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Federal court won't stop land transfer of Oak Flat, sacred to the Apaches, to mining company

Coverage of tribal natural resources is supported in part by Catena Foundation

A federal appeals court authorized the transfer of Oak Flat, a spiritual site nestled in the Tonto National Forest and considered sacred by Apaches, to a foreign-owned mining company on Friday.

In a divided 6-5 decision from a rare eleven-judge panel, the 9th U.S. Circuit Court of Appeals affirmed a lower court ruling that the site of the planned Resolution Copper mine is not subject to any federal laws protecting religious freedom, like the American Indian Religious Freedom Act of 1978.

But the dissenting judges wrote that the decision misreads precedent and uniquely harms the religious exercises of Native Americans.

The tribal members who brought the case, who go by the name Apache Stronghold, have already vowed to appeal this decision to the U.S. Supreme Court. That nonprofit has been represented by Becket, a D.C.-based public interest law firm focused on religious liberties, since this case’s filing in 2021.

They have 90 days to appeal this new ruling.

Wendsler Nosie, who has led Apache Stronghold’s fight, vowed to appeal to the U.S. Supreme Court the decision by the rare 11-member “en banc” panel of the 9th U.S. Circuit Court of Appeals.

“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,” Nosie said. “Today’s ruling targets the spiritual lifeblood of my people, but it will not stop our struggle to save Oak Flat.”

Apache Stronghold represents the interests of certain members of the San Carlos Apache Tribe. The Western Apaches consider Oak Flat, which is dotted with ancient oak groves and traditional plants, essential to their religion.

Oak Flat also sits atop the world's third-largest deposit of copper ore.

An environmental impact survey for the project was pulled back while the U.S. Department of Agriculture consulted for months with Native American tribes and others about their concerns.

Apache Stronghold had sued the government to stop the land transfer, saying it would violate its members’ rights under the free exercise clause of the First Amendment, the Religious Freedom Restoration Act and an 1852 treaty between the United States and the Apaches.

The majority opinion of the appeals panel said that “Apache Stronghold was unlikely to succeed on the merits on any of its three claims before the court, and consequently was not entitled" to a preliminary injunction.

The dissenting five judges in the group said the majority had “tragically” erred and will allow the government to “obliterate Oak Flat.”

Resolution Copper President and General Manager Vicky Peacey welcomed the ruling, saying there was significant local support for the project, which has the potential to supply up to one quarter of U.S. copper demand.

Peacey said the money could bring as much as $1 billion a year to Arizona’s economy and create thousands of local jobs in a traditional mining region.

"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,” Peacey said.

U.S. Raúl M. Grijalva, an Arizona Democrat, called the court's decision “wrong.”

“Tribal communities deserve the same religious freedom protections for their sacred sites that are respected for every other American,” Grijalva said. “The court acknowledges that foreign-owned Resolution Copper will completely and irreversibly desecrate Oak Flat, but they’re giving them the green light anyways.”

"It’s a slap in the face to tribal sovereignty and the many tribes, including the San Carlos Apache, who have been fighting to protect a site they have visited and prayed at since time immemorial," he added.

Apache Stronghold's fight for Oak Flat through the years

Oak Flat protest at Sen. Mark Kelly's office
Oak Flat, known to the Apache as Chi’Chil’Ba’Goteel, was federally protected until it became part of a land swap approved by federal officials in 2014.

November 2013: Resolution Copper introduces its initial general plan of operations for a proposed mine at Oak Flat.

Dec. 12, 2014: The U.S. Senate approves a must-pass military spending bill that included the Oak Flat land swap, giving the national forest property to mining companies for development of America’s largest copper mine. A rider tucked into the legislation called for Resolution Copper to get 3.75 square miles (9.71 square kilometers) of forest land in return for eight parcels it owns in Arizona.

March 4, 2016: The Forest Service adds Oak Flat to the National Register of Historic Places. Arizona Republican Congressman Paul Gosar and Democratic Rep. Ann Kirkpatrick oppose the historic place designation, with Gosar saying it is “sabotaging an important mining effort.”

May 24, 2020: A Rio Tinto iron mining project destroys two rock shelters that were inhabited by Indigenous people for 46,000 years in Juukan Gorge in Western Australia state, prompting the resignation of the company CEO.

Jan. 12, 2021: Apache Stronghold sues the federal government, saying the Forest Service cannot legally transfer the land to Rio Tinto for several parcels the company owns and maintains the land around Oak Flat was reserved for Western Apaches in an 1852 treaty with the U.S.

Feb. 12, 2021: A federal judge rejects the request to keep the Forest Service from transferring the land to Resolution Copper. saying that because Apache Stronghold is not a federally recognized tribe it lacks standing to argue the land belongs to Apaches.

Oak Flat protest at Sen. Mark Kelly's office
Demonstrators gather outside of the Phoenix offices of Sen. Mark Kelly on Dec. 2, 2021, to urge him to support the Save Oak Flat Act.

March 1, 2021: The U.S. Department of Agriculture pulls back an environmental review that had cleared the way for the land swap, saying it needed more time to consult with Native American tribes and others.

Oct. 21, 2021: Apache Stronghold asks a three-member panel of the 9th U.S. Circuit Court of Appeals to keep Rio Tinto from getting the Oak Flat property. Months later, the panel issues a 2-1 decision that the federal government can give the Oak Flat land to Rio Tinto, but then agrees to let a larger appeals panel hear the case.

March 21, 2023: Apache Stronghold tells a full panel of the 9th U.S. Circuit Court of Appeals that the Resolution project would prevent Native American groups from exercising their religion by destroying land they consider sacred. The 11-member panel says it will issue a decision in the coming months.

March 1, 2034: An 11-member “en banc” panel of the 9th U.S. Circuit Court of Appeals votes 6-5 to uphold a lower court’s denial of a preliminary injunction to halt the transfer of land for the project.

San Carlos Apache Oak Flat mine protest
In this 2015 photo, members of the San Carlos Apache tribe gather at the Capitol to protest a proposed copper mine at Oak Flat.

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Gabriel Pietrorazio is a correspondent who reports on tribal natural resources for KJZZ.