The fight to protect a sacred site from development is once again back in court as defenders of Oak Flat seek another shot at stopping a huge copper mine on Apache territory.

The Apache Stronghold, a group authorized by the San Carlos Apache Tribe to protect Oak Flat, was dealt a setback in June when the Ninth Circuit Court of Appeals refused to stop the controversial project. But as with many contentious issues in Indian law and policy, the ruling in and of itself was not conclusive.

One member of the three-judge panel that heard the case in fact concluded that the copper mine would lead to the destruction of Chi’chil Biłdagoteel, as the sacred place is known in the Apache language.

“Oak Flat is the place we have connected with our Creator for millennia, and the generations that follow us deserve to continue this holy tradition,” observed Dr. Wendsler Nosie Sr., a former chairman of the tribe and a leader of the Apache Stronghold.

Nosie and the Apache Stronghold are now back before the Ninth Circuit, both legally and physically. Starting last Thursday, the group led a caravan from the San Carlos Apache Reservation in Arizona to the federal courthouse in California, where they are filing a formal request on Tuesday to have their case reheard.

“We are glad the Ninth Circuit is going to take a closer look at this decision, and we hope it will do the right thing and protect our most sacred site at Oak Flat,” Nosie said of a journey that started with a blessing ceremony last week.

The panel that heard Apache Stronghold v. United States almost a year ago consisted of Judges Mary H. Murguia, Marsha S. Berzon and Carlos T. Bea. On June 24, Murguia and Bea signed onto a decision in which they sympathized with long-running efforts to protect Oak Flat from development but refused to stop the copper mine from moving forward.

“As we reach this conclusion, we do not rejoice,” the two-judge majority wrote in the decision. “Rather, we recognize the deep ties that the Apache have to Oak Flat and to the nearby Apache Leap and Devil’s Canyon.”

And when it came to the underlying issue in the case — whether the transfer of federal forest land to a foreign company will harm the sacred site — the judges weren’t completely convinced either, stating only that “we acknowledge that the land exchange may impact the Apache’s plans to worship on Oak Flat.”

Berzon, on the other hand, was adamant. In her dissent, she said approval of the Resolution Copper project marks a violation of the religious rights of the Apache people who consider Oak Flat to be central to their health and well-being.

“As the government controls access to Oak Flat and the result of the Land Transfer Act will be to make the site inaccessible and eventually destroy it, objectively preventing Apaches from holding religious ceremonies there, I would hold Apache Stronghold is likely to succeed in showing a substantial burden on its members’ religious exercise,” Berzon wrote, citing the federal law that authorized the transfer of federal forest land to the foreign company.

Although Berzon’s dissent represents just the opinion of one judge, her views paved the way for the Ninth Circuit to consider rehearing the case. On August 15, the appeals court directed the Apache Stronghold and the federal government to address the possibility of another round.

The Becket Fund for Religious Liberty is prepared for the move. The non-profit legal firm is helping to represent the Apache people in their fight to protect Oak Flat from the copper mine.

“The panel’s opinion is, as Judge Berzon said, ‘illogical,’ ‘incoherent,’ ‘flawed,’ and ‘absurd,’” Luke Goodrich, the vice president and senior counsel at Becket, said of the June 24 decision in the case. “The ruling conflicts with the decisions of other circuits and the Supreme Court, and it gets the law badly wrong.”

“So, we expect it to be corrected — if not by the full Ninth Circuit, then by the U.S. Supreme Court,” said Goodrich, predicting of even further action in dispute.

The Apache Stronghold filed the lawsuit in early January 2021, when Republican Donald Trump was still in office. Coming off the loss of the presidential election, his administration was rushing to transfer the land at Oak Flat to the foreign interests behind the Resolution Copper mine.

Despite the imminent threat, a federal judge a month later refused to stop the pending land exchange. But the Apache people and their allies received a respite from new Democratic President Joe Biden, who ran on a campaign promise to ensure tribal nations are at the table when it comes to actions affecting their interests.

A month after that, the Biden administration put a stop to the environmental review process for the Oak Flat transfer. San Carlos Apache Chairman Terry Rambler called it the “right move” by the Department of Agriculture, which oversees the U.S. Forest Service, the federal agency in charge of the nation’s forest lands.

Even then, government attorneys have stuck to a familiar argument that arises whenever tribes and their citizens try to protect sacred areas now managed by the United States. They convinced the court that the land exchange at Oak Flat does not violate the Religious Freedom Restoration Act, a federal law known as RFRA, even if the Apache people are unable to go there for ceremonies, coming-of-age rites and other spiritual activities once the mine goes forward.

As the two-member majority in the case put it: “the land exchange does not substantially burden Apache Stronghold within the meaning of RFRA, even if the land exchange does make it ‘impossible’ for Apache Stronghold’s members to worship on Oak Flat.”

The Oak Flat land exchange was authorized by an act of Congress almost a decade ago. At the time, tribes and tribal organizations across the country tried to stop the proposed transfer but were met with resistance from most of Arizona’s Congressional delegation, Democrats and Republicans alike. Then-President Barack Obama, a Democrat, signed the exchange into law as part of a national defense authorization package.

Democrats, and some Republicans, are now supporting legislation to repeal the land transfer. A bill known as the Save Oak Flat Act [H.R.1884 | S.915] has since gained traction in the 117th Congress but has yet to become law.

The August 15 order from the Ninth Circuit Court of Appeals gave the Apache Stronghold and the United States another 21 days to submit “briefs setting forth their respective positions on whether this case should be reheard en banc.” En banc is the term used when a larger set of judges rehears a particular case, typically a controversial one, or one with national significance.

Subsequently, the Apache Stronghold filed a motion to expedite consideration of the en banc request. The Department of Justice has until Friday to respond to the motion, according to the appeals court.

Apache Stronghold v. United States of America (June 24, 2022)