Apache Stronghold v. United States of AmericaApache Stronghold v. United States of America
ORDER
I. BACKGROUND
In 2014, Congress passed the National Defense Authorization Act for Fiscal Year 2015 (hereinafter “NDAA“).
On January 12, 2021, Plaintiff Apache Stronghold, a nonprofit organization seeking to prevent the colonization of Apache land, filed a Complaint in this Court seeking to prevent the land exchange. (Doc. 1 at ¶ 11). Plaintiff argues the land is held in trust by the United States for the Western Apaches by way of an 1852 Treaty. (Doc. 1 at ¶ 7). Plaintiff further alleges the mine will desecrate Oak Flat in violation of the Apaches’ religious liberties and will constitute a breach of the trust. (Doc. 1 at ¶ 10).
On January 14, 2021, Plaintiff filed a Motion for Temporary Restraining Order (“TRO“) and Preliminary Injunction (“PI“) seeking to prevent the United States Department of Agriculture from publishing a Final Environmental Impact Statement (“FEIS“), a document that “describes the potential environmental effects” of the mine and “includes detailed mitigation measures to minimize impacts.” (Doc. 7); USDA Forest Service, Resolution Copper Update, available at https://www.fs.usda.gov/detail/r3/home/?cid=FSEPRD858166 (last accessed February 12, 2021). The FEIS was set for publication on the following day, January 15. (Doc. 7 at 3). Plaintiff alleges Defendants “nefariously” moved up the timeline of the FEIS publication, which was previously set for April of 2021, so the land transfer could finalize before President Biden‘s inauguration and without adequate time for Plaintiff to contest the sale. (Doc. 1 at ¶ 33, 36-39).
On January 14, 2021, this Court denied the Motion to the extent it sought an emergency TRO because Plaintiff could not show immediate and irreparable injury. (Doc. 13). Specifically, because Plaintiff could not show the land conveyance would occur immediately upon the publication of the FEIS, and in fact Defendants would have 60 days from the publication to complete the exchange, a TRO without notice and opportunity for response was unwarranted. (Doc. 13 at 4). The FEIS was published on January 15, 2021 as scheduled, starting the 60-day clock. See USDA, FINAL Environmental Impact Statement, Resolution Copper Project and Land Exchange, available at https://www.resolutionmineeis.us/sites/default/files/feis/resolution-final-eis-vol-1.pdf (last visited February 12, 2021). The parties then fully briefed the Motion. (Docs. 7, 18, & 30). In their Response, the Government indicate that the land sale would not take place until 55 days after the publication of the FEIS (i.e., no earlier than March 11, 2021). (Doc. 18-1 at 3-4). The Court held a hearing on the PI on February 3, 2021. (Doc. 37).
II. LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Titaness Light Shop, LLC v. Sunlight Supply, Inc., 585 F. App‘x 390, 391 (9th Cir. 2014) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). An injunction may be granted only where the movant shows that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Herb Reed Enters., LLC v. Fla. Entm‘t Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013) (quoting Winter, 555 U.S. at 20).
However, the four factors may be evaluated on a sliding scale under this Circuit‘s “serious questions” test: “[a] preliminary
“Likelihood of success on the merits is the most important Winter factor; if a movant fails to meet this threshold inquiry, the court need not consider the other factors in the absence of serious questions going to the merits.” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (internal citations and quotations omitted); see also, e.g., Krieger v. Nationwide Mut. Ins. Co., No. CV-11-1059-PHX-DGC, 2011 WL 3760876, at *1 (D. Ariz. Aug. 25, 2011) (“Because Plaintiff has failed to show a likelihood of success on the merits or the existence of serious questions, the Court will not issue a preliminary injunction. The Court need not address the other requirements for preliminary injunctive relief.“).
III. DISCUSSION
For the following reasons, the Court finds that Plaintiff has not demonstrated a likelihood of success on, or serious questions going to, the merits of its claims.
A. Breach of Trust/Fiduciary Duties
i. Standing
Plaintiff alleges the land at issue is managed by the Government in trust for the Western Apaches “as a result of official U.S. Government support of actions unilaterally removing the Western Apaches from that land and forcing them to struggle to continue to maintain their relationships to their land.” (Doc. 1 at ¶ 51) (Count 3). Thus, Plaintiff argues the conveyance to Resolution Copper is in breach of the Government‘s trustee and fiduciary duties.
