A coalition of Apache and other Indigenous people in Arizona plan to
take their fight against the destruction of an Apache holy site to the
U.S. Supreme Court, after a federal appeals court ruled Friday to allow
the planned construction of a copper mine in Arizona.

An en banc
Ninth Circuit panel upheld for the second time on Friday the denial of
preliminary injunction against an ownership transfer of the Oak Flat
from the federal government to a private mining company that plans to
swallow the site in a copper mine nearly two miles wide. Apache
Stronghold, on behalf of the San Carlos Apache Tribe, requested the
injunction, claiming the action violates the Religious Freedom
Restoration Act. 

“Oak Flat is like Mount Sinai to us. Our most
sacred site where we connect with our Creator, our faith, our families,
and our land,” Wendsler Nosie, former chairman of the San Carlos Apache
Tribe, said in a statement. “Today’s ruling
targets the spiritual lifeblood of my people, but it will not stop our
struggle to save Oak Flat. We vow to appeal to the Supreme Court.”

Located
in the Tonto National Forest and known to Apache people as Chi’chil
Bildagoteel, the Oak Flat is host to the Apaches’ most sacred religious
gatherings, which cannot be held anywhere else. 

Apache Stronghold — dedicated to the protection of indigenous holy sites — sued
the government and the federal Forest Service in January 2021 over the
potential transfer, challenging the Forest Service’s final environmental
impact statement on the action.

The land has been in the trust of
the federal government since the Treaty of Santa Fe in 1852. It was
declared off limits to mining in 1955, but a 1971 renewal of that law
left an exception — if it’s sold to a private entity, mining can occur. 

More
than 40 years later, Congress authorized a land transfer to Rio Tinto
and BHP Billington Mining companies, two parent companies of Resolution
Copper, the company planning to build the mine. 

The Stronghold
was denied a temporary restraining order, later appealing that decision
to a Ninth Circuit panel in February 2021. The panel ruled 2-1
against the restraining order in June 2022, but the circuit agreed to
rehear the argument in a rare en banc panel of 11. The expanded panel heard arguments again in March 2023. 

It took nearly a year for 11 judges to come to the same decision as before in a 6-5 ruling in favor of the government.

Resolution Copper celebrated the decision for the economic potential of the mine. 

“There
is significant local support for the project, which has the potential
to supply up to one quarter of U.S. copper demand, add up to $1 billion a
year to Arizona’s economy, and create thousands of local jobs in a
region where mining has played an important role for more than a
century,” Resolution Copper President Vicky Peacey said in a statement
to Courthouse News. “As we deliver these benefits to Arizona and the
nation, our dialogue with local communities and Tribes will continue to
shape the project as we seek to understand and address the concerns that
have been raised, building on more than a decade of government
consultation and review.”

In 2020, a Rio Tinto iron mining project in Australia destroyed two rock shelters
inhabited by indigenous people for 46,000 years. Opponents of the Oak
Flat mine fear similar consequences for the Apache holy land. 

U.S.
Circuit Judge Daniel Collins, a Donald Trump appointee, wrote on behalf
of the en banc majority that Apache Stronghold failed on all of its
claims. 

The Ninth Circuit ruled that the government’s transfer of
publicly-owned land can’t violate the Religious Freedom Restoration Act
because it would have no “tendency to coerce” the Apache people “into
acting contrary to their religious beliefs,” nor does the elimination of
public land deny them equal rights enjoyed by any other citizens.

For those reasons, Collins wrote, the land transfer doesn’t “substantially burden a person’s exercise of religion.”

Apache
Stronghold also argued that the Sante Fe Treaty of 1852 — which
promised protection and resources to the Apaches— required the
government to hold the land in trust and not release it to private
ownership. But the Ninth Circuit found the general statements of a peace
treaty were subordinate to Congress’ statutory obligation to approve
the transfer. 

In a dissenting opinion, five judges — led by Chief
U.S. Circuit Judge Mary Murguia, a Barack Obama appointee — argued that
the majority’s definition of “substantial burden” is far too narrow.
They said that land transfer is a substantial burden because it
“oppresses or restricts” the Apaches ability to practice their religious
ceremonies. 

Apache Stronghold has 90 days to appeal to the U.S. Supreme Court, which accepts less than 2% of cases submitted to it. 

The Department of Justice didn’t immediately reply to a request for comment.