Petition for Writ of Certiorari — Apache Stronghold, Petitioner v. United States, et al.

Supreme Court briefSep 11, 2024

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No. _______

In the Supreme Court of the United States

__________

APACHE STRONGHOLD,

Petitioner,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

__________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

__________

PETITION FOR A WRIT OF CERTIORARI

__________

ERIN E. MURPHY

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

STEPHANIE HALL BARCLAY

GEORGETOWN LAW SCHOOL

600 New Jersey Ave., NW

Washington, DC 20001

MICHAEL V. NIXON

101 SW Madison St. #9325

Portland, OR 97207

CLIFFORD LEVENSON

5119 N. 19th Ave., Ste. K

Phoenix, AZ 85015

LUKE W. GOODRICH

Counsel of Record

DIANA VERM THOMSON

REBEKAH P. RICKETTS

JOSEPH C. DAVIS

DANIEL L. CHEN

AMANDA L. SALZ

AMANDA G. DIXON

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave.,

NW, Suite 400

Washington, D.C. 20006

(202) 955-0095

lgoodrich@becketlaw.org

Counsel for Petitioner

QUESTION PRESENTED

For centuries, Western Apaches have centered

their worship on a small sacred site in Arizona called

Chí’chil Biłdagoteel, or Oak Flat. Oak Flat is the

Apaches’ direct corridor to the Creator and the locus of

sacred ceremonies that cannot take place elsewhere.

The government has long protected Apache rituals

there. But because copper was discovered beneath Oak

Flat, the government decided to transfer the site to Respondent Resolution Copper for a mine that will undisputedly destroy Oak Flat—swallowing it in a massive crater and ending sacred Apache rituals forever.

Petitioner challenged this decision under the Religious Freedom Restoration Act and the Free Exercise

Clause. In a fractured en banc ruling cobbled together

from two separate 6-5 majorities, the Ninth Circuit rejected both claims. Although the court acknowledged

that destroying Oak Flat would “literally prevent” the

Apaches from engaging in religious exercise, it nevertheless concluded that doing so would not “substantially burden” their religious exercise under RFRA, relying on this Court’s pre-RFRA decision in Lyng v.

Northwest Indian Cemetery Protective Association, 485

U.S. 439 (1988). And while the majority acknowledged

that singling out Oak Flat for destruction is “plainly

not ‘generally applicable,’” it rejected the free-exercise

claim “for the same reasons”—no substantial burden.

The question presented is:

Whether the government “substantially burdens”

religious exercise under RFRA, or must satisfy heightened scrutiny under the Free Exercise Clause, when it

singles out a sacred site for complete physical destruction, ending specific religious rituals forever.

PARTIES TO THE PROCEEDINGS

Petitioner Apache Stronghold, an Arizona nonprofit corporation, was plaintiff in the U.S. District

Court for the District of Arizona and appellant in the

U.S. Court of Appeals for the Ninth Circuit.

Respondents the United States of America, Sonny

Perdue, Thomas J. Vilsack, Vicki Christensen, Randy

Moore, Neil Bosworth, and Tim Torres were defendants in the U.S. District Court for the District of Arizona and appellees in the U.S. Court of Appeals for the

Ninth Circuit. Defendants-appellees Sonny Perdue

and Vicki Christensen were terminated as parties on

June 24, 2022.

Respondent Resolution Copper Mining, LLC, intervened as a defendant in the District Court on May 29,

2023, and as an appellee in the Court of Appeals on

June 30, 2023.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioner

Apache Stronghold represents that it does not have

any parent entities and does not issue stock.

RELATED PROCEEDINGS

The following proceedings are directly related to

this case within the meaning of Rule 14.1(b)(iii):

•

Apache Stronghold v. United States of America,

No. 21-15295, U.S. Court of Appeals for the

Ninth Circuit. Judgment entered March 1,

2024.

•

Apache Stronghold v. United States of America,

No. 2:21-cv-00050-SPL, U.S. District Court for

the District of Arizona. Preliminary injunction

denied February 12, 2021.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ........................ ii

CORPORATE DISCLOSURE STATEMENT ...........iii

RELATED PROCEEDINGS ..................................... iv

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR CERTIORARI ................................. 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 4

STATEMENT OF THE CASE ................................... 5

Statutory Background ..................................... 5

II. Factual Background ........................................ 6

III. Proceedings Below ......................................... 16

REASONS FOR GRANTING THE PETITION....... 21

The decision below defies RFRA’s plain

text and decisions of this Court and six

circuits. ........................................................... 21

A. Destroying a sacred site and

permanently terminating religious

practices is a “substantial burden”

under RFRA’s ordinary meaning. ............ 21

B. The Ninth Circuit’s contrary reading

defies this Court’s precedent. ................... 24

C. The decision below conflicts with the

decisions of six other circuits. .................. 29

II. The decision below deepens a 5-3 circuit

split over the meaning of the Free

Exercise Clause. ............................................. 32

III. This case is vitally important for people

of all faiths. .................................................... 35

CONCLUSION ......................................................... 40

ADDENDUM ............................................................ 42

vii

TABLE OF AUTHORITIES

Page(s)

Cases

Anspach ex rel. Anspach v. Philadelphia,

503 F.3d 256 (3d Cir. 2007).................................. 38

Bethel World Outreach Ministries v.