As an initial matter, Plaintiff Apache Stronghold lacks standing to bring the breach of trust claim. The “irreducible constitutional minimum of standing consists of three elements . . . [t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016) (internal punctuation omitted) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). Closely related to the constitutional standing requirement that a plaintiff must suffer a personal injury is the prudential requirement that a plaintiff “cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). This limitation serves an important function: It prevents “the adjudication of rights which those not before the Court may not wish to assert” and seeks to ensure “that the most effective advocate of the rights at issue is present to champion them.” Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978).
But “since the prohibition against a party asserting the legal rights of another is prudential—not constitutional—the Supreme Court may ‘recognize[ ] exceptions to this general rule.‘” Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 15 (D.D.C. 2010) (alteration in original) (quoting Coal. of Clergy, Laws., & Professors v. Bush, 310 F.3d 1153, 1160 (9th Cir. 2002)). For example,
Apache Stronghold argues “[t]here were no tribes in 1852 in any formal sense” and that, instead, there were “leaders representing . . . dozens of groups of Apaches.” (Doc. 47 at 25). Accordingly, Plaintiff argues “the Treaty of 1852 was between the United States and the Western Apache peoples, not with any particular Tribe.” (Doc. 30 at 3). By extension, then, Apache Stronghold argues its individual members have standing to assert the Western Apaches’ treaty rights because they are direct descendants of Mangas Coloradus, “one of the Apache signatories to the 1852 Treaty,” since they “are among the intended beneficiaries of [their] direct ancestor‘s agreement with the United States.” (Doc. 30 at 3).1 Plaintiff‘s arguments are unavailing.
“[T]he existence of a trust relationship between the United States and an Indian or Indian tribe includes as a fundamental incident the right of an injured beneficiary to sue the trustee for damages resulting from a breach of the trust.” United States v. Mitchell, 463 U.S. 206, 226 (1983). However, a treaty, by its very definition, “is ‘essentially a contract between two sovereign nations,‘” not between individuals. Herrera v. Wyoming, 587 U.S. ___, 139 S. Ct. 1686, 1699 (2019) (citing Washington v. Wash. State Com. Passenger Fishing Vessel Assn., 443 U.S. 658, 675 (1979)). Accordingly, in most situations, “[r]ights, enumerated under treaties, are reserved to communities or ‘tribes’ rather than to individuals.” United States v. State of Or., 787 F. Supp. 1557, 1566 (D. Or. 1992), aff‘d, 29 F.3d 481 (9th Cir. 1994), amended, 43 F.3d 1284 (9th Cir. 1994).2
Here, it is immaterial that Apache Stronghold‘s members are direct descendants of the signatories to the 1852 Treaty because the Treaty only grants tribal rights, not individual rights. Although Plaintiff argues the Apache people were not a “tribe” when the Treaty was signed, it is clear from the plain language of the Treaty that the signors bound the Western Apache people as a whole. The Treaty consistently refers to the Apaches as a “nation or tribe” in the Treaty. In the preamble, the Treaty provides that the individual Apache signatories were “acting on the part of the Apache Nation of Indians.” Treaty with the Apache preamble, July 1, 1852, 10 Stat. 979. Further, Article I of the Treaty states “[s]aid nation or tribe of Indians through their authorized Chiefs” submit to U.S. jurisdiction. Id. at art. 1 (emphasis added). The Treaty continuously refers to the “nation or tribe of Indians” as the party bound to the agreement. Even reading the language of the 1852 Treaty with a liberal construction in favor of Plaintiff‘s members’ interests as Indians, the Court cannot infer an enforceable trust duty as to any individual Indians. See Herrera, 139 S. Ct. at 1699 (describing canon of construction requiring courts to interpret treaties in favor of the Indians). Stated differently, Plaintiff has not shown the Treaty—or any other source of law—creates an individual trust duty the United States breached by authorizing the land exchange. The individual Western Apache members therefore lack standing to assert a breach of the trust.
