Apaches get new chance to argue mine will harm sacred sites

By ANITA SNOW
Associated Press

PHOENIX (AP) — An 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.

The panel of 11 judges on the 9th U.S. Circuit Court of Appeals is scheduled to meet at a Pasadena, California, courthouse to review the appeal by Apache Stronghold to save Oak Flat, a site east of Phoenix the group considers sacred.

“This isn’t just about Oak Flat, but about all cases involving American Indian sacred site litigation,” said Luke Goodrich, the attorney who will be arguing for Apache Stronghold. Goodrich is vice president and senior counsel at the nonprofit legal institution Becket Law, which takes up cases involving religious freedom.

Apache Stronghold sued the U.S. government under the 30-year-old Religious Freedom Restoration Act, saying that its plans to transfer the Oak Flat land to the mining firm through a land swap would place an undue burden on tribal members seeking to practice their religion.

A smaller 9th Circuit panel previously ruled 2-1 that the federal government could give the Oak Flat land to Resolution Copper for a mining project that would swallow the site, ending Apache religious practices there. The court later agreed to let a larger panel rehear the case.

A final decision was not expected Tuesday, and it could be several months before one is issued, Goodrich said.

Apache Stronghold members traveled from Arizona for the hearing, stopping at cities along the way to draw attention to the case. They gathered Monday at a community arts center in the Los Angeles neighborhood of Boyle Heights.

Called Chi’chil Bildagoteel, Oak Flat is dotted with ancient oak groves and traditional plants the Apaches consider essential to their religion.

An environmental impact survey for the project has been pulled back while the U.S. Department of Agriculture has consulted for months with Native American tribes and others about their concerns. The environmental analysis will have to be republished before a swap of the Tonto National Forest land can go forward.

The land transfer was a last-minute provision included in a must-pass defense bill in 2014. The swap would give the mining company 3.75 square miles (9.71 square kilometers) of national forest land in exchange for eight parcels it owns in other parts of Arizona.

“We respect the legal process and are closely following this case,” Resolution Copper, a joint venture of global mining firms Rio Tinto and BHP, said in a statement on the eve of the hearing. “At the same time, we believe that settled precedent supports the district court’s rejection of Apache Stronghold’s claims.”

“There is significant local support for the Resolution Copper project, and we will continue our efforts to understand and address any concerns that have been raised,” the statement said.

It added that the project has the potential to supply enough copper to meet up to one-quarter of U.S. demand, adding up to $1 billion a year to Arizona’s economy and creating thousands of local jobs,

The Poor People’s Campaign, environmental groups and the National Congress of American Indians are among many groups backing Apache Stronghold’s fight.

The Notre Dame Law School Religious Liberty Clinic has filed a “friend of the court” brief in the case. Stephanie Barclay, director of Notre Dame’s Religious Liberty Initiative, will participate in oral arguments.

The Religious Liberty Clinic at the University of St. Thomas (Minn.) also submitted a brief.

St. Thomas law professor Thomas Berg called it the most important Native American religious liberty case in 15 years.

“It could change the legal test used throughout the Ninth Circuit, which likely has far more sacred sites on federal land than any other part of the country,” Berg said in a written statement.