PHOENIX (CN) - A federal judge chastised the government on Monday for going back on its agreement to negotiate with parties challenging the transfer of an Apache holy site to the hands of a copper mining company. 

Department of Justice Attorney Erika Norman said in a Phoenix courtroom Monday that the U.S. Forest Service will transfer ownership of Apache holy land known as the Oak Flat to Resolution Copper, which plans to swallow 2,000 acres of the site in a two-mile-wide mine, as soon as it publishes its final environmental impact statement by June 16. Four years earlier, though, it agreed to stay legal proceedings until the publication of the new environmental impact statement and said it would hold off on the land transfer until plaintiffs can file new motions for preliminary injunction.

"It frankly sounds to me like the government changed its position, and now you're pretending like you didn't," U.S. District Judge Dominic Lanza told Norman. "Please take another run at reconciling your current position."

Norman said the government never agreed to delay the land exchange, but only to stay the case until the environmental impact statement is published. If plaintiffs wish to enjoin the new impact statement, she said the court must lift the stay now to give the plaintiffs time to file motions for preliminary injunction on a document that hasn't been published yet. 

Lanza laughed and shook his head. "OK, that's the DOJ's position," the Donald Trump appointee said. "Got it." 

The San Carlos Apache Tribe, Arizona Mining Reform Reform Coalition and more than a dozen other groups sued the federal government in 2021, challenging the Forest Service's environmental impact statement finding no adverse impact from the proposed resolution copper mine, even though the mine will tear through the heart of one of the Western Apache's most sacred sites. 

To stop the land transfer, the plaintiffs must show that the agency's impact statement fails to identify significant impact in violation of federal law. Once the land transfer is completed, it cannot be challenged. 

The parties filed a joint status report in March 2021, agreeing to work out a schedule for arguments on the new impact statement and allow time for Lanza to rule on any motions before the land is transferred. 

"Why did the government agree to work in good faith to develop a manageable schedule for briefing a motion before the anticipated date of conveyance? Why would you need to do that if the conveyance can happen the day after the FEIS comes out?" Lanza demanded.

Without directly answering Lanza's questions, Norman said the 60-day notice prior to the statement's release is the time given for parties to make appropriate motions. 

"How's that true if you also agreed that the stay wouldn't need to be lifted until the FEIS is issued?" he rebutted.

"Why do we have these 60 days, your honor? Certainly, it's to do something about it," Norman answered. 

The plaintiffs say they planned to challenge the environmental impact statement based on the Religious Freedom Restoration Act, even though the Ninth Circuit has already dismissed that argument twice in a similar case filed by the nonprofit Apache Stronghold. Attorney Marc Fink, representing the Center for Biological Diversity, said he expected the government to give the plaintiffs time to review the new impact statement so it can go forward with a motion for injunction before it's too late. 

"As you have heard today, the government does not intend to adhere to that," Lanza told him. 

Though angry, Lanza agreed with the government that he cannot order the delay of the land transfer without a motion for injunction, so he lifted the stay and ordered briefing for a motion for preliminary injunction, setting oral arguments for June 6. 

"We'll do our best to show a lack of compliance based on the old EIS," Fink said. 

In the Apache Stronghold case, plaintiffs will argue before U.S. District Judge Steven Logan on Wednesday to stay the land transfer while the Supreme Court decides whether to take their appeal from the Ninth Circuit. If Logan stays the transfer, plaintiffs in this case would have more time to challenge the new impact statement.

Source: Courthouse News Service