ii. Merits
Even if Apache Stronghold had standing to assert the breach of trust claim, it is unlikely to succeed on the merits. Plaintiff does not point to any specific trust language regarding the land at issue, in the 1852 Treaty or elsewhere. Plaintiff has alluded to a trust duty arising from the relationship between the Government and the Indians generally. See (Doc. 36 at 5, n.3) (citing the general “federal-Tribe trust relationship” and “the United States’ trust responsibility to all federally recognized
In 1983, the United States Suprеme Court held that “where the Federal Government takes on or has control or supervision over tribal monies or properties, the fiduciary relationship normally exists with respect to such monies or properties (unless Congress has provided otherwise) even though nothing is said expressly in the authorizing or underlying statute (or other fundamental document) about a trust fund, or a trust or fiduciary connection.” United States v. Mitchell, 463 U.S. 206 (1983) (emphasis added) (citing Navajo Tribe of Indians v. United States, 624 F.2d 981, 987 (Ct. Cl. 1980)). In United States v. Jicarilla, however, the Court clarified the “general trust” relationship between the Government and the Indians. 564 U.S. 162 (2011). The Court acknowledged that a general trustee/beneficiary analogy applied to the Government‘s relationship with the Indians “in limited contexts.” Id. at 173. However, the Court explained that, although “relevant statutes denominate the relationship between the Government and the Indians as a ‘trust,’ that trust is defined and governed by statutes rather than the common law.” Id. Accordingly, “the [trust] analysis must train on specific rights-creating or duty-impоsing statutory or regulatory prescriptions.” United States v. Navajo Nation, 537 U.S. 488, 506 (2003).
The requirement that Congress create a specific trust duty by statute derives from Congress‘s plenary authority over Indian affairs. “[T]he organization and management of the trust is a sovereign function subject to the plenary authority of Congress.” Id. With this plenary power in mind, the Government “has often structured the trust relationship to pursue its own policy goals.” Jicarilla, 546 U.S. at 176. Although the Government‘s trust relationship with the Indians “relat[es] to the welfare of the Indians,” it remains “distinctly an interest of the United States” subject to congressional control. Heckman v. United States, 224 U.S. 413, 437 (1912). For example, in Heckman, the Government sued to prevent certain conveyance of lands by members of an Indian tribe because the conveyances violated restrictions on alienation imposed by Congress. Id. at 445-46. The Government sued as the representative of the very Indian grantors whose conveyances it sought to cancel because, while it was formally acting as trustee, the Government was in fact asserting its own sovereign interest in the disposition of the Indian lands. Id. at 445. “Such a result was
It is undeniable that the Government “has charged itself with moral obligations of the highest responsibility and trust” to Indians, Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942), obligations “to the fulfillment of which the national honor has been committed,” Heckman, supra, at 437. Nonetheless, this Court must follow Supreme Court precedent. And the Supreme Court tells us that when “the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, . . . neither the Government‘s ‘control’ over [Indian land] nor common-law trust principles matter.” United States v. Navajo Nation, 556 U.S. 287, 302 (2009). “The Government assumes Indian trust responsibilities only to the extent it expressly accepts those responsibilities by statute.” Jicarilla, 546 at 177 (emphasis added).
Here, Mexico ceded the land at issue in this case to the United States via the Treaty of Guadalupe Hidalgo in 1848, four years before the 1852 Treaty was executed. See Map of the United States Including Western Territories (scanned map), in NATIONAL ARCHIVES CATALOG (1848), available at https://catalog.archives.gov/id/2127339 (last accessed February 12, 2021). At that point, the United States took legal title to the land. This Court has carefully examined the 1852 Treaty and supporting documentation in this case and finds no evidence that the United States ever forfeited that title, or that Congress intended the Government to hold the land in trust for the Western Apaches.
The 1852 Treaty certainly did not create a trust relationship. The parties merely agreed that they would, at a later date, designate territorial boundaries. See Treaty with the Apache art. 8, July 1, 1852, 10 Stat. 979 (stating that “the government of the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries“).
When courts have considered such language in the past, they have consistently held it did not give rise to a trust relationship. For example, in Robinson v. Salazar, 838 F. Supp. 2d 1006, 1022 (E.D. Cal. 2012), the treaty at issue could “not be said to recognize Indian title” because, by its terms, it did not “designate, settle, adjust, define, or assign limits or boundaries to the Indians” and instead left “such matters to the future.” Id. The language in the Robinson treaty is identical to the language in the 1852 Treaty at issue here. Id. (treaty stating that “the aforesaid Government shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries“); see also Uintah, Uintah Ute Indians v. United States, 28 Fed. Cl. 768, 789 (1993) (finding no trust created based on identical language). And here, Plaintiff concedes that, while there were various efforts to designate those boundaries, those efforts ultimately failed. (Doc. 47 at 87).4 The 1852 Treaty simply provides no indication that the United States is holding the land in trust for the Apaches.5
In 1971, President Nixon authorized Oak Flat to be mined if it were first conveyed to a private entity, and in 2014, Congress authorized that conveyance. (Doc. 7 at ¶ 21). This Court‘s hands are tied both by Congress and by the Constitution. Skoko v. Andrus, 638 F.2d 1154, 1158 (9th Cir. 1979) (“The courts cannot interfere with the administration of public property as arranged by the Congress and the Executive, so long as constitutional boundaries are not transgressed by either branch.“). The breach of trust claim must fail.
