PHOENIX — A planned mine at Oak Flat does not interfere with the ability of Native Americans to practice their religion, a federal appeals court has ruled.
In a thorough opinion, the 9th Circuit Court of Appeals acknowledged that Resolution Copper’s plans to build the mine on federally-passed property would affect the ability of Apache tribesmen to perform religious services at the site. . And they said it might even take the tribesmen away from the land.
But Judge Carlos Bea, writing for the 2-1 majority, said none of this violates the federal Religious Freedom Restoration Act because it does not interfere with their right to practice their religion.
And that means Apache Stronghold, a nonprofit created to preserve and protect sacred American Indian sites, has no legal basis for his lawsuit, he said.
The court’s decision not to immediately ban construction of the mine prompted a dissent from Judge Marsha Berzon. She said her colleagues were imposing an “overly restrictive” test to determine the key issue in the case: whether the project imposes a “substantial burden” on religious exercise.
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In 2014, Congress ordered the Secretary of Agriculture to transfer 2,422 acres of federal land, including Oak Flat, to Resolution Copper in exchange for 5,344 acres of company-owned Arizona land.
While Resolution would not need to dig a mine on the surface, court records show that the land above the mine would eventually subside, “deeply and permanently altering” the landscape.
Certain provisions were included in the agreement, including that there could be no mining on Apache Leap, with the aim of preserving the “natural character” and “cultural and archaeological resources” of the area and to protect the “traditional uses of the area by Native Americans”. people.”
Apache Stronghold sued, arguing it would interfere with religious services, such as a sunrise dance held at Oak Flat — which the tribe calls Chi’chil Bildagoteel — in 2014. And it, his lawyers say, violates the law on the restoration of religious freedom.
This law states that the federal government cannot “considerably burden” a person’s sincere exercise of religion unless the burden is both “in furtherance of a compelling governmental interest” and it or “the least restrictive means of promoting this interest”. And in this case, Apache Stronghold argued that the mine would make religious exercise in Oak Flat “impossible”, greatly burdening its members.
Bea, however, said that even if true, it does not violate federal law.
“Under the RFRA, the government imposes a substantial burden on religion in two – and only two – circumstances: when the government forces individuals to choose between following the tenets of their religion and receiving a government benefit, and when the government compels individuals to act contrary to their religious beliefs under threat of civil or criminal penalties,” he wrote.
The first prong does not apply, Bea said, because transferring ownership does not deprive anyone of government benefits.
“The side effects of the land swap on Apache Stronghold members’ religious practice, significant as they are to Apaches, may make it more difficult for them to practice their religion,” he said. . But Bea said he “will have no tendency to coerce Apaches into acting contrary to their religious beliefs.”
In fact, the judge said, that would be true even if the land swap made it impossible to worship at Oak Flat.
“The government is making religious exercises more difficult all the time,” Bea said.
“Doing so is not inherently coercive,” he said. “The land exchange does not force the Apaches to abandon their religion by threatening them with a negative outcome.”
The majority was no more sympathetic to arguments that the land exchange in fact deprives its members of a benefit and subjects them to a penalty: they can no longer access government lands for religious exercise and would be liable penalties for trespassing on private land.
But here too, Bea said the government does not significantly charge religion whenever it ends a government benefit that at one time had gone to religious recipients.
“There must be an element of coercion: the government must condition the benefit on conduct that would violate sincere religious beliefs,” he said. And that, says Bea, doesn’t happen here.
“The land swap prevents everyone, including Apache Stronghold members, from using Oak Flat,” he said.
And Bea also said Apache Stronghold had not shown a “sufficiently realistic fear” of future criminal liability or even that Resolution Copper might bring civil trespassing charges.
The decision ignores the role of the site, said Wendeler Nosie Sr., founder of Apache Stronghold.
“Oak Flat is like Mount Sinai to us, our most sacred site where we connect with our Creator, our faith and our families,” he said in a prepared statement. “It is a place of healing that is sacred to us long before Europeans arrived on this continent.”
The ruling, unless overturned, “threatens people of all faiths,” said Luke Goodrich, senior counsel at Becket, which represents plaintiffs in religious law cases.
An appeal will be lodged with the Supreme Court.
Howard Fischer is a veteran journalist who has reported since 1970 and has covered state politics and the Legislature since 1982. Follow him on Twitter at @azcapmedia or by email [email protected]