​The U.S. Supreme Court today denied the Western Apache’s last appeal to protect their sacred lands from being transformed into a copper mine. The way is now clear to transfer this parcel of the Tonto National Forest, Oak Flat, from the federal government to a multinational mining company, Resolution Copper.

Justice Neil Gorsuch was joined in an impassioned dissent by Justice Clarence Thomas. It is masterfully reasoned, leaving one to wonder not just about the blatant injustice of this land deal for the Apache, but the implications for the religious freedom of other Americans in the future.

The Background

Gorsuch goes into great detail explaining the history of the Apaches’ connection to Oak Flat and its central place in their religion. He quotes the cert petition explaining the importance of Oak Flat:

“Western Apaches believe that the site is the dwelling place of the Ga’an – ‘saints’ or ‘holy spirits’ that lie at ‘the very foundation of [their] religion … ‘They come from the ground,’ and they serve as ‘messengers between Usen, the Creator, and [Apaches] in the physical world.’

“Faithful to these beliefs, tribal members have worshipped at Oak Flat for centuries, conducting there a number of religious ceremonies that cannot take place anywhere else.”

Justice Gorsuch goes into detail about Apache ceremonies, including three-day coming-of-age-rituals for Apache girls, in which they gather plants while covered in white clay. This mirrors the Apache creation story in which a white-painted woman came out of the earth. Gorsuch quotes the plaintiff, the Apache Stronghold, which wrote that the white clay is meant to “imprint” the spirit of Oak Flat in the young women.

Now, Justice Gorsuch writes, tribal members believe the destruction of Oak Flat “will close off the portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”

The Law

Gorsuch details obligations in an 1852 treaty between the Apaches and the government to recognize the sacred status of Oak Flat. Those obligations were overturned when legislators attached an 11th hour rider to the 2014 National Defense Authorization Act, hiding it in a bill that was 698 pages long.

Justice Gorsuch proceeds to dissect and expose the illogical Ninth Circuit Court of Appeals decision that will now allow the multinational mining company to destroy Oak Flat. Today’s motion puts at risk the Religious Freedom Restoration Act (RFRA), which was passed by Congress in 1993 to protect the free exercise of religion from “substantial burdens” by the federal government.

The Ninth Circuit got around RFRA by turning to a precedent, Lyng v. Northwest Indian Cemetery Protective Assn. (1988) that involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. Gorsuch writes:

“On the Ninth Circuit’s telling, Lyng set forth a special test for analyzing whether the government’s ‘disposition’ of its real property runs afoul of the Free Exercise Clause … That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no ‘tendency to coerce individuals into acting contrary to their religious beliefs’ and does not ‘discriminate against or among religious adherents.’”

The Result

Justice Gorsuch notes that courts have had no qualms upholding other laws restricting the government’s power to dispose of its real property. The Endangered Species Act, for example, required the halting of a federal dam to protect the “snail darter.” But no such protections can be afforded to the religion of the Apaches.

The way is now clear for Resolution Copper to blast tunnels that will result in a crater 1,000 feet deep and nearly two miles wide. While courts have acknowledged that this will permanently destroy the Apaches’ historical place of worship, preventing them from ever worshipping there, it does not – according the Ninth Circuit opinion now upheld –amount to a “substantial burden” of the First Amendment religious freedom rights of the Apache. Justice Gorsuch writes:

“Just imagine if the government sought to demolish a historic cathedral on so questionable a claim of legal reasoning. I have no doubt we would find the case worth our time. Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”

He ended his dissent with a quote from the Court’s 2018 opinion in Masterpiece Cakeshop:

“Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to … religious freedom.”

In his conclusion, Justice Gorsuch writes:
​
“While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake – one with consequences that threaten to reverberate for generations."

​A federal court has blocked the government from transferring Oak Flat to a foreign-owned mining company, preserving the sacred Apache site while the U.S. Supreme Court considers whether to hear the case. The ruling is a powerful rebuke of the federal rush to transfer the land, which Western Apaches consider a portal to the Creator and the center of their religious life.
 