B. RFRA and First Amendment Free Exercise Clause (Substantial Burden)
Although the court cannot find any codified trust, the evidence before the Court shows that the Apache peoples have been using Oak Flat as a sacred religious ceremonial ground for centuries. See (Doc. 47 at 41) (“[T]he stories from my great-grandmother and her people, [Oak Flat]‘s where she came from. And so those stories that my grandfather who taught my mothеr, who taught me, I am fourth generation of, I guess prisoners of war.“). The spiritual importance of Oak Flat to the Western Apaches cannot be overstated
and, in many ways, is difficult to put into words. The importance was immediately apparent at the PI hearing in the sometimes-tearful testimony of Apache Stronghold members Wendsler Nosie and Naelyn Pike. Nosie, co-founder and spokesperson of Apache Stronghold and a member of the San Carlos Apache Tribe, testified that the Apache
Naelyn Pike, Nosie‘s granddaughter, testified that, despite the turmoil and threatened ouster, the Apaches have maintained their spiritual connection to the land. Today, the Apache people believe “Usen, the Creator, has given life to the plants, to the animals, to the land, to the air, to the water.” (Doc. 47 at 42). Because of this, the Apaches view Oak Flat as a “direct corridor” to the Creator‘s spirit. (Doc. 47 at 42). The land is also used as a sacred ceremonial ground. Many of the young Apache women have a coming of age ceremony, known as a “Sunrise Ceremony,” in which each young woman will “connect her soul and her spirit to the mountain, to Oak Flat.” (Doc. 47 at 42, 48). Apache individuals pray at the land and speak to their Creator through their prayers. The Apache people also utilize the land‘s natural resources, picking acorns, berries, cactus fruit, and yucca to use for consumption. (Doc. 47 at 42). Because the land embodies the spirit of the Creator, “without any of that, specifically those plants, because they have that same spirit, that same spirit at Oak Flat, that spirit is no longer there. And so without that spirit of Chi‘Chil Bildagoteel, it is like a dead carcass.” (Doc. 47 at 42). If the mining activity continues, Naelyn Pike testified, “then we are dead inside. We can‘t call ourselves Apaches.” (Doc. 47 at 45). Quite literally, in the eyes of many Western Apache people, Resolution Copper‘s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.
In light of the Western Apaches’ deep connection to Oak Flat, Apache Stronghold alleges in this lawsuit that conveying the land to Resolution Copper “puts government imposed coercive pressure on Plaintiffs to change or violate their religious beliefs” in violation of the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (“RFRA“),
The Free Exercise Clause of the First Amendment provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].”