Montgomery Cnty. Council,

706 F.3d 548 (4th Cir. 2013) ................................ 29

Bowen v. Roy,

476 U.S. 693 (1986) ................................................ 5

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................... 3, 5, 6, 22, 25,

26, 38, 40

City of Boerne v. Flores,

521 U.S. 507 (1997) .............................................. 23

Comanche Nation v. United States,

No. 5:08-cv-849, 2008 WL 4426621

(W.D. Okla. Sept. 23, 2008) ............................ 30-31

Curtis v. School Committee of Falmouth,

652 N.E.2d 580 (Mass. 1995) ............................... 37

East Tex. Baptist Univ. v. Burwell,

793 F.3d 449 (5th Cir. 2015) ................................ 37

Employment Div. v. Smith,

494 U.S. 872 (1990) .......................................... 5, 27

Firewalker-Fields v. Lee,

58 F.4th 104 (4th Cir. 2023) ................................ 32

viii

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) .............................................. 21

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .................................. 23, 27, 34

Geneva Coll. v. HHS,

778 F.3d 422 (3d Cir. 2015).................................. 37

Goldman v. Weinberger,

475 U.S. 503 (1986) ................................................ 5

Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) .............................................. 38

Haight v. Thompson,

763 F.3d 554 (6th Cir. 2014) .................... 22, 29, 30

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995) .................................. 33

Holt v. Hobbs,

574 U.S. 352 (2015) .............................................. 26

Katcoff v. Marsh,

755 F.2d 223 (2d Cir. 1985).................................. 32

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ......................................... 33-34

Kravitz v. Purcell,

87 F.4th 111 (2d Cir. 2023) ............................ 33, 34

Levitan v. Ashcroft,

281 F.3d 1313 (D.C. Cir. 2002) ............................ 33

Little Sisters of the Poor v. Burwell,

794 F.3d 1151 (10th Cir. 2015) ............................ 37

Lyng v. Northwest Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) ..................... 1, 5, 19, 27, 28-29

Mahmoud v. McKnight,

102 F.4th 191 (4th Cir. 2024) .............................. 37

Mbonyunkiza v. Beasley,

956 F.3d 1048 (8th Cir. 2020) .............................. 33

Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058 (9th Cir. 2008) .............................. 17

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) .......................................... 5, 26

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) .................................. 37

Perez v. City of San Antonio,

No. 5:23-cv-977, 2023 WL 6629823

(W.D. Tex. Oct. 11, 2023) ..................................... 31

Priests For Life v. HHS,

772 F.3d 229 (D.C. Cir. 2014) .............................. 37

Ramirez v. Collier,

595 U.S. 411 (2022) .............................................. 22

Roman Catholic Bishop of Springfield v.

City of Springfield,

724 F.3d 78 (1st Cir. 2013) ............................. 32-33

School Dist. of Abington Twp. v.

Schempp,

374 U.S. 203 (1963) .......................................... 2, 32

Sherbert v. Verner,

374 U.S. 398 (1963) ................................................ 5

Singh v. Berger,

56 F.4th 88 (D.C. Cir. 2022)................................. 39

Tanzin v. Tanvir,

592 U.S. 43 (2020) .................................... 21, 22, 23

Tenafly Eruv Ass’n, Inc. v. Borough of

Tenafly,

309 F.3d 144 (3d Cir. 2002).................................. 33

Thai Meditation Ass’n of Ala., Inc. v.

City of Mobile,

980 F.3d 821 (11th Cir. 2020) .............................. 30

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

582 U.S. 449 (2017) ......................................... 27-28

Turkiye Halk Bankasi A.S. v. United

States,

598 U.S. 264 (2023) .............................................. 22

Turner v. Safley,

482 U.S. 78 (1987) ................................................ 26

TVA v. Hill,

437 U.S. 153 (1978) .............................................. 39

United States v. Lee,

455 U.S. 252 (1982) ......................................... 25-26

West v. Radtke,

48 F.4th 836 (7th Cir. 2022) ........................... 29-30

Williams v. Hansen,

5 F.4th 1129 (10th Cir. 2021) .............................. 33

Williams v. Taylor,

529 U.S. 362 (2000) ......................................... 24-25

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................ 5

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ................ 2, 22, 29, 39

In re Young,

82 F.3d 1407 (8th Cir. 1996) ................................ 30

Zubik v. Burwell,

578 U.S. 403 (2016) .............................................. 37

Statutes

28 U.S.C. § 1254 .......................................................... 4

42 U.S.C. § 2000bb .................................................... 23

42 U.S.C. § 2000bb-1 ............................................. 6, 23

42 U.S.C. § 2000bb-2 ............................................. 6, 23

42 U.S.C. § 2000bb-3 ............................................. 6, 23

42 U.S.C. § 2000cc-5 .............................................. 6, 23

xii

General Mining Act of 1872, ch. 152,

17 Stat. 91............................................................. 12

National Defense Authorization Act for

Fiscal Year 2015,

Pub. L. No. 113-291, § 3003,

128 Stat. 3732................................................... 4, 14

Other Authorities

20 Fed. Reg. 7,319 (Oct. 1, 1955) .............................. 13

36 Fed. Reg. 18,997 (Sept. 25, 1971) ......................... 13

David Wallace Adams, Education for

Extinction: American Indians and the

Boarding School Experience, 18751928 (1995) ........................................................... 13

Stephanie Hall Barclay & Michalyn

Steele, Rethinking Protections for

Indigenous Sacred Sites,

134 Harv. L. Rev. 1294 (2021) .................. 31-32, 37

Chí'chil Biłdagoteel Historic District,

Traditional Cultural Property,

National Register of Historic Places

Registration Form, NPS Form 10900, National Park Service

(Jan. 2016) ............................................................ 13

Michael A. Helfand, Substantial

Burdens as Civil Penalties,

108 Iowa L. Rev. 2189 (2023) .............................. 25

xiii

Our Mission Infographic, Bureau of

Land Management (May 2016)............................ 36

Hiram Price, Rules Governing the Court

of Indian Offenses, Department of

the Interior, Office of Indian Affairs

(Mar. 30, 1883) ..................................................... 13

Race and Ethnicity in the United States:

