Time is Running Out for Oak Flat

July 2022

By Jason Vaughn

In Apache legend, Oak Flat in Arizona’s Tonto National Forest is a “blessed place” that is home to the Ga’an—or the messengers between the people and Usen, the creator. The Apache have lived on this land, which they call Chi’Chil’Ba’Goteel (“a broad place of Emery oak trees”), since long before recorded history, and to this day hold important ceremonies and gather traditional medicinal plants there.

In an 1852 treaty with the Apache, the U.S. government promised to protect this roughly seven square mile area “in perpetuity,” and in 1955 President Dwight Eisenhower specifically protected Oak Flat from mining during an expansion of Tonto National Forest. In 2016, Oak Flat was even placed on the National Register of Historic Places (NRHP) due to the area’s many petroglyphs and prehistoric sites from not only the Apache but also the Yavapai, Hopi, Zuni, and other tribes across the region.

Today, Oak Flat is a popular destination for hikers, campers, bird watchers, and rock climbers.

But if Oak Flat is blessed by its natural beauty and profound human history, it’s cursed by what lies around 7,000 feet beneath the surface—one of the largest remaining copper ore deposits in the nation. And if a pair of multinational mining giants gets their way, Oak Flat will soon become a gaping, mile-wide, 1,000-foot-deep crater.

How did this happen? How could such an important and oft-recognized natural and human landscape come under threat from such an obviously terrible idea as a massive copper mine?

While the Eisenhower administration removed the area from mining consideration in 1955, it wasn’t actually protected by an act of law. Instead, its management was left to the U.S. Forest Service—with its constantly changing priorities based on the political leanings of whichever administration was in the White House.

Nevertheless, the land was largely protected for decades, as stand-alone legislation that would open it up to mining repeatedly failed in Congress.

Then, in 2014, U.S. Senator John McCain buried a last-minute rider called the “Southeast Arizona Land Exchange and Conservation Act” in a “must-pass” defense spending bill, which authorized the transfer of over 2,400 acres in Tonto National Forest—essentially the Oak Flat area—to Resolution Copper, a joint project of British-Australian mining conglomerates Rio Tinto and BHP, in exchange for nearly 5,400 acres of private land.

Importantly, the act also forced the land swap to take place within 60 days of the completion of an environmental impact study—regardless of that study’s findings!

This land swap is, by any measure, an all-time steal for the mining companies. According to the Congressional Budget Office, the lands offered in exchange by Resolution Copper were valued at roughly $7 million, while the Oak Flat land—with its estimated 40 billion pounds of copper ore—was valued at over $112 billion.

The land swap agreement required the mining companies to pay an additional $500 million to “equalize” the value of the land, but even that amount could be considered a pittance given the long-term economic value of Oak Flat. And because of the highly-antiquated General Mining Act of 1872—which still covers hard-rock mining on public lands—the companies would not be required to pay any royalty fees for the copper they extract, leaving taxpayers on the hook for what will surely be a massive cleanup bill.

Oak Flat would be mined using a highly-destructive technique called “block cave mining” or “panel caving,” where miners would dig tunnels below the ore body located over a mile below the surface. The ore would then collapse into these tunnels, and then be removed via other tunnels to a crushing facility for processing.

As these tunnels collapse—and an estimated one cubic mile of material removed from the earth without replacement—the ground at the surface will sink, essentially creating a massive crater where Oak Flat is today.

It’s estimated that the proposed project would deplete and contaminate the area’s already-limited groundwater supplies, annually using an amount of water equivalent to a city of nearly 200,000 people. In addition, an estimated 1.4 billion tons of mine waste would be dumped on thousands of acres of nearby wetlands, turning this rare desert habitat into a toxic industrial wasteland.

Despite this odious rider, the defense spending bill was signed into law by President Barack Obama and Oak Flat’s future suddenly became very cloudy. Numerous tribal and environmental groups have been fighting the legislation in court, with varying degrees of success. The Obama administration vowed to work with the tribes and the mining companies to protect the sacred places from the mining project, and in 2016 added Oak Flat to the NHRP. This essentially added another layer to the required environmental impact study by requiring the mining companies to fully document any cultural and historical sites on the Oak Flat parcel.

But because the land swap had been codified into federal law, the Department of Interior (DOI) was largely handcuffed in terms of stopping it beyond requiring the project to conduct the environmental impact study. Then, in the closing days of the Trump administration, the DOI pushed through an incomplete and deeply-flawed environmental impact report that started the 60-day clock to force the land swap, as required by law. The report was subsequently withdrawn by the Biden administration before the clock expired, pending further studies. But this is only a temporary reprieve.

The fight in the courts over the proposed Oak Flat mine continue—however, if court precedent is any guide, the outlook on that front appears grim. In 1988, the U.S. Supreme Court ruled in Lyng v. Northwest Indian Cemetery against Indigenous tribes in Northern California seeking to prevent the construction of logging roads across sacred sites. That ruling has since been used as precedent in lower courts in similar cases, including a 2007 U.S. District Court case where the Navajo Nation sued the U.S. Forest Service—and eventually lost—over the use of sewage effluent in artificial snow at a ski resort in Arizona’s San Francisco Peaks. A subsequent appeal to the Supreme Court was denied.

But there is hope. Broads with the Yavapai-Prescott Broadband have been working in support of the San Carlos Apache Tribe in trying to save Oak Flat. And U.S. Rep. Raul Grijalva of Arizona has introduced the Save Oak Flat Act (HR 1844), which would repeal the disastrous 2014 legislation that created this mess, and give the area permanent protection. The legislation passed the House Natural Resources Committee in April of 2021, but—like so many other pieces of environmental and conservation legislation—has yet to be taken up for consideration by the full House or the Senate.

Oak Flat needs permanent protection immediately. Please contact your congressional delegation and tell them to make the Save Oak Flat Act a priority!