In a 2-1 ruling, the 9th U.S. Circuit Court of Appeals affirmed a district court’s denial of Apache Stronghold’s motion seeking to stop a land exchange and prevent any copper mining on Oak Flat in Arizona. The congressionally authorized land swap with Resolution Copper can move forward while Apache Stronghold’s lawsuit against it is pending, according to the court.
In 2014, the U.S. Secretary of Agriculture conveyed Oak Flat to Resolution Copper in exchange for a series of nearby plots of land. To the Apache American Indians, Oak Flat, known to the Apache as Chi’chil Bildagoteel, is sacred ground, according to court documents. Apache Stronghold sued the government, alleging that the land exchange violated the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause of the Constitution’s First Amendment, and a trust obligation imposed on the United States by the 1852 Treaty of Santa Fe between the Apache and the United States.
According to the majority judges’ opinion, Apache Stronghold had to show the government is either denying it a benefit, or imposing a penalty, due to conduct that its religion requires.
The court said the Department of Agriculture’s transfer of ownership of government land to Resolution Copper “does not coerce the Apache to abandon their religion by threatening them with a negative outcome. Because Apache Stronghold’s members have not established that they would suffer a substantial burden under RFRA, Apache Stronghold is not likely to succeed on its RFRA claim.”
The court also rejected the claim that the land exchange violated the Constitution’s Free Exercise Clause. It said the land exchange was neutral and its object was not to infringe upon the Apache’s religious practices. “All the evidence suggests that the land exchange was meant to facilitate mineral exploration activities – nothing more and nothing less,” court documents said.
The land transfer is contingent on other conditions, including the preparation of a final Environmental Impact Statement (EIS). The Forest Service published a final EIS on January 15, 2021. However, in March 2021, the Forest Service rescinded that final EIS.
“Over the past 11 years, the U.S. Forest Service has shaped the Resolution Copper project through a rigorous, independent review under the National Environmental Policy Act, which has included extensive consultation with the numerous Native American Tribes that have ancestral ties to this land, local communities, civil society organizations and a dozen federal, state, and county agencies,” Resolution Copper said in a statement. “There is significant local support for the project, however, we respect the views of groups who oppose it and will continue our efforts to understand, address and mitigate these concerns.”
The Resolution Copper project is a proposed underground mine 60 miles east of Phoenix, Arizona, near the town of Superior. The project is a joint venture owned by Rio Tinto (55%) and BHP (45%). To date, BHP and Rio Tinto have spent than $2 billion to develop and permit the Resolution copper project.