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Divided 9th Circuit rejects Apache religious challenge to copper mine on sacred land

Kevin Rector, Los Angeles Times on

Published in Science & Technology News

LOS ANGELES — A heavily divided panel of federal judges Friday rejected an Apache religious challenge to the construction of a massive copper mine on Oak Flat, a stretch of land in Arizona that tribe members consider sacred and irreplaceable.

The tribe members, who go by the name Apache Stronghold, denounced the ruling in the closely watched case and pledged to fight on 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 lifeblood of my people, but it will not stop our struggle to save Oak Flat."

Vicky Peacey, president and general manager 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 supply up to one 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 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 the concerns that have been raised, building on more than a decade of government consultation and review."

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 and biodiverse archaeological site used for religious ceremonies they cannot hold anywhere else.

 

According to federal planning records, the multibillion-dollar mine would transform Oak Flat — which the Apache call Chí'chil Bildagoteel — into a nearly 2-mile-wide, 1,000-foot-deep industrial crater to access one of the largest untapped copper ore deposits in the world.

Resolution Copper is a subsidiary of the multinational mining companies Rio Tinto and BHP Group. Apart from the court challenge, the project remains under a federal environmental review.

In a 6-5 ruling by the U.S. 9th Circuit Court of Appeals, Judge Daniel P. Collins wrote that Apache Stronghold's religious claims failed because, while the government's transfer of federal land to Resolution Copper would significantly interfere with their ability to practice their religion, it would not "coerce" them into acting contrary to their religious beliefs, "discriminate" against or "penalize" them, nor deny them rights or privileges afforded to other citizens.

Collins, an appointee of President Donald Trump whose opinion affirmed a lower court decision, wrote that Apache Stronghold had not only asked for the government to allow their free exercise of religion, but for "de facto" ownership of a "rather spacious tract" of public property — a request he said had to be rejected.

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