Apache Stronghold v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APACHE STRONGHOLD, a 501(c)(3) No. 21-15295

nonprofit organization,

Plaintiff-Appellant, D.C. No.

2:21-cv-00050-

v. SPL

UNITED STATES OF AMERICA; THOMAS

J. VILSACK, Secretary, U.S. OPINION

Department of Agriculture (USDA);

RANDY MOORE, Chief, USDA Forest

Service; NEIL BOSWORTH, Supervisor,

USDA Forest Service, Tonto National

Forest; TOM TORRES, Acting

Supervisor, USDA Forest Service,

Tonto National Forest,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted October 22, 2021

San Francisco, California

Filed June 24, 2022

2 APACHE STRONGHOLD V. UNITED STATES

Before: Mary H. Murguia, Chief Judge, and Marsha S.

Berzon and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Berzon

SUMMARY *

Religious Freedom Restoration Act /

Free Exercise Clause

The panel affirmed the district court’s denial of Apache

Stronghold’s motion for a preliminary injunction seeking to

stop a land exchange and prevent any copper mining on Oak

Flat, a plot of land in Arizona.

A 2014 act of Congress requires the U.S. Secretary of

Agriculture to convey Oak Flat to Resolution Copper, a

mining company. In exchange, Resolution Copper will

convey to the United States a series of nearby plots of land

(the “Land Exchange”). To the Apache American Indians,

Oak Flat, known to the Apache as Chi’chil Bildagoteel, is

sacred ground. Apache Stronghold, a nonprofit

organization, sued the government, alleging that the Land

Exchange violated the Religious Freedom Restoration Act

(“RFRA”), the Free Exercise Clause of the Constitution’s

First Amendment, and a trust obligation imposed on the

United States by the 1852 Treaty of Santa Fe between the

Apache and the United States.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

APACHE STRONGHOLD V. UNITED STATES 3

Concerning Apache Stronghold’s RFRA claim, the panel

began by addressing what constituted a “substantial burden”

under RFRA. First, RFRA by its text restored Sherbert v.

Verner, 374 U.S. 398 (1963), Wisconsin v. Yoder, 406 U.S.

205 (1972), their “compelling interest” test, and their

“substantial burden” inquiry, and defined a “substantial

burden” under RFRA as either of the burdens present in

those two cases. Second, the Supreme Court has used the

phrase “substantial burden” as a Free Exercise Clause term

of art that meant only the two burdens within the

Sherbert/Yoder framework, and a “substantial burden” under

RFRA must hold that same settled meaning. Third, Lyng v.

Northwest Indian Cemetery Protective Association, 485 U.S.

439 (1988), and Bowen v. Roy, 476 U.S. 693 (1986), the

cases most factually and legally analogous to Navajo Nation

v. United States Forest Service, 535 F.3d 1058 (9th Cir.

2008) (en banc), and this case, confirmed that even

burdensome government action did not constitute a

“substantial burden” (and did not trigger the “compelling

interest” test) if that action fell outside the Sherbert/Yoder

framework.

The panel next turned to Apache Stronghold’s main

argument that the Land Exchange would hand Oak Flat over

to Resolution Copper for its mining plan, thus incidentally

making it impossible for Apache Stronghold’s members to

worship on Oak Flat and thereby substantially burdening

them. The panel held that this argument could not succeed

in light of Navajo Nation. The Land Exchange’s effect on

Apache Stronghold’s members fell outside of the

Sherbert/Yoder framework, and thus outside of RFRA’s

definition of a substantial burden. No government benefits

will be lost (as in Sherbert) nor will governmental penalties

be imposed (as in Yoder). The Department of Agriculture

will simply transfer ownership of a plot of government land

4 APACHE STRONGHOLD V. UNITED STATES

to Resolution Copper, and the Land Exchange does not

coerce the Apache to abandon their religion by threatening

them with a negative outcome. Because Apache

Stronghold’s members have not established that they would

suffer a substantial burden under RFRA, Apache Stronghold

is not likely to succeed on its RFRA claim. The panel

rejected Apache Stronghold’s and the dissent’s contentions

to the contrary.

Next, the panel addressed Apache Stronghold’s

secondary argument that the Land Exchange did in fact

deprive its members of a benefit and subjected its members

to a penalty. Namely, the Land Exchange allegedly deprived

Apache Stronghold members of the “use and enjoyment of

‘government’ land for religious exercise” and subjected

them to penalties for “trespassing on now ‘private’ land.”

The panel disagreed. The government does not substantially

burden religion every time it ends a governmental benefit

that at one time went to religious beneficiaries: there must

be an element of coercion. The Land Exchange does not

“condition” any government benefits on the Apache

violating their religious beliefs. The panel also rejected

Apache Stronghold’s argument that the Land Exchange

subjected its members to penalties: liability for trespassing

on land that will be private after the Exchange. Apache

Stronghold has not shown a sufficiently realistic fear of

future criminal trespass liability. Also, Apache Stronghold

seeks relief that RFRA cannot provide: RFRA does not

authorize Apache Stronghold to enjoin the entire Land

Exchange. Similarly, it is not clear that the Apache will be

subject to civil trespass liability. But even if Apache

Stronghold’s members were subject to the threat of

imminent civil trespass suits, the panel could not enjoin the

entire Land Exchange as Apache Stronghold requested.

APACHE STRONGHOLD V. UNITED STATES 5

The panel rejected Apache Stronghold’s claim that the

Land Exchange would violate the Constitution’s Free

Exercise Clause. Apache Stronghold argued that the Land

Exchange Provision was neither neutral nor generally

applicable and thus was subject to strict scrutiny. The panel

held that the Land Exchange was neutral in that its object

was not to infringe upon the Apache’s religious practices.

All the evidence suggests that the Land Exchange was meant

to facilitate mineral exploration activities – nothing more

and nothing less. The panel concluded that the district court

properly found that Apache was not likely to succeed on its

Free Exercise claim.

Last, the panel considered Apache Stronghold’s trust

claim under the Treaty of Santa Fe. Namely, that the Treaty

created an enforceable trust obligation on the U.S.

government, and the Land Exchange was inconsistent with

the U.S.’s obligation to pass laws conducive to the prosperity

and happiness of the Apache. The panel agreed with the

government that on this record, Apache Stronghold has not

established that the Treaty of Santa Fe imposes on the United

States an enforceable trust obligation. The panel concluded

that Apache Stronghold’s trust claim was unlikely to

succeed.

The panel recognized the deep ties the Apache have to

Oak Flat, and acknowledged that the Land Exchange may

impact the Apache’s plans to worship at Oak Flat. But

RFRA, the Free Exercise Clause, and the 1852 Treaty of

Santa Fe do not afford Apache Stronghold the relief that it

seeks.

Dissenting, Judge Berzon wrote that the majority applied

an overly restrictive test for identifying a “substantial

burden” on religious exercise under RFRA. The majority’s

6 APACHE STRONGHOLD V. UNITED STATES

flawed test leads to an absurd result: blocking Apaches’

access to and eventually destroying a sacred site where they

have performed religious ceremonies for centuries did not

substantially burden their religious exercise. There was no

doctrinal basis for limiting the definition of “substantial

burden” to the types of burdens imposed in Sherbert and

Yoder. The majority’s proffered practical basis for its

constricted definition of “substantial burden” is also flawed.

Applying the correct definition of “substantial burden,”

Judge Berzon would hold that Apache Stronghold has shown

that it is likely to succeed on the merits of its RFRA claim.

She would remand for the district court to address the

remaining elements of the preliminary injunction test.

COUNSEL

Luke W. Goodrich (argued), Mark L. Rienzi, Diana M.

Verm, Joseph C. Davis, Christopher Pagliarella, Daniel D.

Benson, And Kayla A. Toney, The Becket Fund for

Religious Liberty, Washington, D.C.; Michael V. Nixon,

Portland, Oregon; Clifford Levenson, Phoenix, Arizona; for

Plaintiff-Appellant.

Joan M. Pepin (argued), Andrew C. Mergen, Tyler M.

Alexander, and Katelin Shugart-Schmidt, Attorneys; Jean E.

Williams, Acting Assistant Attorney General; Environment

and Natural Resources Division, U.S. Department of Justice,

Washington, D.C.; for Defendants-Appellees.

Gene C. Schaerr and Joshua J. Prince, Schaerr | Jaffe LP,

Washington, D.C.; James C. Phillips, Chapman University,

Dale E. Fowler School of Law, Orange, California; for

Amici Curiae Jewish Coalition for Religious Liberty, The

APACHE STRONGHOLD V. UNITED STATES 7

International Society for Krishna Consciousness, The Sikh

Coalition, and Protect The 1st.

Miles E. Coleman, Greenville, South Carolina; Thomas

Hydrick and Hunter Windham, Columbia, South Carolina;

for Amici Curiae Religious Liberty Law Scholars.

Stephanie Hall Barclay, Associate Professor of Law,

Director, Religious Liberty Initiative, Notre Dame Law

School, Notre Dame, Indiana; Michalyn Steele, Professor of

Law, BYU Law School, Provo, Utah; for Amici Curiae

National Congress of American Indians, A Tribal Elder, and

Other Federal Indian Law Scholars and Organizations.

William E. Trachman, Mountain States Legal Foundation,

Lakewood, Colorado; Timothy Sandefur, Goldwater

Institute, Phoenix, Arizona; for Amici Curiae the Towns of

Superior, and Hayden, Arizona, and Jamie Ramsey, the

Mayor of Kearny, Arizona.

David Debold, Thomas G. Hungar, and Matthew S. Rozen,

Gibson, Dunn & Crutcher, LLP, Washington, D.C.; for

Amici Curiae American Exploration & Mining Association,

Women’s Mining Coalition, and Arizona Rock Products

Association.

8 APACHE STRONGHOLD V. UNITED STATES

OPINION

BEA, Circuit Judge:

A 2014 act of Congress requires the U.S. Secretary of

Agriculture to convey Oak Flat, a plot of federal land in

Arizona, to a mining company named Resolution Copper. In

exchange, Resolution Copper will convey to the United

States a series of other nearby plots of land (the “Land

Exchange”). Resolution Copper is considering constructing

a copper mine under Oak Flat to access one of the world’s

largest undeveloped copper deposits. But to the Apache

American Indians, Oak Flat—or as the Apache call it,

Chi’chil Biłdagoteel—is sacred ground. So Apache

Stronghold, a non-profit organization formed to preserve and

protect American Indian sacred sites, sued the government

on the grounds that the Land Exchange violates each of:

1) the Religious Freedom Restoration Act (“RFRA”),

42 U.S.C. § 2000bb et seq; 2) the Free Exercise Clause of

the Constitution’s First Amendment; and 3) a trust obligation

that Apache Stronghold claims was imposed on the United

States by the 1852 Treaty of Santa Fe between the Apache

the United States. In the district court below, Apache

Stronghold moved for a preliminary injunction, seeking to

stop the Land Exchange and prevent any copper mining.

The district court reviewed Apache Stronghold’s evidence

and arguments and ruled that the non-profit was unlikely to

succeed on any of its claims. The district court thus denied

Apache Stronghold’s motion. We affirm.

I. Background

A. The At-Issue Land

The Tonto National Forest stretches across nearly 3

million acres (or about 4,500 square miles) across Arizona.

APACHE STRONGHOLD V. UNITED STATES 9

See Tonto National Forest, U.S. Dep’t of Agriculture,

https://www.fs.usda.gov/detail/tonto/home/?cid=fsbdev3_0

18924 (last visited June 15, 2022). Most of the forest is

owned by the United States and is managed by the United

States Forest Service, a division of the United States

Department of Agriculture. See id. Within the Tonto Forest

is Oak Flat, a 6.7-square-mile plot of plains, oak groves, and

rocky cliffs that sits about 4,000 feet above sea level.

Beneath Tonto Forest and extending under part of Oak Flat

lies “one of the largest undeveloped copper deposits in the

world,” containing an estimated 1,970 billion tons of copper.

Also within the Tonto National Forest are several areas

sacred to the Apache American Indians. Oak Flat is one of

these areas, as are Devil’s Canyon (called Ga’an Bikoh by

the Apache), a depression just east of Oak Flat, and Apache

Leap (called Dibecho Nadil by the Apache), a steep slope

just to Oak Flat’s west. These three adjacent areas are places

where the Apache’s Ga’an—beings that the Apache describe

as their “creators, [their] saints, [their] saviors, [their] holy

spirits”—live and where the Apache can communicate with

them. Currently, the federal government owns Oak Flat. 1

Devil’s Canyon is owned partially by Arizona state

government trusts 2 and partially by the federal government.

And Apache Leap is owned partially by Resolution Copper

1

Apache Stronghold may dispute the United States’ ownership of

part of Tonto National Forest later in this litigation but does not do so in

this appeal.

2

Arizona holds some land in trust on behalf of a group of public

entities, including state universities and state K-12 schools. See State

Trust Land Beneficiaries, Ariz. State Land Dep’t,

https://land.az.gov/our-agency-mission/beneficiaries (last visited June

15, 2022).

10 APACHE STRONGHOLD V. UNITED STATES

and partially by the federal government. See 16 U.S.C.

§ 539p(d)(1)(A)(v).

In recent years, Oak Flat has been used for a variety of

purposes, both religious and secular. After decades of

holding religious rituals on their reservations, the Apache

have recently returned to worship in Tonto Forest. In 2014,

the Apache held a “Sunrise Dance” on Oak Flat for just the

second time in “more than a hundred years.” That 2014

ceremony closely followed another Sunrise Dance held the

previous year at Mt. Graham, another sacred site elsewhere

in Arizona. Separately, recreational users often camp, hike,

or rock-climb throughout Tonto National Forest, including

on Oak Flat.

B. The Land Exchange Provision

After nearly a decade of debate, Congress included in the

2014 National Defense Authorization Act a provision (the

“Land Exchange Provision”) that requires the Secretary of

Agriculture to complete a land swap arrangement with

Resolution Copper. See National Defense Authorization Act

for Fiscal Year 2015, Pub. L. No. 113-291, § 3003, 128 Stat.

3732–41 (2014) (codified at 16 U.S.C. § 539p). Under the

Provision’s terms, the Department of Agriculture must

convey 2,422 acres of federal land, including Oak Flat, to

Resolution Copper in exchange for 5,344 acres of Arizona

land currently owned by Resolution Copper (again, the

“Land Exchange”). See 16 U.S.C. § 539p(b), (c). 3

3

The Land Exchange is also subject to several conditions not at

issue here. See, e.g., 16 U.S.C. § 539p(c)(2)(A), (B) (requiring that the

parcels of land conveyed by Resolution Copper to the United States be

“acceptable to the Secretary [of Agriculture or the Secretary of the

Interior, depending on the parcel,]” and “conform[] to the title approval

APACHE STRONGHOLD V. UNITED STATES 11

Once the Forest Service and Resolution Copper

exchange the land specified in the Land Exchange Provision,

Resolution Copper expects to take “several years” to conduct

a “detailed feasibility study” regarding whether to proceed

with a mine on the land it receives. Under Resolution

Copper’s current proposal, it would use a mining technique

called “panel caving”; while Resolution Copper would not

need to dig a mine on the surface, the land over the mine

would eventually subside, “profoundly and permanently

alter[ing]” the landscape.

The Land Exchange Provision also requires a series of

consultation and mitigation measures. The Secretary of

Agriculture must conduct “government-to-government

consultation” with all “affected Indian tribes,” 16 U.S.C.

§ 539p(c)(3)(A), and must also agree with Resolution

Copper on “mutually acceptable measures” to “address the

concerns of the affected Indian tribes” and “minimize the

adverse effects on the affected Indian tribes resulting from

mining and related activities,” id. § 539p(c)(3)(B), (B)(i),

(B)(ii).

The Secretary of Agriculture must also prepare an

environmental impact statement under the National

Environmental Policy Act of 1969. See id. § 539p(c)(9)(B).

This impact statement will guide any further federal

government decisions on permitting and other approvals

necessary for any development of the transferred land. See

id. To that end, the impact statement must “assess the effects

of the mining and related activities on the Federal land

conveyed to Resolution Copper under [the Land Exchange

Provision] on the cultural and archeological resources that

standards of the Attorney General of the United States applicable to land

acquisitions by the Federal Government”).

12 APACHE STRONGHOLD V. UNITED STATES

may be located on [that] land” and “identify measures that

may be taken, to the extent practicable, to minimize potential

adverse impacts on those resources.” Id. § 539p(c)(9)(C)(i),

(ii).