2010 Census and 2020 Census, U.S.

Census Bureau (Aug. 12, 2021) ........................... 36

Resolution Copper Project & Land

Exchange Environmental Impact

Statement: Project Update,

U.S. Department of Agriculture

(Mar. 1, 2021) ....................................................... 16

Carol Hardy Vincent et al., Federal

Land Ownership: Overview and

Data, Cong. Rsch. Serv., R42346

(Feb. 21, 2020) ...................................................... 36

John R. Welch, Earth, Wind, and Fire:

Pinal Apaches, Miners, and Genocide

in Central Arizona, 1859-1874, SAGE

Open (2017) .......................................................... 13

PETITION FOR CERTIORARI

For centuries, Western Apaches have worshipped

at a sacred site in Arizona called Chí’chil Biłdagoteel,

or Oak Flat, which is the site of religious ceremonies

that cannot take place elsewhere. The government has

long protected religious exercise at Oak Flat. But it recently agreed to transfer Oak Flat to Respondent Resolution Copper for a mine that will admittedly obliterate the site. As a result, many sacred Apache rituals

will be ended, not just temporarily but forever.

Six judges below—one at the emergency stage and

five en banc—concluded that the government’s action

is an “obvious substantial burden” warranting strict

scrutiny under the Religious Freedom Restoration Act.

But a splintered 6-5 en banc majority nevertheless

found no substantial burden. The majority didn’t dispute that the government’s actions “will categorically

prevent the Apaches from participating in any worship

at Oak Flat because their religious site will be obliterated.” Nor did it dispute that categorically preventing

religious exercise is a substantial burden under

RFRA’s ordinary meaning.

Instead, it held that the ordinary meaning of “substantial burden” does not apply in cases involving “the

Government’s management of its own land and internal affairs.” In such cases, the court said, the phrase

“substantial burden” in RFRA “subsumes” Lyng v.

Northwest Indian Cemetery Protective Association, 485

U.S. 439 (1988)—a pre-RFRA decision that never used

the phrase “substantial burden.” According to the

court, Lyng holds that a disposition of government real

property does not burden religious exercise if it does

not (1) “coerce,” (2) “discriminate,” (3) “penalize,” or

(4) deny “equal” rights. So in the Ninth Circuit’s view,

the government is free to destroy Oak Flat and permanently extinguish age-old Apache religious exercises

without even triggering strict scrutiny under RFRA.

This remarkable result openly conflicts with

RFRA’s text, which expressly applies to “all Federal

law” and “the use * * * of real property for the purpose

of religious exercise”—with no carveout for government property. It also defies this Court’s precedent,

which has repeatedly rejected the proposition that

RFRA’s meaning is “tied” to “pre-Smith free-exercise

cases” like Lyng. Indeed, this Court has consistently

treated Lyng as part of the legal framework RFRA was

designed to displace, not the secret key to RFRA’s hidden, unwritten meaning. And in any event, the decision below wildly overreads Lyng, which said “a different set of constitutional questions” would arise if the

government prohibited religious adherents from “visiting” a sacred site—much less destroyed it.

Not surprisingly, the decision below conflicts with

decisions of the Fourth, Sixth, Seventh, Eighth, Tenth

and Eleventh Circuits. These circuits have long recognized that the government substantially burdens religious exercise not only by penalizing it but also by preventing it from occurring. Particularly when the government controls “the temporal and geographic environment” required for religious exercise—as in the

military, in prison, or on federal land—individuals

may be “unable to engage in the practice of their

faiths” without “the use of government facilities.”

School Dist. of Abington Twp. v. Schempp, 374 U.S.

203, 226 n.10 (1963). In such cases, government action

that “prevents” religious exercise “easily” qualifies as

a substantial burden. Yellowbear v. Lampert, 741 F.3d

48, 55-56 (10th Cir. 2014) (Gorsuch, J.).

The decision below also widens a circuit split over

the correct legal standard for applying the Free Exercise Clause. The majority conceded that singling out

Oak Flat for destruction is “plainly not ‘generally applicable’” under Employment Division v. Smith—

which would ordinarily trigger strict scrutiny. But the

court declined to apply strict scrutiny based on its finding of no “substantial burden.” This conflicts with decisions from the Second, Third, and Sixth Circuits,

which hold that “there is no justification for requiring

a plaintiff to make a threshold showing of substantial

burden” when government actions “are not neutral

and generally applicable.”

These questions are vitally important for people of

all faiths. The decision below poses an obvious and existential threat to Native Americans, gutting RFRA’s

protections in the circuit that governs by far the most

Native Americans and the most federal land. More

broadly, the decision provides a roadmap for eviscerating RFRA in any context that can be deemed part of

the government’s “internal affairs”—a concept that

could cover almost anything the government does.

This Court has repeatedly held that RFRA provides

“very broad protection for religious liberty.” Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014).

The decision below rejects that command in defiance

of RFRA’s plain text, this Court’s precedent, and decisions of other circuits. And it threatens the permanent

eradication of Western Apache religious identity. Certiorari is warranted.

OPINIONS BELOW

The Ninth Circuit’s en banc opinion (App.1a) is

published at 101 F.4th 1036. The Ninth Circuit’s panel

opinion (App.518a) is published at 38 F.4th 742. The

Ninth Circuit’s unpublished order denying an injunction pending appeal (App.604a) is accessible at 2021

WL 12295173. The district court’s order (App.622a) is

published at 519 F. Supp. 3d 591.

