Apache Stronghold’s Copper Mine Lawsuit and the Fight for Oak Flat

The Apache Stronghold Oak Flat lawsuit is a federal case brought in January 2021 to stop the United States from handing a sacred Western Apache site in Arizona to Resolution Copper for a massive underground mine. The nonprofit Apache Stronghold argued the transfer violates the Religious Freedom Restoration Act, the Free Exercise Clause, and the 1852 Treaty of Santa Fe. It lost at the district court, lost 6–5 before an en banc Ninth Circuit, and was denied review by the Supreme Court in May 2025. The federal government completed the land transfer on March 16, 2026, and Apache Stronghold has since filed an amended complaint asking a federal court in Phoenix to rescind it.¹

What Oak Flat Is and Why It Is Being Fought Over

Oak Flat, known to the Western Apache as Chí’chil Biłdagoteel, sits in the Tonto National Forest about 60 miles east of Phoenix. Apache religious leaders describe it as the dwelling place of the Ga’an, mountain spirits who serve as messengers to the Creator, and as the only place where certain prayers can reach the Creator directly. It is the setting for the Sunrise Ceremony, a coming-of-age rite for Apache girls, as well as Holy Ground and sweat lodge ceremonies and the gathering of medicinal plants.²³

Resolution Copper, a joint venture owned 55% by Rio Tinto and 45% by BHP, plans to extract an ore body nearly 7,000 feet below Oak Flat using panel caving. Government analyses project the surface will collapse into a crater roughly 1.8 miles wide and 800 to 1,115 feet deep, physically destroying the sacred site.⁴

The Law That Forced the Transfer

Standalone bills to transfer Oak Flat had failed in Congress since 2005. In December 2014, the provision was attached as a rider to the National Defense Authorization Act for Fiscal Year 2015 and signed by President Obama on December 19, 2014. Section 3003 directs the Secretary of Agriculture to convey about 2,422 acres of federal land in Pinal County to Resolution Copper in exchange for roughly 5,300 acres of conservation land elsewhere in Arizona. The statute requires the Forest Service to publish a Final Environmental Impact Statement and then complete the transfer within 60 days. Because Congress mandated the exchange, the Forest Service has no authority to refuse it.⁵⁶⁷

That structure is central to the lawsuit. Because the transfer is a statutory command, Apache Stronghold cannot challenge an agency’s discretionary choice. It has to argue that carrying out the statute would violate a superior legal obligation.

The Legal Claims

Apache Stronghold filed suit in the U.S. District Court for the District of Arizona on January 12, 2021, days after the Trump administration’s Forest Service published the Final Environmental Impact Statement. The nonprofit is represented by the Becket Fund for Religious Liberty, with senior counsel Luke Goodrich leading a team that includes attorneys from Clement and Murphy, Georgetown law professor Stephanie Barclay, and counsel Michael V. Nixon and Clifford Levenson.¹

The complaint raises three claims:

The transfer imposes a “substantial burden” on Apache religious exercise in violation of the Religious Freedom Restoration Act.
The transfer violates the Free Exercise Clause by intentionally discriminating against Apache religious practice.
The transfer breaches enforceable federal obligations under the 1852 Treaty of Santa Fe to protect Apache traditional uses of ancestral lands.⁸

The RFRA claim has been the heart of the case. RFRA bars the federal government from substantially burdening religious exercise unless it can show the burden is the least restrictive means of advancing a compelling government interest. Apache Stronghold’s position is straightforward: physically destroying the only place where a religious practice can occur is a substantial burden by any ordinary reading of the statute.

How the Case Moved Through the Courts

The district court denied a temporary restraining order on January 14, 2021, and after a February evidentiary hearing denied a preliminary injunction, holding that Apache Stronghold was unlikely to succeed on the merits.⁸ Weeks later the Biden administration directed the Forest Service to withdraw the Final Environmental Impact Statement, pausing the 60-day clock while the appeal proceeded.⁹

A three-judge Ninth Circuit panel first ruled against Apache Stronghold based on the circuit’s 2008 decision in Navajo Nation v. U.S. Forest Service, which had narrowly defined “substantial burden.” The full court took the case en banc and heard argument on March 21, 2023.

On March 1, 2024, the en banc court affirmed 6–5. The ruling was unusually fractured, with two different six-judge majorities on two different questions. One majority, led by Chief Judge Murguia, overruled Navajo Nation and held that RFRA’s “substantial burden” test is broader than the older circuit precedent had allowed. A separate majority, in an opinion by Judge Collins, then held that RFRA incorporates the Supreme Court’s 1988 decision in Lyng v. Northwest Indian Cemetery Protective Association. Under Lyng, government action on its own land does not impose a substantial burden unless it coerces individuals into violating their beliefs, discriminates between religions, or denies equal rights. Because the transfer does none of those things, the second majority held, Apache Stronghold’s RFRA claim fails even though the site will be destroyed. The court also rejected the Treaty of Santa Fe claim, holding that Section 3003 overrode any contrary treaty obligation.⁸

Chief Judge Murguia dissented, joined in whole or in part by Judges Gould, Berzon, Mendoza, and Lee. The dissent argued that the utter destruction of a sacred site is plainly a substantial burden under the plain meaning of RFRA, and that the case should return to the district court to test whether the government could meet its burden of showing the transfer is the least restrictive means of achieving a compelling interest.¹⁰