Last, after the Department of Agriculture and Resolution

Copper complete the Land Exchange, the Land Exchange

Provision prohibits Resolution Copper from mining on

Apache Leap and obligates Resolution Copper to surrender

all rights to mine on or extract minerals from that land. See

id. § 539p(g)(3). Apache Leap will be designated the

“Apache Leap Special Management Area” with the goal of

preserving the area’s “natural character” and “cultural and

archeological resources” and protecting the “traditional uses

of the area by Native American people.” Id. § 539p(g)(1),

(2).

C. Administrative and Procedural History

In the years since Congress passed the Land Exchange

Provision, the Forest Service has engaged in a consultation

process with the public and with American Indian tribes.

The Forest Service held eleven public meetings and accepted

public comments for 120 days. Over that period, the Forest

Service received nearly 30,000 comments. Government

officials also met with American Indian tribes on dozens of

occasions between 2003 and 2020.

Separately, Resolution Copper has also collaborated

with Apache tribe members to conduct a series of surveys

that identified 6,906 “salvage locations” in Oak Flat,

including 6,871 plant salvage locations, 9 animal salvage

locations, and 26 mineral salvage locations. Resolution

Copper has committed to removing and relocating the

relevant articles from the salvage locations and preserving

them at another location. Still, these consultation processes

APACHE STRONGHOLD V. UNITED STATES 13

and mitigation measures were not enough to reach a solution

that satisfied all parties. This lawsuit stands as evidence of

this lack of success.

After these consultations, the Forest Service was

scheduled to publish its final environmental impact

statement on January 15, 2021. But several days before that

scheduled publication date, Apache Stronghold filed this

lawsuit, alleging that the Land Exchange violates RFRA, the

Free Exercise Clause, and certain trust duties that Apache

Stronghold argues were created by the 1852 Treaty of Santa

Fe between the U.S. government and the Apache. 4 Two days

after that, Apache Stronghold filed a motion for a temporary

restraining order and for a preliminary injunction to prevent

the Land Exchange. The district court denied the temporary

restraining order, reasoning that Apache Stronghold “could

not show immediate and irreparable injury,” and ordered

Apache Stronghold’s motion for a preliminary injunction to

be fully briefed. Apache Stronghold, 519 F. Supp. 3d at 597.

After a full round of briefing on Apache Stronghold’s

motion for a preliminary injunction, the district court held a

three-hour hearing, accepted documentary evidence, and

heard testimony from witnesses on Apache Stronghold’s

behalf. After considering the evidence and the parties’

arguments, the district court denied Apache Stronghold’s

motion. See id. at 611. As relevant here, the district court

found that Apache Stronghold was unlikely to succeed on its

claims under RFRA, the Free Exercise Clause, or the 1852

4

Apache Stronghold also brought claims under the Fifth

Amendment’s Due Process Clause and the First Amendment’s Petition

Clause. Those claims were rejected by the district court and Apache

Stronghold does not appeal those rulings. See Apache Stronghold v.

United States, 519 F. Supp. 3d 591, 609–11 (2021).

14 APACHE STRONGHOLD V. UNITED STATES

Treaty of Santa Fe. See id. at 598–609. Apache Stronghold

appealed, and also moved for an injunction pending appeal.

Separate from this litigation, the Forest Service had

issued its environmental impact statement on-time in

January 2021. But in March 2021, soon after Apache

Stronghold filed its motion for an injunction pending appeal,

the Department of Agriculture ordered the Forest Service to

rescind the environmental impact statement. The

Department of Agriculture explained that the government

needed “additional time” to “understand concerns raised by

Tribes and the public” and to “ensure the agency’s

compliance with federal law.” The Forest Service “cannot

give a precise length of time for completing the reinitiation

of consultation” but estimates that the process will take

“several months.”

Returning to this litigation, a Ninth Circuit motions panel

heard another full round of briefing, including additional

documentary evidence, as to Apache Stronghold’s motion

for an injunction pending appeal. The motions panel

eventually denied that motion, concluding that Apache

Stronghold had again failed to show that it needed

immediate relief to “avoid irreparable harm,” in large part

because the Forest Service expected to take “months” to

complete its revised environmental review. In dissent, Judge

Bumatay disagreed and would have granted Apache

Stronghold an injunction pending our resolution of this

appeal. Apache Stronghold’s appeal then reached this panel

for a decision on the appeal’s merits.

Besides this case, there are two other pending cases

brought by other plaintiffs who hope to prevent the Land

Exchange. Both of these cases were stayed by agreement of

the parties after the Forest Service withdrew its original

environmental impact statement. See Ariz. Mining Reform

APACHE STRONGHOLD V. UNITED STATES 15

Coal. v. U.S. Forest Serv., No. 21-00122 (D. Ariz. Mar. 15,

2021) (order granting, in light of the parties’ joint status

report, a stay “pending the Forest Service’s publication of a

future Final Environmental Impact Statement . . . for the

Resolution Copper Project and Land Exchange); San Carlos

Apache Tribe v. U.S. Forest Serv., No. 21-00068 (D. Ariz.

Mar. 15, 2021) (order granting the parties’ “Joint Motion to

Stay Proceedings”).

II. Standard of Review

We review for an abuse of discretion a district court’s

decision to deny a preliminary injunction but review de novo

any questions of law underlying that decision. See Env’t

Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020).

III. Discussion

A party seeking a preliminary injunction must show that:

1) it is “likely to succeed on the merits”; 2) it is “likely to

suffer irreparable harm in the absence of preliminary relief”;

3) “the balance of equities tips in [its] favor”; and 4) “an

injunction is in the public interest.” 5 Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008).

In the district court, Apache Stronghold sought a

preliminary injunction on the grounds that the Land

Exchange violates RFRA, the Free Exercise Clause, and the

trust obligations that Apache Stronghold claims were created

by the Treaty of Santa Fe. The district court denied Apache

Stronghold’s motion, finding that it was unlikely to succeed

on the merits of any of those three claims. See Apache

5

Here, where “the government opposes a preliminary injunction,”

the third and fourth factors “merge into one inquiry.” Porretti v.

Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021).

16 APACHE STRONGHOLD V. UNITED STATES

Stronghold, 519 F. Supp. 3d at 598–609. The district court

did not analyze the other Winter factors. See id. at 611. On

appeal, Apache Stronghold argues both that it is likely to

succeed on the merits of its claims and that the other Winter

factors favor it. Apache Stronghold requests that the Court

reverse and remand for entry of a preliminary injunction.

We have jurisdiction under 28 U.S.C. § 1292, and we affirm

the district court’s decision to deny Apache Stronghold’s

motion for a preliminary injunction upon the grounds given

by the district court.

A. Apache Stronghold’s RFRA Claim

We first address Apache Stronghold’s claim under the

Religious Freedom Restoration Act (again, “RFRA”).

Under RFRA, the federal government may not “substantially

burden” a person’s sincere exercise of religion unless that

burden is both “in furtherance of a compelling governmental

interest” and is “the least restrictive means of furthering

that . . . interest.” 42 U.S.C. § 2000bb-1(a), (b). Congress

passed RFRA in response to the Supreme Court’s decision

in Employment Division, Department of Human Resources

of Oregon v. Smith, 494 U.S. 872 (1990), a case holding that

the Constitution’s Free Exercise Clause “does not relieve an

individual of the obligation to comply with a ‘valid and

neutral law of general applicability.’” Id. at 879 (quoting

United States v. Lee, 455 U.S. 252, 263 n. 3 (1982) (Stevens,

J., concurring in judgment)).

Apache Stronghold primarily argues that the Land

Exchange—by enabling Resolution Copper to mine on Oak

Flat if the company so decides—will render Apache

religious exercise on Oak Flat “impossible” and thus

substantially burden the religious exercise of Apache

APACHE STRONGHOLD V. UNITED STATES 17

Stronghold’s Apache members. 6 Though that argument is

where Apache Stronghold focuses its efforts, Apache

Stronghold also contends that the Land Exchange

substantially burdens its members in another way: by

depriving its members of the “government benefit” of their

present right to access the government-owned land of Oak

Flat and by subjecting its members to the potential penalty

of a trespass lawsuit for entering Oak Flat once it becomes

the private property of Resolution Copper.

The government, for its part, concedes that Apache

Stronghold’s members seek to exercise sincere religious

beliefs by holding ceremonies on Oak Flat, see Apache

Stronghold, 519 F. Supp. 3d at 604, and wisely so. The

government’s only response to Apache Stronghold’s RFRA

claim, at least at this stage of the litigation, is to argue the

Land Exchange would not “substantially burden” Apache

Stronghold under RFRA. 42 U.S.C. § 2000bb-1(b).

We proceed as follows. First, we summarize the binding

Ninth Circuit case law that defines the term “substantially

burden” as used in RFRA. Second, we apply that settled

understanding of the term to the facts of the Land Exchange

and determine whether the Exchange will substantially

burden Apache Stronghold under Apache Stronghold’s

primary RFRA argument. And third, we discuss Apache

Stronghold’s secondary RFRA argument that the Land

Exchange deprives its members of the benefit of access to

6

Apache Stronghold further argues that the Land Exchange violates

RFRA because the “substantial burden” that the Exchange imposes is

unsupported by a compelling governmental interest. The district court

did not address this issue, see Apache Stronghold, 519 F. Supp. 3d at

603–08, and we have no need to do so here.

18 APACHE STRONGHOLD V. UNITED STATES

government land and subjects them to the potential penalty

of trespass lawsuits.

1. The Definition of a “Substantial Burden”

The parties contest what constitutes a substantial burden

under RFRA but fortunately, we do not write on a clean

slate. This Court previously addressed this same question in

Navajo Nation v. United States Forest Service, 535 F.3d

1058 (9th Cir. 2008) (en banc). In Navajo Nation, our en

banc court faced facts that mirror those here. Plaintiffs in

Navajo Nation, several American Indian tribes and

individuals, sued the U.S. Forest Service to enjoin the

Service from allowing a ski resort operating on government

land to use recycled wastewater to make artificial snow for

skiing. See id. at 1063. Like Oak Flat, the site of the ski

resort (a mountain named Humphrey’s Peak) was “sacred in

[the American Indians’] religion” and was a site for religious

ceremonies. Id. Like the Land Exchange, the Forest

Service’s plan in Navajo Nation to permit the ski resort to

use recycled wastewater on Humphrey’s Peak would

indisputably “spiritually contaminate” a sacred area and

inhibit religious ceremonies. Id. And like Apache

Stronghold, the Navajo Nation plaintiffs claimed that the

challenged government action would violate RFRA. See id.

Just as the facts in Navajo Nation parallel the facts here,

so do the legal issues. On appeal in Navajo Nation was

whether Forest Service’s proposed plan would create a

“substantial burden” under RFRA. Id. at 1067.

To determine the definition of a “substantial burden”

under RFRA, Navajo Nation turned to RFRA’s text.

RFRA’s stated statutory purpose is to “restore the

compelling interest test as set forth in [two landmark Free

Exercise Clause cases,] Sherbert v. Verner, 374 U.S. 398

APACHE STRONGHOLD V. UNITED STATES 19

(1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to

guarantee [that test’s] application in all cases where free

exercise of religion is substantially burdened.” 42 U.S.C.

§ 2000bb(b)(1). (This “compelling interest test” is what we

typically call strict scrutiny, and it requires that any

substantial burden on religion both be “in furtherance of a

compelling governmental interest” and be “the least

restrictive means of furthering that . . . interest.” Id.

§ 2000bb-1(a), (b).)

But Sherbert and Yoder did not only “set forth the

compelling interest test.” Navajo Nation, 535 F.3d at 1069.

These two cases also “define[d] what kind or level of burden

on the exercise of religion is sufficient to invoke” that test—

in other words, what burden counts as a “substantial

burden.” Id. So, because RFRA expressly “restore[d]”

Sherbert and Yoder’s compelling interest test, 42 U.S.C.

§ 2000bb(b)(1), we concluded that Sherbert and Yoder must

“also control [RFRA’s] ‘substantial burden’ inquiry,” the

step that determines whether the compelling interest test

applies to government action in the first place, Navajo

Nation, 535 F.3d at 1069.

Accordingly, to define a “substantial burden” under

RFRA, Navajo Nation looked to the type of burden on

religion that was imposed in Sherbert and in Yoder. In

Sherbert, the Supreme Court held that denying government

benefits on account of religion imposes a substantial burden

on religion. See 374 U.S. at 410. South Carolina thus

violated the Free Exercise Clause by withholding

unemployment benefits from a worker who was fired

because she refused to work on her faith’s day of rest. See

id. In Yoder, the Supreme Court held that imposing a

government penalty on account of religion also imposes a

substantial burden. See 406 U.S. at 213, 234. Wisconsin

20 APACHE STRONGHOLD V. UNITED STATES

thus violated the Free Exercise Clause by fining Amish

parents for violating a state truancy law that required

children to attend school until age sixteen, even though

sending children to high school was “contrary to the Amish

religion.” Id. at 208. So under RFRA, the government

imposes a substantial burden on religion only when the

government action fits within the framework established by

Sherbert and Yoder: “when individuals are forced to choose

between following the tenets of their religion and receiving

a governmental benefit,” as in Sherbert, or when individuals

are “coerced to act contrary to their religious beliefs by the

threat of civil or criminal sanctions,” as in Yoder. Navajo

Nation, 535 F.3d at 1070.

A second textual clue also supports our holding in

Navajo Nation. RFRA explicitly defined numerous terms

but not the phrase “substantial burden.” See 40 U.S.C.

§ 2000bb-2. This omission has a simple explanation:

“substantial burden” already had a well-established

definition in the religious liberty context. The phrase

“substantial burden” is “a term of art . . . previously used in

numerous Supreme Court cases in applying the Free

Exercise Clause.” Navajo Nation, 535 F.3d at 1074–75; see

also Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“The

free exercise inquiry asks whether government has placed a

substantial burden on the observation of a central religious

belief or practice and, if so, whether a compelling

governmental interest justifies the burden.” (citing Yoder,

406 U.S. at 220–21)); Smith, 494 U.S. at 883 (“Under the

Sherbert test, governmental actions that substantially burden

a religious practice must be justified by a compelling

governmental interest.”).

How did the Supreme Court define this “substantial

burden” term of art? By reference to the Sherbert/Yoder

APACHE STRONGHOLD V. UNITED STATES 21

framework. In Jimmy Swaggart Ministries v. Bd. of

Equalization of California, for instance, the Supreme Court

held that a generally applicable tax “impose[d] no

constitutionally significant burden on [the] appellant’s

religious practices or beliefs” because “in no sense has the

State ‘conditioned receipt of an important benefit upon

conduct proscribed by a religious faith, or . . . denied such a

benefit because of conduct mandated by religious belief.’”

493 U.S. 378, 391–92 (1990) (quoting Hobbie v.

Unemployment Appeals Comm’n of Florida, 480 U.S. 136,

141 (1987))). Other Free Exercise cases echoed this

understanding of when the Free Exercise Clause applies—in

other words, this understanding of when the government has

created a substantial burden. 7 See, e.g., Thomas v. Rev. Bd.

of Indiana Emp. Sec. Div., 450 U.S. 707, 717–18 (1981)

(“Where the state conditions receipt of an important benefit

upon conduct proscribed by a religious faith, or where it

denies such a benefit because of conduct mandated by

religious belief . . . a burden upon religion exists. While the

compulsion may be indirect, the infringement upon free

exercise is nonetheless substantial.”). With this background

in mind, Navajo Nation’s conclusion about the meaning of

“substantial burden” is even stronger. Where, as here, a

statute does not expressly define a term of settled meaning,

courts “must infer . . . that Congress means to incorporate

the established meaning of that term.” NLRB v. Town &

Country Elec., Inc., 516 U.S. 85, 94 (1995) (quoting

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322

(1992)). Guided by this mandate, Navajo Nation recognized

that the Supreme Court’s settled definition of a “substantial

7

While some of these cases refer to “conditioning receipt” of a

benefit and “den[ying]” a benefit, e.g. Thomas, 450 U.S. at 717, rather

than conditioning the receipt of a benefit or imposing a penalty, see

Navajo Nation, 535 F.3d at 1070, denying a benefit and imposing a

penalty are two sides of the same coin.

22 APACHE STRONGHOLD V. UNITED STATES

burden” in the Free Exercise context—a burden within the

Sherbert/Yoder framework—governs that same phrase’s

meaning under RFRA.

