Is the 9th Circuit Rethinking Its Apache-Oak Flat Ruling?

​The United States Court of Appeals for the Ninth Circuit may be preparing to revisit its ruling that would destroy the sacred lands of the Apache.
 
Protect The 1st has long covered the plight of Apache, whose access to the Oak Flat area of the Tonto National Forest has been recognized as sacred to their religion by treaty with the U.S. government since the 19th century. A foreign mining consortium, Resolution Copper, has plans enabled by a midnight deal in Washington in which the company will mine copper in the Apache’s sacred site, to sell to China, and leave a gaping crater the length of the Washington Mall and the depth of two Washington Monuments.
 
In June, a divided Ninth Circuit held that the land swap could go forward, dismissing the rights of the Apache under the Religious Freedom Restoration Act (RFRA), as well as the First Amendment rights of these American citizens. Many legal observers were dumbfounded. How could the absolute destruction of a site that is the Vatican Hill or Temple Mount of the Apache not be an infringement of their religion – or even a substantial burden on their religious exercise?
 
At the time, Judge Marsha B. Berzon dissented from the majority, writing “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources. Yet the majority reaches just that illogical interpretation of RFRA in this case, without acknowledging its incoherence.”
 
Now the court has asked the Apache Stronghold and its attorneys at the Becket Fund to file briefs outlining their positions on whether the case should be reheard.
 
“This is highly unusual,” said Gene Schaerr, general counsel of Protect The 1st. “What is most telling is that this en banc request was not prompted by the actions of the Apache and their attorneys. Though we can’t be certain, it appears one or the other Ninth Circuit judges took a good hard look at the Panel’s opinion and saw the holes.”