The law at issue here here—Section 3003 of the NDAA—is a neutral law of general applicability. It merely authorizes the exchange of land with a mining company, and, although it will affect the Apaches’ religious practices deeply, that is not its purpose.7 In the Ninth Circuit, where courts consider a neutral law of general applicability, Free Exercise violations are found only in very limited situations. “Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).” Navajo Nation, 535 F.3d at 1058 (emphasis added) (citing Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)). In Yoder, “the application of the compulsory school-attendance law” to the Amish plaintiffs violated the RFRA because it “affirmatively compel[led them], under the threat of criminal sanction, to perform acts undeniable at odds with fundamental tenets of their religious beliefs.” Id. (citing Yoder, 406 U.S. at 218). In Sherbert, the plaintiff refused to work on Saturdays, her faith‘s day of rest, but was denied government unemployment benefits for failing to accept work without good cause. Id. (citing Sherbert, 374 U.S. at 399). The state‘s conditioning of unemployment benefits on the plaintiff‘s ability to work on Saturdays unconstitutionally forced her “to choose between following the precepts of her religion and forfeiting benefits.” Sherbert, 374 U.S. at 404. In Navajo Nation, the Ninth Circuit held that “[a]ny burden imposed on the exercise of religion short of that described by Sherbert and Yoder is not a ‘substantial burden’ within the meaning of RFRA, and does not require the application of the compelling interest test set forth in those two cases.” Navajo Nation, 535 F.3d at 1070.8
To be sure, the Navajo Nation court found no substantial burden in part because there were “no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified.” Navajo Nation, 535 F.3d at 1063. Instead, “[t]he only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience.” Id. at 1070. And this Court recognizes that the burden imposed by the mining activity in this case is much more substantive and tangible than that imposed in Navajo Nation—the land in this case will be all but destroyed to install a large underground mine, and Oak Flat will no longer be accessible as a place of worship. See, e.g., FEIS at 84 (finding that the “[c]оnstruction and operation of the mine would profoundly and permanently alter . . . Chi‘chil Biłdagoteel (Oak Flat) . . . through anticipated largescale geological subsidence“); FEIS at 25 (“the proposed mine would
However, the Ninth Circuit also explained that the Supreme Court Lyng decision would have compelled it to reach the same result even if the use of artificial snow would “virtually destroy the . . . Indians’ ability to practice their religion.” Navajo Nation, 535 F.3d at 1072. In Lyng, the plaintiffs, Indian tribes, challenged the U.S. Forest Service‘s approval of plans to construct a road on a ceremonial tribal ground. Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439 (1988). The tribes alleged the construction would interfere with their free exercise of religion by disturbing a sacred area. Id. at 442-43. The area was an “integral and indispensable part” of the tribes’ religious practices, and a Forest Service study conсluded the construction “would cause serious and irreparable damage to the sacred areas.” Id. at 442 (citations and internal quotation marks omitted).
Nonetheless, the Supreme Court rejected the Indian tribes’ Free Exercise Clause challenge. The Court held that, although the government‘s plan would “diminish the sacredness” of the Indian land and would “interfere significantly” with their ability to practice their religion, it did not impose a “heavy enough” burden to violate their Free Exercise Clause rights. Id. at 447-49. Because the plaintiffs were not “coerced by the Government‘s action into violating their religious beliefs” nor did the “governmental action penalize religious activity by denying [the plaintiffs] an equal share of the rights, benefits, and privileges enjoyed by other citizens,” they could not make out an RFRA claim. See id. at 449. Even where land is physically destroyed, the government action must still fall within those two narrow situations to make out a Free Exercise violation under RFRA.9
Apache Stronghold runs into the same problem as plaintiffs in both Navajo Nation and Lyng, each of which is still good law and binding upon this Court: Plaintiff has not been deprived a government benefit, nor has it been coerced into violating their religious beliefs. The Court does not dispute, nor can it, that the Government‘s mining plans on Oak Creek will have a devastating effect on the Apache people‘s religious practices. To that same end, the Western Apache peoples no doubt derive great “benefits” from the use of Oak Flat, at least in the common sense of the word. However, Oak Flat does not provide the type of “benefit” required under RFRA jurisprudence: It isn‘t something the Government gave to the Western Apaches, like unemployment benefits, and then took away because of their religion. Similarly, building a mine on the land isn‘t a civil or criminal “sanction” under the RFRA. See SANCTION, Black‘s Law Dictionary (11th ed.9
2019) (defining a “sanction” as a “provision that gives force to a legal imperative by either rewarding obedience or punishing disobedience“). “Just as the Ninth Circuit and other courts must follow Lyng
C. First Amendment Free Exercise Clause (Intentional Discrimination)
At the PI hearing, Plaintiff indicated that “for the purposes of the preliminary injunction, the only two issues before the Court . . . are the Treaty rights and the serious question of who owns that land, and the Religious Freedom Restoration Act rights that have been violated.” (Doc. 47 at 80). However, the Court notes that Plaintiff has not demonstrated a likelihood of success on, or serious questions going to, the merits of its other claims.
Plaintiff alleges Section 3003 intentionally discriminates against the Western Apaches because the Government “designed” the land conveyance “in a way that made it impossible for Plaintiffs to comply with [] their religious beliefs” and further promulgated the sale “in order to suppress the religious exercise of Plaintiff Apache Stronghold and its Western Apache members.” (Doc. 1 at ¶ 84).
