Split appeals court advances transfer of sacred Apache site to copper miners

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A man wears a hat which reads "You are on Indian Land", as members of the Apache Stronghold gather near the 9th U.S. Circuit Court of Appeals in San Francisco, California October 22, 2021. REUTERS/Carlos Barria
  • Majority finds no ‘substantial burden’ on religious liberty; dissent calls that ‘absurd’
  • Nonprofit challenger Apache Stronghold vows Supreme Court fight

(Reuters) - Neither the U.S. Constitution nor the Religious Freedom Restoration Act prevent the government from transferring a sacred Native American site in Arizona to a private company that plans to turn it into a copper mine, a divided federal appeals court held.

In a 2-1 split Friday, the 9th U.S. Circuit Court of Appeals ruled that the congressionally-authorized land swap with Resolution Copper can move forward while nonprofit Apache Stronghold’s lawsuit against it is pending.

The majority said Supreme Court and circuit precedent require Apache Stronghold to show that the government is either denying it a benefit, or imposing a penalty, due to conduct that its religion requires.

Transferring 2,400 acres out of the Tonto National Forest’s Chi’chil Biłdagoteel Historic District – commonly known as Oak Flat – would not meet that standard “even if the Land Exchange makes worship on Oak Flat ‘impossible’,” Circuit Judge Carlos Bea wrote, joined by Chief Circuit Judge Mary Murguia.

Circuit Judge Marsha Berzon called that conclusion “absurd.” So did Apache Stronghold, which immediately vowed to take the fight to the U.S. Supreme Court.

“Today’s decision is, as the dissent says, ‘absurd,’ ‘illogical,’ and ‘incoherent’,” lead counsel Luke Goodrich of The Becket Fund for Religious Liberty wrote in a statement on Friday. “If anything violates the free exercise of religion, it is the complete destruction of a sacred site that ends religious practices forever.”

The U.S. Department of Agriculture (which includes the Forest Service) and the agencies’ attorneys did not immediately respond to requests for comment.

Resolution Copper - a joint venture between Australian mining firms Rio Tinto and BHP - is not a party to the suit and had no immediate comment. Its website highlights efforts to minimize the proposed mine’s environmental, cultural, and religious impacts.

According to the 9th Circuit, Oak Flat is where the Apache believe their creators, saints, saviors, and holy spirits live and can communicate with them.

It is also “one of the largest undeveloped copper deposits in the world,” the 9th Circuit said. After years of failed attempts at passing a bill to transfer the land, Congress ordered USDA to arrange a swap with Resolution Copper as part of the National Defense Authorization Act of 2014.

The transfer is contingent on other conditions, including the preparation of a final Environmental Impact Statement (EIS).

The Forest Service published a final EIS on Jan. 15, 2021.

The Biden Administration rescinded that EIS that March for further study, but continues to oppose Apache Stronghold’s suit for an injunction.

The case is Apache Stronghold v. USA et al., 9th U.S. Circuit Court of Appeals, No. 21-15295.

For Apache Stronghold: Luke Goodrich, Mark Rienzi, Diana Thomson of The Becket Fund for Religious Liberty; Michael Nixon; Clifford Levenson

For the USA et al: Joan Pepin and Katelin Shugart-Schmidt, U.S. Justice Department

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