Navajo Nation drew further support from Lyng v.

Northwest Indian Cemetery Protective Association, 485 U.S.

439 (1988) and Bowen v. Roy, 476 U.S. 693 (1986), two Free

Exercise Clause cases that asked and answered essentially

the same question that we ask here: what constitutes a

“substantial burden” on religion? In Lyng, a group of

American Indians challenged a federal plan to build a road

over, and permit logging on, land those American Indians

held sacred. See 485 U.S. at 441–42. The challengers

claimed that the planned construction would “physically

destroy the environmental conditions and the privacy

without which the [American Indian] religious practices

[could not] be conducted.” Id. at 449. In Bowen, the

petitioners challenged a federal statute that required state

agencies to use social security numbers to identify welfare

benefit recipients; according to the challengers’ American

Indian religion, assigning a numerical identifier to their

daughter would rob her of “spiritual power.” See 476 U.S.

at 695–96. But the petitioners in neither Lyng nor Bowen

had stated a valid Free Exercise claim because in “neither

case . . . would the affected individuals be coerced by the

Government’s action into violating their religious beliefs;

nor would either governmental action penalize religious

activity by denying any person an equal share of the rights,

benefits, and privileges enjoyed by other citizens.” Lyng,

485 U.S. at 449; see Bowen, 476 U.S. at 700. This was true,

the Supreme Court held, even if the government’s action in

Lyng would “virtually destroy the . . . Indians’ ability to

practice their religion.” 485 U.S. at 451. Lyng and Bowen

thus confirmed that a “substantial burden” in the Free

Exercise context consists only of those government actions

APACHE STRONGHOLD V. UNITED STATES 23

that fall within the Sherbert/Yoder framework—actions that

impose a penalty or deny a benefit—no matter how

otherwise burdensome the government might be. 8 The same

must be true for substantial burdens under RFRA, given that

“Sherbert, Yoder, and federal court rulings prior to Smith”—

that is, rulings like Lyng and Bowen—“control [RFRA’s]

‘substantial burden’ inquiry.” Navajo Nation, 535 F.3d at

1069.

To summarize, Navajo Nation held that a “substantial

burden” under RFRA consists only of burdens within the

Sherbert/Yoder framework for three reasons. First, RFRA

by its text “restored” Sherbert, Yoder, their “compelling

interest” test, and their “substantial burden” inquiry, thus

defining a “substantial burden” under RFRA as either of the

burdens present in those two cases. Second, the Supreme

Court has long used the phrase “substantial burden” as a Free

Exercise Clause term of art that meant only the two burdens

within the Sherbert/Yoder framework, and a “substantial

burden” under RFRA must hold that same, settled meaning.

And third, Lyng and Bowen, the cases most factually and

legally analogous to Navajo Nation (and for that matter, to

this case) confirmed that even burdensome government

action does not constitute a “substantial burden” (and thus

does not trigger the “compelling interest” test) if that action

falls outside the Sherbert/Yoder framework.

8

Admittedly, Lyng’s terminology was imprecise. It did not use the

phrase “substantial burden” but instead used different words for the same

idea: the proposed road through the American Indian sacred site did not

impose a “burden on [the American Indians’] religious practices [] heavy

enough to violate the Free Exercise Clause,” or even heavy enough to

“require [the] government to bring forward a compelling justification”

for its plan. 485 U.S. at 447, 450.

24 APACHE STRONGHOLD V. UNITED STATES

Applying Navajo Nation’s “substantial burden” standard

to that case’s facts, we held that under RFRA the Navajo

suffered no “substantial burden” on their religion and thus

had no RFRA claim against the Forest Service. See id. at

1070. To the Navajo, the Forest Service’s decision to permit

wastewater on Humphrey’s Peak would “spiritually

desecrate a sacred mountain.” Id. But that government

decision lay outside the Sherbert/Yoder framework to which

RFRA applies. The Forest Service did not “coerce the

[Navajo] to act contrary to their religion” by imposing a

penalty or denying a governmentally granted benefit when it

authorized the ski resort to use wastewater on the peaks. Id.

The Service thus imposed no substantial burden under

RFRA. See id. This was so, we held, “[e]ven were we to

assume . . . that the government action in this case will

‘virtually destroy the . . . [Navajo’s] ability to practice their

religion.’” Id. at 1072 (quoting Lyng, 485 U.S. at 451).

Where there is no substantial burden, there is no ground to

apply the “compelling interest” test, and thus no RFRA

violation—no matter how dire the practical consequences of

a government policy or decision. Any other result would be

inconsistent with RFRA’s text and with the Supreme Court’s

understanding of what constitutes a substantial burden on

religious exercise.

While Navajo Nation’s “substantial burden” holding has

firm doctrinal roots, we noted further that our holding there

also has a strong practical basis. Were the scope of a

substantial burden under RFRA broader than the

Sherbert/Yoder framework, “any action the federal

government were to take, including action on its own land,

would be subject to the personalized oversight of millions of

citizens.” Id. at 1063. And in the specific factual context of

Navajo Nation—federal land use decisions—“giving one

religious sect a veto over the use of public park land would

APACHE STRONGHOLD V. UNITED STATES 25

deprive others of the right to use what is, by definition, land

that belongs to everyone.” Id. at 1063–64.

2. Apache Stronghold’s Primary RFRA Argument

With this background in mind, we turn to Apache

Stronghold’s arguments. Apache Stronghold’s main

argument is that the Land Exchange would hand Oak Flat

over to Resolution Copper for the latter’s mining plan, thus

incidentally making it “impossible” for Apache

Stronghold’s members to worship on Oak Flat and thereby

substantially burdening them. Even assuming that the Land

Exchange would in fact make Apache Stronghold’s

members worship “impossible,” this argument cannot

succeed in light of Navajo Nation.

The Land Exchange’s effect on Apache Stronghold’s

members falls outside of the Sherbert/Yoder framework and

thus outside of RFRA’s definition of a substantial burden.

Under RFRA, the government imposes a substantial burden

on religion in two—and only two—circumstances: when the

government “force[s individuals] to choose between

following the tenets of their religion and receiving a

governmental benefit” and when the government “coerce[s

individuals] to act contrary to their religious beliefs by the

threat of civil or criminal sanctions.” Id. at 1070. Here, the

government will do neither by transferring Oak Flat to

Resolution Copper. No government benefits will be lost (as

in Sherbert) nor will governmental penalties be imposed (as

in Yoder). The Department of Agriculture will simply

transfer ownership of a plot of government land to

Resolution Copper. The Land Exchange’s “incidental

effects” on the religious exercise of Apache Stronghold’s

members, as significant as they may be to the Apache, “may

make it more difficult [for them] to practice [their religion]

but [will] have no tendency to coerce [the Apache] into

26 APACHE STRONGHOLD V. UNITED STATES

acting contrary to their religious beliefs.” Lyng, 485 U.S. at

450–51. Hence, under RFRA the Land Exchange imposes

no substantial burden and RFRA thus does not limit the

government’s ability to complete the Land Exchange.

This is true even if the Land Exchange makes worship

on Oak Flat “impossible.” The government makes exercises

of religion more difficult all the time. Doing so is not

inherently coercive. As one example, the United States has

a special visa program for “[m]inisters of [r]religion.” See

Visas for Immigrant Religious Workers, U.S. Dep’t of State,

https://travel.state.gov/content/travel/en/us-visas/immigrate/

visa-religious-workers.html (last visited June 15, 2022).

When the government denies one of these visas, the

government no doubt makes it more difficult for that

minister’s following to exercise their faith. But the visa

denial does not coerce those followers by threatening them

with a negative outcome (i.e., a penalty or the denial of a

governmental benefit) if they continue to worship despite

that hardship. So too here: the Land Exchange does not

coerce the Apache to abandon their religion by threatening

them with a negative outcome. Accordingly, Apache

Stronghold’s members have not established that they would

suffer a substantial burden under RFRA. Apache Stronghold

is not likely to succeed on its RFRA claim.

Between them, Apache Stronghold and the dissent offer

three arguments in response. First, the dissent argues that

Navajo Nation misread RFRA and should have held that the

definition of a “substantial burden” under RFRA extends

beyond the Sherbert/Yoder framework. Second, both the

dissent and Apache Stronghold contend that Navajo Nation

contains exceptions that permit the panel to find a substantial

burden here. And third, the dissent would hold that

intervening Supreme Court precedent since Navajo Nation

APACHE STRONGHOLD V. UNITED STATES 27

is “clearly irreconcilable” with Navajo Nation, permitting

the panel to disregard Navajo Nation in its entirety. Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). None

of these responses persuades us.

The dissent first argues that Navajo Nation misread

RFRA in concluding that RFRA defines a “substantial

burden” as those burdens falling within the Sherbert/Yoder

framework. As an initial matter, our en banc decision in

Navajo Nation binds this panel—we cannot overrule Navajo

Nation even if we do not agree with it. See Robbins v. Carey,

481 F.3d 1143, 1149 n.3 (9th Cir. 2007). But even

considering the points that the dissent raises as grounds for

overruling Navajo Nation, we find them unconvincing.

At the outset, the dissent contends that RFRA was not

“concern[ed]” with defining a “substantial burden” but

instead with “ensuring that the compelling interest standard

would be applied once a substantial burden had been

demonstrated.” Dissent at 61. In support, the dissent notes

that RFRA “offers no definition” of a “substantial burden.”

Id.

We do not agree. The two cases that RFRA explicitly

cited and “restored”—Sherbert and Yoder—both defined the

“compelling interest” test and set out the two burdens that

satisfy the predicate “substantial burden” inquiry: a penalty

imposed and a governmental benefit denied. Navajo Nation,

535 F.3d at 1069. Moreover, the phrase “substantial burden”

was not defined in RFRA’s text but was a term of art in Free

Exercise Clause doctrine that referred to those same two

burdens set out in Sherbert and Yoder. See id. at 1074. With

this background in mind, the best reading of RFRA’s text is

that RFRA “restore[d]” both Sherbert and Yoder’s

“compelling interest” test and their “substantial burden”

inquiry. 42 U.S.C. § 2000bb(b)(1). RFRA both explicitly

28 APACHE STRONGHOLD V. UNITED STATES

adopted Sherbert and Yoder’s “compelling interest” test and,

in the same sentence, used the term of art “substantial

burden,” a related concept also based on those two cases. Id.

It would make no sense for RFRA to do all of this, only to

silently reject the definition that those same two cases gave

that same term of art. We thus have no need to concoct our

own definition of a “substantial burden,” distinct from the

one that Congress chose.

The dissent also argues that Navajo Nation’s “substantial

burden” definition “lacks a basis in pre-Smith precedent.”

Dissent at 64. Not so. The dissent has identified some cases

where courts may have suggested that Free Exercise Clause

violations could fall outside of the Sherbert/Yoder

“substantial burden” framework. But the two cases that

RFRA specifically “restore[d]” and cited in its very text

were indeed Sherbert and Yoder. 42 U.S.C. § 2000bb(b)(1).

Relying on that statutory text, Navajo Nation rightly focused

on the burdens on religion imposed in those two cases.

Moreover, the cases that the dissent cites all predate Lyng,

which confirmed that under Free Exercise doctrine, the

Sherbert/Yoder framework defines the scope of a

“substantial burden.” See Lyng, 485 U.S. at 449 (noting that

the government imposes no substantial burden unless

“affected individuals [are] coerced by the Government’s

action into violating their religious beliefs” or

“governmental action penalize[s] religious activity by

denying any person an equal share of the rights, benefits, and

privileges enjoyed by other citizens”). Before Lyng made

this clear, it is perhaps not surprising that Free Exercise cases

occasionally diverged from that framework.

Further, and as noted above, the Supreme Court’s post-

Lyng but pre-Smith Free Exercise doctrine reinforces Navajo

Nation’s understanding of the scope of a “substantial

APACHE STRONGHOLD V. UNITED STATES 29

burden.” Pre-Smith, the Free Exercise Clause applied only

when the government “placed a substantial burden” on

religious exercise. Hernandez, 490 U.S. at 699. And a

“substantial burden” referred only to burdens within the

Sherbert/Yoder framework. See Lyng, 485 U.S. at 449;

Jimmy Swaggart Ministries, 493 U.S. at 391–92.

With the above in mind, we also reject the dissent’s

suggestion that Navajo Nation “constricted” the definition of

a “substantial burden” relative to pre-Smith Free Exercise

Clause doctrine. Dissent at 67. As just shown, and setting

aside the potential outliers that the dissent identified, pre-

Smith Free Exercise Clause doctrine already defined a

“substantial burden” as only those burdens that fall within

the Sherbert/Yoder framework: coercion caused by the

government either imposing a penalty or denying a benefit.

See Lyng, 485 U.S. at 449; Jimmy Swaggart Ministries, 493

U.S. at 391–92. So, when Navajo Nation recognized that

this same framework also defines the scope of a “substantial

burden” under RFRA, Navajo Nation did not narrow or

constrict the definition of a “substantial burden.” Rather,

Navajo Nation stayed faithful to a substantial burden’s

already settled scope.

The dissent also points to the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§ 2000cc et seq, as evidence that “the definition of

‘substantial burden’ [under RFRA] includes the denial of

access to religious locations and resources.” Dissent at 69.

RLUIPA imposes RFRA’s “compelling interest” test on

substantial burdens on religion in two specific contexts:

prison and local land use regulation. See 42 U.S.C.

§§ 2000cc, 2000cc-1.

Yet we disagree with the dissent here too: RLUIPA’s

definition of a “substantial burden” casts no doubt on how

30 APACHE STRONGHOLD V. UNITED STATES

Navajo Nation defined that term as to RFRA. We have

previously interpreted a “substantial burden” under RLUIPA

to be defined not by the Sherbert/Yoder framework but by

the “plain meaning” of the phrase “substantial burden.” San

Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,

1034 (9th Cir. 2004). But unlike RFRA, RLUIPA’s text

does not even mention, much less cite, either Sherbert or

Yoder. Compare 42 U.S.C. §§ 2000cc, 2000cc-1, with id.

§ 2000bb. So Navajo Nation’s key inference—that a

“substantial burden” under RFRA is defined by the burdens

in Sherbert and Yoder—does not carry over to RLUIPA.

While a “substantial burden” under RLUIPA is defined by

the “plain meaning” of the phrase “substantial burden,” San

Jose Christian Coll, 360 F.3d at 1034, Navajo Nation

correctly held otherwise as to RFRA.

The dissent also equates the two contexts covered by

RLUIPA—prisons and local land regulation—to situations

involving “Native American sacred sites located on

government land.” Dissent at 62. In all three contexts, the

dissent contends, the government substantially burdens

religion by “denying access” to “religious locations and

resources.” Id. at 63. But while RLUIPA covers the first

two contexts (again, prisons and local land regulation), the

third context—the context actually at issue here—falls to

RFRA. Compare 42 U.S.C. §§ 2000cc, 2000cc-1, with id.

§ 2000bb-1. RFRA’s definition of a “substantial burden”

thus governs here, regardless what the dissent’s RLUIPA

cases say, because the Land Exchange involves neither

prisons nor local land regulation. See also Navajo Nation,

535 F.3d at 1077 (“RLUIPA is inapplicable to this case . . . .

RLUIPA applies only to government land-use regulations of

private land—such as zoning laws—not to the government’s

management of its own land.”). For all these reasons, we

APACHE STRONGHOLD V. UNITED STATES 31

reject the dissent’s argument that Navajo Nation misread the

scope of a “substantial burden” under RFRA.

Second, Apache Stronghold and the dissent both argue

that even under Navajo Nation, the Land Exchange may

substantially burden religious exercise. Both reach this

conclusion two ways. Neither approach persuades us.

They first seize onto a statement from Navajo Nation that

any “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,” 535 F.3d at 1070 (emphasis

added), and argue that the Land Exchange constitutes a

substantial burden because it imposes a “greater burden on

religious exercise” than that imposed in Yoder or Sherbert.

Dissent at 71. Shorn of context, the “short of” phrase to

which the dissent and Apache Stronghold point might

conceivably support their interpretation. But considered

with the rest of the opinion, that phrase does not.

