​Luke Goodrich of the Becket Law Firm held his ground in the face of skeptical questioning from several judges on the Ninth Circuit Court of Appeals in the Oak Flat case.
 
“What is a substantial burden?” one judge asked. He wanted to know if the congressional deal that would allow a foreign mining company to dig up the sacred land of the Apache in the Tonto National Forest in Arizona – known as Oak Flat – and transforming it into a giant crater would quality as a substantial burden violation under the Religious Freedom Reformation Act (RFRA).
 
“Completely barring access or denying access is a substantial burden,” Goodrich replied, citing precedent in Supreme Court decisions, Little Sisters of the Poor, and Hobby Lobby.
 
“What is an unsubstantial burden?” asked one judge. He returned to this question again and again, asking how trivial does a violation of someone’s religion have to be before it can be discounted?
 
In response, Goodrich kept returning to idea of a “baseline” from which to evaluate the impact of an action on a religious practice. He implied that the destruction of a people’s religious site would certainly qualify as a substantial burden under any meaning of the law.
 
One such baseline that was brought up repeatedly by Judge Ronald M. Gould is the 1852 treaty between the Apache and the federal government.
 
That treaty, Judge Gould noted, promised that the government would respect the “prosperity and happiness” of the Apache. Can the Apache be happy if the government allows the destruction of their sacred religious site? Goodrich replied that the Apache indisputably have property rights that the land swap and mine would abrogate, creating a substantial burden. A government lawyer dismissed that assertion, calling the 1852 document “just a peace treaty” that cannot convey enforceable property rights – an answer that seemed to have left Judge Gould nonplussed.
 
The Apache and their defenders, including the Protect The 1st Foundation (whose amicus brief was cited by one judge in his questioning), were elated when the Ninth Circuit agreed to rehear this case after finding for the government with a three-judge panel. In a dissent, Judge Marsha Berzon had called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent,” seeming to set up a reversal.
 
The tone of today’s questioning should leave both sides uncertain. While several judges seemed skeptical of the Apache’s case, many of the 11 judges of the Ninth’s en banc panel did not ask questions. How the majority will vote is unpredictable. In the meantime, the Apache are holding prayer vigils asking the Creator to guard the centerpiece of their heritage and religion from destruction.

​The Protect the First Foundation joined the Jewish Coalition for Religious Liberty in an amicus brief filed today in the U.S. Ninth Circuit Court of Appeals to prevent the destruction of the sacred land of the Apache Stronghold of Arizona, “because the religious liberties of all rise and fall together.”
 
“This is a critical case for all people and communities of faith because it raises a fundamental question of what constitutes a ‘substantial burden’ on the ‘exercise of religion’ under the Religious Freedom Restoration Act (RFRA)” the brief states.
 
A district court had previously found that, to the Western Apache, Oak Flat is “a ‘direct corridor’ to the Creator’s Spirit.” The Oak Flat parcel of the Tonto National Forest has for centuries been such a sacred place to the Apache. If a government-approved transaction is allowed, Oak Flat will be turned over to a foreign mining consortium, Resolution Copper, to be transformed into a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
A 2-1 split on a three-judge panel on the Ninth Circuit had ruled in June against the Apache, finding that the destruction of Oak Flat would not amount to a “substantial burden” on the practice of religion under RFRA. In September, however, the court made the rare move to rehear the case before an en banc hearing – meaning that it will be before 11 randomly selected Ninth Circuit judges. This happens in fewer than 0.5 percent of cases.
 
“[T]he panel erroneously concluded that the Apache will not be ‘substantially burdened’ as defined by RFRA,” Protect the First Foundation’s brief states. “Since RFRA does not define ‘substantial burden,’ this Court should follow the Supreme Court’s guidance and apply the ordinary or natural meaning of that term.” The brief also quotes Justice Neil Gorsuch from his days as a judge on the 10th Circuit Court of Appeals that whenever the government “prevents the plaintiff from participating in [a religious] activity,” and gives the plaintiff no “degree of choice in the matter,” that action “easily” imposes a substantial burden on religious exercise.
 
The brief demonstrates that the prior ruling erred in narrowly applying a previous Ninth Circuit case, Navajo Nation v. U.S. Forest Service, despite it having more expansive permissible readings. “But, if true that Navajo Nation required the result reached here, then this Court should overturn it because it would mean Navajo Nation has adopted an erroneous and unduly narrow understanding of what a substantial burden is – an understanding that cannot be squared with the text or purpose of RFRA or Supreme Court precedent.”
 
The appellants also noted that the panel defended its conclusion on the grounds that the Supreme Court in Lyng v. Northwest Indian Cemetery (1988) found no valid free exercise claim. But that case preceded the passage of RFRA and its protections by decades. Moreover, in Lyng, the Court allowed the development of government land around religious sites. It did not propose to destroy them.
 