JURISDICTION

The Ninth Circuit entered judgment on March 1,

2024. App.263a. It denied full-court rehearing and issued an amended en banc opinion on May 14, 2024.

App.1a. Justice Kagan extended the deadline for filing

a petition for a writ of certiorari to September 11,

2024. This Court has jurisdiction under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent text of the First Amendment to the

United States Constitution, U.S. Const. amend. I, the

Religious Freedom Restoration Act, 42 U.S.C. 2000bb1 et seq., and the National Defense Authorization Act

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

Stat. 3732-3741, is reproduced at App.658a-679a.

STATEMENT OF THE CASE

I. Statutory Background

RFRA arose out of a back-and-forth between this

Court and Congress over the scope of protection for religious exercise.

In cases like Sherbert v. Verner, 374 U.S. 398

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

this Court interpreted the Free Exercise Clause to require strict scrutiny of government actions burdening

religious exercise. This was known as “the Sherbert

test.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 694 (2014).

In the 1980s, the Court decided a series of cases declining to apply the Sherbert test in various contexts—

including challenges to military dress regulations,

Goldman v. Weinberger, 475 U.S. 503 (1986), the government’s use of Social Security numbers in its programs, Bowen v. Roy, 476 U.S. 693 (1986), restrictions

on worship in prison, O’Lone v. Estate of Shabazz, 482

U.S. 342 (1987), and road construction on federal land,

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).

These cases culminated in Employment Division v.

Smith, 494 U.S. 872 (1990), which declined to apply

the Sherbert test to free-exercise claims brought by

two Native Americans who were fired and denied unemployment compensation for consuming peyote in violation of Oregon law. Id. at 874-875. Relying on Goldman, Bowen, O’Lone, and Lyng, the Court held that

“the First Amendment has not been offended” if a burden on religious exercise is merely the “incidental effect” of a “neutral, generally applicable law.” Id. at

878-879, 881.

Congress responded by enacting RFRA to provide

“very broad protection for religious liberty.” Hobby

Lobby, 573 U.S. at 693. RFRA goes “far beyond what

this Court has held is constitutionally required”—not

only going beyond Smith, but also going “beyond what

was required by our pre-Smith decisions.” Id. at 706 &

n.18.

RFRA thus provides that the federal government

“shall not substantially burden a person’s exercise of

religion” unless it “demonstrates that application of

the burden to the person” is “the least restrictive

means of furthering [a] compelling governmental interest.” 42 U.S.C. 2000bb-1(a)-(b). RFRA “applies to all

Federal law, and the implementation of that law,

whether statutory or otherwise.” 42 U.S.C. 2000bb3(a). It also defines the “exercise of religion” to include

“[t]he use * * * of real property” for religious exercise.

42 U.S.C. 2000bb-2(4), 2000cc-5(7)(B).

II. Factual Background

1. Since long before European contact, Western

Apaches and other tribes have performed religious ceremonies at Oak Flat—a 6.7-square-mile sacred site

east of Superior, Arizona. The site includes old-growth

oak groves, sacred springs, burial locations, and a singular concentration of archaeological sites testifying to

its persistent use for the past 1,500 years.

2 E.R. 235

2 E.R. 251

For Apaches, Oak Flat is a unique dwelling place

of spiritual beings called Ga’an, who are “guardians”

and “messengers” between the Creator and people in

the physical world. App.981a-984a, 1000a-1001a. The

Ga’an are “our creators, our saints, our saviors, our

holy spirits”—“the very foundation of [Apache] religion.” App.871a.

As the dwelling place of the Ga’an, Oak Flat is a

direct corridor to the Creator and is “uniquely endowed with holiness and medicine.” App.1170a. Neither “the powers resident there, nor [Apache] religious

activities that pray to and through these powers can

be ‘relocated.’” Ibid.

Accordingly, Oak Flat is the site of religious ceremonies that cannot take place elsewhere. App.977a978a. These include specific sweat lodge ceremonies

for boys entering manhood, Holy Grounds Ceremonies

for blessing and healing, place-specific prayers and

songs, and the gathering of sacred medicine plants,

animals, and minerals essential to those ceremonies.

App.1170a-1171a; see App.997a-998a, 1026a.

One example is the Sunrise Ceremony, a multi-day

celebration marking an Apache girl’s entry into womanhood. App.979a-982a. To prepare, the girl gathers

plants from Oak Flat that contain “the spirit of

Chi’chil Biłdagoteel.” App.976a. As she gathers, she

speaks to the spirit of Oak Flat, expressing gratitude

for its resources. Ibid. Her godmother dresses her in

“the essential tools of * * * becoming a woman,” and

tribal members surround her with singing, dancing,

and prayer. App.980a-983a.

App.1034a.

During the night, the Ga’an enter Apache men

called crown dancers. App.982a-984a. The Ga’an bless

the girl, who joins their dance. Ibid.

App.1045a.

On the final day, one of the Ga’an dancers paints

the girl with white clay taken from the ground at Oak

Flat, “mold[ing] her into the woman she is going to be.”

App.981a. When her godmother wipes the clay from

her eyes, “she’s a new woman” forever “imprint[ed]”

with the spirit of Oak Flat. App.982a, 977a.

App.1036a.

