Department of Justice argues in favor of land swap for Resolution Copper

June 25, 2021

The Biden administration argued in court that the 2,400-acre land exchange that would allow Resolution Copper to move forward with its plans for a large copper mine should go forward.

The administration had paused the land exchange for the Resolution Copper Mine, after the outgoing Trump administration had fast-tracked final approval. The Justice Department has now filed legal briefs to oppose claims by environmental and Apache groups that the exchange violates treaties and religious freedom laws.

The U.S. Justice Department has filed a brief with the 9th U.S. District Court of Appeals maintaining that the land trade will not impose “a substantial burden on anyone, even if it severely impacts their religious exercise.”

Moreover, the brief argues that the 1852 Treaty of Santa Fe did not create a trust relationship with the San Carlos Apache Tribe, which was established as a legal entity subsequently. Even if a trust relationship did exist, the 2014 congressional vote on a defense spending bill that also authorized the land exchange would have “extinguished the obligation,” argued the justice department lawyers.

Payson Roundup reported that Apache Stronghold, an activist group, filed a lawsuit with the support of several environmental groups to stop the swap of 2,400 acres including Oak Flat for 5,300 acres elsewhere in the state — including land along the endangered San Pedro River in southern Arizona. Environmentalists maintain that the copper deposits make the 2,500 acres worth maybe 15,000 times as much of as the 5,300 acres the federal government received in exchange.

The Justice Department brief said Apache Stronghold lacks standing to file a lawsuit because it’s not a sovereign tribe and the San Carlos Apache Tribe lacks standing because it didn’t exist when the treaty in question was filed.

The filing suggests the Biden administration will follow through on the land exchange, despite the pause ordered shortly after President Biden took office. Biden appointed Deb Haagland as Secretary of the Interior, the first Native American cabinet member in history. Biden’s narrow win in Arizona depended heavily on strong support from Native Americans.

The mine would extract an estimated 1.6 billion tons of low-grade copper from more than a mile beneath the surface. The ore body is about 1.47 percent copper and 0.037 percent molybdenum. The value of the ore would amount to $112 billion over an estimated 60 years — providing roughly 25 percent of U.S. copper needs for several decades.

Currently, the world demand for copper stands at about $172 billion annually.

Congress approved the land swap in 2013 as a rider in the National Defense Authorization Act, supported by both Arizona senators John McCain and Jeff Flake. The land swap didn’t receive a separate vote, but passed as part of a defense spending bill.

Resolution Copper has already spent $1 billion developing the mine and has said it will employ several thousand people and inject billions into the local economy.



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