Properly understood, Navajo Nation did not set out a

quantitative floor for a “substantial burden” such that all

“greater” burdens qualify. Rather, Navajo Nation singled

out two specific qualitative burdens—denying a benefit or

imposing a penalty—that together form the complete

universe of “substantial burdens” under RFRA. For

evidence, look no farther than the sentence immediately

before the “short of” phrase, which reads: “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 1069–70 (emphasis added). Further proving this

point, immediately after the “short of” phrase Navajo Nation

applies the test that it announced in the preceding sentences:

32 APACHE STRONGHOLD V. UNITED STATES

“[T]here is no ‘substantial burden’ on the Plaintiffs’ exercise

of religion in this case. The [challenged government action]

does not force the Plaintiffs to choose between following the

tenets of their religion and receiving a governmental benefit,

as in Sherbert. The [challenged action] also does not coerce

the Plaintiffs to act contrary to their religion under the threat

of civil or criminal sanctions, as in Yoder.” Id. at 1070.

Navajo Nation did not further ask if the Forest Service had

imposed a burden greater than that imposed in Sherbert or

Yoder, reinforcing that such a step is not necessary. Other

passages in Navajo Nation similarly belie the dissent and

Apache Stronghold’s reading of the case. 9 Accurately read,

Navajo Nation recognized that the government imposes a

substantial burden under RFRA only when the government

denies the delivery of a benefit (as in Sherbert) or imposes a

penalty (as in Yoder). The “short of” language did not

change the character or type of government action that is

required to constitute a “substantial burden” under RFRA.

Apache Stronghold and the dissent contend also that both

Navajo Nation and Lyng are limited to cases where the

government action would interfere with “subjective spiritual

experience,” not cases where the government “objectively

and severely interfere[s] with a plaintiff’s access to religious

locations or resources.” Dissent at 72 (quoting Navajo

Nation, 535 F.3d at 1063). (Apache Stronghold’s

9

See, e.g., Navajo Nation, 535 F.3d. at 1075 (“In the pre-Smith cases

adopted in RFRA, the Supreme Court has found a substantial burden on

the exercise of religion only when the burden fell within the

Sherbert/Yoder framework.”) (emphasis added); id. at 1067 (“The

presence of recycled wastewater on the Peaks does not coerce the

Plaintiffs to act contrary to their religious beliefs under the threat of

sanctions, nor does it condition a governmental benefit upon conduct that

would violate their religious beliefs, as required to establish a

‘substantial burden’ on religious exercise under RFRA.” (emphasis

added)).

APACHE STRONGHOLD V. UNITED STATES 33

formulation of the same idea is that Navajo Nation and Lyng

do not apply to cases involving a “physical impact” on land.)

Because Resolution Copper’s mining plan would have such

an “objective” or “physical” impact here, they argue that

Navajo Nation and Lyng do not control. True enough, in

dicta, Navajo Nation pointed out that the challenged

government action would not make any “places of

worship . . . inaccessible” or physically affect any “religious

ceremonies.” 535 F.3d at 1063. Similarly, dicta in Lyng

states that “[n]o sites where specific rituals take place were

to be disturbed.” 485 U.S. at 454. But neither case is as

narrow as the dissent and Apache Stronghold suggest.

Neither Navajo Nation nor Lyng turned on whether the

challenged government action “objectively” interfered with

religious exercise or “physically” affected sacred land. The

rule that Navajo Nation drew from RFRA’s text and from

“Sherbert, Yoder, and federal court rulings prior to Smith”

was clear: “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).” Id. at 1069–70 (emphasis added). This

rule contains no exception for when the government neither

imposes a penalty nor denies a benefit but “objectively” or

“physically” interferes with religious exercise.

A close examination of the claimed burden on religion in

Lyng further refutes the dissent and Apache Stronghold’s

argument. It was true that “[n]o sites where specific rituals

take place were to be disturbed.” Lyng, 485 U.S. at 454. But

those opposed to the government action argued that “the

proposed road w[ould] ‘physically destroy the

environmental conditions and the privacy without which the

34 APACHE STRONGHOLD V. UNITED STATES

[American Indian] religious practices [could not] be

conducted.’” Id. at 449. And even so—despite this

“objective,” “physical” impact that could “virtually destroy”

the American Indians’ “ability to practice their religion,” the

Supreme Court found no substantial burden there. 10 See id.

In sum, we cannot differentiate between physical and

intangible damage to religious sites as Apache Stronghold

asks because the Sherbert/Yoder framework turns on the

nature of government action, not on the severity of the

government’s encroachment on a religious site. See Lyng,

485 U.S. at 451 (noting that the substantial burden inquiry

“cannot depend on measuring the effects of a governmental

action” on religious exercise”); Navajo Nation, 535 F.3d at

1070 n.12 (“[I]n Yoder, it was not the effect . . . on the

children’s subjective religious sensibilities that constituted

the undue burden on the free exercise of religion. Rather, the

undue burden was the penalty of criminal sanctions on the

parents.”); accord Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 723–24 (2014) (noting that courts have “have no

business addressing” whether the RFRA substantial burden

analysis changes if a religious adherent would only be forced

10

Apache Stronghold also notes that in Lyng, the Supreme Court

remarked that “a law prohibiting the Indian [plaintiffs] from visiting the

Chimney Rock area would raise a different set of constitutional

questions.” 485 U.S. at 453. But the full sentence reads: “The

Constitution does not permit government to discriminate against

religions that treat particular physical sites as sacred, and a law

prohibiting the Indian respondents from visiting the [sacred] area would

raise a different set of constitutional questions.” Id. Context thus makes

clear that the Court was referring to discriminatory prohibitions on

access. And even if Apache Stronghold were right that a non-

discriminatory access prohibition raises a “different set” of legal

questions than those covered in Lyng, Navajo Nation answers those

questions. Again, unless the government imposes a penalty or denies a

benefit, the government imposes no substantial burden under RFRA. See

Navajo Nation, 535 F.3d at 1069–70.

APACHE STRONGHOLD V. UNITED STATES 35

to participate in a religiously prohibited act in an

“attenuated” way).

If any doubts about Navajo Nation’s meaning survive the

arguments above, the many Ninth Circuit cases that have

applied Navajo Nation put those doubts to rest. These

cases—including one written by the author of the dissent—

betray no confusion about Navajo Nation’s “substantial

burden” holding: “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 . . . or coerced to act contrary to their

religious beliefs by the threat of civil or criminal sanctions.”

Fazaga v. Fed. Bureau of Investigation, 965 F.3d 1015, 1061

(9th Cir. 2020) (Berzon, J.) (emphasis added) (quoting

Navajo Nation, 535 F.3d at 1069–70), rev’d on other

grounds by 142 S. Ct. 1051 (2022). 11

11

See also Does v. Wasden, 982 F.3d 784, 794 n.3 (9th Cir. 2020)

(“Under RFRA, by contrast, ‘a “substantial burden” is imposed only

when individuals are forced to choose between following the tenets of

their religion and receiving a governmental benefit . . . or are coerced to

act contrary to their religious beliefs by the threat of civil or criminal

sanctions.’” (quoting Navajo Nation, 535 F.3d at 1069–70)); Oklevueha

Native Am. Church of Hawaii, Inc. v. Lynch, 828 F.3d 1012, 1016 (9th

Cir. 2016) (“[W]e have held that a substantial burden under RFRA exists

in a context such as this one ‘only when individuals are . . . coerced to

act contrary to their religious beliefs by the threat of civil or criminal

sanctions . . . .’” (quoting Navajo Nation, 535 F.3d at 1070)); Ruiz-

Diaz v. United States, 703 F.3d 483, 486 (9th Cir. 2012) (“We have held

that the government imposes a substantial burden ‘only when individuals

are forced to choose between following the tenets of their religion and

receiving a governmental benefit or coerced to act contrary to their

religious beliefs by the threat of civil or criminal sanctions.’” (quoting

Navajo Nation, 535 F.3d at 1070)); Snoqualmie Indian Tribe v. FERC,

545 F.3d 1207, 1214–15 (9th Cir. 2008) (“[W]e have not found any

evidence demonstrating that Snoqualmie Tribe members will lose a

36 APACHE STRONGHOLD V. UNITED STATES

As the dissent notes, none of these post-Navajo Nation

cases addressed the precise facts at issue here. Dissent at 72

n.4. None need have. RFRA defined a “substantial burden”

according to the Sherbert/Yoder framework. See Navajo

Nation, 535 F.3d at 1069–70. This is an across-the-board

definition that applies in all cases under the statute, not a

“restricted railroad ticket, good for th[at] day and train only.”

Smith v. Allwright, 321 U.S. 649, 669 (Roberts, J.,

dissenting) (1944). And dispositive here, this definition

contains no exceptions for burdens on religion thought to be

quantitatively “greater” than the burdens in Sherbert and

Yoder or for burdens that neither impose a penalty nor deny

a benefit but “objectively” or “physically” interfere with

religious exercise in an incidental way.

Apache Stronghold (but not the dissent) also points to a

scattered set of cases that apply a definition of “substantial

burden” in a manner broader than the Sherbert/Yoder

framework. 12 But for a variety of reasons, these cases do not

government benefit or face criminal or civil sanctions for practicing their

religion. We therefore hold that . . . FERC’s decision relicensing the

project . . . does not impose a substantial burden under RFRA on the

tribal members’ ability to exercise their religion, as we have defined

substantial burden in Navajo Nation.”).

12

Apache Stronghold also argues briefly that RFRA’s legislative

history supports its reading of the statute. Regardless whether legislative

history is a valid tool of statutory interpretation, neither House reports

nor “discussion in Congress” can overcome RFRA’s clear text and

explicit statutory purpose, as applied in Navajo Nation. See 42 U.S.C.

§ 2000bb(b); Navajo Nation, 535 F.3d at 1069–70 (“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).”).

And in any event, other legislative history, were we to consider it,

APACHE STRONGHOLD V. UNITED STATES 37

affect our interpretation of Navajo Nation. As an initial

matter, even were courts from other circuits to take

approaches different than ours in Navajo Nation, Navajo

Nation binds this panel and this Circuit. 13 But turning to the

substance of the in-circuit cases that Apache Stronghold

cites, they either interpret RFRA but predate Navajo

Nation 14 or interpret not RFRA but RLUIPA instead. 15 To

the extent our pre-Navajo Nation RFRA cases defined a

“substantial burden” differently than did Navajo Nation, our

later en banc decision in Navajo Nation controls. See

Robbins, 481 F.3d at 1149 n.3. And the RLUIPA cases are

similarly unpersuasive. As we have explained, we have

interpreted RFRA and RLUIPA to apply different

substantial burden standards. Compare Navajo Nation, 535

F.3d at 1069–70 (“Under RFRA, a ‘substantial burden’ is

supports the government’s position instead. See S. Rep. No. 103-111, at

9 (1993) (“[P]re-Smith case law makes it clear that strict scrutiny does

not apply to government actions involving only management of internal

Government affairs or the use of the Government’s own property or

resources.” (emphasis added)).

13

As a three-judge panel, we are bound by circuit precedent like

Navajo Nation. See Robbins, 481 F.3d at 1149 n.3. We thus cannot rely

on conflicting out-of-circuit cases like Comanche Nation v. United

States, No. 08-00849, 2008 WL 4426621 (W.D. Okla. Sept. 23, 2008),

and Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).

14

See, e.g., United States v. Antoine, 318 F.3d 919 (9th Cir. 2003);

Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).

15

See, e.g., Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022); Jones

v. Slade, 23 F.4th 1124 (9th Cir. 2022); Int’l Church of Foursquare

Gospel v. City of San Leandro, 673 F.3d 1059 (9th Cir. 2011); Greene v.

Solano Cnty. Jail, 513 F.3d 982 (9th Cir. 2008); Guru Nanak Sikh Soc’y

of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006);

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); San Jose

Christian Coll. v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004).

38 APACHE STRONGHOLD V. UNITED STATES

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).”), with San Jose Christian Coll., 360 F.3d

at 1035 (holding that under RLUIPA, the government

imposes a “substantial burden” on religion when it “imposes

a ‘significantly great’ restriction or onus” on religious

exercise). Apache Stronghold’s RLUIPA cases thus give us

no guidance for how to interpret the phrase “substantial

burden” under RFRA. 16

Last, the dissent argues that Navajo Nation is “clearly

irreconcilable” with recent Supreme Court precedent,

allowing the panel to ignore Navajo Nation entirely. Dissent

at 74 (quoting Miller, 335 F.3d at 900). Miller does permit

Ninth Circuit panels to treat as “effectively overruled” any

Ninth Circuit cases that are “clearly irreconcilable” with

“intervening Supreme Court authority.” 335 F.3d at 900.

But the “‘clearly irreconcilable’ requirement ‘is a high

standard.’” Fed. Trade Comm’n v. Consumer Def., LLC, 926

F.3d 1208, 1213 (9th Cir. 2019) (quoting Rodriguez v. AT &

T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013)).

If, as a panel, “we can apply our precedent consistently with

that of the higher authority, we must do so.” Consumer Def.,

926 F.3d at 1213.

In our view, Navajo Nation is fully reconcilable with the

Supreme Court’s recent cases. The dissent highlights

16

Apache Stronghold responds to this point by claiming that RFRA

and RLUIPA impose the “same standard.” Holt v. Hobbs, 574 U.S. 352,

358 (2015) (quoting Gonzales v. O Centro Espírita Beneficente Uniõ do

Vegetal, 546 U.S. 418, 436 (2006)). We address this point below. See

post at 39–40.

APACHE STRONGHOLD V. UNITED STATES 39

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014),

Holt v. Hobbs, 574 U.S. 352 (2015), and Ramirez v. Collier,

142 S. Ct. 1264 (2022). To this list we add Tanzin v. Tanvir,

141 S. Ct. 486 (2020), a case that Apache Stronghold cites,

and Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017). When we compare these cases to

Navajo Nation, we do not see any clear irreconcilability.

Turning first to Hobby Lobby, that case does not

contradict Navajo Nation’s “substantial burden” holding.

Hobby Lobby held that closely held corporations can

maintain a RFRA claim but it provided no comprehensive

definition of “substantial burden.” See 573 U.S. at 719. In

fact, Hobby Lobby framed a substantial burden in precisely

the way Navajo Nation did: Hobby Lobby suffered a

substantial burden because it would have had to “pay an

enormous sum of money” to the government—a government

penalty—“if [it] insist[ed] on providing insurance coverage

in accordance with their religious beliefs.” Id. at 726.

As the dissent rightly notes, Hobby Lobby made clear

that RFRA claims need not perfectly track pre-Smith Free

Exercise doctrine in every single way. RFRA plaintiffs are

not limited to those who “fell within a category of plaintiffs

[who] had brought a free-exercise claim that [the Supreme]

Court entertained in the years before Smith” because RFRA

did not “merely restore[ the Supreme] Court’s pre-Smith

decisions in ossified form.” Id. at 715–16.

But Navajo Nation did not assume otherwise. Rather,

Navajo Nation observed that RFRA, by its own terms,

“restore[d]” pre-Smith Free Exercise doctrine in a single,

limited way: it incorporated Sherbert and Yoder’s

“compelling interest test” and predicate “substantial burden”

inquiry. 42 U.S.C. § 2000bb(b)(1); Navajo Nation, 535 F.3d

at 1068. So, because “we can apply [Navajo Nation]

40 APACHE STRONGHOLD V. UNITED STATES

consistently with [Hobby Lobby],” “we must do so.”

Consumer Def., 926 F.3d at 1213.

Next is Holt. There, the Supreme Court stated that

RLUIPA “allows prisoners ‘to seek religious

accommodations pursuant to the same standard as set forth

in RFRA.’” 574 U.S. at 358 (quoting Gonzales v. O Centro

Espírita Beneficente Uniõ do Vegetal, 546 U.S. 418, 436

(2006)). From this connection, the dissent argues that

RFRA, like RLUIPA, recognizes a “substantial burden”

“when the government denies access to religious locations

or resources.” Dissent at 64. But we do not read Holt’s dicta

to support the dissent’s position. This quotation from Holt

is best read as applying to the “compelling interest” test—

that is, the stage of the RFRA (and RLUIPA) analysis at

which individuals “seek religious accommodations” and

have those accommodations assessed against the

government’s justification—not as applying to the predicate

“substantial burden” stage. The dissent seems to recognize

this nuance as well, observing that “RLUIPA sets forth the

‘same standard’ for evaluating governmental justifications

for imposing substantial burdens on religion as RFRA—

strict scrutiny.” Dissent at 68–69.

