|Naelyn Pike, Apache Stronghold|
"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.
"This is about the people, about their freedom, their freedom to be Apache."
Listen to the full press conference https://fb.watch/jqru4klrm2/
Watch the federal court case below.
9th Circ. Weighs Tribal Opposition To Ariz. Copper Mine
By Caleb Symons
Excerpts from the article:
Law360 (March 21, 2023, 9:07 PM EDT) -- The Ninth Circuit wrestled on Tuesday with the extent of federal protections for religious liberty as it revisited a controversial land exchange in Arizona at the heart of plans to build North America's largest copper mine, a project that Indigenous activists say would raze a sacred site.
Litigation over the exchange, under which the U.S. government would give the mining company Resolution Copper close to 2,500 acres in the Tonto National Forest, is once again before the circuit court after it vacated an earlier panel decision last November.
At an en banc rehearing in Pasadena, California, counsel for the San Carlos Apache Tribe group known as Apache Stronghold challenging the land transfer said the move would permanently stop Native Americans from worshipping at a sacred site, known as Oak Flat, within the mine's planned footprint.
The exchange is therefore unlawful under the Religious Freedom Restoration Act, according to Luke Goodrich, a vice president and senior counsel at the religious-liberty law firm Becket. Arguing that the government wouldn't fine Apache worshippers for visiting Oak Flat, Goodrich said Tuesday that federal officials are now "doing something far worse" by letting that site be destroyed to make way for the Resolution Copper mine.
"Here, the government has made the Apaches worse off," he said. "As they sit here today, they have a right to go onto Oak Flat … and use it for their religious purposes."
But the Ninth Circuit seemed to struggle at oral argument with finding a realistic standard under RFRA, which says the government may not "substantially burden a person's exercise of religion."
That requires the court to review subjective religious interests, said U.S. Circuit Judge Marsha S. Berzon. Determining whether there has been a substantial burden in cases like the Apache Stronghold challenge, Judge Berzon added, thus presents a "very hard problem."
"I'm not sure it's the right rubric for making these decisions," she said of that type of RFRA analysis.
The controversial land exchange was enshrined into federal law in 2014, when Congress directed the government to give Resolution Copper a section of the Tonto National Forest — east of Phoenix — in exchange for more than twice as much land nearby.
Resolution Copper, a joint venture of mining giants BHP and Rio Tinto, estimates that it would produce up to 40 billion pounds of copper ore at the Arizona development over the next four decades. That output could satisfy a quarter of the United States' annual copper demand, according to the company.
Apache Stronghold sued in early 2021 to block the land transfer, but a Phoenix federal judge let the Resolution Copper project move forward on the basis that it doesn't impose a substantial burden on the group's religious freedom.
A divided Ninth Circuit panel upheld that ruling last June, with the majority saying that Oak Flat isn't protected under RFRA because the land exchange will cause that site to be destroyed incidentally, not intentionally. Judge Berzon, in dissent, slammed the panel's "absurd result" of upholding a policy that will keep Apache people from using a site where they've performed religious rituals for centuries.
The Ninth Circuit vacated the panel decision and granted an en banc rehearing in November.
Meanwhile, the federal government still hasn't issued an environmental impact statement for the Resolution Copper project that it promised to complete two years ago. Pepin told the Ninth Circuit on Tuesday that the government expects to issue that review, which would trigger the land exchange, in the coming months.
Apache Stronghold is represented by Luke W. Goodrich, Mark L. Rienzi, Diana Verm Thomson, Joseph C. Davis and Daniel D. Benson of the Becket Fund for Religious Liberty, Clifford Levenson of the Law Office of Clifford Levenson and Michael V. Nixon.
The government is represented by Todd Kim, Andrew C. Mergen, Katelin Shugart-Schmidt and Joan M. Pepin of the U.S. Department of Justice's Environment and Natural Resources Division.
The case is Apache Stronghold v. USA et al., case number 21-15295">21-15295, in the U.S. Court of Appeals for the Ninth Circuit.
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