“It follows that a destroyed Oak Flat would devastate the Western Apache much like an obliterated Vatican for Catholics, a demolished Kaaba (in Mecca) for Muslims, or a dismantled temple for members of the Church of Jesus Christ of Latter-day Saints,” the brief declares. “But the burden imposed on the Western Apache would be worse still than even the destruction of religious buildings, because their religion is rooted in the land itself, not just buildings that have been built there.”
 
The brief quoted a district court: “Resolution Copper’s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apache’s spiritual lifeblood.”
 
PT1st will continue to monitor this case as it is decided by the Ninth Circuit.

​President Biden on Wednesday gave the people of the Apache Stronghold reason for hope that the administration will weigh in on the side of religious liberty. The president’s statement is the second hopeful sign for the Apache in recent days that their sacred religious site, Oak Flat, will be preserved.
 
For months, it appeared the only remaining hope for the Apache Stronghold in Arizona to avoid the utter destruction of Oak Flat in the Tonto National Forest was the slender chance the U.S. Supreme Court would take up their case. Losing before the Ninth Circuit Court of Appeals, the Apache certainly had a strong case to make to the Supreme Court that the Ninth had erred. The planned copper mine and land swap authorized by Congress in 2014 and upheld by the Ninth Circuit would desecrate and destroy the Apache’s sacred lands – a centuries-old place of worship, recognized as such in a treaty with Washington. Thus, Oak Flat, or Chi’chil Biłdagoteel as the Apache call it, would make for a model religious liberty test case for the high court.
 
The Supreme Court, however, receives almost 6,000 such petitions each year, many of which also test critical constitutional questions. As a result, the Court only accepts 2.8 percent of petitions (about one-half the rate of acceptance for applicants to Harvard University).
 
Then, in mid-November, the improbable happened – not before the Supreme Court, but before the Ninth Circuit. That court voted to rehear the case before a full court of 11 judges. Such an en banc hearing for a case the court has already adjudicated is extremely rare. Apparently, most judges were skeptical of the ruling of the court’s three-judge panel that held that transforming land central to the Apache religion into a gigantic crater would somehow not infringe on their freedom of worship.
 
Then, on Wednesday, President Biden committed to protecting a site in southern Nevada sacred to the Fort Mojave and other Native American tribal nations – a move rich in implications for the Apache.
 
President Biden promised to create a national monument named after the sacred Spirit Mountain, known as Avi Kwa Ame to the Mojave. This action is consistent with long-standing administration policy of working closely with tribes in an effort to manage lands and live up to treaty obligations. The sacredness of Oak Flat has long been recognized by treaty and in statements between the Apache and Washington, D.C.
 
There are other parallels between Spirit Mountain and Oak Flat. The Apache believe that Oak Flat is a space where the boundary between the human world and the sacred is thin, making it a place to communicate with the Creator. The administration would be following the same policy if it weighs in on the side of the Apache – or intervenes if the Apache should lose in court.
 
It would be consistent for the administration to similarly memorialize and protect Oak Flat in recognition of the Apache’s sacred site. Instead of a copper mine, perhaps the next generation will be able to visit and worship at the Chi’chil Biłdagoteel National Monument.

​Protect The 1st has long supported the people of the Apache Stronghold as they’ve faced the gut-churning prospect that the government will allow a foreign mining consortium to transform their ancient site of worship into a giant crater as long as the Washington Mall and deep as two Washington Monuments.
 
Over the summer, a three-judge panel of the Ninth Circuit Court of Appeals issued a ruling that refused to protect Oak Flat, a large swath of the Tonto National Forest that the federal government recognized in a 19th century treaty as land held sacred by the Apache. The court ruled that the transfer of this land to a copper mining consortium resulting from a midnight deal in Congress did not substantially burden the First Amendment right to religious exercise of the Apache. Protect The 1st objected that the absolute destruction of a religious minority’s site of worship, the Apache’s equivalent of the Vatican or Temple Mount, was a “substantial burden” of the right of religious freedom guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA).
 
In our view, the Ninth’s ruling would not only destroy the centerpiece of one religion, but would erode all religious protections guaranteed by RFRA. We weren’t alone in our thinking: Judge Marsha Berzon of the Ninth Circuit dissented, called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.”
 
In August, the judges of the Ninth Circuit called for a vote to rehear the case en banc, in front of a full court of 11 judges. Such requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. Legal observers welcomed the maneuver as a chance for dissenting judges to get their opinions on record as fodder for a bid for certification for oral argument before the U.S. Supreme Court. Few legal observers gave Oak Flat a realistic chance for an actual rehearing.
 
The Apache people, undaunted, responded in a positive and hopeful way by organizing a caravan to San Francisco to urge the court to go ahead and reconsider its ruling.
 
On Thursday, the full court voted to grant Oak Flat a full en banc rehearing.
 
