Here’s the letter Joan Pepin, US Forest Service attorney, sent to the Clerk of the US Court of Appeals for the Ninth Circuit yesterday afternoon. Reuters has the full story, with comment from Rio Tinto, the San Carlos Apache, and the Mayor of Superior, Arizona, who fears investors will be scared away because “the federal government can’t make up its mind.”

I thought I should have a look at the actual Pepin letter and share it, along with the parts of the argument video to which her letter refers — two exchanges dealing with representations made by the US government in Apache Stronghold v. USA. I allowed a little extra discussion in the second clip because it provides important context.


The Biden administration is sure to take some flack over this latest delay, especially because Resolution Copper is “hoping to supply more than a quarter of U.S. copper demand for the energy transition.” Republicans will cry hypocrisy. But the case could also reflect poorly on the Trump administration, which appears not to have taken its formal consultation responsibilities seriously.

In November 2020, just after the election and before her nomination as Secretary of the Interior, Deb Halaand said the Trump administration had “tossed tribal consultation out the window.” A 2020 Harvard Law school report found that “a lack of foundational recognition of tribal sovereignty and the importance of nation to-nation relationships” during the Trump administration had “[undermined] consultation and collaborative efforts.” Upon taking office, Biden set out to repair the damage done by his predecessor, issuing an executive order that reaffirmed the government-to-government relationship and reinstated the consultation mandate.

At a prayer vigil outside the White House last month, San Carlos Apache Tribal Vice Chairman Tao Etpison said “no meaningful consultation has occurred with tribes.” And yet, he added, “the administration is moving forward to give the copper to the Chinese” because that is the most likely place the ore would go for processing.

These are, by now, all familiar political themes of the energy transition: the need for meaningful consultation (and consent), conflicts over land and water use, complaints of administrative delay (and calls for permitting reform), China’s strategic advantage and outsize influence. How we address these issues will determine the kind of transition we ultimately get.