The Tonto National Forest will be rescinding an environmental review that triggered the land swap of Oak Flat, an Apache religious site, to a copper company.
The U.S. Department of Agriculture told the forest service to rescind the final environmental impact statement in order to thoroughly review concerns about the Resolution Copper proposed mine from the public, tribes and its other partners, according to a statement from the department.
Luke Goodrich is an attorney representing Apache Stronghold, one of the groups challenging the transfer and the mining project in court. He said the announcement came just hours before the federal government needed to respond to an emergency appeal that argues the swap infringes on Apache religious freedoms.
"It knows it can't justify the destruction of Oak Flat in court, and it knows the destruction of Oak Flat violates the Religious Freedom Restoration Act, so this is a temporary retreat," Goodrich said in an interview Monday afternoon.
The department said the withdrawal ties back to President Joe Biden's executive order in January that committed to strengthening government-to-government relationships with tribal nations. It wants to make sure the forest service completed the needed environmental, cultural, and archaeological reports and is abiding by federal law.
Before the response was filed, Goodrich was calling for the federal government to agree to a court order that will protect the site while litigation continues.
"But a temporary retreat doesn't solve the problem. The government is still planning to transfer and destroy Oak Flat, and Oak Flat and the Apaches still need legal protection," Goodrich said.
The department of agriculture said it didn't know how long the re-consultation process would take but estimated it would be several months. It's unclear how this withdrawal will impact Oak Flat or the land swap.
"As noted in our federal lawsuit, the U.S. Forest Service failed to follow the law in the preparation of a sham Final Environmental Impact Statement (FEIS) that was being used to justify trading away our sacred land to further enrich wealthy foreign mining companies," said San Carlos Apache Tribe Chairman Terry Ramble in a release from the tribe.
Gov. Doug Ducey called the the rescinded document a "setback" and said he's disappointed the Biden administration is walking back already published documents from the Trump administration that pushed forward the high-profit project that would bring in about 1,450 jobs.
“This fight has never been about just one site – it’s been about ending the cycle of ignoring tribal input whenever it suits polluters,” U.S. Rep. Raúl Grijalva (D-Ariz.) said in a press release. “The Biden administration is doing the right thing with this reset, and I intend to reintroduce the Save Oak Flat Act in the coming days to make sure this needless controversy is settled on the side of justice once and for all.”
#BREAKING: The Gov't just announced it's rescinding the Final Environmental Impact Statement for Oak Flat—six hours before its deadline to reply to Apache Stronghold’s emergency appeal: https://t.co/NSOVwzoife This is no coincidence. The Gov't knows it's in trouble in court. 1/— Luke Goodrich (@LukeWGoodrich) March 1, 2021
Monday evening, the federal government filed a response to an emergency injunction Apache Stronghold requested. It said the injunction isn't needed.
It said the land exchange will probably be delayed by the rescinded final review, and therefore, there is no immediate harm to the site while the appeal to last month's preliminary injunction case is being heard by the court.
If the swap occurs, the counsel for the federal government said irreversible signs of the massive underground mine are still at least two years out and Apache people will have access to their religious site until it's unsafe.