Gene Schaerr, PT1 general counsel, congratulated the Becket law firm for its strong representation of the Apache.
 
“This is a very encouraging day for religious liberty, the Religious Freedom Restoration Act, and the rights of religious minorities in America,” Schaerr said. “It is remarkable that the Ninth Circuit itself sought this review of its decision.
 
“We congratulate the Ninth for this bold decision and look forward with enthusiasm to supporting the Apache’s case.”

​With a coming razor-thin Republican majority in the House to replace a razor-thin Democratic majority, there is a risk that the nuances of religious liberty will be overlooked in the partisan crossfire on Capitol Hill.
 
Consider Oak Flat – the pending transaction in which land sacred to the Apache for centuries and recognized as such by the federal government in a 19th century treaty – will be transferred to a foreign mining consortium. Land that is to the Apache what the Vatican is to Catholics and the Temple Mount is to Jews is slated to be utterly destroyed. When the mining is done, Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
When debate concerning Oak Flat occurred in the House Natural Resources Committee on Wednesday, concerns about the rights of a minority religion, the free expression of religion under the First Amendment, and the protections of the Religious Freedom Restoration Act were barely mentioned. The mostly party-line vote was on a measure to press the Biden Administration to release internal memos on what Republicans see as its slow-walking of environmental and other approvals for the land transfer. The debate between the still-Democratic majority and the incipient Republican majority centered around the overall policies of the Biden Administration.
 
Wherever you come down in this debate, it is unfortunate that Oak Flat was chosen as the lead plaintiff for the case against Biden’s energy and environmental policies – at the expense of a focus on religious liberty.
 
The measure did not pass, but it will have a better chance when the Republicans take control in January. When they do, they should consider that destroying the prime place of worship for one minority religion will make it all that easier for government to discriminate against other religions. The weakening of the Religious Freedom Restoration Act will also make it easier to infringe on the religious freedom of Christians and evangelicals, Jews, and Muslims.

​Members of the Apache Stronghold held a prayer ceremony Tuesday in front of the San Francisco Civic Center. While appealing to heaven, the Apache are also filing a request with the Ninth Circuit Court of Appeals for a rehearing of their case to protect Oak Flat, long held to be a sacred and holy site, from being destroyed by a copper mine.
 
“Oak Flat is the place we have connected with our Creator for millennia, and the generations that follow us deserve to continue this holy tradition,” said Dr. Wendsler Nosie Sr. of the Apache Stronghold. “We are glad the Ninth Circuit is going to take a closer look at this decision, and we hope it will do the right thing and protect our most sacred site at Oak Flat.”
 
Luke Goodrich, vice president and senior counsel at Becket, which represents Apache Stronghold, spoke about the court’s prior ruling and its subsequent decision to rehear the case en banc. This would allow the case to be reheard in front of the full 11-judge court.
 
“The panel’s opinion is, as Judge Berzon said, ‘illogical,’ ‘flawed,’ and ‘absurd,” Goodrich said. “The ruling conflicts with the decisions of other circuits and the Supreme Court, and it gets the law badly wrong. So we expect it to be corrected – if not by the full Ninth Circuit, then by the U.S. Supreme Court.”

​The United States Court of Appeals for the Ninth Circuit may be preparing to revisit its ruling that would destroy the sacred lands of the Apache.
 
Protect The 1st has long covered the plight of Apache, whose access to the Oak Flat area of the Tonto National Forest has been recognized as sacred to their religion by treaty with the U.S. government since the 19th century. A foreign mining consortium, Resolution Copper, has plans enabled by a midnight deal in Washington in which the company will mine copper in the Apache’s sacred site, to sell to China, and leave a gaping crater the length of the Washington Mall and the depth of two Washington Monuments.
 
In June, a divided Ninth Circuit held that the land swap could go forward, dismissing the rights of the Apache under the Religious Freedom Restoration Act (RFRA), as well as the First Amendment rights of these American citizens. Many legal observers were dumbfounded. How could the absolute destruction of a site that is the Vatican Hill or Temple Mount of the Apache not be an infringement of their religion – or even a substantial burden on their religious exercise?
 
At the time, Judge Marsha B. Berzon dissented from the majority, writing “it would be an exceedingly odd statute that recognized and provided remedies for government-created substantial burdens on religious exercise … when it directly prevents access to religious resources. Yet the majority reaches just that illogical interpretation of RFRA in this case, without acknowledging its incoherence.”
 
Now the court has asked the Apache Stronghold and its attorneys at the Becket Fund to file briefs outlining their positions on whether the case should be reheard.
 
“This is highly unusual,” said Gene Schaerr, general counsel of Protect The 1st. “What is most telling is that this en banc request was not prompted by the actions of the Apache and their attorneys. Though we can’t be certain, it appears one or the other Ninth Circuit judges took a good hard look at the Panel’s opinion and saw the holes.”