Judge Steven P. Logan concluded that “there is no close question in this matter,” finding it “abundantly clear that the balance of equities ‘tips sharply’ in Plaintiff’s favor.” He emphasized that the Apaches face “a likelihood of irreparable harm should the transfer proceed” and that the case presents “serious questions on the merits that warrant the Supreme Court’s careful scrutiny.”
 
Oak Flat, which sits within Arizona’s Tonto National Forest, has been central to Apache religion for centuries. For 70 years, it has been protected from mining, until a 2014 defense bill provision set the stage for its transfer to Resolution Copper, a subsidiary of a multinational firm partially owned by a Chinese corporation.
 
If the mine goes forward, the Apache will forever lose their ability to perform ceremonies tied to the land. Resolution Copper plans to turn Oak Flat into a two-mile-wide, 1,100-foot-deep crater. That devastation would be irreversible, a loss equal in scale to dynamiting the Vatican or using the stones of the Wailing Wall as a quarry.
 
Dr. Wendsler Nosie Sr. of Apache Stronghold responded bluntly: “The federal government and Resolution Copper have put Oak Flat on death row – they are racing to destroy our spiritual lifeblood and erase our religious traditions forever.”
 
The injunction prohibits the federal government from publishing its environmental report or finalizing the land transfer until the Supreme Court either denies review or issues a final ruling. That decision halts Resolution Copper’s plans to turn Oak Flat into a massive copper mine.
 
The court rejected the argument that Apache rituals could simply be relocated, stating it was “disinclined to minimize the importance of Oak Flat to the Apache’s belief system.” As previously noted by the court in 2021, the mine would “close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.”
 
Judge Logan also dismissed the mining company’s claims about financial harm, noting they had invested in the land years before Congress authorized the transfer and did so “voluntarily.” In contrast, the Apaches risk losing access not just to land, but to their religious future: “They cannot choose to practice their religion at all once their sacred religious site is completely ‘obliterated,’” as one dissenting judge previously wrote.
 
Oak Flat is more than a legal fight. It’s a test of whether the U.S. government will honor its promise of religious liberty when it matters most – not just in speech, but in action. The Apache’s sacred ground deserves the same protection any church, synagogue, or mosque would be afforded. If the Apache lose, Americans of all faiths will lose as well.

​The Oak Flat sacred site in the Tonto National Forest in Arizona has undergone a Perils of Pauline ordeal in federal courts, rescued from ruin only to be tied to the tracks again before an oncoming train.
 
This land for centuries has been the centerpiece of Apache religion and the Western Apache people’s relationship with the Creator. It is now slated to be transferred to a partially Chinese-owned mining company that plans to dig a copper mine there, mutilating a site as holy to the Apache as the Vatican is to Catholics or the Wailing Wall is to Jews. If the project proceeds, all that will be left of the Apache’s sacred land will be a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
The Apache’s appeal has been repeatedly relisted for possible certiorari, or an oral argument, before the Supreme Court. Not content to wait, the U.S. government has announced its intention to jump ahead of the Court and transfer Oak Flat to the mining company, circumventing the judicial process.
 
At 9:30 a.m. on Wednesday, Luke Goodrich of the Becket Fund for Religious Liberty will present an emergency motion before Judge Steven P. Logan in federal district court in Phoenix asking him to block the transfer while the Supreme Court hears the case.
 
In a dissent from the Ninth Circuit opinion now being appealed, Judge Marsha B. Berzon declared that the Religious Freedom Restoration Act (RFRA) should be sufficient to protect Oak Flat. She wrote that “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.” She called the current status of the case “an illogical interpretation of RFRA” and “incoherent.”
 
This case is too important to be short-circuited or ignored. Respect for RFRA is vital to people of all faiths, which is one reason why Christian, Jewish, and other groups have joined in petitioning the courts to save Oak Flat.
 
On Sunday, Apache tribal members began an 80-mile run from Oak Flat that will end in Phoenix just before the hearing. We may not be able to join them on the run, but surely we can join them in prayer.

