Overview:
Despite the Ninth Circuit’s refusal to rehear three lawsuits challenging the transfer of Oak Flat for a proposed copper mine, a group of 11 judges sharply criticized the court’s decision and called for the U.S. Supreme Court to intervene.
The U.S. Court of Appeals for the Ninth Circuit on Tuesday declined to rehear three lawsuits seeking to protect Oak Flat, a sacred site of the Western Apache in Arizona.
The decision marks another setback for efforts to prevent the planned destruction of Oak Flat by the proposed Resolution Copper mine. But the court’s action also produced unusually strong criticism from 11 Ninth Circuit judges, who questioned the court’s earlier ruling and urged the Supreme Court to consider the case.
Dr. Wendsler Nosie Sr., founder of Apache Stronghold and a former chairman of the San Carlos Apache Tribe, said the fight to protect Oak Flat is far from over.
“While this is disappointing news, we are heartened that eleven judges joined opinions criticizing the court’s decision as a ‘tragic error’ and calling for the Supreme Court to step in,” Nosie said. “Thus, the fight to protect Oak Flat is far from over. It is coming again to the Supreme Court.”
In an opinion joined by 10 other judges, Judge Susan P. Graber wrote that the court had made a mistake in its earlier handling of the litigation.
“We were wrong,” Graber wrote.
She argued that the court should have anticipated that additional litigation over Oak Flat was inevitable and reconsidered the matter before the site could be permanently damaged.
“Everyone knew that this second round of litigation was inevitable,” Graber wrote, adding that the courts now face what she described as “our last chance to prevent the irreversible desecration of a place, of a religion, and of a people.”
Judge Lawrence VanDyke Bumatay separately criticized what he called the court’s “badly fractured decision” and emphasized the cultural and spiritual importance of Oak Flat to the Western Apache.
“The importance of Oak Flat to the Western Apache cannot be overstated,” Bumatay wrote.
Chief Judge Mary H. Murguia also criticized the court’s decision, describing it as a “tragic error” and warning that Oak Flat could be destroyed unless the Supreme Court intervenes.
The litigation includes cases brought by the San Carlos Apache Tribe, the Arizona Mining Reform Coalition and seven Apache girls and women seeking to prevent the transfer and destruction of Oak Flat.
The plaintiffs now have the opportunity to ask the U.S. Supreme Court to review the Ninth Circuit litigation.
Nosie said Apache Stronghold, the organization he founded to defend Oak Flat, is pursuing a separate legal challenge that remains pending in federal district court in Phoenix.
The federal government and Resolution Copper have asked the district court to dismiss Apache Stronghold’s case. The organization has asked the court to allow the litigation to proceed so it can present its arguments that the destruction of Oak Flat would violate federal law.
“We are still waiting for the district court to rule,” Nosie said.
He said that regardless of what happens in the courts, Apache Stronghold will continue pursuing legal avenues to protect the sacred site.
“No matter what happens in court, we will never stop defending Oak Flat, our spiritual lifeblood and the place where our people have prayed and conducted ceremonies since time immemorial,” Nosie said.
“Oak Flat deserves the same respect and protection this country has long given to other places of worship.”
Nosie also called on supporters to continue advocating for Oak Flat through prayer and protest.
“We call on all people to continue raising their voices, in prayer and protest, to safeguard Mother Earth,” he said.
The Ninth Circuit’s decision does not end the legal fight over Oak Flat. The plaintiffs can seek Supreme Court review, while Apache Stronghold’s separate case remains pending in federal district court.
For the San Carlos Apache and other opponents of the mine, Oak Flat is not simply a tract of federal land. It is a sacred place where Apache people have maintained spiritual practices and ceremonies for generations.
