A federal appeals court was asked – for a second time – to consider whether the proposed Resolution Copper Mine will infringe on the religious rights of local Apache by creating a massive crater on land that tribal members consider sacred. It is the latest twist in a years-long fight over the project. Photo by Jamie Cochran | Cronkite News
WASHINGTON – Attorneys for Apache Stronghold told a federal appeals court Tuesday that the proposed Resolution Copper Mine would lead to the “complete physical destruction” of sacred lands at Oak Flat, a clear violation of religious liberty laws.
“The government’s position in this case is that it can obliterate a place of worship for any reason or none at all, and not face consequences under federal religious liberty law,” said Luke Goodrich, who represented Apache Stronghold before the 9th U.S. Circuit Court of Appeals.
“We asked the court today to recognize the obvious – that when the government destroys a sacred site, religious liberty law has something to say about it,” said Goodrich, senior counsel at Becket Law, in the prepared statement.
But supporters of the mine and attorneys for the government – which is conducting studies of the project in preparation for turning the land over to Resolution Copper – told the judges the plan calls for some land to be preserved at Apache Leap where tribes can worship. There is no reason for courts to step in and reverse an action Congress has set in motion, they said.
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“This case is not about an agency action, it’s about an act of Congress,” said Joan Pepin, an attorney for the government. “It decided that Apache Leap shall be preserved for Native uses, for religious and cultural uses, and it decided that Oak Flat shall be transferred to Resolution Copper, so that the third-largest copper ore deposit in the world can be mined.”
The project at Oak Flat could become the largest copper mine in North America, according to Resolution Copper, producing up to one-fourth of the nation’s annual copper demand. The site is expected to generate up to $61 billion for the state’s economy over decades of mining and create 3,700 direct and indirect jobs, the company claims.
Critics say those benefits come at too steep a cost, disturbing wildlife, threatening the region’s water supply and dumping millions of tons of mine waste. The most obvious consequence will be a crater in place of the current Oak Flat that could be two miles long and 1,000 feet deep.
That would destroy lands sacred to the San Carlos Apache, but the question before the circuit court was whether doing so would place a substantial burden on the tribe’s religious rights.
“Oak Flat is where my people have come to connect with our Creator for millennia, and we have the right to continue that sacred tradition,” said Wendsler Nosie Sr., a leader of Apache Stronghold, in a prepared statement. “Today we stood up in court for that right, determined to stop those who think that our place of worship can be treated differently simply because it lacks four walls and a steeple.”
But a spokesperson for Resolution Copper said the mine remains “committed to maintaining an open dialogue with all stakeholders, including Native American tribes.”
“This project has been shaped by years of community input, and we believe we can protect the area’s cultural heritage while still creating new economic opportunities that will put Arizona resources and workers at the center of the nation’s clean energy transformation,” the statement said.
Resolution has been working since 2004 to open the mine near Superior. The project took off in late 2014, when then-Sen. John McCain, R-Ariz., amended a must-pass Defense spending bill to include language that cleared the way for the mine.
That amendment called for the government to swap 2,422 acres of land in southeastern Arizona in exchange for 5,344 acres of land owned by Resolution – once environmental, cultural and archaeological studies on the project were completed.
The exchange was on the verge of taking place in early 2021 with the release of a final environmental impact statement on the project, but the newly installed Biden administration pulled the document back for further review at the last minute. The Forest Service has not released a revised statement in the intervening two years, but Pepin said it could be released in the near future.
The project has been subject to repeated legal challenge and Tuesday was the second time the 9th Circuit has considered the religious rights claim over the project. A divided panel of the court ruled in June that while the mine might “make it more difficult” for the Apache to worship at Oak Flat, it would not deny them that right – reasoning the dissenting judge called “illogical” and “flawed.” The full circuit court announced in November that it would review that ruling.
Goodrich argued Tuesday that current laws make clear that the government would be burdening religious rights if it put up “No trespassing” signs on federal land where people wanted to pray or fined them for doing so.
“That’s where we all agree, a fine is a substantial burden, but here the government is doing something far worse,” Goodrich said to the judges. “Not just threatening fines, but authorizing the complete physical destruction of Oak Flat, barring the Apaches from ever accessing it again and ending their core religious exercises forever.”
But David Debold, arguing on behalf for groups that sided with the government, said concessions have been made to ensure that people who want to worship at Oak Flat will still be able to do so. And there are still years of study and work before mining can begin in earnest, if the project proceeds at all, he said, once the land is transferred into private hands.
“That private entity is going to take years of further analysis and development to decide whether it even goes forward with the mine, and if so, whether that mine will impact such things as the Oak Flat campground,” Debold said.
Stephanie Barclay, who argued Tuesday on behalf of the National Congress of American Indians and other tribal groups, said in a statement after the hearing that she is hopeful the court will “correct a troubling double standard in the law that has disenfranchised Native American practitioners.”
“I’m optimistic that the court will issue a ruling that reinforces the important protections the Religious Freedom Restoration Act provides for people of all faiths, and for all places of worship, whether church, mosque, synagogue or a sacred place like Oak Flat,” her statement said.
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