2. The United States first gained an interest in Oak

Flat in 1848, when Mexico ceded its claim to the area

in the Treaty of Guadalupe Hidalgo. In 1852, the

United States signed the Treaty of Santa Fe with six

Apache chiefs. In it, the United States promised to settle the Apaches’ territorial boundaries—which included Oak Flat, according to the earliest map of the

area, App.1015a—and “pass and execute” laws “conducive to the[ir] prosperity and happiness.”

App.1055a.

Shortly after the 1852 Treaty, settlers and miners

entered the area over Apache opposition, and U.S. soldiers and civilians repeatedly massacred Apaches. 1

App.858a. In 1862, U.S. Army General James Carleton “ordered Apache men to be killed wherever

found.” Welch at 7.

When miners discovered gold and silver nearby,

General Carleton ordered the “utter extermination” of

Apaches or “removal to a Reservation” to protect “all

those who go to the country in search of precious metals.” Welch at 8. In 1872, the General Mining Act authorized mining on “public” land. Ch. 152, 17 Stat. 91.

By 1874, the government had forced 4,000 Apaches

onto the San Carlos Reservation—nicknamed “Hell’s

40 Acres” because it was a barren wasteland.

App.1032a. The government prohibited traditional

Native American religious practices on pain of imprisonment and forcibly removed hundreds of Apache children from their families, sending them to boarding

John R. Welch, Earth, Wind, and Fire: Pinal Apaches, Miners, and Genocide in Central Arizona, 1859-1874, SAGE Open

(2017) (hereinafter “Welch”).

schools aimed at rooting out their “savagism” and converting them to Christianity. 2

3. As federal policy toward Native Americans

evolved, the government acknowledged the spiritual

and cultural significance of Oak Flat. In 1955, President Eisenhower reserved part of Oak Flat for “public

purposes” to protect it from “mining.” 20 Fed. Reg.

7,319, 7,336-7,337 (Oct. 1, 1955). President Nixon renewed the protection. 36 Fed. Reg. 18,997, 19,029

(Sept. 25, 1971). And the National Park Service placed

Oak Flat in the National Register of Historic Places,

recognizing “that Chí’chil Biłdagoteel is an important

feature of the Western Apache landscape as a sacred

site, as a source of supernatural power, and as a staple

in their traditional lifeway.” 3

4. In 1995, a large copper deposit was discovered

4,500 to 7,000 feet beneath Oak Flat. App.687a. Hoping to obtain the deposit, two large multinational mining companies, Rio Tinto and BHP, formed a joint venture called Resolution Copper. Ibid. From 2005 to

2013, congressional supporters of Resolution Copper

introduced at least twelve standalone bills to transfer

Oak Flat to the company. App.19a n.1. Each failed.

Hiram Price, Rules Governing the Court of Indian Offenses,

Department of the Interior, Office of Indian Affairs (Mar. 30,

1883); Welch at 14; David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience,

1875-1928, at 6 (1995).

Chí’chil Biłdagoteel Historic District, Traditional Cultural

Property, National Register of Historic Places Registration Form,

NPS Form 10-900, at 8, National Park Service (Jan. 2016),

https://perma.cc/4Y38-XQQE.

Lacking the votes for a standalone bill, Senators

McCain and Flake in 2014 attached the land-transfer

bill to the must-pass National Defense Authorization

Act, authorizing transfer of a 2,422-acre parcel including Oak Flat to Resolution Copper in exchange for

about 5,344 acres scattered elsewhere. Pub. L. No.

113-291, § 3003(b)(2), § 3003(b)(4), § 3003(c)(1) and

§ 3003(d)(1), 128 Stat. 3732-3736. The bill revokes the

presidential orders protecting Oak Flat from mining

and directs the Secretary of Agriculture to prepare an

environmental impact statement (EIS) for the proposed mine. Pub. L. No. 113-291, § 3003(i)(1)(A),

§ 3003(a) and § 3003(c)(9)(B), 128 Stat. 3732. Within

60 days of publishing the EIS, it requires the Secretary

to “convey all right, title, and interest” in Oak Flat to

Resolution Copper. Pub. L. No. 113-291, § 3003(c)(10),

128 Stat. 3736-3737.

5. The Secretary published the EIS on January 15,

2021. As the EIS confirms, the mine would destroy

Oak Flat. To mine the ore, Resolution Copper will use

a technique called panel caving, which involves tunneling beneath the ore, fracturing it with explosives,

and removing it from below. App.710a. This method

has lower operating costs than other feasible techniques, but is far more destructive of Oak Flat’s surface. App.928a-936a.

Once the ore is removed, approximately 1.37 billion

tons of waste (“tailings”) will need to be stored “in perpetuity.” App.461a, 726a. That will “permanently bury

or otherwise destroy many prehistoric and historic cultural artifacts, potentially including human burials.”

App.461a. And Oak Flat itself will collapse (or “subside”) into a crater nearly 2 miles across and 1,100 feet

deep, destroying it forever. App.611a.

The EIS acknowledges that the entire “Chí’chil

Biłdagoteel Historic District” will be “directly and permanently damaged.” App.698-699a. Nothing can “replace or replicate the tribal resources and traditional

cultural properties that would be destroyed.”

App.912a. Among other things, the mine would completely destroy the sites used for Sunrise, Holy

Grounds, and sweat lodge ceremonies (App.977a,

997a-999a, 1025a, 1034a); old-growth oak groves and

other sacred medicinal plants (App.754a-755a, 877a);

sacred springs (App.746a, 841a, 1043a-1044a, 1177a);

and burial grounds and ancient religious and cultural

artifacts,

including

centuries-old

petroglyphs

(App.746a, 1043a-1044a, 886a, 893a-894a).

