In a 2-1 decision in Apache Stronghold v. United States, (9th Cir., March 5, 2021), the U.S. 9th Circuit Court of appeals refused to issue an injunction pending appeal in the attempt by Apache tribal members to prevent the transfer of sacred Apache ceremonial ground to Resolution Copper. At the beginning of this month, the Biden Administration delayed the pending transfer by withdrawing a previous environmental impact statement. (See prior posting.) The 9th Circuit majority said in part:
The Government has averred that USFS “will not proceed to convey any right, title, and/or interest... to Resolution Copper” until after publication of a new FEIS, which will take “months.” The Government has also stated, under penalty of perjury, that USFS “will provide 30-days advance notice” to Apache Stronghold prior to the publication of a new FEIS. These representations mean that Apache Stronghold has not shown that it “needs relief within 21 days to avoid irreparable harm” pursuant to its request for an emergency stay.
Judge Bumatay filed a lengthy dissent, saying in part:
We are asked to trust the Government that, left to its own devices, it will not transfer the land to Resolution Copper in the near future. Faced with such a substantial harm to the Western Apaches’ free exercise rights, we should require more than the Government’s say-so.
