A U.S. appeals court on Friday narrowly ruled that the federal government may give away thousands of acres in Arizona to Rio Tinto Plc (RIO.AX)(RIO.L) for a copper mine, upholding a previous ruling and rejecting a request from Native Americans who said the land has religious and cultural import.
The move is the latest blow to Native Americans who have long opposed the copper project, which would destroy a site of religious and cultural importance but supply more than a quarter of U.S. copper demand for the renewable energy transition
The 6-5 ruling from the San Francisco-based 9th U.S. Circuit Court of Appeals essentially defers to a 2014 decision made by the U. S. Congress and then-President Barack Obama to give the land to Rio for its Resolution Copper project.
Previously, only three members of the same Appeals Court had ruled for Rio and the land swap. After that, in 2022 all 11 members of the court said they would decide the case in what is known as an en banc decision.
"This decision is wrong," Luke Goodrich, a Becket Law attorney who represents Apache Stronghold, a nonprofit group comprised of members of Arizona's San Carlos Apache tribe and others, said on the social media platform X. He said the ruling will be appealed to the U.S. Supreme Court.
The dispute centers on the federally owned land parcel in eastern Arizona known as Oak Flat, which some Apache consider home to deities and which sits atop a reserve of more than 40 billion pounds of copper, a crucial component of electric vehicles. If a mine is built, it would create a crater 2 miles (3 km) wide and 1,000 feet (304 m) deep that would destroy that worship site.
In 2014, Congress and Obama approved a complex deal to give Rio the land. Attempts to overturn that law have failed in Congress.
That 2014 law required an environmental report to be published in order for the land swap occurred, which former President Donald Trump 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 President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache's concerns, though he was not able to permanently block the mine.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 sued to prevent the land transfer, although it has now lost in three consecutive court hearings.
For the land transfer to occur, Biden would need to essentially republish that environmental report. It was not immediately clear if he would do so.
Vicky Peacey, who runs the Resolution project for Rio, said the company welcomed the decision and would continue to talk with tribes "as we seek to understand and address the concerns that have been raised."
Representatives for the San Carlos Apache tribe and Apache Stronghold did not immediately return requests for comment.
The six judges in the majority were appointed by Republican presidents, including five appointed by Trump. Four of the five dissenting judges were appointed by Democratic presidents.
