operations somehow already exist,” he added.
In an emailed statement to Mining.com, a Resolution Copper spokesperson said this case does not present any question that merits US Supreme Court review. “In its unanimous decision, the Arizona Supreme Court engaged in a thorough and straightforward construction and application of the relevant regulation to reach the correct result, and we expect that ruling will stand,” the statement reads.
Meanwhile, in a separate petition, non-profit group Apache Stronghold is also asking the US Supreme Court to prevent the transfer of Oak Flat to Resolution, arguing that the Religious Freedom Restoration Act protects their right to worship at the sacred site.
The Resolution Copper project has faced numerous setbacks for years due to fierce opposition by the Apache Tribe. Once built, it would supply more than a quarter of America’s copper demand for decades.
Rio Tinto’ CEO recently said in a Bloomberg interview that the company is targeting first production by the end of this decade.
