38 F.4th 742
9th Cir.2022Background
- Oak Flat (Chi’chil Biłdagoteel) is federal land in the Tonto National Forest valued for Apache sacred ceremonies; a proposed mine (Resolution Copper) would use panel-caving and likely permanently alter or destroy the site.
- The 2014 National Defense Authorization Act (Land Exchange Provision) requires the Secretary of Agriculture to convey Oak Flat to Resolution Copper in exchange for other lands; the statute mandates tribal consultation, an EIS, and creates an Apache Leap Special Management Area.
- Apache Stronghold sued seeking a preliminary injunction, alleging the Land Exchange violates RFRA, the Free Exercise Clause, and an alleged trust duty under the 1852 Treaty of Santa Fe; the district court denied injunctive relief.
- On appeal the Ninth Circuit panel affirmed, holding Apache Stronghold was unlikely to succeed on the merits of all three claims and therefore denying a preliminary injunction; Judge Berzon dissented on RFRA grounds.
- Central legal question: whether the Land Exchange “substantially burdens” religious exercise under RFRA (triggering strict scrutiny), or instead is an incidental impairment outside RFRA’s Sherbert/Yoder framework per Ninth Circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Land Exchange substantially burdens religion under RFRA | Land exchange will hand Oak Flat to a private miner and effectively make worship there impossible, so RFRA’s strict scrutiny applies | Under Navajo Nation, RFRA’s “substantial burden” means only Sherbert/Yoder types (denial of benefits or coercive penalties); incidental effects of land transfer are not a substantial burden | Held: No. The transfer is outside Sherbert/Yoder; incidental impairment is not a RFRA substantial burden; plaintiff unlikely to prevail on RFRA claim |
| Whether the Exchange deprives a governmental benefit or imposes a penalty (secondary RFRA theory) | Exchange deprives use/enjoyment of government land for religion and creates realistic threat of civil/criminal trespass liability | No coercive conditioning of benefits; no sufficiently realistic threat of criminal prosecution; civil-trespass risk is speculative and RFRA would not authorize enjoining the entire exchange | Held: No. Plaintiff failed to show coercive conditioning or realistic imminent penalties; relief sought (blocking entire exchange) exceeds RFRA remedies |
| Whether the Land Exchange violates the Free Exercise Clause (neutrality/general applicability) | Provision targets or uniquely burdens Apache religious practice and thus is not neutral/generally applicable | Statute is neutral and enacted to facilitate mineral exploration, contains no anti-religious object, and burdens secular users too | Held: Provision is neutral and generally applicable under Smith; strict scrutiny not triggered; plaintiff unlikely to prevail |
| Whether the 1852 Treaty of Santa Fe created an enforceable trust obligating the U.S. re Oak Flat | Treaty language (pass laws conducive to Apache prosperity) imposed an enforceable trust or usufructuary rights protecting access to Oak Flat | Treaty did not designate Apache territorial boundaries or convey title; absent government control/supervision of tribal property, no enforceable trust arose | Held: No enforceable trust shown on this record; claim unlikely to succeed |
Key Cases Cited
- Sherbert v. Verner, 374 U.S. 398 (1963) (denying government benefits because of religion imposes a substantial burden)
- Wisconsin v. Yoder, 406 U.S. 205 (1972) (government penalties that coerce contrary action impose a substantial burden)
- Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (government land-use that incidentally impairs sacred practices does not necessarily impose a Free Exercise substantial burden absent coercion)
- Bowen v. Roy, 476 U.S. 693 (1986) (government action that does not coerce or deny benefits does not constitute a Free Exercise violation)
- Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. en banc 2008) (RFRA "substantial burden" limited to Sherbert/Yoder framework)
- Employment Div. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws are not subject to strict scrutiny under Free Exercise)
- Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (RFRA provides broad protection and can apply to secular entities; government's burden under RFRA is strict scrutiny)
- Holt v. Hobbs, 574 U.S. 352 (2015) (RLUIPA and RFRA share the same strict-scrutiny standard in institutional contexts)
- Ramirez v. Collier, 142 S. Ct. 1264 (2022) (RLUIPA/RFRA principles applied to prison religious accommodations; denial of certain prison religious accommodations can be a substantial burden)
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (cites Lyng on absence of coercion as dispositive for Free Exercise liability)
- United States v. Christie, 825 F.3d 1048 (9th Cir. 2016) (RFRA relief can immunize religious conduct from prospective criminal sanction when prosecution is realistic)