​Peaceful protesters from Arizona’s Apache Stronghold held a day of prayer outside the U.S. Supreme Court last week. In their quest to preserve the centerpiece of their faith from utter destruction, the Apache certainly deserve our prayers. But they also deserve our amicus briefs, for the Almighty helps those who help themselves.
 
The Apache and other Native peoples led the way by asking the Supreme Court to protect their sacred land and – by extension – the sacred lands and landmarks of Jews, Christians, Muslims, and all Americans of faith. That is why Sikhs, Muslims, the Mennonite Church, other tribes, and the Christian Legal Society have filed briefs supporting Apache Stronghold.
 
For centuries, the Apache have held sacred a site in the Tonto National Forest in Arizona they call Chí’chil Biłdagoteel, known colloquially as Oak Flat. Though under management by the U.S. Forest Service, Oak Flat has for centuries been recognized as the central location for the Apache’s religious worship – a place where they honor their ancestors, hold ceremonies, and mediate their relationship with the Creator. It’s their Mount Sinai, Temple Mount, and Vatican.
 
After the discovery of copper beneath and around the site, Congress in an 11th hour deal transferred Oak Flat to Resolution Copper, a foreign mining company. The Apache and their allies (including us) are now engaged in a legal struggle to prevent Resolution Copper from transforming the site into a crater as deep as the Washington Monument.
 
The Apache have demonstrated that the federal government’s conveyance of their sacred land constitutes a violation of the Religious Freedom Restoration Act. Yet the Ninth Circuit Court of Appeals – usually not known for indifference to minority rights – sided with the mining company and the government in a 6-5 decision.
 
The court’s reasoning is self-contradicting. The Ninth agreed that the land’s disposition to Revolution Copper will categorically prevent the Apache from participating in any worship at Oak Flat because their religious site will be obliterated. Yet the court found that the land transfer would not constitute a “substantial burden” on religion because that standard does not apply in instances of “the Government’s management of its own land and internal affairs.” These rulings ignore both the recognition of Oak Flat as the sacred land of the Apache in treaties going back to the 19th century and is an absurdly narrow reading of constitutes a substantial burden on the free exercise of religion.
 
The Apache’s petition identifies the circuit split that only the Supreme Court can resolve: “This remarkable result openly conflicts with RFRA’s text, which expressly applies to all Federal law and ‘the use … of real property for the purpose of religious exercise’ – with no carveout for government property.” Further, the appellate court ruling “conflicts with decisions of the Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits,” which “have long recognized that the government substantially burdens religious exercise not only by penalizing it but also by preventing it from occurring.”
 
Without intervention from the high court, the government will not only destroy the Apache’s religious heritage but provide a skeleton key for “eviscerating RFRA in any context deemed part of the government’s ‘internal affairs’ – a concept that could cover almost anything the government does.”
 
If you are a person of faith or respect the faiths of others, you have a stake in Oak Flat.

​The Ninth Circuit Court of Appeals’ ruling against the Apache Stronghold, unless overturned, will allow the Apache’s Oak Flat religious site to be destroyed by a private mining company.
 
These lands have long been recognized by the U.S. government as the singular, sacred site of the Apaches’ worship. Set to be transformed into a crater twice as deep as the Washington Monument, not only is Oak Flat in danger of being destroyed, but with it the religion that centers around that site.
 
The least we can say is that this one was painfully close, a 6-5 split decision. The Ninth Circuit asserted that the transfer of this land, revered as the center of the Apache religion for centuries, did not (somehow) even trigger an inquiry under, much less violate, violate the Religious Freedom Restoration Act. That Act requires strict scrutiny of any law that burdens religious freedom. Judge Mary H. Murguia issued a stinging rebuke of the majority in her dissent:
 
“We are asked to decide whether the utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a ‘substantial burden’ on the Apaches’ sincere religious exercise under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to bb-4. Under any ordinary understanding of the English language, the answer must be yes.”
 