The following map shows the planned crater in relation to the area of Oak Flat used for religious ceremonies:

3/18/21 Pet. C.A. Br. 21; cf. App.727a.

These effects would be “immediate, permanent,

and large in scale.” App.912a. “It is undisputed that

this subsidence will destroy the Apaches’ historical

place of worship, preventing them from ever again engaging in religious exercise at their sacred site.”

App.199a (Murguia, C.J., en banc dissent); see also

App.974a-976a, 1026a, 1046a-1047a.

III. Proceedings Below

1. Petitioner Apache Stronghold is an Arizona nonprofit founded by Dr. Wendsler Nosie, former Chairman of the San Carlos Apache Tribe and direct descendant of Western Apache prisoners of war. Dr.

Nosie founded Apache Stronghold to unite Western

Apaches with other Native and non-Native allies to

preserve indigenous sacred sites. App.979a-981a,

1033a, 1135a. After the Forest Service announced imminent publication of the EIS, Apache Stronghold filed

this lawsuit seeking to enjoin the transfer and destruction of Oak Flat under RFRA, the Free Exercise

Clause, and the 1852 Treaty of Santa Fe. Compl., D.

Ct. Doc. 1 (Jan. 12, 2021). The Forest Service published the EIS three days later, triggering the 60-day

clock to complete the land transfer. App.624a.

After the district court denied a preliminary injunction and stay pending appeal, Apache Stronghold

sought an emergency injunction from the Ninth Circuit. Six hours before its response was due, the government rescinded the EIS and paused the transfer,

stating that it needed “additional time” to “fully understand concerns raised by Tribes.” 4 The government

then argued the injunction should be denied because

the harm was no longer “imminent.” See App.608a.

Resolution Copper Project & Land Exchange Environmental

Impact Statement: Project Update, U.S. Department of Agriculture (Mar. 1, 2021), https://perma.cc/RD6A-EQZZ.

By a 2-1 vote, a motions panel denied emergency

relief, agreeing that immediate relief was no longer

necessary. App.604a-605a. Judge Bumatay dissented,

concluding that “Apache Stronghold has established a

strong likelihood of success on the merits.” App.609a.

He noted that “a substantial burden exists” under

RFRA when “the government ‘prevents the plaintiff

from participating in an activity motivated by a sincerely held religious belief.’” App.610a (quoting Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014)

(Gorsuch, J.)). Since Apache Stronghold had shown

that “certain religious ceremonies * * * must take

place” at Oak Flat, and that the transfer and destruction of Oak Flat would “render[ ] their core religious

practices impossible,” there was an “obvious substantial burden.” App.606a, 611a, 613a.

2. On plenary review, a divided panel rejected

Apache Stronghold’s claims. The majority didn’t dispute that destroying Oak Flat would impose a “substantial burden” under the “plain meaning” of those

words. See App.548a. But it deemed itself bound to reject RFRA’s plain meaning under Navajo Nation v.

U.S. Forest Service, 535 F.3d 1058, 1063 (9th Cir.

2008) (en banc), which held that “substantial burden”

is a “term of art” that applies “in two—and only two—

circumstances”: when the government “denies a benefit” or “imposes a penalty” based on religious exercise.

App.541a, 543a, 553a n.10.

Judge Berzon dissented, calling the majority’s

analysis “illogical,” “incoheren[t],” “disingenuous,” and

“absurd.” App.580a, 585a, 598a. She reasoned that the

government can substantially burden religious exercise not only by denying benefits or imposing penalties, but also by preventing religious exercise entirely.

App.584a-585a. The latter imposes an even “greater

burden on religious exercise.” App.586a, 594a-595a.

She thus had “no doubt that the complete destruction

of Oak Flat would be a ‘substantial burden’ on the

Apaches’ religious exercise.” App.600a.

3. The court granted rehearing en banc. 5 On rehearing, the Ninth Circuit splintered into two different 6-5 majorities, issuing seven opinions spanning

246 pages.

One majority, in opinions authored by Chief Judge

Murguia and Judge Nelson, overruled Navajo Nation

and its two-category definition of “substantial burden,” concluding that government actions “[p]reventing access to religious exercise” constitute a “substantial burden” under RFRA’s “plain meaning.”

App.209a-210a (Murguia, C.J.); App.118a-119a (Nelson, J.) (“ordinary meaning”); App.3a (per curiam).

A different majority, however, in opinions authored

by Judges Collins and Nelson, held that the plain

meaning of “substantial burden” does not control in

cases involving “the Government’s management of its

own land and internal affairs.” App.35a. In such cases,

government action does not trigger RFRA scrutiny unless it (1) “‘coerce[s] individuals into acting contrary to

their religious beliefs,’” (2) “‘discriminate[s]’ against”

religious adherents, (3) “‘penalize[s]’ them,” or

(4) “den[ies] them ‘an equal share of the rights, benefits, and privileges enjoyed by other citizens.’”

App.40a. The court therefore concluded that RFRA

After en banc argument, Resolution Copper intervened “for

the limited purpose of participating in potential future litigation

before the Supreme Court.” App.209a n.6.

provides no protection against government land-management decisions that physically destroy a sacred site

and “literally prevent” religious exercise. App.34a,

50a-52a.

The majority reached that startling conclusion by

positing that RFRA “subsumes” this Court’s pre-RFRA

decision in Lyng, which involved a Free Exercise

Clause challenge to the government’s decision to pave

part of a road through a national forest sacred to

tribes. App.27a-28a, 52a-53a. Although the tribes in

Lyng retained access to the area, and “[n]o sites where

specific rituals t[ook] place were to be disturbed,” they

maintained that the road would “diminish the sacredness of the area” and render their rituals spiritually

“ineffectual.” 485 U.S. at 454, 448, 450. This Court declined to apply strict scrutiny, reasoning that the road

had only “incidental effects” on religious exercise, did

not “discriminate” based on religion, and did not “prohibit[ ] the Indian respondents from visiting” the area.

