Court of Appeals agrees with San Carlos Apache Tribe, shoots down Resolution Copper discharge permit

Contributed File Photo/Courtesy Sacred Land Film Project: Oak Flat, Chich’il Bildagoteel, is at the center of a dispute between the San Carlos Apache Tribe and Resolution Copper. On Tuesday, the Court of Appeals ruled a permit for the proposed Resolution Copper Mine was incorrectly issued.

Contributed Article/Courtesy San Carlos Apache Tribe

San Carlos Apache Reservation — In a major legal victory for the San Carlos Apache Tribe, an Arizona appeals court ruled Tuesday that the Arizona Department of Environmental Quality (ADEQ) illegally issued a Clean Water Act (CWA) permit for the proposed Resolution Copper Mine. The decision, which also overturned a Maricopa County Superior Court ruling, orders ADEQ to restart the permitting process “consistent” with provisions in the court’s opinion.

The ruling is a major setback for Resolution Copper Company’s plans to construct a massive underground copper mine 70 miles east of Phoenix. The Tribe has vehemently opposed the construction of the mine because it will destroy Oak Flat, a sacred Apache religious site located in the Tonto National Forest.

“We are very satisfied with this decision as the proposed Resolution Copper Mine would inflict a cultural and environmental disaster on our sacred lands within the Tonto National Forest,” says San Carlos Apache Tribe Chairman Terry Rambler. “Resolution is owned by the two largest foreign mining companies in the world and intends to destroy a vast area of national forest to extract copper that will be exported overseas, most likely to China.”

In a 2-1 decision, the appeals court ruled that the ADEQ improperly issued an Arizona Pollution Discharge Elimination Permit (APDEP) to Resolution Copper. The court ruled the agency issued the permit before it set pollution limits on what Resolution could release into Queen Creek, which is already an impaired waterway polluted from a century of copper mining in the area.

The court ordered ADEQ to first establish Total Maximum Daily Load (TMDL) pollution standards that Resolution Copper must meet before it issues the APDEP permit. The ADEQ had drafted a TMDL in 2017 but stopped the process in 2018 and has done little since then. Instead, ADEQ determined that the Resolution mine was not a new pollution source because it is part of an existing mining complex that began operations in 1912 and therefore not subject to TMDL pollution standards that were adopted in the 1980s.

The appeals court, however, determined that Resolution’s plan to mine a new deposit 7,000 feet below ground containing about 40 billion pounds of copper qualified as a new pollution source under the Clean Water Act and therefore subject to TMDL standards.

“To comply with the CWA and for ADEQ to permit Resolution’s site, Resolution and ADEQ must finalize the ongoing TMDLs for Queen Creek, and Resolution must show the site will comply with applicable water quality standards,” Judge David B. Gass stated in the opinion issued by the Arizona Court of Appeals Division One.

“The fact ADEQ illegally avoided issuing the TMDL standards is a clear indication that Resolution will face significant challenges in meeting regulations that would allow the company to discharge additional contaminated water into an already polluted Queen Creek,” Chairman Rambler said.

“It took more than five years of legal challenges to finally force ADEQ to follow the law,” he said. “And we intend to keep fighting on all legal fronts to stop Resolution from destroying our sacred sites and inflicting environmental destruction across a vast area of Tonto National Forest.”