Unless the U.S. Supreme Court grants cert. and overturns the Ninth Circuit’s unduly narrow conception of what constitutes a “burden” on religion, the Oak Flat religious site will become one of the nation’s largest copper ore mines, the result of a midnight deal in Congress. This scenic place of worship will become an ugly pit.
 
What was the reasoning of the majority? This en banc decision relied on a U.S. Supreme Court case, Lyng v. Northwest Indian Cemetery Protective Ass’n (1988), which held that government disposition of property does not violate the Free Exercise Clause so long as it “compels no behavior contrary to … belief.” It is doubtful that the Ninth Circuit’s broad reading of that statement remains valid, if it ever was. If barring people from entering a place of worship under COVID restrictions raises serious free exercise problems, it is hard to see how completely destroying a religion’s essential place of worship does not at least impose a burden sufficient to trigger strict scrutiny under RFRA.
 
People of all faiths should be concerned that the circuit court took such a miserly view of the free exercise of religion. Imagine the outcry from Catholics if the government decided to turn the Basilica of the National Shrine of the Immaculate Conception into dust. Or the outcry of American Jews if a midnight deal in Congress targeted the Touro Synagogue in Rhode Island – the oldest still standing in the United States, and where George Washington welcomed Jews into the heart of America – to become a seemingly bottomless pit. The notion that such acts would not even “burden” the exercise of religion goes well beyond the implausible and into the absurd.
 
We hope the Justices of the Supreme Court dwell on the words of our first President, who famously wrote to the congregants of the Touro Synagogue: “Every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” Can we say that is true for everyone in our country now? To again quote the dissenting judges, “the destruction of the Apaches’ sacred site will prevent worshipers from ever again exercising their religion.”
 
Luke Goodrich, senior counsel at Becket who represented the Apache, tweeted: “We fully expect SCOTUS to take this case, confirm the plain meaning of federal law, and hold that Native Americans are entitled to the same protection of their religious freedom that every other American enjoys.” Protect The 1st is also hopeful the Court will see that the Apaches’ free exercise of religion is inextricable from the preservation of this uniquely holy place.
 
For the Supreme Court to review this case would be a prayer answered.

When Protect The 1st filed an amicus brief before the Ninth Circuit seeking to stop a land swap that would transform the sacred lands of the Apache tribes into a giant mining pit, we had no lack of company.
 
Sponsors of the brief included the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, The Church of Jesus Christ of Latter-Day Saints, and the Sikh Coalition.
 
We declared: “While, on its surface, this case concerns Native American religious rights, the district court’s erroneously narrow standard for what qualifies as a substantial burden under RFRA (the Religious Freedom Restoration Act) will harm Jewish, Muslim, Sikh, Buddhist, Hare Krishna, Christian and all manner of religious communities, organizations and individuals.”
 
Now the Ninth Circuit, after an extraordinary en banc rehearing, is considering the fate of lands recognized by the U.S. government as sacred and held in trust since 1852. If the foreign mining consortium is allowed to proceed, it will transform the Apache’s sacred lands, leaving a hole in the ground as long as the Washington Mall and as deep as two Washington monuments.
 
The ability of the government to ignore RFRA and utterly destroy a religious site is drawing protest from Christian faith leaders and those of other religions who will make a Prayer Rising pilgrimage to Oak Flat on Saturday, Nov. 4. Dr. John Mendez, retired pastor of Emmanuel Baptist Church in Winston-Salem, North Carolina, says: “It’s not just the Apache struggle, it’s all our struggle.”

​The Apache Stronghold’s case to protect Oak Flat, sacred tribal lands within Arizona’s Tonto National Forest, is still in play. If a previously 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. Although a federal district court initially ruled in favor of the Apache, the Ninth Circuit U.S. Court of Appeals in 2022 reversed the lower court ruling.
 
Then the Ninth Circuit veered back and reheard the Apache’s case in an en banc hearing. We are currently awaiting a decision and hoping for an Apache victory. Now there’s yet another reason for cautious optimism.
 