Id. at 450, 453.

Although Lyng never used the phrase “substantial

burden,” the Ninth Circuit reasoned that “[w]hen Congress copied the ‘substantial burden’ phrase into

RFRA, it must be understood as having similarly

adopted the limits that Lyng placed on what counts as

a governmental imposition of a substantial burden on

religious exercise.” App.53a. Applying that logic, it

held that destroying Oak Flat doesn’t substantially

burden the Apaches’ religious exercise. App.58a. And

it rejected the free-exercise claim “for the same reasons.” Ibid.

In an opinion authored by Chief Judge Murguia,

five dissenters explained that this majority “tragically

err[ed]” by deviating from “RFRA’s plain text,” the decisions of “[s]everal other circuits,” and “the Supreme

Court’s” precedent. App.261a, 232a n.13, 242a.

As they explained, the “plain meaning” of “substantial burden” easily encompasses government actions

that “prevent” religious exercise—as this Court and

other circuits have long recognized. App.233a-235a.

And far from carving out government actions involving

“real property,” RFRA applies to “all Federal law” and

expressly defines religious exercise to include the

“use” of “real property.” App.252a-253a.

The dissenters explained that the majority’s expansion of Lyng was mistaken for three reasons. First,

Lyng was a free-exercise case, not a RFRA case, and

this Court has expressly rejected tying RFRA’s “coverage” “to the specific holdings of our pre-Smith free-exercise cases.” App.219a (quoting Hobby Lobby, 573

U.S. at 714). Second, even assuming RFRA’s coverage

could be tied to pre-Smith cases, “Lyng did not analyze

whether there was a substantial burden” on religious

exercise, or even use that phrase. App.237a. Instead,

Lyng rested on the principle that strict scrutiny is “inapplicable to neutral and generally applicable laws”—

the very principle “rejected in RFRA.” App.246a.

Third, Lyng was factually inapposite because the

plaintiffs there “continued to have full access to their

sacred sites to engage in religious exercise,” whereas

here, “[i]t is undisputed” that the mine “will prevent

the Western Apaches from visiting Oak Flat for eternity,” resulting in “the utter erasure of a religious

practice.” App.237a, 240a-241a.

REASONS FOR GRANTING THE PETITION

I. The decision below defies RFRA’s plain text

and decisions of this Court and six circuits.

The decision below holds that the government can

completely destroy a sacred site and end age-old religious rituals forever—without imposing a “substantial

burden” on religious exercise under RFRA. That decision contravenes “any ordinary understanding of the

English language,” App.197a, conflicts with this

Court’s cases, and creates a 6-1 circuit split.

A. Destroying a sacred site and permanently

terminating religious practices is a “substantial burden” under RFRA’s ordinary

meaning.

1. RFRA doesn’t define what it means to “substantially burden” a person’s exercise of religion. When a

statutory term is undefined, the “usual” course is to

apply “that term’s ‘ordinary, contemporary, common

meaning.’” Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427, 433-434 (2019). RFRA is no exception.

For example, when interpreting “appropriate relief” in

RFRA, this Court held that, “[w]ithout a statutory definition, we turn to the phrase’s plain meaning.” Tanzin

v. Tanvir, 592 U.S. 43, 48 (2020) (citing dictionary definitions).

Here, the plain meaning yields an obvious result:

destroying a unique sacred site necessary for specific

religious ceremonies “substantially burdens” religious

exercise. A “burden” is “‘[s]omething oppressive’” or

something that “‘imposes either a restrictive or onerous load’ on an activity.” App.214a (Murguia, C.J.)

(quoting Burden, Black’s Law Dictionary (6th ed.

1990); citing Webster’s Third New International Dictionary 298 (1986)). And “substantial” means “[o]f ample or considerable amount, quantity, or dimensions.”

Ibid. (quoting Substantial, Oxford English Dictionary

66-67 (2d ed. 1989)). So the government “substantially

burdens” an exercise of religion when it “oppresses” or

“restricts” it to a “considerable amount.” Ibid.

One way the government substantially burdens religious exercise is by making religious exercise more

costly: for example, by imposing penalties for engaging

in it. See Hobby Lobby, 573 U.S. at 720. But another

way the government substantially burdens religious

exercise is by wholly preventing it from taking place:

for example, by barring clergy from the execution

chamber, see Ramirez v. Collier, 595 U.S. 411, 419

(2022), or “destr[oying] * * * religious property,”

Tanzin, 592 U.S. at 51.

Not only this Court but six circuits have so held.

Infra Part I.C. For example, in Haight v. Thompson,

the Sixth Circuit concluded that when the government

“barred access” to resources needed for the plaintiff’s

religious exercise, it “necessarily place[d] a substantial

burden on it.” 763 F.3d 554, 564-565 (6th Cir. 2014)

(Sutton, J.). Likewise, in Yellowbear v. Lampert, thenJudge Gorsuch observed that “it doesn’t take much

work to see” that when “access to a sweat lodge” is the

relevant religious exercise, “refus[ing] any access”

“easily” constitutes a substantial burden. 741 F.3d at

56.

2. RFRA’s “overall statutory scheme,” Turkiye Halk

Bankasi A.S. v. United States, 598 U.S. 264, 275

(2023), confirms that RFRA applies with full force to

government actions preventing religious exercise on

“government real property.” App.40a (Collins, J.).

