Judges weigh religious rights issues in a hearing over proposed Resolution copper mine

PASADENA, Calif. — Appeals court justices hearing arguments Tuesday over a proposed copper mine southeast of Phoenix appeared to wrestle over two religious protection laws and nearly two decades of federal court decisions that could further define and interpret the laws.

At issue is a plan to extract copper from 2,200 acres of national forest land, a process that Apache people say would obliterate Oak Flat, one of their most sacred spaces. Opponents of the mine are asking the 9th U.S. Circuit Court of Appeals to stop the project.

A three-judge panel heard the case in October 2021 and ruled against Apache Stronghold, the grass-roots group leading the opposition. But the full court agreed to rehear the case and convened Tuesday in Pasadena.

Justices questioned attorneys on both sides about terms like substantial burden, the standard used to determine the effects of governmental actions like assessing fines for entering public lands, fencing off sites used for religious practice or refusing to allow a prisoner access to foods important to their religion. They asked if that is what the copper mine would impose on Apache people if it is completed and, during the course of its life, obliterates Oak Flat.

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Tuesday's hearing is the latest round of a nearly 20-year battle over the copper mine, about 70 miles east of Phoenix on land considered sacred and culturally important by several tribes in the region.

Tribes, environmentalists and recreationists have battled the federal government and Resolution Copper, the mining company that convinced Congress to approve the exchange of Oak Flat Campground for several plots of environmentally sensitive land. Resolution's proposal would render Oak Flat useless for religious practices or other activities.

The suit, Apache Stronghold v. United States, was filed in January 2021 in federal district court. After losing that ruling, the Native rights group took the case to the appeals court, which rejected Apache Stronghold's assertion that the mine would pose a substantial burden to their First Amendment religious practice rights.

In November 2022, the appeals court announced it would rehear the case "en banc," or by its full panel of 11 judges.

Judges ask about Treaty of Santa Fe

During arguments Tuesday, government attorney Joan Pepin said Resolution may not actually turn the entire area into a 1,000-foot deep, 2-mile wide crater as animations released by the firm show. David Debold, an attorney who represents several rock and mining associations, said the company may not even start work on the mine after the required study, but can't determine that until the land swap is completed. Pepin also said Native religious beliefs had been taken into account in the legislation that authorized the swap because Apache Leap, a nearby peak, would be preserved.

Judge Ronald Gould asked attorneys about the Treaty of Santa Fe, the 1852 pact that called for reservation lands to be set aside for the "Apache Nation of Indians." He wanted to know if the treaty's goal of supporting the happiness and prosperity of the Apaches justified issuing an order to halt the land swap.

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Stephanie Hall Barclay, director of Notre Dame's Religious Liberty Initiative, said it could. Pepin countered, saying because Congress authorized the swap, and because Apache Leap would be preserved, that would not apply.

Another justice, Lawrence VanDyke, asked if any religious protection laws would apply if "God says I need to be buried in Arlington National Cemetery to go to heaven?"

And they wanted to know why the new environmental impact study had been held up when the Forest Service had promised it would be completed within a few months after President Joe Biden withdrew the first one, which set off a 60-day window to complete the land exchange. One justice wondered if the Forest Service was awaiting the outcome of the Apache Stronghold lawsuit.

Barclay also said the courts should revisit a Navajo Nation case in which the courts ruled that using partially treated effluent to make snow on the San Francisco Peaks didn't pose a substantial burden to tribes' ability to collect plants and pray on the mountain range just outside Flagstaff.

'This is the last battle'

After the hearing, Apache Stronghold and their supporters held a news conference. Luke Goodrich, an attorney arguing for Apache Stronghold, said everybody needs to hear what happened in the courtroom.

"If the government can take away the central sacred site and stop those practices from Apaches, Apache Stronghold and tribal nations, nobody is safe from the government," Goodrich said.

Wendsler Nosie Sr., leader of Apache Stronghold, tells 8th Annual Oak Flat Run participants, "We have to start defending the earth, the mother."
Wendsler Nosie Sr., leader of Apache Stronghold, tells 8th Annual Oak Flat Run participants, "We have to start defending the earth, the mother."

Wendsler Nosie, head of Apache Stronghold, and his granddaughter, Naelyn Pike, also spoke. Nosie talked about the many protests and battles to preserve lands and cultural practices. But, he said, "This is the last battle." He said that if they lose this one, the U.S. will take everything in the name of corporate money.

Pike said the Oak Flat struggle is an example of the continued genocide that is happening across the nation, to exterminate all Indigenous peoples in the nation.

"But we are also witnessing a threat to all religious believers in this country," she said. "Our land is holy. It may not have walls and a steeple, but this is my religion and my belief."

People came from many places to support Apache Stronghold, including the Lummi House of Tears carvers, who hauled a specially carved totem pole on a flatbed trailer. The totem pole has been taken to several sites under threat.

Freddie Lane, a member of the Lummi Nation who traveled from Washington State, with a totem pole touring across the country to stop the degradation of Native lands, joins members of the Apache Stronghold group gathered in the Los Angeles neighborhood of Boyle Heights at Self Help Graphics & Art paint protest signs on Monday, March 20, 2023. The Apache group battling a foreign mining firm that wants to build one of the largest copper mines in the United States on what tribal members say is sacred land will get a new chance to make its point Tuesday when a full federal appeals court panel takes another look at the case.

Local Aztec and Nahuatl people also donned traditional regalia to sing, dance and pray with Apache Stronghold.

The court will deliberate on the case and release a decision in the following months. No date was given for a final ruling.

Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. Follow her on Twitter at @debkrol

Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.

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This article originally appeared on Arizona Republic: 9th Circuit oral arguments on Apache Stronghold rehearing