Apache Stronghold petitioned the Supreme Court. On May 27, 2025, the Court denied certiorari; Justice Alito did not participate. Justice Gorsuch, joined by Justice Thomas, dissented, calling the denial “a grievous mistake—one with consequences that threaten to reverberate for generations.” Gorsuch argued the Ninth Circuit had created a special exception for government land dispositions that conflicts with at least six other federal circuits, and noted the Ninth Circuit covers roughly 74% of federal land and nearly a third of the country’s Native American population. The Court denied rehearing in October 2025.¹¹¹

The Transfer and the Last Emergency Appeals

With the Supreme Court out of the way, the Trump administration moved. The Forest Service republished the Final Environmental Impact Statement on June 20, 2025, restarting the 60-day clock, and placed the project on a “priority permitting list” following a March 2025 executive order.¹²

Alongside Apache Stronghold’s ongoing case, three related suits were filed: one by the San Carlos Apache Tribe, one by a coalition of environmental groups led by the Arizona Mining Reform Coalition, and one by a group of Apache women including Gouyen Brown Lopez, Sinetta Lopez, Nomie Brown, and Angela Kinsey, who added a claim that the transfer violated the parental right to direct their children’s religious upbringing.¹³

The Ninth Circuit granted a brief administrative stay in August 2025. On March 13, 2026, a three-judge panel of Circuit Judges Milan Smith, Daniel Bress, and Johnnie Rawlinson dissolved the stay and denied every injunction request. Writing for the majority, Judge Smith held the plaintiffs had not shown a likelihood of success on any claim and that the panel was bound on the religious liberty question by the earlier en banc decision. Judge Rawlinson dissented in part on land appraisal.¹⁴

The Forest Service signed a Record of Decision and completed the transfer of 2,422 acres to Resolution Copper on March 16, 2026. Hours later, seven Apache women filed an emergency application with Justice Elena Kagan asking the Supreme Court to intervene. Kagan denied the application on March 19, 2026.¹⁵

What Is Still Being Litigated

The transfer is done, but the case is not. On April 22, 2026, Apache Stronghold filed an amended complaint in federal district court in Phoenix asking the court to rescind the transfer. The filing characterizes what happened as an “illegal land grab,” arguing that the government finalized the conveyance overnight to head off pending emergency appeals and avoid judicial review.¹⁶ Resolution Copper has said the exchange was directed by Congress and repeatedly upheld in court, and that it has modified its mining plan to address cultural concerns.¹⁷

Because the land is now privately held, oversight of the project has shifted largely to state-level permitting. Resolution Copper says no decision has been made to begin mining and is in a two-year “enabling work” phase involving roughly $500 million in surface drilling and infrastructure. On May 28, 2026, the Town of Superior approved a water agreement with the company that includes more than $20 million in water mitigation commitments. Additional state permits and reviews are still required before mining can begin.¹⁸

Who Apache Stronghold Is

Apache Stronghold is a nonprofit founded and led by Dr. Wendsler Nosie Sr., born July 10, 1959, on the San Carlos Apache Reservation and elected chairman of the San Carlos Apache Tribe in 2006. Nosie traces the beginning of his activism to being arrested while praying at Mount Graham, another sacred site threatened by development.¹⁹²⁰ For more than five years before the transfer, Nosie maintained an encampment at Oak Flat to hold prayer and ceremony at the site. He has testified before Congress alongside his granddaughter, Naelyn Pike. After the March 2026 transfer, Nosie said the fight will continue.²¹

1
Becket Fund for Religious Liberty. Apache Stronghold v. United States
2
American Bar Association. Protecting Land on Religious Freedom Grounds
3
GovInfo. Legislative Hearing on H.R. 1884Chichil Bildagoteel
4
Resolution Mine EIS. Project Overview
5
University of Colorado Law Review. Southeast Arizona Land Exchange Analysis
6
Resolution Mine EIS. NDAA Section 3003
7
Advisory Council on Historic Preservation. Background on Resolution Copper Project
8
U.S. Court of Appeals for the Ninth Circuit. Apache Stronghold v. United States, No. 21-15295
9
The Guardian. Arizona Oak Flat Biden Administration Pauses Transfer
10
Native American Rights Fund. Apache Oak Flat
11
Supreme Court of the United States. Apache Stronghold v. United States, No. 24-291
12
Arizona Republic. Federal Government Oak Flat Mine Environmental Impact
13
U.S. Court of Appeals for the Ninth Circuit. Lopez v. United States, No. 25-5185
14
Courthouse News. Ninth Circuit Thwarts Attempt to Halt Copper Mine on Apache Land
15
Native News Online. Fight for Oak Flat Wages on Despite Land Transfer
16
Becket Fund for Religious Liberty. Apache Stronghold Returns to Court to Halt Destruction of Oak Flat
17
Our Sunday Visitor. Indigenous Coalition Continues Challenge to Mining Project on Religious Liberty Grounds
18
Resolution Copper. Current Status
19
Facing Race. Dr. Wendsler Nosie Sr.
20
KJZZ. Resolution Copper Now Owns Oak Flat but Apache Stronghold Leader Says Fight Will Continue
21
U.S. Congress. Testimony of Wendsler Nosie Sr.