Biden Admin Via Forest Service Approves Land Swap for Rio Tinto’s Arizona Mine

Copper core samples at Resolution’s processing facility. Photo by the NY Times.

Sometimes the Biden Admin goes with the interests of Indigenous groups and other times it seems to go against them. I wonder what we can see if we examine the pattern of what one might call the “flouts and touts” of various policies and reverse-engineer what interests might be calling the shots at what point in time. When- what kinds of projects, where, do they flout? When do they tout? Can we see flouting and touting in stories of various media outlets? And of course, if Indigenous groups disagree, how is that considered and reported? How does the Admin consider the opinions of elected Tribal officials versus other Tribal groups when they seem to be in conflict?

We can’t be sure that the Rio Tinto case is a flout, since we’re not sure whether the President could do anything differently.

Another interesting thing about this case is that the opponents are a group called Apache Stronghold, “a nonprofit group comprised of members of the San Carlos Apache Tribe and others” and they are supported by people for religious liberty (the Becket Fund), which is another interesting twist on the issue. For those interested, that group is a conservative nonprofit, according to the NY Times.

Here’s a link to yesterday’s Reuters story.

– The U.S. Forest Service plans to re-publish an environmental report before July that will set in motion a land swap between the U.S. government and Rio Tinto (RIO.L)(RIO.AX), allowing the mining giant to develop the controversial Resolution Copper project in Arizona.

The move would be the latest blow to Native Americans who have long opposed the mine project, which would destroy a site of religious importance but supply more than a quarter of U.S. copper demand for the green energy transition.

The complex case centers around a land swap approved by Congress in 2014 that required an environmental report to be published, something the Trump administration did shortly before leaving office. President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.

Meanwhile, Apache Stronghold, a nonprofit group comprised of members of the San Carlos Apache tribe and others, sued to prevent the transfer of the federally-owned Oak Flat Campground, which sits atop a reserve of more than 40 billion pounds of copper, a crucial component of electric vehicles. Several courts have ruled against the group.

Joan Pepin, an attorney for the Forest Service, told an en banc hearing of the 9th U.S. Circuit Court of Appeals on Tuesday that “the prediction for that (new environmental report) is to be ready this spring.”

The Forest Service is not waiting for the court’s ruling to publish the new report, Pepin said, adding that the agency does not believe an 1852 treaty between the U.S. government and Apaches gives Native Americans the right to the land containing the copper.

“This particular treaty is just a peace treaty. It doesn’t settle any rights to land and it doesn’t create any land rights,” Pepin told the court.

The 11 judges at the hearing questioned all sides about the legal concept of substantial burden and whether the government can do what it want with federal land, even if it prevents some citizens from fully exercising their religious beliefs. A full ruling is expected in the near future.

Wendsler Nosie, who leads the Apache Stronghold, said at a rally after the hearing that Pepin’s statements showed Biden – who controls the Forest Service – has not made opposition to the mine a “priority” for his administration.

“It’s not over. It’s just made us stronger, tougher, and deeply committed to our prayers,” Nosie said.

A Rio spokesperson said the company is closely following the case and respects the legal process, but believes “that settled precedent supports” the rejection of Apache Stronghold’s claims by a lower court. Rio has said it will smelt copper from the project inside the United States.

Representatives for the San Carlos Apache tribe were not immediately available to comment, nor were representatives for BHP, which is helping Rio develop the mine.

One wonders whether the Tribe itself has a position, or whether they are staying out of it. If individual members don’t agree what does that mean? As an earlier New York Times story reported

There are differing opinions on the merits of mining even on the San Carlos Apache reservation. Some people view the mine as an affront to their traditions, while others consider it an economic opportunity and a source of employment.

. There’s a lot of detailed context in that story.

I think this is also an interesting angle.. “President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.”

Despite some organizations that blame Biden for not shutting down oil and gas leasing aka “living up to his promises” he does have to operate within legal boundaries.
Perhaps he can’t due to something related to the 1872 Mining Law. Does anyone know?

Finally, a shout out to all the FS employees working on this project!

5 thoughts on “Biden Admin Via Forest Service Approves Land Swap for Rio Tinto’s Arizona Mine”

  1. As I recall, the problem for the mine is the need for adjacent land to dump the mine tailings, which was not validly claimed under the 1872 mining law like the mine area itself was. So they need the land exchange for that.

    • Error … error. I was thinking of the Rosemont Mine on the Coronado National Forest, not the Resolution Mine on the Tonto. Maybe this helps answer your question, but it’s not clear who owns what where or whether/how the 1872 Mining Law might apply.

      “Although copper has been mined under Oak Flat for more than 100 years, Resolution Copper, owned by British-Australian mining firms Rio Tinto and BHP, plans to use the block cave mining process to extract the remaining ore, much of which lies in veins as deep as 7,000 feet below ground level.

      This method involves selectively excavating underneath an ore body, which will collapse under its own weight in a controlled manner.

      Resolution has stated that the block cave mining method is safe, environmentally sound and cost-effective. But Resolution and the Forest Service have also said that Oak Flat would eventually sink, creating a crater nearly 2 miles in diameter and about 800 to 1,000 feet deep, according to the study mandated by the National Environmental Protection (sic) Act.”

  2. I wrote testimony on this way back in 2007 for a land exchange bill that was hugely complex. The company wanted to mine it badly. They offered up some very ecologically desirable lands and cash for exchange, offered to pay for a new campground, and the bill would require preservation of Apache Leap, a long identified nearby sacred place. There seemed to be little official interest from the Apache Tribe at the time for the reasons outlined. Oak Flat was withdrawn from mining in the 1950s, ironically, solely because of the campground, which when I saw it was a completely empty little undeveloped place.

    At the time, Rs controlled all three branches of government, and the Forest Service testified in support. If not for Dr No (R-OK), who opposed all legislation, it would have passed through regular order. Finally, Sens Kyl and McCain put it into the must-pass Defense Authorization bill and I thought that was the end of it.

    I’m surprised it still lives on as a political football. Because the exchange is now law, and also the 1872 Mining Law, I can see why the Administration’s options are few to none. Doesn’t seem the Apache want to officially weigh in. Biden had to appear to give it consideration. If I was betting on this, I’d say it happens sooner than later. It’s a tough one, but I think the miners will prevail.

    • Thanks for the background, Teri! It really helps to understand the history of some of these issues. So far I haven’t seen any articles that really explain why the President doesn’t have any legal footholds here.


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