Further, the actual “substantial burden” standard that

Holt applied matches the Sherbert/Yoder framework almost

perfectly. Holt challenged a prison grooming policy that

required him to “shave his beard and thus to ‘engage in

conduct that seriously violates his religious beliefs.’” Holt,

574 U.S. at 361 (quoting Hobby Lobby, 573 U.S. at 720). If

Holt violated that policy, he would “face serious disciplinary

action” and the Supreme Court reasoned that “[b]ecause the

grooming policy puts [Holt] to this choice, it substantially

burdens his religious exercise.” Id. The Sherbert/Yoder

“substantial burden” framework includes situations when

APACHE STRONGHOLD V. UNITED STATES 41

individuals are “coerced to act contrary to their religious

beliefs by the threat of civil or criminal sanctions.” Navajo

Nation, 535 F.3d at 1070. The government action in Holt—

requiring a prisoner to violate his religious beliefs or “face

serious disciplinary action,” 574 U.S. at 361—falls squarely

within that framework. So here, too, “we can apply our

precedent consistently with that of the higher authority.”

Consumer Def., 926 F.3d at 1213.

For similar reasons, we dismiss the dissent’s appeal to

Ramirez. First, Ramirez was a RLUIPA case, not a RFRA

case. And more pointedly, the scope of a “substantial

burden” under either statute was explicitly not at issue. The

government “d[id] not dispute that any burden [its] policy

impose[d] on Ramirez’s religious exercise [wa]s

substantial,” and Ramirez accordingly provided no analysis

whatsoever concerning the scope of a substantial burden. 17

142 S. Ct. at 1278. Instead, the Court simply cited Holt,

which (as noted above) framed a “substantial burden”

consistent with those discussed in Navajo Nation. See id.;

ante at 40–41; Holt, 574 U.S. at 361.

Finally, Apache Stronghold points to Tanzin v. Tanvir,

141 S. Ct. 486 (2020), in which the Supreme Court held that

RFRA “permits litigants . . . to obtain money damages

against federal officials in their individual capacities.” Id. at

17

The dissent suggests that both Ramirez’s “locution” and ultimate

outcome in Ramirez’s favor indicate that the Supreme Court agreed with

the government’s waiver on the “substantial burden” issue. Dissent at

70 n.3. The outcome sheds no light here: Ramirez would have also

prevailed had the Court merely accepted the government’s concession.

And as for the Supreme Court’s locution, we take the Court at its word:

the scope of a “substantial burden” on religion was “not [in] dispute” in

Ramirez, 142 S.Ct. at 1278, so Ramirez neither created nor implied a

“substantial burden” rule that can be compared with Navajo Nation’s.

42 APACHE STRONGHOLD V. UNITED STATES

493. If such a citation sounds irrelevant, that’s because it is.

The district court below dismissed the plaintiffs’ RFRA

claims on the sole basis that “RFRA does not permit

monetary relief,” id. at 489; the Supreme Court rejected that

argument without discussing what constitutes a “substantial

burden” under RFRA. True, Tanzin explained that a

“damages remedy . . . is also the only form of relief that can

remedy some RFRA violations” and noted that “[f]or certain

injuries . . . effective relief consists of damages, not an

injunction.” Id. at 492. But that is as far as the case went.

Tanzin did not hold that a “substantial burden” extends

beyond the Sherbert/Yoder framework or even say as much

in dicta.

We also reject the idea that Tanzin implied any

substantial burden holding through its choice of lower-court

cases to cite. Tanzin included a “See, e.g.,” citation to

DeMarco v. Davis, 914 F.3d 383 (5th Cir. 2019), a Free

Exercise Clause case involving a prison officials’

destruction of a prisoner’s personal property—his legal and

religious books. 18 See id. at 389–90. From that citation,

Apache Stronghold divines the principle that the government

can violate RFRA through the “destruction of religious

property,” purportedly including government-owned real

property (i.e., land). But the DeMarco citation supported the

unremarkable proposition that “[f]or certain injuries . . .

effective relief consists of damages, not an injunction.” Id.

at 492. This proposition has nothing to do with what

qualifies as a substantial burden under RFRA. And in any

18

That “See, e.g.,” citation also included Yang v. Sturner, 728 F.

Supp. 845 (D.R.I.), withdrawn 750 F. Supp. 558 (D.R.I. 1990), a Free

Exercise Clause case involving an autopsy of a man whose parents’

religion holds that autopsies “are a mutilation of the body.” 750 F. Supp.

at 558.

APACHE STRONGHOLD V. UNITED STATES 43

event, we are skeptical that the Supreme Court would

revolutionize the scope of a “substantial burden” on

religion—as plainly set out in cases like Lyng—through its

choice of cases in a string citation. If we expect Congress

not to “hide elephants in mouseholes,” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001), we should hold

the Supreme Court to the same standard.

We also add an overarching consideration that further

supports our conclusion that Navajo Nation and the Supreme

Court’s decisions cited by the dissent can be reconciled. We

must read Hobby Lobby, Holt, Ramirez, and Tanzin in

conjunction with the Supreme Court’s other precedents.

And the Supreme Court reaffirmed as recently as 2017 that

a “substantial burden” on religion is still defined by the

Sherbert/Yoder framework recognized in Navajo Nation. In

Trinity Lutheran Church of Columbia, Inc. v. Comer, the

Supreme Court quoted Lyng’s “substantial burden” rule:

even actions that “would interfere significantly with private

persons’ ability to pursue spiritual fulfillment according to

their own religious beliefs” pose “no free exercise

violation . . . [if] the affected individuals were not being

‘coerced by the Government’s action into violating their

religious beliefs.’” 137 S. Ct. 2012, 2020 (2017) (quoting

Lyng, 485 U.S. at 449). That reasoning matches ours here

perfectly. So when the dissent’s cases and Trinity Lutheran

are taken together, as they must be, they cast no doubt on the

scope of the Sherbert/Yoder framework or on Navajo

Nation’s “substantial burden” holding. 19 Given that we

19

In the dissent’s view, Trinity Lutheran “does not imply the Court

would reach the same result [as it did in Lyng] in a case in which the

government controlled access to religious resources and entirely denied

a plaintiff access to those resources.” Dissent at 73. To the contrary:

Trinity Lutheran must imply that result. Trinity Lutheran quotes Lyng’s

44 APACHE STRONGHOLD V. UNITED STATES

decline to apply our past precedents only when more recent

Supreme Court decisions are “clearly irreconcilable” with

those precedents, Miller, 335 F.3d at 893, we must apply

Navajo Nation here and we do so without hesitation.

We thus conclude that under Navajo Nation, the Land

Exchange does not substantially burden Apache Stronghold

within the meaning of RFRA, even if the Land Exchange

does make it “impossible” for Apache Stronghold’s

members to worship on Oak Flat. Apache Stronghold is

unlikely to succeed on its RFRA claim and the district court

was right to so find. We acknowledge that this is a harsh

result for Apache Stronghold’s members. But it is the result

that RFRA commands. And for multiple reasons, this result

is necessary.

As we observed in Navajo Nation, were the definition of

“substantial burden” under RFRA any broader than the

Sherbert/Yoder framework, “any action the federal

government were to take, including action on its own land,

would be subject to the personalized oversight of millions of

citizens.” Navajo Nation, 535 F.3d at 1063. Limiting RFRA

violations to government action that makes an exercise of

religion “impossible” or “deny access” to a religious site

unequivocal “substantial burden” rule: There is “no free exercise

violation . . . [if] the affected individuals were not being ‘coerced by the

Government’s action into violating their religious beliefs.’” Trinity

Lutheran, 137 S. Ct. at 2020 (quoting Lyng, 485 U.S. at 449). And as

discussed above, the Land Exchange may incidentally prevent religious

exercise on Oak Flat but involves no coercion. See ante at 25–26; see

also Lyng, 485 U.S. at 450–51 (rejecting the view that the “incidental

effects of government programs, which may make it more difficult to

practice certain religions but which have no tendency to coerce

individuals into acting contrary to their religious beliefs, require

government to bring forward a compelling justification for its otherwise

lawful actions”).

APACHE STRONGHOLD V. UNITED STATES 45

does little to reduce that risk. We recognize that currently,

Apache Stronghold objects only to the Land Exchange, and

not also to the presence on Oak Flat of hikers, climbers, and

other recreational users who now use the land. But other

religions have stricter requirements, and a wide array of

government or government-authorized actions could, in

some worshippers’ views, render “impossible” exercises of

religion or otherwise obstruct the land on which those

exercises would take place. In Lyng, in fact, the government

project took care not to disturb any “sites where specific

rituals [took] place,” but to the worshippers, the planned

paved road would still “physically destroy the environmental

conditions and the privacy without which the[ir] religious

practices [could not] be conducted.” Lyng, 485 U.S. at 449.

“[S]uch beliefs could easily require de facto beneficial

ownership of some rather spacious tracts of public property.”

Id. at 453. And again, when it comes to the federal

government’s use of its own land, “giving one religious sect

a veto over the use of public park land would deprive others

of the right to use what is, by definition, land that belongs to

everyone.” Navajo Nation, 585 F.3d at 1063–64.

The dissent is surely right that some government action

swept into RFRA by a more expansive “substantial burden”

definition would survive strict scrutiny. See Dissent at 77–-

77. But even so, RFRA cannot require the government to

satisfy strict scrutiny every time that the government,

through the management of its own land, interferes with

religion or denies “access to religious resources.” Every new

hiking path, ranger station, or “Keep Off the Grass” sign in

every National Park could deny access to land or “physically

destroy the environmental conditions and the privacy”

necessary to some religious practices. Lyng, 485 U.S. at 449.

The government need not satisfy strict scrutiny to manage

federal lands in these ways.

46 APACHE STRONGHOLD V. UNITED STATES

Apache Stronghold’s broader definition of “substantial

burden” would also create another, deeper problem: It would

force judges to make decisions for which we are

fundamentally unsuited. The dissenters in Navajo Nation

were correct on one important point: “[R]eligious exercise

invariably, and centrally, involves a ‘subjective spiritual

experience.’” 535 F.3d at 1096 (Fletcher, J., dissenting); see

also id. at 1070 n.12 (majority opinion) (agreeing with the

dissent on this point). Who are we to say whether

government action has an “objective” impact on religious

observance or merely “diminishes [a worshipper’s]

subjective spiritual fulfillment”? Id. Questions like this

raise issues on which judges must not pass. As we are often

reminded, it is outside the “judicial ken to question the

centrality of particular beliefs or practices to a faith.”

Hernandez, 490 U.S. at 699. The straightforward

Sherbert/Yoder framework avoids these problems.

Of course, the U.S. government may propose future

projects that, like the Land Exchange here, would impose no

substantial burden but still have an incidental impact on

religious observance or fulfillment. And someone must

decide whether the government should ultimately pursue

each such project. But RFRA’s text trusts that unenviable

task to the hands of those both more accustomed to these

tradeoffs and more accountable to the people: our elected

representatives in Congress.

3. Apache Stronghold’s Secondary RFRA

Argument

Apache Stronghold’s secondary argument is that the

Land Exchange does in fact deprive its members of a benefit

and subject its members to a penalty. Apache Stronghold

contends that the Exchange deprives its members of “the use

and enjoyment of ‘government’ land for religious exercise”

APACHE STRONGHOLD V. UNITED STATES 47

and subjects them to penalties for “trespassing on now

‘private’ land.” We disagree.

Turning first to Apache Stronghold’s argument that the

Land Exchange denies its members a benefit, that argument

has a problem. The government does not substantially

burden religion every time it ends a “governmental benefit”

that at one time went to religious beneficiaries. There must

be an element of coercion: the government must “condition”

the benefit upon conduct that would violate sincerely held

religious beliefs. Navajo Nation, 535 F.3d at 1067.

Consider this example. Suppose that for many years, the

Forest Service has paid Apache Stronghold’s members to

host educational sessions to teach local children about the

Apache’s history and culture, including the Apache’s

religious traditions. But this year, the Forest Service says to

Apache Stronghold: “our budget’s been cut—we can’t

renew your contract for more sessions next year.” Apache

Stronghold’s members have just been deprived of a

benefit—payment for the educational sessions that they

previously held—but they have not been coerced to abandon

their religious beliefs. We need not apply strict scrutiny to

every contract cancellation or revision.

Under this rubric, the Land Exchange thus presents no

“substantial burden.” The Exchange does not “condition”

any government benefits on the Apache violating their

religious beliefs. Like the cancelled educational sessions in

the hypothetical above, the Land Exchange does not force

Apache Stronghold’s members to choose between following

their religion and losing a benefit (the “use and enjoyment”

of Oak Flat). The Land Exchange just incidentally keeps

everybody—Apache Stronghold’s members included—

from using Oak Flat: No conditioning of a benefit; no

coercion. Were the rule otherwise, the federal government

48 APACHE STRONGHOLD V. UNITED STATES

would substantially burden religion any time it cancels a

contract with a religious entity or repeals a program that

subsidized both parochial and secular private schools.

Next is Apache Stronghold’s argument that the Land

Exchange subjects its members to penalties: liability for

trespassing on land that will be private after the Exchange.

We also reject this argument.

Turning first to criminal trespass liability, when a

religious plaintiff has a “sufficiently realistic fear” that the

government will punish him for exercising his religious

beliefs, he can sue the government under RFRA to forestall

any such prosecution. United States v. Christie, 825 F.3d

1048, 1055 (9th Cir. 2016); see also O Centro, 546 U.S. at

425 (affirming “declaratory and injunctive relief” after a

religious sect that used a prohibited hallucinogen in its

ceremonies had been “threatened . . . with prosecution”

under the Controlled Substances Act). If the government’s

intended prosecution cannot satisfy strict scrutiny, RFRA

“immuniz[es]” a religious adherent’s conduct “from official

sanction—even though such conduct violated a law that is

otherwise valid.” Christie, 825 F.3d at 1055.

But Apache Stronghold’s argument faces two problems.

For one, Apache Stronghold has not shown a “sufficiently

realistic fear” of future criminal liability. Christie, 825 F.3d

at 1055. Unlike in O Centro, there has been no threat of

prosecution here. The record shows no imminent plans by

Arizona state law enforcement (who are not defendants here

and thus could not be subject to the requested preliminary

injunction) or by the federal government to prosecute

Apache Stronghold’s members for any trespasses that may

or may not occur in the future.

APACHE STRONGHOLD V. UNITED STATES 49

And even had Apache Stronghold shown a “sufficiently

realistic fear” of criminal prosecution, it seeks relief that

RFRA cannot provide. Injunctive relief “must be tailored to

remedy the specific harm alleged.” Lamb-Weston, Inc. v.

McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).

Here, that means that RFRA could give Apache

Stronghold’s members “immun[ity]” from any criminal

trespass charges brought against them for entering Oak Flat

after the land passed into private hands unless the

government can prove a compelling and narrowly tailored

government interest. Christie, 825 F.3d at 1055. But

Apache Stronghold does not ask for immunity. It asks

instead that we enjoin a complex, multi-step land exchange

that does much more than (potentially) subject Apache

Stronghold’s members to criminal liability. RFRA does not

authorize Apache Stronghold to enjoin the entire Land

Exchange any more than RFRA authorized the O Centro

plaintiffs to strike down the entire Controlled Substances

Act.

Next, when we consider potential civil trespass suits

brought by Resolution Copper, we again see two problems

with Apache Stronghold’s argument. 20 The first problem is

factual. At this early stage in the litigation, it is not clear

whether the Apache will in fact be subject to civil trespass

liability. Even after the Land Exchange, Resolution Copper

“will ensure ongoing public access to the Oak Flat

Campground, recreational trails and climbing,” and will

“accommodate requests to periodically close the

campground to the public for traditional and ceremonial

purposes.” Resolution Copper also committed to “permit

20

RFRA is not a defense in private litigation. See Sutton v.

Providence St. Joseph Med. Ctr., 192 F.3d 826, 834 (9th Cir. 1999).

RFRA thus would not prevent Resolution Copper from pursuing private

trespass actions against any would-be worshipers.

50 APACHE STRONGHOLD V. UNITED STATES

harvesting of the Emory oak groves by individuals, or

commercially through an authorization.” And the Apache

need not rely on Resolution Copper’s goodwill alone. The

Land Exchange Provision itself obligates Resolution Copper

to “provide access to the surface of the Oak Flat

Campground to members of the public, including Indian

tribes.” 16 U.S.C. § 539p(i)(3). True, Resolution Copper

may restrict access once “the operation of the mine precludes

continued public access for safety reasons.” Id. But

Resolution Copper is still “several years” and a “detailed

feasibility study” away from any final decision as to whether

to proceed with the mine at all. So the mine may never come

to be, and Resolution Copper may never restrict access at all.

