519 F.Supp.3d 591
D. Ariz.2021Background
- In 2014 Congress enacted §3003 of the NDAA authorizing a land exchange conveying 2,422 acres in the Tonto National Forest (including Chi’chil Bildagoteel / Oak Flat) to private mining interests (Resolution Copper).
- Apache Stronghold, a nonprofit representing Western Apache descendants, sued January 12, 2021 seeking to block the exchange, alleging (1) the United States holds the land in trust under an 1852 treaty and (2) the conveyance would violate Free Exercise and RFRA by devastating a sacred ceremonial site.
- Plaintiff sought emergency relief to stop publication of the Forest Service Final Environmental Impact Statement (FEIS); the court denied a TRO, the FEIS was published Jan. 15, 2021, and the parties litigated a preliminary injunction (hearing Feb. 3, 2021).
- Key legal theories: breach of trust/fiduciary duties based on the 1852 Treaty and aboriginal title; RFRA and First Amendment Free Exercise (substantial burden and intentional discrimination); Due Process and Petition Clause challenges to FEIS publication process.
- The district court concluded Plaintiff failed to show likelihood of success on the merits (or serious questions going to the merits) and denied the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of trust — standing | Individual Apache Stronghold members descend from 1852 treaty signatories and can sue to enforce treaty-based trust duties | Treaty rights are tribal/community rights; individuals cannot assert treaty-based trust rights | No standing: treaty rights are tribal; individual members cannot enforce a tribal trust claim |
| Breach of trust — merits | 1852 Treaty and history establish a trust or Indian title protecting Oak Flat from conveyance | No specific statutory or regulatory trust-creating provision; title vested in U.S.; Congress may alter tribal relations | Unlikely to succeed: no statutory trust identified; treaty language does not create a trust; Congress’s §3003 supersedes any such political determination |
| RFRA / Substantial-burden | Conveyance and mining will destroy sacred site, thus substantially burdening religious exercise | §3003 is neutral and generally applicable; RFRA substantial-burden jurisprudence requires coercion or conditioning of a benefit | No substantial burden under Ninth Circuit precedent (Sherbert/Yoder floor); Lyng/Navajo Nation control: absence of coercion or conditioning means RFRA fails |
| Free Exercise — intentional discrimination | The Act was passed with disregard for Apache religion and therefore intentionally targets religious exercise | §3003 is facially neutral and lacks evidence of discriminatory intent; rational basis applies | No likelihood of success: no evidence of discriminatory intent; neutral law survives rational-basis review |
| Due Process / Petition Clause re: FEIS publication | Short notice of FEIS publication denied meaningful process and petitioning | Public notice and extensive prior administrative process (Federal Register notice, scoping, comments, congressional testimony) provided adequate notice/opportunity | Likely lacks standing and unlikely to succeed: publication was not required to block the exchange and Plaintiff had prior notice and administrative opportunities |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard)
- Sherbert v. Verner, 374 U.S. 398 (1963) (conditioning benefits can impose a substantial burden on religion)
- Wisconsin v. Yoder, 406 U.S. 205 (1972) (compulsory laws that coerce religious violation can trigger strict scrutiny)
- Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872 (1990) (neutral laws of general applicability do not violate Free Exercise)
- Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (government use of land that impairs religious practice does not necessarily violate Free Exercise absent coercion)
- United States v. Mitchell, 463 U.S. 206 (1983) (fiduciary duties arise where government controls tribal funds/property absent contrary congressional action)
- United States v. Navajo Nation, 537 U.S. 488 (2003) (government trust duties must be grounded in specific statutory/regulatory obligations)
- United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) (trust analysis focuses on statute-based rights or duties)
- Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (RFRA substantial-burden analysis applied to federal land management decisions)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (standing requires concrete injury)