As explained above, the Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise [of religion],”
In assessing neutrality and general applicability, courts evaluate both “the text of the challenged law as well as the effect . . . in its real operation.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 (9th Cir. 2015) (ellipsis in original) (internal quotation marks omitted). “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.” Lukumi, 508 U.S. at 533. Even if a law is facially neutral, it may
The Southeast Arizona Land Exchange and Conservation Act is facially neutral, and Plaintiff has provided no evidence of any discriminatory intent behind its passage. At the PI hearing, when asked what evidence of discriminatory intent Apache Stronghold has, Plaintiff‘s counsel could not directly answer the question. (Doc. 47 at 91-92). Instead, Plaintiff argued Apache Stronghold‘s members “presented repeatedly before the introduction of the National Defense Authorization Act Section 3003 rider, about the central religious importance of this place, Oak Flat” but that “there‘s no deliberate regard for it” in the Act, “much less an utterance that there‘s a compelling government interest” to convey the land to Resolution Copper. (Doc. 47 at 92). But a lack of deliberate regard for the Apaches religious ties to the land, as disappointing and inappropriate as it may be, in no way shows that the law was passed with the objective to discriminate against them. Pers. Adm‘r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979) (“[E]ven if a neutral law has a disproportionately adverse effect . . ., it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.“).
Because Section 3003 is neutral, Plaintiff is unlikely to succeed on its Intentional Discrimination claim. A neutral lаw need only be “rationally related to a legitimate government purpose.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075-76 (9th Cir. 2015). The Court finds, at this juncture, that the governmental interest in supporting economic development of mineral resources is likely more than sufficient to withstand rational basis review. See, e.g., Merrifield v. Lockyer, 547 F.3d 978, 991 (9th Cir. 2008) (noting the “relatively easy standard of rational basis review“). Accordingly, Plaintiff is unlikely to succeed on the Free Exercise Clause Intentional Discrimination claim.
D. Due Process and Petition Clause Claims
i. Standing
Plaintiff‘s Due Process and Petition Clause claims are based only on the publication of the FEIS. (Doc. 47 at 80). As an initial matter, Plaintiff likely lacks standing to contest the publication of the FEIS because Plaintiff cannot show that a favorable decision from this Court would redress its alleged injury. As the Court stated in its Order denying the TRO, Plaintiff‘s alleged injury stems from the land exchange, not the FEIS publication. (Doc. 13 at 3). But the land exchange, and subsequent mining activity, can still occur even if the FEIS was not published or is somehow othеrwise rescinded. See
ii. Merits
Even if Apache Stronghold had standing to assert the Due Process and Petition Clause claims, it is unlikely to succeed on the merits of those claims. Per Plaintiff‘s own timeline, on January 4, 2021, Reuters reported that the Forest Service was set to publish the FEIS on January 15, 2021. (Doc. 1 at 12). Plaintiff alleges this eleven-day window did not provide sufficient time for Plaintiff to challenge the FEIS publiсation and protect their “treaty rights, property rights, religious freedom rights, and other legal rights.” (Doc. 1 at ¶ 44). But Plaintiff had much longer than eleven days to contest the FEIS and land exchange.
“The Due Process Clause of the Fifth Amendment prohibits the United States . . . from depriving any person of property without ‘due process of law.‘” Dusenbery v. United States, 534 U.S. 161, 167 (2002); see also
“Publication in the Federal Register is legally sufficient notice [under the Fifth Amendment] to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance.” State of California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700, 707 (9th Cir. 2003) (citing Camp v. U.S. Bureau of Land Mgmt., 183 F.3d 1141, 1145 (9th Cir. 1999)); see also
Nosie further testified that he presented testimony to Congress before the passage of the NDAA “many “[m]any times.” (Doc. 47 at 65). In fact, Nosie “visited all of the Congressional agencies, leaders, you know, to express the concerns and positions of the tribe,” testimony which was “specifically in regard to the religious importance of Oak Flat and what was being proposed in terms of a copper mine.” (Doc. 47 at 65). Although Congress disagreed with, or perhaps even disregarded, Apache Stronghold‘s pleas, Apache Stronghold was not denied a voice—at least not under the law. Plaintiff is therefore unlikely to succeed on its Due Process or Petition Clause claims.
IV. CONCLUSION
For the foregoing reasons, Plaintiff has not identified a likelihood of success on, or serious questions going to, the merits of its claims. Accordingly, the Court need not address the remaining Winter factors. The Court cannot grant the preliminary injunction requested.
IT IS THEREFORE ORDERED that Plaintiff‘s Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 7) is denied.
Dated this 12th day of February, 2021.
Honorable Steven P. Logan
United States District Judge