A closely divided panel of federal judges on Friday rejected an Apache religious challenge to the construction of a massive copper mine in Oak Flat, a tract of land in Arizona that tribal members consider sacred and irreplaceable.
Members of the tribe, who go by the name Apache Stronghold, denounced the ruling in the closely watched case and vowed to continue fighting with an appeal to the U.S. Supreme Court.
“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 Sr., an Apache elder and leader of the group, said in a statement. “Today’s ruling targets the spiritual soul of my people, but it will not stop our fight to save Oak Flat.”
Vicky Peacey, president and CEO of Resolution Copper, the company behind the proposed project, welcomed the decision.
“There is significant local support for the project, which has the potential to meet up to a 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. paper for more than a century,” Peacey said in a statement. “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 concerns that have arisen, based on more than a decade of government consultations and reviews. .”
Apache Stronghold had asked the court to block construction of the planned mine on the grounds that it would violate their constitutionally protected religious rights and an 1852 treaty between the United States and the Apache. The group said Oak Flat, on the edge of the Tonto National Forest outside Phoenix, not far from the San Carlos Apache Indian Reservation, is a unique, biodiverse archaeological site used for religious ceremonies that cannot be held anywhere else. .
According to federal planning records, the multibillion-dollar mine would transform Oak Flat, which Apaches call Chí'chil Bildagoteel, into an industrial crater nearly two miles wide and 1,000 feet deep to access one of the largest untapped copper ores. . deposits in the world.
Resolution Copper is a subsidiary of multinational mining companies Rio Tinto and BHP Group. Aside from the court challenge, the project remains under federal environmental review.
Mining pit infrastructure is seen at Oak Flat, a piece of desert in Arizona that is sacred to the Apache tribe.
(Luis Sinco/Los Angeles Times)
In a 6-5 ruling by the U.S. Court of Appeals for the Ninth Circuit, Judge Daniel P. Collins wrote that Apache Stronghold's religious claims failed because, while the government's transfer of federal lands to Resolution Copper would significantly interfere with their ability to practice their religion, not “coerce” them to act contrary to their religious beliefs, “discriminate” or “penalize” them, or deny them rights or privileges granted to other citizens.
Collins, a President Trump appointee whose opinion upheld a lower court decision, wrote that Apache Stronghold had not only asked the government to allow them the free exercise of religion, but also “de facto” ownership of a “ quite spacious expanse” of public land. property, a request that, according to him, should be rejected.
Collins was joined by Judge Carlos T. Bea, a George W. Bush appointee, and four other Trump appointees to the court: Mark J. Bennett, Ryan D. Nelson, Danielle J. Forrest and Lawrence VanDyke.
Resolution Copper's proposed mine is east of Phoenix, near the small town of Superior, Arizona.
(Paul Duginski / Los Angeles Times)
In a dissent joined by all or largely the remaining judges on the panel, Ninth Circuit Chief Judge Mary H. Murguia, an Obama appointee, wrote that the “total destruction” of Oak Flat clearly represented a “substantial burden.” for the Apaches. religious rights under the federal Religious Freedom Restoration Act and should therefore be blocked, and the case returned to the lower courts for reconsideration.
“This conclusion is consistent with the First Amendment's protection against government conduct that prohibits the free exercise of religion, because the destruction of the Apache sacred site will prevent worshipers from ever exercising their religion again,” Murguía wrote.
Several other justices also wrote their own dissents and concurrences, reflecting a diverse range of opinions in a complex case that has created strange bedfellows, uniting religious conservatives with liberal environmental activists and sparking the interest of a wide range of other interest groups. , from heavy industry to megachurches to climbing enthusiasts.
Attorneys for Apache Stronghold said the split nature of the court's decision put the case “on the fast track” to the Supreme Court.
“Blowing a sacred Native American site into oblivion is one of the most egregious violations of religious liberty imaginable,” said Luke Goodrich, an attorney for the group. “The Supreme Court has a strong record of protecting the religious freedom of people of other faiths, and we fully expect the Court to uphold that same freedom for Native Americans who simply want to continue fundamental religious practices at a sacred site that has been theirs. belonged. since before the United States existed.”
Mila Besich is the mayor of Superior, Arizona, a historic mining community east of Phoenix.
(Luis Sinco/Los Angeles Times)
It is unclear whether the conservative-leaning high court will actually see legal grounds to review the decision.
Nosie's granddaughter, Naelyn Pike, 24, a prominent youth voice in the battle, told the Times that Friday's decision was a reminder of her people's “heritage of colonization and oppression,” and that religious people in all trends should reject.
“Indigenous leaders and all religious leaders in this country must maintain their resilience through faith and prayer so that we can fight religious oppression,” he said.
Mila Besich, mayor of nearby Superior, Arizona, welcomed the decision.
“This has been something we've all been waiting for, one way or another,” he said.
(Paul Duginski / Los Angeles Times)
The mine promises to bring thousands of jobs to Superior, and Resolution Copper has already donated millions of dollars to the city for building renovations, business development, schools, roads and other projects.
Besich said the court's decision appeared to be well-reasoned and he hopes it will help overcome other obstacles, including the pending federal environmental review, and expedite the mine's promised contracting.
“When this mine finally opens, it will bring good-paying jobs to our community, increasing the vitality of our community and our sustainability,” Besich said. “Mining is one of the last job sectors where people can make a living for their families without needing a college degree.”
Copper is used in electric vehicles and many other modern technologies, and Besich said his city wants to boost the “green economy” of the future while building a firm economic foundation that will allow Superior to advance well into the future, well beyond the 60s. years projected for the mine. -years of useful life.
The copper deposit thousands of feet below Oak Flat contains about 1.4 billion tons of ore, containing about 40 billion pounds of copper, according to federal records.
Resolution Copper's plans call for the deposit to be blasted into small pieces and removed through mining shafts. As a result of that process, the surface above—the sun-drenched, cactus-covered landscape of Oak Flat—will slowly sink into itself, according to plans.