At this preliminary injunction stage, these factual

uncertainties prevent Apache Stronghold from showing a

“likelihood” that Resolution Copper will subject Apache

Stronghold’s members to trespass liability for using Oak

Flat. 21

The second problem is legal. As with the (potential)

criminal charges, even were the Land Exchange to subject

Apache Stronghold’s members to the threat of civil trespass

lawsuits, the substantial burden would be the lawsuits

themselves, not Resolution Copper’s mining activities.

Again, injunctive relief “must be tailored to remedy the

21

We also acknowledge the novelty of Apache Stronghold’s

fallback argument. RFRA applies only to “[g]overnment” action that

substantially burden religious exercise, 42 U.S.C.A. § 2000bb-1, and it

is far from clear that it constitutes “government” action for the Forest

Service to transfer government land to a private entity which might (or

might not) sue other private parties for trespassing on that land. Cf. Vill.

of Bensenville v. Fed. Aviation Admin., 457 F.3d 52, 66 (D.C. Cir. 2006).

But the parties sparsely briefed Apache Stronghold’s secondary

argument and the government did not argue that there is no

“government” action here, so we leave this issue for another day.

APACHE STRONGHOLD V. UNITED STATES 51

specific harm alleged.” Lamb-Weston, Inc., 941 F.2d at 974.

Even assuming Apache Stronghold’s members were subject

to imminent civil trespass suits, we could at most require the

government to negotiate with Resolution Copper an

easement or a license giving Apache Stronghold’s members

some access to Oak Flat even after the Land Exchange. We

could not enjoin the entire Land Exchange as Apache

Stronghold asks us to do.

B. Apache Stronghold’s Free Exercise Clause Claim

We next address Apache Stronghold’s claim that the

Land Exchange would violate the Constitution’s Free

Exercise Clause. See U.S. Const. amend I (“Congress shall

make no law respecting an establishment of religion, or

prohibiting the free exercise thereof . . . .”). Under

Employment Division v. Smith, a “valid and neutral law of

general applicability” does not violate the Free Exercise

Clause, even if that law burdens religion. 494 U.S. at 879

(quoting Lee, 455 U.S. at 263 n.3 (Stevens, J., concurring in

judgment)). But laws that are not neutral or are not generally

applicable are subject to strict scrutiny. See Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

533 (1993). A law is not neutral if the law’s “object . . . is

to infringe upon or restrict practices because of their

religious motivation”; a law is not “generally applicable” if

the law “impose[s] burdens only on conduct motivated by

religious belief” in a “selective manner.” Id. at 533, 543.

Apache Stronghold argues that the Land Exchange Provision

is neither neutral nor generally applicable and is thus subject

to strict scrutiny. We are not persuaded.

First, the Land Exchange is “neutral” in that its “object”

is not to infringe upon the Apache’s religious practices. Id.

at 533. The Land Exchange Provision never mentions

religion, and when it comes closest to doing so, the Provision

52 APACHE STRONGHOLD V. UNITED STATES

shows solicitude towards religion, not intent to infringe. See

16 U.S.C. § 539p(g) (designating a “special management

area” “to allow for traditional uses of the area by Native

American people”). And even though “[f]acial neutrality is

not determinative,” Apache Stronghold has identified no

“subtle departures from neutrality” here. Lukumi, 508 U.S.

at 534 (quoting Gillette v. United States, 401 U.S. 437, 452

(1971)). All the evidence suggests that the Land Exchange

is meant to facilitate “mineral exploration activities.”

16 U.S.C. § 539p(c)(6)(A)(i). Nothing more and nothing

less.

Apache Stronghold disagrees, arguing that the Land

Exchange “targets religious conduct for distinctive

treatment.” As evidence, it posits that Congress must have

known the adverse impact that the Land Exchange would

have on the Apache. But even assuming that 535 distinct

Congresspersons could have a single collective

“knowledge” or “purpose,” Congress’s knowledge is not

enough to prove its purpose. 22 It is one thing to pass a statute

22

Apache Stronghold cites, as “evidence of hostility” toward

religion, a snippet from the Congressional record where a “bill sponsor

criticized ‘the San Carlos Apache’ for ‘car[ing] more about some issues

[i.e., religion] than they do about the prospect of employment,’ and

called for ‘an end to’ religious ‘delays.’” (All alterations here are

Apache Stronghold’s.) This argument has two problems. First, once

Senator McCain’s remarks are shorn of all misleading editing, they show

no hostility toward religion. See Resolution Copper: Hearing on H.R.

1904 and S. 409 Before the S. Comm. on Energy and Nat. Res., 112th

Cong. 4 (2012) (statement of Sen. John McCain) (“So, the tribal

leaders . . . obviously care more about some issues than they do about

the prospect of employment for their tribal members . . . .”); id. at 4

(“Mr. Chairman, it is time for Congress to put an end to these delays.”).

And second, Senator McCain’s remarks shed no light on how Congress

as a whole perceived the Land Exchange’s purpose. They show only a

single Senator’s frustration with impediments to the Exchange achieving

APACHE STRONGHOLD V. UNITED STATES 53

with the knowledge that it could burden the Apache’s

religious exercise. It is another entirely to pass a statute with

the purpose or goal of creating that burden. Cf., e.g., Model

Penal Code § 2.02 (distinguishing between actions made

“knowingly” and actions made “purposely”).

The Land Exchange is also generally applicable: it does

not selectively “impose burdens only on conduct motivated

by religious belief.” Lukumi, 508 U.S. at 543. Rather, the

Land Exchange will also burden all manner of secular

activities on the areas to be transferred to Resolution Copper.

After the Land Exchange, parts of the Tonto National Forest

will “no longer [be] accessible to hikers, rock climbing

enthusiasts, cyclists, equestrians, campers, hunters, and

other recreational users.”

Apache Stronghold responds that the Land Exchange is

not generally applicable because it is “designed to apply to

only one piece of land,” but this argument misconstrues the

legal standard. We do not ask if the law was “designed to

apply to only one piece of land.” Indeed, the statute

challenged in Smith—and upheld there as neutral and

generally applicable—was designed to apply to only one

type of conduct: the “knowing or intentional possession of a

‘controlled substance.’” 494 U.S. at 874 (quoting Ore. Rev.

Stat § 475.992(4) (1987)). The question under Smith is

whether a government action “burdens only . . . conduct

motivated by religious belief.” Lukumi, 508 U.S. at 543; see

also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th

Cir. 2015) (“A law is not generally applicable if it, ‘in a

selective manner, imposes burdens only on conduct

motivated by religious belief.’” (quoting Lukumi, 508 U.S.

the purpose that particular Senator had in mind: increased gainful

employment.

54 APACHE STRONGHOLD V. UNITED STATES

at 543)). And again, the Land Exchange does not impose

such a selective burden. The Exchange affects not just the

Apache but all “hikers, rock climbing enthusiasts, cyclists,

equestrians, campers, hunters, and other recreational users”

who wish to enjoy the areas to be conveyed to Resolution

Copper. We thus hold that the Land Exchange Provision is

a neutral and generally applicable law and passes muster

under Smith. The district court properly found that Apache

Stronghold is not likely to succeed on its Free Exercise

claim.

C. Apache Stronghold’s Trust Claim

We last consider Apache Stronghold’s trust claim. As

relevant background, the Apache and the U.S. government

signed the Treaty of Santa Fe in 1852. In that treaty, the U.S.

promised to “designate, settle, and adjust [the Apache’s]

territorial boundaries, and pass and execute in their territory

such laws as may be deemed conducive to the prosperity and

happiness of [the Apache].” Importantly, however, Apache

Stronghold has not adduced any evidence that the U.S. ever

formally designated any such boundaries. Apache

Stronghold nevertheless argues that this language created an

enforceable trust obligation on the U.S. government’s part,

and that the Land Exchange is “inconsistent” with the U.S.’s

obligation to pass laws “conducive to the prosperity and

happiness” of the Apache.

The government responds that this trust claim fails for

three reasons: 1) Apache Stronghold cannot bring a trust

claim under the Treaty of Santa Fe because it is a non-profit

group, not the Apache tribe that signed the treaty; 2) the

Treaty of Santa Fe does not create an “enforceable trust

duty”; and 3) the Land Exchange Provision abrogated the

APACHE STRONGHOLD V. UNITED STATES 55

Treaty of Santa Fe by statute. We need address only the

second reason, as it is dispositive here. 23

We agree with the government that on this record,

Apache Stronghold has not established that the Treaty of

Santa Fe imposes on the United States an enforceable trust

obligation. As a general matter, the U.S. government

shoulders a trust obligation with respect to an American

Indian tribe when the U.S. government “takes on or has

control or supervision over tribal monies or properties.”

United States v. Mitchell, 463 U.S. 206, 225 (1983) (quoting

Navajo Tribe of Indians v. United States, 224 Ct. Cl. 171,

183 (Ct. Cl. 1980)). But here, the government does not

control or supervise tribal properties at Oak Flat. Oak Flat

belongs to the government, a fact that Apache Stronghold

does not presently contest. Apache Stronghold argues that

title over Oak Flat is irrelevant, as it seeks not title but

23

The government phrases its first argument—that a non-profit like

Apache Stronghold cannot bring claims under the Treaty of Santa Fe—

in terms of “standing.” But the government does not assert that Apache

Stronghold lacks Article III standing to bring this claim. Rather, the

government argues that treaties between the U.S. and American Indian

Tribes, like other “treaties between sovereigns,” “do not create privately

enforceable rights.” The government thus claims that the Treaty of Santa

Fe gives only the American Indian tribe that signed the treaty—and not

individual members of that tribe—a cause of action upon which a court

can grant relief. But this is a question of substantive law, not of Article

III, and thus “is not a jurisdictional question.” Pit River Tribe v. Bureau

of Land Mgmt., 793 F.3d 1147, 1156 (9th Cir. 2015). We thus need not

address the government’s first argument before considering its second

argument: that the Treaty of Santa Fe creates no enforceable trust duty.

And because we agree with that second argument, we need not address

the government’s first argument at all. “[I]f it is not necessary to decide

more, it is necessary not to decide more.” N. Cnty. Commc’ns Corp. of

Ariz. v. Qwest Corp., 824 F.3d 830, 838 n.2. (9th Cir. 2016) (quoting

Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1030 (9th Cir. 2013) (Bea,

J., concurring in part and dissenting in part)).

56 APACHE STRONGHOLD V. UNITED STATES

“usufructuary rights to use land for traditional purposes.”

But the Treaty’s language explicitly tied any obligations that

it created to the Apache’s title to land. The government

promised to “designate, settle, and adjust [the Apache’s]

territorial boundaries, and pass and execute in their territory

such laws,” “their” referring to the Apache treaty signatories.

Even assuming that Oak Flat was once Apache land

according to historical maps, Apache Stronghold has not

pointed to any evidence indicating that the government

designated any boundaries of the Apache’s territory after the

1852 Treaty, let alone boundaries that encompass Oak Flat.

Because Apache Stronghold points to no evidence

establishing that the U.S. government “designate[d] . . .

territory” on which the government has any obligation to

“pass and execute” laws, it is not likely to prove that the

government has assumed any Treaty-based trust obligations

with respect to Oak Flat.

This conclusion accords with how both we and other

courts have interpreted identical treaty language in other

cases. The Treaty with the Utah, just like the Treaty of Santa

Fe, required the United States to “designate, settle, and

adjust [the American Indians’] territorial boundaries, and

pass and execute such laws, in their territory, as the [United

States] may deem conducive to the happiness and prosperity

of said [American] Indians.” Treaty with the Utah, Dec. 30,

1849, art. VII, 9 Stat. 984. But that language only “reserves

for a future date the final delineation of boundaries.” Uintah

Ute Indians of Utah v. United States, 28 Fed. Cl. 768, 788,

789 (Fed. Cl. 1993). The Treaty with the Utah “contains no

obligations with respect to property” and created neither “a

trust relationship [n]or trust protection,” at least not until

“the Government established boundaries” that delineated

American Indian land upon which the United States could

have some obligations. Id. We agreed in Robinson v. Jewell

APACHE STRONGHOLD V. UNITED STATES 57

when we held that the Treaty with the Utah did not “create[]

any enforceable property rights.” 790 F.3d 910, 916 (9th

Cir. 2015); see also id. at 917.

So too here. Apache Stronghold has not adduced

evidence which establishes that the U.S. government

implemented the Treaty of Santa Fe by designating any land

or recognizing any title vested in the Apache. And without

title vested in the Apache, there can be no trust relationship

arising from the Treaty of Santa Fe and no trust obligations

relating to “usufructuary rights.” Apache Stronghold’s trust

claim is thus unlikely to succeed.

***

We are a “cosmopolitan nation made up of people of

almost every conceivable religious preference.” Braunfeld v.

Brown, 366 U.S. 599, 606 (1961). This pluralism is a source

of strength, but it places demands on us all. In some cases,

the many must accommodate the needs of the few—we

accept that the government must sometimes “expend

additional funds to accommodate citizens’ religious beliefs.”

Hobby Lobby, 573 U.S. at 730. But in other cases, our need

to “maintain an organized society that guarantees religious

freedom to a great variety of faiths requires that some

religious practices yield to the common good.” Lee, 455

U.S. at 259. This give-and-take suits perfectly neither the

religious nor the secular. The “diversity of beliefs in our

pluralistic society” demands as much. Bowen, 476 U.S. at

712 (plurality opinion). Here, for the reasons given above,

this case is the second of those two types.

As we reach this conclusion, we do not rejoice. Rather,

we recognize the deep ties that the Apache have to Oak Flat

and to the nearby Apache Leap and Devil’s Canyon. And

we acknowledge that the Land Exchange may impact the

58 APACHE STRONGHOLD V. UNITED STATES

Apache’s plans to worship on Oak Flat. But RFRA, the Free

Exercise Clause, and the 1852 Treaty of Santa Fe do not

afford Apache Stronghold the relief that it seeks. This

dispute must be resolved as are most others in our pluralistic

nation: through the political process. In fact, legislation

seeking to repeal the Land Exchange Provision is already

before Congress. See Save Oak Flat Act, H.R. 1884, 117th

Cong. (2021).

The district court’s denial of Apache Stronghold’s

motion for a preliminary injunction is AFFIRMED.

BERZON, Circuit Judge, dissenting:

The majority applies an overly restrictive test for

identifying a “substantial burden” on religious exercise

under the Religious Freedom Restoration Act of

1993 (“RFRA”), 107 Stat. 1488, 42 U.S.C. § 2000bb to

§ 2000bb–4. The majority’s flawed test leads to an absurd

result: blocking Apaches’ access to and eventually

destroying a sacred site where they have performed religious

ceremonies for centuries does not substantially burden their

religious exercise. The majority offers both a doctrinal and a

practical basis for its unduly narrow definition of

“substantial burden.” Both are incorrect.

First, the doctrinal argument rests on the notion that

RFRA limited the concept of “substantial burden” to the

types of burdens the Supreme Court found in Sherbert v.

Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406

U.S. 205 (1972), two cases that preceded Employment

Division v. Smith, 494 U.S. 872 (1990), the case that

precipitated RFRA. But RFRA did no such thing. Instead,

RFRA codified only the “compelling interest test” from

Sherbert and Yoder—the level of justification the

APACHE STRONGHOLD V. UNITED STATES 59

government must provide after a substantial burden on

religion has been found. The statute does not define

“substantial burden,” and there is no doctrinal basis for

narrowing that term to the types of burdens described in

Sherbert and Yoder.

The majority ignores the reality that pre-Smith federal

cases applied a broader definition of “substantial burden,”

particularly in the prisoner context. Those cases recognized

that when a plaintiff depends on the government for access

to religious resources, the government’s withholding of

those resources can constitute a substantial burden on

religious exercise. By making religious practice impossible,

instead of merely discouraging or penalizing it, such a

burden can be greater than those imposed in Sherbert and

Yoder.