The Biden Administration, in a letter from Forest Service Associate Deputy Chief Troy Heithecker to Terry Rambler, chair of the San Carlos Apache tribe, expresses hopes to finalize a memorandum of understanding to set parameters around formal talks. The San Carlos Apache Tribe has for years pushed for a consultation agreement, so this letter comes as a heartening development.
 
Meanwhile, the Ninth Circuit, which reheard oral argument in March before a full panel of 11 judges en banc, remains a wild card.
 
At issue is whether the Oak Flat mining deal constitutes a “substantial burden” of the free exercise of religion guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA). Granting requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. So the rehearing served as a rare chance for the court to reverse itself. At worst, dissenting judges can get their opinions on record as fodder for a bid for the U.S. Supreme Court to hear the case.
 
If the Supreme Court were to accept an appeal, it could fundamentally alter the calculus in favor of the Apache. The shadow of Justice Neil Gorsuch looms large over Native American issues. Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority. When the Ninth Circuit recently ruled against a different Native American tribe in favor of the government in a similar case out of Oregon, the government agreed to a settlement once it seemed possible the case could land before the Supreme Court.
 
Protect The 1st is pleased by the developments in the Apache Stronghold’s case to protect Oak Flat. The negotiation between the Apache and the Biden Administration should not deter the Ninth Circuit from finding in favor of the Apache on religious liberty grounds. As defenders of the First Amendment’s guarantee of freedom of religion, we look forward to further developments in the protection of sacred lands.

Last year, the Protect The First Foundation filed an amicus brief urging the Ninth Circuit Court of Appeals to hear the plight of the Yakima Nation and the Confederated Tribes of Grand Ronde. These two Native American groups sued when the federal government widened U.S. Highway 26 in Eastern Oregon, demolishing an ancient stone altar and grove of trees sacred to the religion of these Americans.
 
The U.S. District Court in Oregon had first found that the U.S. Federal Highway Administration had not violated the religious rights of the tribes under the Religious Freedom Restoration Act (RFRA). A Ninth Circuit Court panel further did not see that it had the authority, or a need, to attempt remediation. Compounding injury with insult, the Ninth Circuit ruled the government was not responsible for the destruction of the sacred site and dismissed the case as moot. Accordingly, Protect The 1st, along with the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the American Islamic Congress, petitioned the U.S. Supreme Court to reconsider the matter.
 
Perhaps not wanting to face a High Court notably protective of the First Amendment and religious expression, the federal government quickly agreed to a settlement. The government will replant the grove of native trees, pay for the reconstruction of the sacred stone altar, and recognize the historic use of the site by Native Americans. The restoration of the sacred site is set to be completed by spring 2024. The good news comes from the Becket Foundation, which helped the tribes file their petition.
 
“Our nation has a long, dark history of needlessly destroying Native American sacred sites without consequence,” said Luke Goodrich, Vice President and Senior Counsel at Becket. In a thread on X (Twitter), Goodrich said, “The government can never fully undo the damage it caused in this case. But this agreement is one step in a better direction--allowing these tribal members to resume religious practices that the government had taken away.”
 
The stunning about-face comes despite the government’s consecutive wins in lower and appellate courts. Perhaps the government took note that Justice Neil Gorsuch has ruled in favor of Native American tribes in nearly a dozen cases, often casting his vote to give the Court’s liberal wing a rare majority.
 
The settlement comes as other cases involving Native American land are still pending. The Ninth Circuit is still considering Apache Stronghold v. United States. In that case, the federal government is seeking to give away another Native sacred site to a multinational mining giant which plans to turn the site into a copper mine. 
 
Protect The 1st congratulates the Yakima Nation and the Confederated Tribes of Grand Ronde as well as the Becket Foundation for their victory. The religious liberty protections of the First Amendment apply to all Americans, but most especially to religious minorities more vulnerable than faiths with many adherents.
 
We hope this settlement will send a message to careless government bureaucrats to be more respectful of Native American religious sites. We especially hope this same change of heart will also come for the Apache and their case now before the Ninth Circuit.

​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.”