Above photo: AP.
An Apache nonprofit is asking the Ninth Circuit’s entire 29-judge panel to review its lawsuit that seeks to block a copper mining company from destroying a sacred Indigenous religious site, arguing that an en banc hearing is warranted given the appellate court’s latest split decision on the land transfer.
In a 268-page petition for a special en banc rehearing, the Apache Stronghold on Monday argued that Ninth Circuit panels have now twice tried to define “substantial burden” in the case’s context, and, given the vast power it holds over the lives of Native Americans, unique circumstances warrant a full-court review.
“Blasting a Native American sacred site into oblivion is one of the most egregious violations of religious freedom imaginable,” Luke Goodrich of Becket Law, which is representing the nonprofit, said in a statement Monday. “Religious freedom is for everyone, and we’re asking the court to guarantee the same religious freedom for Native Americans that everyone else in this country already enjoys.”
If allowed to proceed, the mining project would crater Oak Flat, a site listed on the National Register of Historic Places that is sacred to Native Americans who for at least a millennium have gathered there for religious ceremonies that can’t take place anywhere else, according to Apache Stronghold.
The majority of a Ninth Circuit panel agreed in its 6-5 March 1 opinion that the transfer of nearly 2,500 acres to Resolution Copper Co. is a substantial burden under the Religious Freedom Restoration Act, the petition said.
A different majority of the panel concluded that the RFRA subsumed rather than overrode the outer limits of a 1988 U.S. Supreme Court ruling in Lyng v. Northwest Indian Cemetery Protective Association.
In that ruling, the high court found that the U.S. Forest Service could harvest land because the effects on Native Americans’ religious practices were incidental and did not constitute an attempt to coerce them to act in violation of their beliefs, reasoning that the First Amendment did not give any one group veto power over public programs that did not actually prohibit the free exercise of religion.
“The project challenged here is indistinguishable from that in Lyng,” U.S. Circuit Judge Daniel P. Collins wrote for that majority. “Here, just as in Lyng, the government’s actions with respect to ‘publicly owned land’ would ‘interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,’ but it would have ‘no tendency to coerce’ them ‘into acting contrary to their religious beliefs.'”
That conclusion is flawed on many levels, the Apache Stronghold argued, saying the Collins majority wrongly interpreted the Lyng decision as a sweeping rule that construes “substantial burden” to exclude any disposition of government real property that doesn’t coerce, discriminate, penalize or deny equal rights, even if it “literally prevents” religious exercise.
According to the petition, the Apache Stronghold’s lawsuit isn’t a substantial burden case but one involving neutral and generally applicable laws.
“The Collins majority repeatedly emphasizes this point, asserting that ‘the [Supreme] Court has not said, and could not have said, that Lyng was itself a case involving a neutral and generally applicable law,'” it said.
But the Supreme Court has said exactly that, the nonprofit argued in the petition, citing the high court’s 2017 ruling in Trinity Lutheran v. Comer , which found that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion.
The U.S. Supreme Court, in its Trinity Lutheran ruling, cited the Lyng opinion in its determination, according to the petition.
“Remarkably, the Collins majority never cites Trinity Lutheran. But Trinity Lutheran isn’t just a binding reading of Lyng; it’s also correct,” it said.
Apache Stronghold’s request for a full panel Ninth Circuit en banc hearing is the last stop before a petition to the U.S. Supreme Court, the group said.
The nonprofit dedicated to the preservation of Oak Flat sued the U.S. government in 2021 to block the transfer of land within the Tonto National Forest to Resolution Copper Co. in exchange for double that acreage nearby, saying the proposed mine would blow a hole 2 miles wide and more than 1,000 feet deep, cratering Oak Flat, a site where the Apache people “have worshiped and conducted ceremonies for centuries,” and destroying sacred Indigenous religious sites.
The U.S. Forest Service estimates that, if mined, deposits below the site could yield around 40 billion pounds of copper.
“Oak Flat is the heart and soul of the Apache — the place where generations of my people have come to connect with our Creator and perform our most sacred ceremonies,” Wendsler Nosie Sr. of the Apache Stronghold said in a statement Monday. “We pray the court will protect Oak Flat the same way the government protects other houses of worship and religious landmarks across the country.”
An Arizona federal district court in 2021 denied Apache Stronghold’s bid for an emergency injunction to stop the land swap, ruling that it did not pose a substantial burden to the group’s religion.
A divided Ninth Circuit panel in June 2022 affirmed the lower court’s ruling that the swap and mining project did not trigger religious protection. However, in November 2022, the appellate court agreed to an en banc hearing on the case and vacated its earlier ruling.
Even assuming that the Collins majority correctly interpreted the Lyng ruling, there’s no reason to believe that interpretation was “subsumed” into the RFRA, the nonprofit argued in the petition.
“Spatchcocking” that interpretation into the RFRA contradicts the law’s text and Supreme Court precedent, it said.
The law approves two free-exercise precedents but does not address the Lyng ruling, the petition said, and its other provisions conflict with the Collins majority’s interpretation that gives a special carve-out for “real government property.”
Similarly, the RFRA specifically applies to “laws ‘neutral’ toward religion” and to burdens resulting “from a rule of general applicability, the nonprofit added.
The majority’s substantial burden test defies logic, the petition said, arguing that trespassing constitutes such a description.
“For example, under the majority’s test, if the government posts ‘No Trespassing’ signs at Oak Flat and ‘penalizes’ visitors for trespassing, it imposes a substantial burden — even though Apaches can still risk penalties to worship there. But if the government blasts Oak Flat to oblivion, it imposes no substantial burden at all — even though Apaches can never worship there again,” it argued. “The majority never explains why trespassing fines are a substantial burden, but complete destruction isn’t.”
Counsel for the U.S. government couldn’t immediately be reached for comment Tuesday.
Apache Stronghold is represented by Luke W. Goodrich, Mark L. Rienzi, Diana Verm Thomson, Joseph C. Davis and Daniel D. Benson of the Becket Fund for Religious Liberty, Clifford Levenson of the Law Office of Clifford Levenson and Michael V. Nixon.
The government is represented by Todd Kim, Andrew C. Mergen, Katelin Shugart-Schmidt and Joan M. Pepin of the U.S. Department of Justice‘s Environment and Natural Resources Division.
Resolution Copper is represented by Michael R. Huston, Christopher D. Thomas, Andrea J. Driggs and Samantha J. Burke of Perkins Coie LLP.
The case is Apache Stronghold v. USA et al., case number 21-15295“>21-15295, in the U.S. Court of Appeals for the Ninth Circuit.