The majority derives its definition of “substantial

burden” from Navajo Nation v. U.S. Forest Service, 535 F.3d

1058 (9th Cir. 2008) (en banc). Because that case held that

RFRA did not remedy burdens “short of” those described in

Sherbert and Yoder, id. at 1070, I would read Navajo Nation

as leaving room for recognizing a greater burden as

actionable under RFRA. Alternatively, if Navajo Nation

does not bear that reading, it is irreconcilable with Supreme

Court precedent recognizing such burdens in the prisoner

context, see Ramirez v. Collier, 142 S. Ct. 1264, 1277–78

(2022), and so is no longer binding precedent, Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

Second, the “practical basis” for the majority’s definition

stems from the concern that “giving one religious sect a veto

over the use of public park land would deprive others of the

right to use what is, by definition, land that belongs to

everyone.” Majority Op. 24–25 (quoting Navajo Nation, 535

F.3d at 1063–64). But redefining “substantial burden” to

60 APACHE STRONGHOLD V. UNITED STATES

exclude great burdens on religious exercise because

accommodating a religious practice could interfere with

other uses of federal land is a disingenuous means of

reconciling those competing claims. Instead of denying the

burden exists, the appropriate way to address the conflicting

interests is at the justification stage. If accommodating the

religious practice would cause other societal harms, then the

government may well be able to show that applying the

burden is the “least restrictive means of furthering [a]

compelling governmental interest.” 42 U.S.C. § 2000bb–

1(b). Here, the government has not attempted to make that

showing.

Applying the correct definition of “substantial burden,”

I would hold that Apache Stronghold has shown it “is likely

to succeed on the merits” of its RFRA claim. Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). I would

therefore remand for the district court to address the

remaining elements of the preliminary injunction test. 1

I.

I begin with the majority’s principal doctrinal

argument—that RFRA limited the definition of “substantial

burden” to the types of burdens described in Sherbert and

Yoder. RFRA certainly did not do so expressly. Instead,

Congress found that “governments should not substantially

burden religious exercise without compelling justification”;

that “in Employment Division v. Smith, 494 U.S. 872 (1990)

the Supreme Court virtually eliminated the requirement that

the government justify burdens on religious exercise

1

Because I would hold that Apache Stronghold is likely to succeed

on its RFRA claim, I would not reach its claims under the Free Exercise

Clause of the First Amendment or the 1852 Treaty of Santa Fe.

APACHE STRONGHOLD V. UNITED STATES 61

imposed by laws neutral toward religion”; and that “the

compelling interest test as set forth in prior Federal court

rulings is a workable test for striking sensible balances

between religious liberty and competing prior governmental

interests.” 42 U.S.C. § 2000bb(a)(3)–(5). The purpose of

RFRA was therefore “to restore the compelling interest test

as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and

Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee

its application in all cases where free exercise of religion is

substantially burdened.” Id. § 2000bb(b)(1). This recitation

makes evident that Congress’s concern was not with

defining “substantial burden”—for which RFRA offers no

definition—but with ensuring that the compelling interest

standard would be applied once a substantial burden had

been demonstrated.

The majority relies on Navajo Nation for the conclusion

that “Sherbert and Yoder must ‘also control [RFRA’s]

“substantial burden” inquiry.’” Majority Op. 19 (alteration

in original) (quoting Navajo Nation, 535 F.3d at 1069). As

explained in more detail below, I do not read Navajo Nation

as so instructing. And the idea that RFRA—a statute

intended to restore religious freedom—silently limited the

concept of “substantial burden” to the two types of burdens

found in Sherbert and Yoder requires an inferential leap

justified neither by logic nor by the pre-Smith federal case

law.

Sherbert and Yoder both addressed situations occurring

in private life—that is, life outside an institutional setting

such as a prison. In private life, “government inhibitions on

voluntary religious practice are the exception rather than the

norm.” Stephanie Hall Barclay & Michalyn Steele,

Rethinking Protections for Indigenous Sacred Sites, 134

Harv. L. Rev. 1294, 1301 (2021). Two common tools the

62 APACHE STRONGHOLD V. UNITED STATES

government uses to influence behavior “in contexts in which

voluntary choice is the baseline” are so-called “carrots and

sticks.” Id. at 1326. The government offers carrots, or

government benefits, to induce desired behavior, and uses

sticks, or penalties, to deter undesired behavior. As Sherbert

and Yoder recognized, the government substantially burdens

religious exercise when it denies carrots, or threatens sticks,

based on a person’s religious activity. Or, as the majority

puts it: “the government imposes a substantial burden on

religion . . . ‘when individuals are forced to choose between

following the tenets of their religion and receiving a

governmental benefit,’ as in Sherbert, or when individuals

are ‘coerced to act contrary to their religious beliefs by the

threat of civil or criminal sanctions,’ as in Yoder.” Majority

Op. 20 (quoting Navajo Nation, 535 F.3d at 1070).

But some Americans seek to practice their religion in

contexts in which voluntary choice is not the baseline. In

these contexts, the government controls access to religious

locations and resources. See Barclay & Steele, supra, at

1301. Three main examples of these contexts are prisons,

Native American sacred sites located on government land,

and zoning.

Prisoners “are unable freely to attend to their religious

needs and are therefore dependent on the government’s

permission and accommodation for exercise of their

religion.” Cutter v. Wilkinson, 544 U.S. 709, 720–21 (2005).

Prisons may allow or prevent access to resources such as

prison chapels or religious texts. Many traditional Native

American religious sites are located on federal land. The

government controls access to and other aspects of these

sites, leaving Native Americans “at the mercy of government

permission to access sacred sites.” Barclay & Steele, supra,

at 1301. And through zoning decisions, local governments

APACHE STRONGHOLD V. UNITED STATES 63

can limit religious groups’ ability to “build, buy, or rent” “a

place of worship . . . adequate to their needs and consistent

with their theological requirements,” which is “at the very

core of the free exercise of religion.” Int’l Church of

Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,

1069 (9th Cir. 2011) (quoting Vietnamese Buddhism Study

Temple in Am. v. City of Garden Grove, 460 F. Supp. 2d

1165, 1171 (C.D. Cal. 2006)). In these three contexts, the

government may exercise its sovereign power more directly

than by using carrots and sticks. By simply preventing access

to religious locations and resources, the government may

directly prevent religious exercise.

It would be an exceedingly odd statute that recognized

and provided remedies for government-created substantial

burdens on religious exercise only when the government

uses carrots and sticks to influence people’s behavior

indirectly but not 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.

Of course, Congress can enact illogical laws if it

chooses. But there is no basis for concluding that RFRA is

such a statute, and several reasons for concluding it is not.

First, as discussed, the majority relies primarily on

RFRA’s invocation of Sherbert and Yoder in reinstating the

compelling interest test. RFRA also refers generally to

“Federal court rulings” “prior” to Smith. 42 U.S.C.

§ 2000bb(a)(5). But the majority overlooks the many pre-

Smith federal cases that recognized, in the prison context,

that the government may substantially burden religion

simply by controlling access to religious resources.

64 APACHE STRONGHOLD V. UNITED STATES

Second, the Supreme Court has held repeatedly that

courts should apply the “same standard” in deciding cases

under RFRA and the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.

§§ 2000cc to 2000cc–5. Holt v. Hobbs, 574 U.S. 352, 358

(2015) (quoting Gonzales v. O Centro Espírita Beneficente

Uniõ do Vegetal, 546 U.S. 418, 436 (2006)). RLUIPA

prevents governments from substantially burdening

religious exercise in prisons or through zoning decisions

unless the compelling interest standard is met. 42 U.S.C.

§§ 2000cc, 2000cc–1. The Supreme Court, our court, and

other courts of appeals have recognized a substantial burden

under RLUIPA in prisoner and zoning cases when the

government denies access to religious locations or resources.

Third, recent Supreme Court case law makes evident that

pre-Smith cases should not be read to cabin RFRA’s reach.

As the Supreme Court has explained, there is “no reason to

believe” that RFRA “was meant to be limited to situations

that fall squarely within the holdings of pre-Smith cases.”

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 n.18

(2014). If this court held otherwise in Navajo Nation, 535

F.3d 1058—which I do not believe it did—then Navajo

Nation is in irreconcilable conflict with subsequent Supreme

Court case law and is no longer binding. See Miller, 335 F.3d

at 900.

A.

A review of the pre-Smith Free Exercise cases ignored

by the majority demonstrates that the majority’s constrained

definition of “substantial burden” lacks a basis in pre-Smith

precedent. In Cruz v. Beto, 405 U.S. 319 (1972) (per curiam),

for example, a Buddhist prisoner in Texas alleged that the

prison denied him access to the prison chapel and prohibited

him from corresponding with his religious adviser. The

APACHE STRONGHOLD V. UNITED STATES 65

Supreme Court reversed the dismissal of the complaint,

noting that if the allegations were “assumed to be true,”

“Texas has violated [the Free Exercise Clause of] the First

and Fourteenth Amendments.” Id. at 322. Later, in O’Lone

v. Estate of Shabazz, 482 U.S. 342 (1987), Muslim prisoners

assigned to an outside work detail were prevented from

attending “Jumu’ah, a weekly Muslim congregational

service.” Id. at 345. The Supreme Court held that the policy

requiring the prisoners to remain outside did not violate the

Free Exercise Clause, but not because there was no burden

on the prisoners’ religious exercise. Assuming a burden, the

Court went on to evaluate the question whether the burden

was justified by “legitimate penological objectives” and

found that it was. Id. at 352–53. In both these cases, the claim

was not that the plaintiffs were “forced to choose between

following the tenets of their religion and receiving a

governmental benefit” or “coerced to act contrary to their

religious beliefs by the threat of civil or criminal sanctions,”

Majority Op. 20 (internal quotation marks omitted), but that

they were directly denied access to religious resources.

Similarly, in McElyea v. Babbitt, 833 F.2d 196 (9th Cir.

1987), we reversed a grant of summary judgment in favor of

an Arizona prison because the plaintiff had raised triable

issues of fact regarding his claims that “(1) there were no

weekly Jewish services conducted at the prison; (2) he was

unreasonably denied permission to attend a special service

on the High Holy Days; (3) he was unable to obtain a kosher

diet; and (4) there were no Jewish religious writings

available at the prison.” Id. at 197. Our reversal for further

factual development recognized that, if true, the allegations

not only raised equal protection concerns but also showed a

burden on religious exercise that the government must

justify. Id. at 199. We explained, for example, that “the

defendants cannot erect a barrier to an inmate’s access to

66 APACHE STRONGHOLD V. UNITED STATES

religious reading material absent a security or penological

interest.” Id. 2

Other federal courts of appeals decided similar cases

before Smith. For example, in Williams v. Lane, 851 F.2d

867 (7th Cir. 1988), the Seventh Circuit upheld a district

court ruling that a prison “violated plaintiffs’ right to the free

exercise of their religion by not allowing communal

religious services, by not permitting prisoners participation

in rituals of their faith, and by depriving the inmates of

religious counseling and instruction.” Id. at 877–78. In

Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976), the

Tenth Circuit reversed the dismissal of a complaint alleging

that a prison violated the plaintiffs’ right to practice “the

Satanic religion” when, among other things, it “denied them

the right to possess necessary ritual items in their cell.” Id.

at 1059. The Court held that further factual development was

needed, as the prison’s “asserted justification of such

restrictions on religious practices based on the State’s

interest in maintaining order and discipline must be shown

to outweigh the inmates’ First Amendment rights.” Id. at

1061; see also LaReau v. MacDougall, 473 F.2d 974, 979–

80 & n.9 (2d Cir. 1972) (requiring case-by-case evaluations

of governmental justifications for banning prisoners in

segregation from attending chapel).

In short, federal cases prior to Smith accepted that

governments substantially burden religious exercise—and

2

In Allen v. Toombs, 827 F.2d 563 (9th Cir. 1987), we held that a

prison did not violate plaintiffs’ Free Exercise rights by denying them

access to a sweat lodge ceremony. But as in O’Lone, the reason was not

that plaintiffs’ religious exercise was not burdened, but because we

accepted the prison’s determination that allowing high-risk prisoners to

participate in the ceremony would present unacceptable security risks.

Id. at 567.

APACHE STRONGHOLD V. UNITED STATES 67

so must justify their actions—when they control access to

religious resources and deny plaintiffs access to those

resources. The notion that pre-Smith cases recognized a

substantial burden only when the government denied a

benefit or threatened a penalty is revisionist history not

supported by the case law.

B.

Nor is there any reason to believe that Congress, in

enacting RFRA, narrowed the definition of “substantial

burden” from what it had been in the pre-Smith Free Exercise

cases. Congress enacted RFRA as a reaction to Smith,

“which held that neutral, generally applicable laws that

incidentally burden the exercise of religion usually do not

violate the Free Exercise Clause of the First Amendment.”

Holt, 574 U.S. at 356–57. “Following . . . Smith, Congress

enacted RFRA in order to provide greater protection for

religious exercise than is available under the First

Amendment.” Id. at 357 (emphasis added). The majority’s

implicit suggestion that in so doing, Congress silently

constricted the definition of “substantial burden” is

exceedingly difficult to credit in light of the overall thrust of

RFRA.

If there were any question whether Congress intended for

RFRA’s definition of “substantial burden” to be broad

enough to encompass governmental denial of access to

religious resources, it is laid to rest by Congress’s passage of

RLUIPA seven years later. By then, City of Boerne v. Flores,

521 U.S. 507 (1997), had “invalidated RFRA as applied to

States and their subdivisions, holding that the Act exceeded

Congress’ remedial powers under the Fourteenth

Amendment.” Cutter, 544 U.S. at 715. “Congress responded

to City of Boerne by enacting RLUIPA, which applies to the

States and their subdivisions and invokes congressional

68 APACHE STRONGHOLD V. UNITED STATES

authority under the Spending and Commerce Clauses.” Holt,

574 U.S. at 357.

Section 2 of RLUIPA governs land-use regulation such

as zoning. It provides that “[n]o government shall impose or

implement a land use regulation in a manner that imposes a

substantial burden on the religious exercise of a person,

including a religious assembly or institution, unless the

government demonstrates that imposition of the burden . . .

(A) is in furtherance of a compelling governmental interest;

and (B) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C.

§ 2000cc(a)(1).

Section 3 of RLUIPA governs religious exercise by

institutionalized persons, such as prisoners. “Section 3

mirrors RFRA and provides that ‘[n]o government shall

impose a substantial burden on the religious exercise of a

person residing in or confined to an institution . . . even if the

burden results from a rule of general applicability, unless the

government demonstrates that imposition of the burden on

that person—(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means

of furthering that compelling governmental interest.’” Holt,

574 U.S. at 357–58 (alterations in original) (quoting

42 U.S.C. § 2000cc–1(a)). As the Supreme Court has

repeatedly recognized, “RLUIPA thus allows prisoners ‘to

seek religious accommodations pursuant to the same

standard as set forth in RFRA.’” Id. at 358 (quoting

Gonzales, 546 U.S. at 436).

Given that Congress enacted RLUIPA to restore part of

RFRA’s original reach, that RLUIPA uses the same

“substantial burden” language as RFRA, and that RLUIPA

sets forth the “same standard” for evaluating governmental

justifications for imposing substantial burdens on religion as

APACHE STRONGHOLD V. UNITED STATES 69

RFRA—strict scrutiny—there is no reason to believe that

“substantial burden” means something different under

RFRA and RLUIPA. Cases decided under RLUIPA, in both

the prison and zoning contexts, confirm that the definition of

“substantial burden” includes the denial of access to

religious locations and resources.

For example, in Greene v. Solano County Jail, 513 F.3d

982 (9th Cir. 2008), a county jail denied the plaintiff, a

maximum-security prisoner, the opportunity to attend group

worship services. We had “little difficulty in concluding that

an outright ban on a particular religious exercise is a

substantial burden on that religious exercise.” Id. at 988.

Similarly, in Yellowbear v. Lampert, 741 F.3d 48 (10th Cir.

2014) (Gorsuch, J.), the Tenth Circuit held that it did not

“take much work to see that” a prison substantially burdened

the plaintiff’s religious exercise by “flatly prohibiting” him

from using the prison’s sweat lodge. Id. at 56. And in Haight

v. Thompson, 763 F.3d 554 (6th Cir. 2014), the Sixth Circuit

held that prison officials substantially burdened plaintiffs’

religious exercise by denying them permission to buy

ceremonial foods for an annual event. Id. at 565.

