The US Court of Appeals for the Ninth Circuit on Friday denied a request for an emergency injunction seeking to stop the transfer of sacred Western Apache land to a private copper mining company. However, the land transfer is halted indefinitely pending the government’s release of a new final environmental impact survey (FEIS).
Oak Flat, known to the Apache as Chi’chil Biłdagoteel, is considered a holy land where the spirit of the Creator communicates with the Apache people. They believe that the grounds, water and plants at Oak Flat possess unique spiritual significance. The land itself is sacred, meaning that important Apache ceremonies cannot be performed elsewhere.
The US government has recognized the importance of this site to the tribe since Eisenhower’s presidency. However, in 2014, Senators Jeff Flake and John McCain attached a last-minute provision to a must-pass defense bill conveying this site to Resolution Copper upon the completion of the FEIS. The FEIS was completed on January 15, triggering the transfer.
Apache Stronghold, a group of native and non-native allies, sued the US for violating the Religious Freedom Restoration Act (RFRA). They sought an emergency injunction to stop the land transfer, but six hours before the government’s answer was due, the Forest Service rescinded the FEIS, stalling the process indefinitely. The government promised to give the Western Apache people at least 30 days’ notice before the issuance of a new FEIS, which would set the process back in motion. In light of this development, the majority found that there was no longer an imminent threat of irreparable harm and rejected the emergency injunction.
In an 18-page dissent, Judge Bumatay said he would have granted the emergency injunction because “the Government’s eleventh-hour promises of delay and consultation with the Western Apaches are not enough to allay the threat of irreparable harm. The law affords the Western Apaches more than promises.”
Dr. Wendsler Nosie, Sr. of Apache Stronghold said in a press release:
The U.S. government has a long tradition of forcing Apaches off of their own land and destroying their sacred sites to make way for lucrative mining interests…Chi’chil Biłdagoteel wouldn’t be the first site they have tried to exploit, but we pray that it will be the last. Our ancestors worshipped at Chi’chil Biłdagoteel since time immemorial, and we are merely asking the court to give our children and grandchildren that same opportunity.
The appeal will now proceed on an expedited schedule.