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A Mother Lode of Obstructionism

What does it take to get a copper mine approved in Arizona?

When it comes to copper, the American Southwest is large and in charge. Arizona, Nevada, New Mexico, and Utah account for the vast majority of U.S. production. Without Cu, “the world as we know it would not operate,” and our region should be proud to supply a mineral that makes modern living safe and comfortable.

So why is the effort to tap a major copper hoard in Pinal County, Arizona nearing its fourth decade?

In 1995, Magma Copper Company made “one of the great copper ore discoveries of the last 100 years,” just over a mile from its existing mine outside Superior, Arizona. Trouble was, all that mineral loot is located thousands of feet below the surface.

Magma walked away from its operations in 1996, and early in the 21st century, two mining giants — Rio Tinto and BHP — formed a partnership, Resolution Copper, to tap the massively deep cache. But access was a complicated matter. As the U.S. Forest Service explained:

The portion of the Resolution Copper Mine deposit explored to date is located primarily on the Tonto National Forest and open to mineral entry under the General Mining Law of 1872. The copper deposit likely extends underneath an adjacent 760-acre section of NFS land known as the “Oak Flat Withdrawal Area.” The 760-acre Oak Flat Withdrawal Area was withdrawn from mineral entry in 1955 by Public Land Order 1229, which prevented Resolution Copper from conducting mineral exploration or other mining-related activities. Resolution Copper pursued a land exchange for more than 10 years to acquire lands northeast of the copper deposit.

In 2014, Congress passed (and Barack Obama signed) legislation that authorized the conveyance “to Resolution Copper … not only the Oak Flat Withdrawal Area but also the … lands above the location of the copper deposit.” The feds would give up 2,422 acres, and in exchange, the company would transfer title to 5,376 acres — a total of eight parcels, located in six Arizona counties.

But the better-than-two-for-one deal wouldn’t be complete until the U.S. Forest Service issued a final environmental impact statement (FEIS). And the wait wouldn’t be brief. As usual, the feds took their time, giving the environmental left years to plot strategy.

It wasn’t until the last days of the Trump administration that Tonto National Forest released the FEIS, which imposed “detailed mitigation measures to minimize impacts” of Resolution’s mining activities. At 2,702 pages — six volumes in all — the document is almost absurdly thorough.

No matter. The usual suspects went nuts. U.S. Rep. Raúl Grijalva (D-AZ) called the FEIS a “politically motivated travesty of justice.” The Western Values Project howled about “devastating industrial development that would destroy cultural and sacred land.” The Sierra Club announced that it remained “in solidarity with Native leaders” and was “committed to protecting these precious lands.”

Lucky for Resolution’s opponents, the Evil Orange One departed Washington a few days later, and within weeks, the Biden administration “directed the Forest Service to … rescind the FEIS.” In addition, the White House “proceeded with re-initiating government-to-government consultation with Tribal Nations to fully understand concerns raised by the Tribes and the project’s impact to tribally important and sacred resources within the project area.”

Slow-walking by the executive branch is one threat to Resolution’s prospective mega-investment. Lawfare is another. In January 2021, Apache Stronghold, “a 501(c)3 nonprofit community organization of individuals who come together in unity to battle continued colonization, defend Holy sites and freedom of religion, and are dedicated to building a better community through neighborhood programs and civic engagement,” filed a First Amendment challenge. The suit was shot down by a federal judge in February 2021, a decision upheld by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit 16 months later. Last week, the full court heard arguments in the case.

“Religious liberty” as a justification to block Resolution Copper has a superficial appeal, but the claim quickly withers under scrutiny. Perhaps “a San Carlos tribal member and Apache historian” offered the strongest refutation. Dale Miles inconveniently noted that in 1970, when Magma “built a mine shaft on Oak Flat that you can see from the passing highway,” there were “no protests, no publicity of any kind,” and “never any statement made by tribal members or tribal leadership.” The historian wrote that it was not “until recent years that the site of Oak Flat was called sacred in any kind of way.” Curious, isn’t it?

Notwithstanding Miles’s highly credible perspective, Apache Stronghold’s case is all but obliterated by the U.S. Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Association. Written by native Arizonan Sandra Day O’Connor, the decision held that a government action that does not coerce individuals into “violating their religious beliefs” and does not “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens” is not a violation of the First Amendment. Joined by four of her colleagues, the justice concluded that “incidental effects of government programs … which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” are permitted.

Sadly, even if the Ninth Circuit follows precedent, the professional alarmism industry’s bottomless pockets make continued delays all but certain for Resolution Copper. And to end on a note of truly bitter irony, consider the role the project would play if the “energy transition” is realized. According to the Manhattan Institute’s Mark P. Mills, it takes “about 150 pounds more copper” to “build each electric car rather than a standard gasoline-powered vehicle.” Some might see a mine that will need to obtain dozens of permits from federal, state, and county entities — and is designed to extract copper from a facility entirely underground — as an environmental hero.

Well, that’s almost certainly asking too much of eco-leftists. In their blinkered weltanschauung, if it’s a mine, it’s bad. (Racist, even.) Why let facts get in the way of a crusade against capitalism and “colonialism”?

By D. Dowd Muska

Dowd brings nearly 30 years of research and writing experience to the Institute. A veteran of several think tanks, he is an expert on government at the municipal, county, state, and federal levels.

Raised on an apple orchard in the Connecticut River Valley, D. Dowd Muska is a researcher, writer, editor, and commentator. His focus is the nexus of fiscal policy, economic development, and technology.

Mr. Muska is the author of numerous policy studies, and his writing has appeared in newspapers throughout the nation, including the Las Vegas Review-Journal, The Detroit News, the Orlando Sentinel, the Cape Cod Times, the Santa Fe New Mexican, the Hartford Courant, the Waco Tribune-Herald, the Albuquerque Journal, the New Haven Register, and The Oklahoman. A graduate of The George Washington University, he lives in the Albuquerque metro area, but has started (very) early planning for a relocation to the Sierra Blanca in Lincoln County, New Mexico. He recently launched the Substack platform No Dowd About It.

One reply on “A Mother Lode of Obstructionism”

As usual, you have all the facts in this matter and your conclusions are inescapable. Keep it up.

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