9th Circuit Decision Denies Apache Stronghold Request for Preliminary Injunction

By Isaac White.

The Apache Stronghold, a coalition of tribal citizens from the San Carlos Tribe alongside other Native American groups, faced a major legal defeat on a recent Friday. The 9th U.S. Circuit Court of Appeals, in a razor-thin 6-5 decision, favored the interests of mining giants Rio Tinto and BHP in the Resolution Copper project. This ruling underscores a pivotal moment in the ongoing conflict between the preservation of sacred indigenous lands and the interests of large mining corporations.

The 9th Circuit, a critical entity in the U.S. judiciary, serves as an appellate court overseeing the fairness and application of law in trial courts across its vast jurisdiction. This encompasses 15 judicial districts, with 61 courthouses spread across key locations such as Pasadena, Portland, San Francisco, and Seattle. The court’s unique structure, including a bench authorized for 29 appellate judges, facilitates a comprehensive review process.

Typically, appeals are heard by a panel of three judges, with the option for parties to request an en banc hearing, which, in the 9th Circuit’s case, involves 11 randomly selected judges due to the circuit’s large size. This operational detail is crucial for understanding the extensive deliberation that precedes decisions like the one affecting Oak Flat.

Oak Flat, or Chi’chil Biłdagoteel as known to the Apache, is more than land; it’s a sacred space central to the spiritual practices of the Apache and other Indigenous people. The contested land deal, embedded in a must-pass defense bill in 2014, proposed transferring Oak Flat to Resolution Copper, intending to excavate a two-mile-wide and 1,100-foot-deep crater for copper mining. This plan not only threatens the physical integrity of the sacred site but also challenges the very essence of Apache cultural and religious practices.

The Apache Stronghold’s legal battle against this transfer involved challenging the Forest Service’s environmental impact statement and asserting violations under the Religious Freedom Restoration Act. Their fight emphasizes the profound connection indigenous communities have to their ancestral lands, a relationship often overlooked or undermined by federal and corporate agendas.

The narrative of Oak Flat is set against a backdrop of legal and legislative maneuvers, including the initial protection of the land under the Treaty of Santa Fe in 1852 and its exemption from mining in 1955, later undercut by legislative changes allowing private ownership and mining. The 2014 congressional authorization of the land transfer to Resolution Copper was a critical moment, reviving fears of cultural desecration reminiscent of Rio Tinto’s destruction of indigenous sites in Australia in 2020.

The legal intricacies of the Apache Stronghold’s fight, including the initial denial of a temporary restraining order and the subsequent appeal leading to the en banc hearing, highlight the complexities of U.S. law regarding indigenous rights and land protection. The Ninth Circuit’s decision-making process, culminating in the en banc panel’s narrow ruling, reveals the depth of contention and the challenges of balancing religious freedoms, cultural heritage, and economic interests.

In their dissent, five judges, including Chief U.S. Circuit Judge Mary Murguia, criticized the majority for their narrow interpretation of “substantial burden,” arguing that the land transfer indeed places a severe restriction on the Apache’s religious practices. This dissent underscores the broader debate over the rights of indigenous peoples to their sacred sites and the interpretation of religious freedom in the United States.

“Blasting a Native American sacred site into oblivion is one of the most egregious violations of religious freedom imaginable,” said Luke Goodrich, vice president and senior counsel at Becket. “The Supreme Court has a strong track record of protecting religious freedom for people of other faiths, and we fully expect the Court to uphold that same freedom for Native Americans who simply want to continue core religious practices at a sacred site that has belonged to them since before the United States existed.”

Proponents of the undertaking were pleased with the ruling as they claim there will be massive benefits. The project, which has the potential to supply up to 25% of the copper demand in the United States, has strong local support, according to Vicky Peacey, president and general manager of Resolution Copper, who praised the decision.

According to Peacey, it might boost Arizona’s economy by up to $1 billion annually and generate thousands of new employment for the community 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.

On behalf of the en banc majority, U.S. Circuit Judge Daniel Collins—a Trump appointee—wrote that Apache Stronghold was found to have failed on every one of its claims.

Because there would be no “tendency to coerce” the Apache people “into acting contrary to their religious beliefs,” the Ninth Circuit decided that the government’s transfer of publicly-owned land cannot violate the Religious Freedom Restoration Act. Neither can the removal of public land deny the Apache people the same rights as any other citizen.

The Apache Stronghold’s vow to appeal to the U.S. Supreme Court highlights their determination to protect Oak Flat. This move sets the stage for a potentially landmark decision on the rights of Tribes to their sacred lands, posing significant questions about the intersection of religious freedom, Indigenous rights, and environmental conservation.

“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,” said Dr. Wendsler Nosie of Apache Stronghold. “Today’s ruling targets the spiritual lifeblood of my people, but it will not stop our struggle to save Oak Flat. We vow to appeal to the Supreme Court.”