Most recently, the Supreme Court stayed the execution

of a prisoner who requested that “his long-time pastor be

allowed to pray with him and lay hands on him while he is

being executed.” Ramirez, 142 S. Ct. at 1272. The Court held

that Ramirez was entitled to a preliminary injunction

because, among other things, he was “likely to succeed in

showing that Texas’s” refusal to permit audible prayer or

70 APACHE STRONGHOLD V. UNITED STATES

religious touch “substantially burdens his exercise of

religion.” Id. at 1278. 3

In the zoning context, we have held that a county

“imposed a substantial burden” on a Sikh organization’s

“religious exercise under RLUIPA” by denying applications

from the group, Guru Nanak, for a conditional use permit to

build a temple. Guru Nanak Sikh Soc’y of Yuba City v. Cnty.

of Sutter, 456 F.3d 978, 981–82 (9th Cir. 2006). The denials

“to a significantly great extent lessened the prospect of Guru

Nanak being able to construct a temple in the future” and so

“imposed a substantial burden on Guru Nanak’s religious

exercise.” Id. at 992. Likewise, in International Church of

the Foursquare Gospel, which concerned a city’s denial of a

conditional use permit to build a church, we reversed the

district court’s grant of summary judgment to the city. 673

F.3d at 1061. The church “presented significant evidence

that no other suitable properties existed,” raising a “triable

3

The majority dismisses Ramirez as irrelevant because the

government officials in that case did “not dispute that any burden their

policy imposes on Ramirez’s religious exercise is substantial,” 142 S. Ct.

at 1278, and “the scope of a ‘substantial burden’ under either statute was

[therefore] explicitly not at issue,” Majority Op. 41. But the Court’s “do

not dispute” language was followed by the statement that “Ramirez is

likely to succeed in showing that Texas’s policy substantially burdens

his exercise of religion.” 142 S. Ct. at 1278. That statement, along with

the “do not dispute” locution, indicates agreement with the proposition

not disputed rather than a waiver determination, which is what the

majority suggests. Further, if the burden alleged by Ramirez were simply

not cognizable under RLUIPA no matter the actual impact on his

exercise of religion, as the majority’s ruling here would indicate, surely

the Supreme Court would not have taken the extraordinary measures of

staying his execution, requiring Texas to “prove that [its] refusal to

accommodate” his religious exercise furthered a compelling interest by

the least restrictive means, and—after finding Texas had not carried its

burden—ordering preliminary relief. Id. at 1278, 1284.

APACHE STRONGHOLD V. UNITED STATES 71

issue of material fact regarding whether the City imposed a

substantial burden on the Church’s religious exercise under

RLUIPA.” Id. at 1061, 1068.

As demonstrated by this case law in the prison and

zoning contexts, when the government controls access to

religious locations and resources, it substantially burdens

religious exercise by directly—rather than indirectly through

the use of carrots and sticks—denying access to those

locations or resources, objectively interfering with the

plaintiff’s religious practice.

C.

Navajo Nation is not to the contrary. There, we 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.” 535 F.3d at 1070

(emphasis added). By excluding burdens “short of” those

described in Sherbert and Yoder, we left room for a more

severe burden to qualify as substantial.

As discussed, the government’s denial of access to

religious resources may result in a greater burden on

religious exercise—potentially preventing religious practice

altogether—than when it influences religious exercise

indirectly by withholding benefits or threatening penalties.

See Cutter, 544 U.S. at 720–21 (explaining that the “degree

of control” the government exercises in institutional contexts

is “severely disabling to private religious exercise”);

Yellowbear, 741 F.3d at 56 (holding that when a “prison

refuses any access” to a sweat lodge, the restriction does not

present “a situation where the claimant is left with some

degree of choice in the matter and we have to inquire into

the degree of the government’s coercive influence on that

choice,” but instead “easily” qualifies as a substantial

72 APACHE STRONGHOLD V. UNITED STATES

burden); Haight, 763 F.3d at 565 (“The greater restriction

(barring access to the practice) includes the lesser one

(substantially burdening the practice).”).

Navajo Nation’s failure to recognize a substantial burden

under the facts of that case supports rather than undermines

my reading of the opinion. In Navajo Nation, the plaintiffs

objected to the government’s planned “use of artificial

snow,” made from recycled wastewater, “for skiing on a

portion of a public mountain sacred in their religion.” 535

F.3d at 1062. “[N]o plants, springs, natural resources,

shrines with religious significance, or religious ceremonies

. . . would be physically affected by the use of such artificial

snow,” “no places of worship [would be] made

inaccessible,” and the plaintiffs would “continue to have

virtually unlimited access to the mountain, including the ski

area, for religious and cultural purposes.” Id. at 1063.

Additionally, the plaintiffs were unable to identify an

objective impact on their religious practice. We concluded

that “the sole effect of the artificial snow [would be] on the

Plaintiffs’ subjective spiritual experience.” Id. at 1063.

In short, in Navajo Nation, the government did not deny

access to or destroy a religious site, as the en banc court

emphasized. So the case did not involve a situation in which

the government objectively and severely interfered with a

plaintiff’s access to religious locations or resources. 4

4

The majority cites several cases in which it says we applied the

constrained definition of “substantial burden” the majority derives from

Navajo Nation. Majority Op. 37–38 & n.11. But none of those cases

addressed a situation in which the government entirely denied access to

or destroyed a religious site or resource. See, e.g., Snoqualmie Indian

Tribe v. FERC, 545 F.3d 1207, 1215 (9th Cir. 2008) (“The issuance of a

new license [to operate for another forty years the Snoqualmie Falls

APACHE STRONGHOLD V. UNITED STATES 73

Nor does Bowen v. Roy, 476 U.S. 693 (1986), Lyng v.

Northwest Indian Cemetery Protective Association, 485 U.S.

439 (1988), or Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017), support the majority’s

constricted understanding of the term “substantial burden”

in RFRA. In Bowen, the plaintiff objected to the

government’s use of a Social Security number in conducting

its “internal affairs.” 476 U.S. at 699. Bowen thus did not

address a context in which the government controlled the

plaintiff’s access to religious resources. In Lyng, as in

Navajo Nation, the government did control access to several

religious sites, but the government action at issue—a

proposed road in a national forest—did not deny access to or

directly damage the sites. “No sites where specific rituals

take place were to be disturbed” by the road, and the

government sited the road so as to minimize “audible

intrusions” and “visual impact” on the religious sites. 485

U.S. at 454. Last, Trinity Lutheran, in discussing the Court’s

Free Exercise Clause jurisprudence, simply noted that the

Court had not found government coercion in Lyng. 137

S. Ct. at 2020. That summation is accurate and does not

imply the Court would reach the same result in a case in

which the government controlled access to religious

resources and entirely denied a plaintiff access to those

resources.

In sum, there is no doctrinal basis for limiting the

definition of “substantial burden” to the types of burdens

imposed in Sherbert and Yoder. To the contrary, the case law

supports defining “substantial burden” to include, at a

minimum, situations in which the government controls

Hydroelectric Project] . . . does [not] prohibit or prevent the

Snoqualmies’ access to Snoqualmie Falls, their possession and use of

religious objects, or the performance of religious ceremonies.”).

74 APACHE STRONGHOLD V. UNITED STATES

access to religious resources and entirely denies access to or

destroys those resources, objectively interfering with the

plaintiff’s religious practice.

Finally, and alternatively, if—contrary to my view—

Navajo Nation’s discussion of the meaning of “substantial

burden” does not leave room to recognize greater burdens

than those described in Sherbert and Yoder, as the majority

insists it does not, Majority Op. 31–32, then I would hold

that the Supreme Court since Navajo Nation was decided has

“undercut the theory or reasoning underlying [Navajo

Nation] in such a way that the cases are clearly

irreconcilable.” Miller, 335 F.3d at 900.

As discussed, the Supreme Court has repeatedly

instructed courts to apply the “same standard” in cases under

RFRA and RLUIPA. Holt, 574 U.S. at 358 (quoting

Gonzales, 546 U.S. at 436). Recent Supreme Court cases

under RLUIPA and RFRA are irreconcilable with Navajo

Nation if that case is read, as the majority reads it, to limit

“substantial burden” to denied benefits and threatened

penalties. In Ramirez, a case under RLUIPA, the Court’s

holding rested on an understanding of “substantial burden”

that includes the denial of access to religious resources

where the government controls access to those resources.

142 S. Ct. at 1278. And Hobby Lobby emphasized that

Congress enacted RFRA “to provide very broad protection

for religious liberty” that goes “far beyond what [the

Supreme] Court has held is constitutionally required.” 573

U.S. at 693, 706. The Court rejected as “absurd” the notion

that “RFRA merely restored [the Supreme] Court’s pre-

Smith decisions in ossified form.” Id. at 715. If Navajo

Nation held that RFRA’s definition of “substantial burden”

is limited to the types of burdens described in Sherbert and

Yoder, that holding cannot be squared with Holt, Ramirez,

APACHE STRONGHOLD V. UNITED STATES 75

and Hobby Lobby, read together. See Miller, 335 F.3d at

900. 5

II.

The majority’s proffered “practical basis” for its

constricted definition of “substantial burden” fares no better

than its faulty doctrinal analysis. Majority Op. 24–25.

Practicality, the majority maintains, requires limiting the

concept of “substantial burden” to exclude burdens arising

from the government’s control over access to Native

American sacred sites on federal land because “giving one

religious sect a veto over the use of public park land would

deprive others of the right to use what is, by definition, land

that belongs to everyone.” Id. (quoting Navajo Nation, 535

F.3d at 1063–64).

True, recognizing Native Americans’ right of access to

traditional religious sites on federal land may sometimes

constrain competing uses of the land. But this “practical

basis” for the majority’s definition of “substantial burden” is

flawed in two ways. First, there is no justification for

resolving competing claims on the uses of federal land by

refusing to recognize the Native American claim at the

“substantial burden” stage of the analysis. Second,

recognizing a substantial burden on religious exercise does

5

If I am incorrect that Navajo Nation, if understood as the majority

posits, does not survive Holt, Ramirez, and Hobby Lobby, then our court

should reconsider en banc the majority’s holding here that “under RFRA,

the government imposes a substantial burden on religion only when the

government action fits within the framework established by Sherbert and

Yoder.” Majority Op. 20. That reading of RFRA is wrong for all the

reasons explained in this dissent.

76 APACHE STRONGHOLD V. UNITED STATES

not result in an automatic “veto” over other uses of the land.

I address these errors in turn.

First, burdens on Native Americans who practice land-

based religions and who depend on the federal government

for access to federal land are not excluded from RFRA’s

coverage. RFRA “applies to all Federal law, and the

implementation of that law, whether statutory or otherwise.”

42 U.S.C. § 2000bb–3(a). There is no exception for federal

laws relating to federal land or access to sacred sites.

Moreover, it is disingenuous to resolve the concern about

competing claims on federal land by slipping it into the

substantial burden analysis. The majority’s concern,

revealed by its discussion of the “practical basis” for its

holding, has nothing to do with whether the Apaches’

religious exercise is substantially burdened and everything

to do with how we address competing demands for

resources—in this case, federal land that hosts both a

traditional sacred site and a copper deposit. By pretending

that the question is whether there is a “substantial burden”

on the Apaches’ religious exercise, and not whether the

government has shown a compelling interest in putting the

site to a different use, we avoid a transparent inquiry into the

considerations that should determine the allocation of

resources for which there are competing demands, one of

which is religion-based.

That brings me to the majority’s second error, its

assertion that acknowledging a substantial burden when

Native Americans are denied access to sacred sites would

give Native Americans an automatic “veto” over competing

uses of federal land. Majority Op. 24–25. It would not.

Instead, it would lead us to the second step of the analysis,

the compelling interest test.

APACHE STRONGHOLD V. UNITED STATES 77

Unlike the substantial burden inquiry, the compelling

interest test provides a transparent tool for airing and

resolving conflicts between the interests of religious

adherents and those of others in society. It gives the

government an opportunity to provide a rationale for its

action and demonstrate the lack of viable alternatives. It

allows the court to engage in an open discussion about

balancing competing interests. And it does not result in an

automatic loss for the government. “Strict scrutiny is not

‘strict in theory, but fatal in fact.’” Grutter v. Bollinger, 539

U.S. 306, 326 (2003) (quoting Adarand Constructors, Inc. v.

Peña, 515 U.S. 200, 237 (1995)). According to one empirical

analysis, federal courts applying strict scrutiny in religious

liberty cases between 1990 and 2003 upheld the challenged

laws nearly 60 percent of the time. Adam Winkler, Fatal in

Theory and Strict in Fact: An Empirical Analysis of Strict

Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 796–

97 (2006).

The majority has demonstrated neither a doctrinal nor a

practical basis for its narrow definition of “substantial

burden” under RFRA. The case law and history of RFRA

instead support recognizing a substantial burden when the

government controls access to religious resources and

completely denies access to or destroy those resources,

objectively interfering with the plaintiff’s religious exercise.

After finding a substantial burden, courts still must apply

RFRA’s compelling interest standard, which permits a

transparent inquiry into the strength of the government’s

proffered justification for its action.

III.

Applying the proper definition of the term, there is no

doubt that the complete destruction of Oak Flat would be a

“substantial burden” on the Apaches’ religious exercise. As

78 APACHE STRONGHOLD V. UNITED STATES

the district court found, the “evidence . . . shows that the

Apache peoples have been using Oak Flat as a sacred

religious ceremonial ground for centuries.” Apache

Stronghold v. United States, 519 F. Supp. 3d 591, 603

(D. Ariz. 2021). And the Oak Flat location is not fungible

with other locations for purposes of the Apaches’ religious

activities. The Apaches perform ceremonies at Oak Flat

because they believe the site to be “a ‘direct corridor’ to the

Creator’s spirit.” Id. at 604. “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.’ . . . Apache

individuals pray at the land and speak to their Creator

through their prayers.” Id. “The spiritual importance of Oak

Flat to the Western Apaches cannot be overstated.” Id. at

603.

The purpose of the Land Transfer Act, and Resolution

Copper’s planned use of the land, is to extract copper ore

from below Oak Flat, using a technique called “block

caving” or “panel caving.” Once the ore is removed, the land

above the deposit will collapse, creating a “subsidence zone”

about 1.8 miles in diameter and about 1,000 feet deep,

destroying Oak Flat. According to the government’s

environmental impact statement, “the impacts on

archaeological sites, tribal sacred sites, cultural landscapes,

and plant and mineral resources caused by construction of

the mine would be immediate, permanent, and large in

scale.” As the district court found, “the land . . . will be all

but destroyed to install a large underground mine, and Oak

Flat will no longer be accessible as a place of worship.”

Apache Stronghold, 519 F. Supp. 3d at 606. By preventing

the Apache people from using Oak Flat as a site for religious

ceremonies as they have for centuries, the Land Transfer Act

will “have a devastating effect on the Apache people’s

APACHE STRONGHOLD V. UNITED STATES 79

religious practices.” Id. at 607. “The Western Apaches’

exercise of religion at Oak Flat will not be burdened—it will

be obliterated.” Order Denying Emergency Mot. for

Injunction Pending Appeal at 9, Apache Stronghold v.

United States, No. 21-15295 (9th Cir. Mar. 5, 2021)

(Bumatay, J., dissenting), ECF No. 26.

As the government controls access to Oak Flat and the

result of the Land Transfer Act will be to make the site

inaccessible and eventually destroy it, objectively

preventing Apaches from holding religious ceremonies

there, I would hold Apache Stronghold is likely to succeed

in showing a substantial burden on its members’ religious

exercise. 6

Once a court finds a substantial burden, “the burden of

persuasion shifts to the government to prove that the

challenged government action is in furtherance of a

‘compelling governmental interest’ and is implemented by

‘the least restrictive means.’” Navajo Nation, 535 F.3d at

1068. The government has not attempted to satisfy the

compelling interest test here or in the district court, instead

limiting its arguments to the substantial burden issue.

6

Alternatively, I would hold that even under the majority’s unduly

narrow definition of “substantial burden,” Apache Stronghold has

demonstrated that the Land Transfer Act will coerce its members “to act

contrary to their religious beliefs by the threat of civil or criminal

sanctions.” Navajo Nation, 535 F.3d at 1069–70. After Resolution

Copper closes Oak Flat, but before it is totally destroyed, Apache

Stronghold members will face penalties for trespassing if they attempt to

hold religious ceremonies there.

I do not stand principally on this point, however. I am reluctant to

lend credence to the notion that a trespass conviction is a substantial

burden on religion but complete destruction of an irreplaceable religious

location is not.

80 APACHE STRONGHOLD V. UNITED STATES

Because the government bears the burden of persuasion on

the compelling interest test and has not carried it, Apache

Stronghold is likely to succeed on the merits of its RFRA

claim. See Gonzales, 546 U.S. at 429 (confirming the

government bears the burden of satisfying RFRA’s

compelling interest test at the preliminary injunction stage).

As the district court did not address the other elements of the

preliminary injunction test, I would remand for the district

court to do so in the first instance.

I therefore respectfully dissent.