Apache Tribe takes fight against Resolution Copper to US Supreme Court

The San Carlos Apache Tribe is taking its longstanding fight against Resolution Copper to the U.S. Supreme Court after the Arizona state court in June ruled in favour of the project, a joint venture between mining giants Rio Tinto (NYSE: RIO; LSE: RIO; ASX: RIO) and BHP (NYSE: BHP; LSE: BHP; ASX: BHP).

Last week, the Tribe asked the U.S. Supreme Court to review the Arizona Supreme Court decision to allow Resolution to discharge copper and other contaminants into Queen Creek. The project sits on federally owned Oak Flat Campground, a place some Apache consider sacred.

The argument centres on whether Resolution’s plan to build 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, while an “existing source” determination, would allow Resolution to discharge copper-contaminated water into Queen Creek without meeting the Clean Water Act standards.

The Arizona Department of Environmental Quality (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 decision this summer sided with the ADEQ determination, giving Resolution a major win in its quest to mine the some 40 billion lb. of copper metal. The ruling, according to the court, was based on Resolution’s plans to reuse a small number of tunnels and mineshafts that the Magma Copper Co. built 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.

Meanwhile, in a separate petition, non-profit group Apache Stronghold is also asking the U.S. 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.

Resolution 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 Jakob Stausholm recently said in a Bloomberg interview that the company is targeting first production by the end of this decade. The company owns a 55% stake in the underground development project, with an expected 40-year mine life.