Why the Ninth Circuit Needs a “Do-Over” on Oak Flat and the First Amendment

​Oak Flat in Arizona has been a sacred site for Apache people for centuries – a place of worship, ceremony, and spiritual connection with the Creator. Now the federal government has transferred the land to Resolution Copper, the foreign-held Rio Tinto-BHP mining venture that will turn the site into a crater nearly two miles wide and as deep as two Washington Monuments stacked end to end.

That destruction would permanently prevent Apache believers from practicing their religion at a place that is essentially their Vatican, their “Wailing Wall.”

Protect The 1st last week filed an amicus brief urging the federal Ninth Circuit to rehear this case en banc (before eleven of its judges), demonstrating that the court’s earlier decision in Apache Stronghold v. United States fundamentally misread federal religious-liberty law. That decision also failed to resolve contradictory understandings of the law within different rulings of that same en banc panel. 

Our brief explains how the court effectively held two irreconcilable ideas at once:

• First, that the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) should be interpreted consistently; and

 

• Second – “substantial burden” on religion – means something entirely different depending on which of these two statutes applies. 

That legal contradiction matters because RFRA and RLUIPA are considered “sister statutes” enacted precisely to provide broad protection for religious exercise against government interference. The U.S. Supreme Court has repeatedly said these laws should be interpreted broadly in favor of religious exercise. And if RFRA cannot protect against the complete destruction of a sacred site central to Apache worship, then one must ask: What exactly can it protect?

The Ninth Circuit previously insisted that – in the land-use context – a “substantial burden” exists only when the government coerces believers into violating their faith or discriminates among religions. Our filing points to two recent Supreme Court decisions that further undermine this reasoning.

• In Mahmoud v. Taylor, the Supreme Court held that parents challenging mandatory exposure of their children to school materials conflicting with their religious beliefs were likely to succeed under the Free Exercise Clause – even absent direct coercion.

 

• Likewise, in Mirabelli v. Bonta, the Court sided with parents objecting to California school policies involving gender identity and parental notification, again recognizing a significant burden on religious exercise without requiring outright coercion. 

If parents can establish a substantial burden because school policies threaten to undermine religious teachings, surely Apache worshippers can establish a substantial burden when, as Justice Neil Gorsuch wrote in a dissent, “the government’s plan” will permanently destroy the Apache’s historical place of worship.

Again, if that is not enough to describe a burden on the free exercise of religion, it is hard to imagine what would be. Most important of all, the impact of this case defines the rights of all minority religions.

If the government can knowingly destroy a sacred Native American religious site while claiming no “substantial burden” exists, then all religious-liberty protections become hollow promises – especially for minority faiths lacking political power.

Protect The 1st believes religious liberty is indivisible. The rights of all Americans are strengthened when courts protect the faith practices of minority communities, including Native Americans whose sacred places have too often been treated as expendable.
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Our brief concludes with an undeniable fact – the Ninth Circuit’s decision is “at war with Supreme Court precedent, at war with the text of RFRA, and at war with itself.” 
The court should grant rehearing en banc and give the Apache people – and their First Amendment rights – the protection these American citizens deserve.

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