Can a copper mine destroy an Apache holy site? The 9th Circuit will decide
In arguments before an en banc Ninth Circuit on Tuesday, counsel for Apache Stronghold told the 11 judges that a copper mine intended to be built on Apache holy land puts a “substantial burden” on the Apache people’s freedom to exercise their religion.
Whether the judges agree with that assessment will decide whether the U.S. Forest Service can complete a land exchange with a private company, allowing it to construct a copper mine on a piece of land in the Tonto National Forest called Oak Flat. That land, called Chi’chil Bildagoteel by Native tribes, is host to the Apache tribe’s most sacred religious gatherings, which their beliefs say can’t be held anywhere else.
The Oak Flat has been in the trust of the federal government since the Treaty of Santa Fe in 1852. The land was again protected from mining for religious preservation in 1955, but a legal loophole in a 1971 renewal of the law allows for mining if the land is sold to a private entity. Nothing happened with the land until 2013, when Resolution Copper announced plans for a nearly two-mile wide, 1,100-foot deep mine that would cut off all access to the land once complete.
The 2014 National Defense Authorization Act included language allowing a land transfer to Rio Tinto and BHP Billington Mining companies, two parent companies of Resolution Copper.
Apache Stronghold, a nonprofit that protects Native American holy sites, sued the federal government and the Forest Service in January 2021 over the Forest Service’s final environmental impact statement, which is the last step required before the land transfer takes place. The Stronghold moved for a temporary restraining order, which was denied, and later appealed that decision to a Ninth Circuit panel in February 2021.
The panel ruled 2-1 against the restraining order in June 2022, but agreed to an en banc rehearing. Meanwhile, the USDA directed the Forest Service to rescind its impact statement in March 2021 to allow for additional review. The Forest Service now plans to re-release the report in the coming months.
What is a substantial burden?
Apache Stronghold attorney Luke Goodrich said transferring the Oak Flat to a private company constitutes a substantial burden under the Religious Freedom Restoration Act because it would bar Apache people from practicing religious ceremonies they can’t practice anywhere else.
Goodrich said a substantial burden in this context would depend on “how much physical destruction there is.”
“Closing off and swallowing up the land and taking it away forever, that is a substantial burden,” he said.
U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, took issue with that reasoning and said it discriminates between “land-based religions” and “more spiritual religions.”
Joan Pepin, representing the Forest Service, recharacterized the action not as one taken by an agency, but by Congress when it passed the 2014 defense authorization act.
“Since it's an act of Congress, RFRA doesn’t give this court the tools to nullify that,” she said.
She told the panel the conflict isn’t about substantial burden, because a deliberate act of Congress should override the Religious Freedom Restoration Act.
“A person’s religious liberty rights have never included the right to tell the government what it may or may not do,” she said.
If the court does have to decide whether it’s a significant burden, she said, then it must consider that releasing the impact statement isn’t an action directed at a specific person or group. Rather, the government is simply taking action on a piece of land it already owns, and that action happens to affect a group of people.
“Burden is a term of art,” she said. “It requires the government to do something to the person.”
Is the 1852 Santa Fe Treaty still enforceable?
Goodrich argued that because of the deep history between the Apache people and the Oak Flat, the people retain a right to worship there.
“This was Apache land and the government took it by force,” he said.
The Stronghold mentions the 1852 Santa Fe treaty in the original lawsuit, but the judges weren’t convinced that it can still be applied today.
“What if we don’t agree that (Oak Flat) is held in trust?” asked U.S. Circuit Judge Ryan Nelson, a Trump appointee.
Goodrich maintained the people still have a right to worship on the land, regardless of the treaty.
U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, noted that a clause in the 1852 treaty advises the government “to pass laws conducive to the happiness and prosperity of the tribe.”
“Doesn’t destroying their sacred mountain go against that?” he asked.
Pepin said the treaty is “just a peace treaty,” and “general language like that cannot be used to create any enforceable rights.”
The panel didn’t indicate when it will rule.