First, RFRA applies to “all Federal law, and the implementation of that law, whether statutory or otherwise.” 42 U.S.C. 2000bb-3(a). That sweeping language

plainly encompasses the government’s management of

real property. Indeed, one of the key examples presented to Congress to support the need for RFRA involved the government’s management of real property:

“veterans’ cemeteries had refused to allow burial on

weekends even when that was required by the deceased’s religion.” Fulton v. City of Philadelphia, 593

U.S. 522, 562 n.26 (2021) (Alito, J., concurring in judgment).

Second, if any doubt remained, Congress removed

it by amending the definition of “exercise of religion”

in RFRA to expressly include “[t]he use * * * of real

property for the purpose of religious exercise.” 42

U.S.C. 2000bb-2(4), 2000cc-5(7)(B). It would be hard

for Congress to make any clearer that RFRA applies to

government property.

Third, while the Ninth Circuit interpreted Lyng to

require a showing that the government’s management

of property would “discriminate” or “deny” “equal”

treatment (App.32a), RFRA applies regardless of

whether government action is “‘neutral’ toward religion” or stems from a “rule of general applicability.” 42

U.S.C. 2000bb(a)(2), 2000bb-1(a). Indeed, the core purpose of RFRA was to “counter” Smith on this score.

Tanzin, 592 U.S. at 45. Thus, RFRA does not require

“discrimination”; it “concentrate[s] on a law’s effects.”

City of Boerne v. Flores, 521 U.S. 507, 517 (1997).

So RFRA’s plain terms dictate that it applies to

government property; that religious exercise includes

the use of such property; and that whether the govern-

ment “discriminates” in managing its property is irrelevant. That makes the substantial-burden analysis

here straightforward. Swallowing Oak Flat in a crater

will “literally prevent” Apaches from ever again engaging in religious exercise at that sacred site. App.34a

(Collins, J.). That is an “obvious substantial burden.”

App.606a (Bumatay, J., motions panel dissent).

B. The Ninth Circuit’s contrary reading

defies this Court’s precedent.

The Ninth Circuit reached a contrary conclusion

only by ignoring RFRA’s plain text and distorting this

Court’s precedent. According to the controlling majority, RFRA “subsumes” Lyng in cases involving “the

Government’s management of its own land and internal affairs,” which means the government imposes a

“substantial burden” only if it “coerce[s],” “‘discriminate[s]’ against,” or “‘penalize[s]’” religious exercise, or

“den[ies]” religious adherents “‘an equal share of the

rights, benefits, and privileges enjoyed by other citizens.’” App.32a, 35a-36a, 52a-55a. That reasoning is

wrong at every turn.

1. The majority’s reasoning hinged largely on Williams v. Taylor, 529 U.S. 362 (2000) (“Terry Williams”)—a fractured habeas decision that has never

been cited by any court in any other RFRA case ever.

According to the majority, Terry Williams compels the

conclusion that RFRA should be assumed to have

“adopted” the “meaning given” to “substantial burden”

in “the body of law discussed in” Smith. App.47a-49a.

Even one of the judges who joined that majority

opinion expressed “reservations” about that claim.

App.155a (Nelson, J.). With good reason. Terry Williams addressed a statute that adopted a “certain

term” with a settled meaning derived from “specific

statements” in prior cases. 529 U.S. at 411-412. But

Lyng, by contrast, “does not even use ‘substantial burden’ or any analogous framing of the phrase.”

App.150a (Nelson, J.). Nor was “substantial burden”

defined (or even contested) in Smith. In fact, the

phrase appears in only two pre-Smith cases—and

never with any meaningful elaboration. Michael A.

Helfand, Substantial Burdens as Civil Penalties, 108

Iowa L. Rev. 2189, 2192 & n.14 (2023) (citing Hernandez v. Commissioner, 490 U.S. 680, 699 (1989); Jimmy

Swaggart Ministries v. Board of Equalization, 493

U.S. 378, 384-385 (1990) (quoting Hernandez)). Thus,

“substantial burden” had no settled meaning for Congress to adopt.

Moreover, this Court has repeatedly rejected the

proposition that RFRA’s terms should be interpreted

to “subsume” the perceived constraints of pre-Smith

caselaw. For example, in Hobby Lobby, the government made two arguments mirroring the Ninth Circuit’s analysis here. First, the government argued that

a for-profit business couldn’t bring a RFRA claim because RFRA “codif[ied]”—i.e., subsumed—“this

Court’s pre-Smith Free Exercise Clause precedents,”

none of which “held that a for-profit corporation has

free-exercise rights.” 573 U.S. at 713. This Court rejected that argument as “absurd.” Id. at 715. As it explained, far from “t[ying] RFRA coverage tightly to the

specific holdings of our pre-Smith free-exercise cases,”

“[b]y enacting RFRA, Congress went far beyond what

this Court has held is constitutionally required.” Id. at

706, 714-716 (emphasis added).

Second, the government invoked another preSmith free-exercise case, United States v. Lee, 455 U.S.

252 (1982), to argue that certain burdens—those imposed on “commercial activity”—are not cognizable under RFRA. Hobby Lobby, 573 U.S. at 735 n.43. The

Court rejected this argument, too. As it explained, “Lee

was a free exercise, not a RFRA, case.” Ibid. And if Lee

held something “squarely inconsistent with the plain

meaning of RFRA,” that plain meaning, not the preSmith caselaw, controls. Ibid.

This Court likewise rejected efforts to use preSmith caselaw to limit “substantial burden” in Holt.

Holt involved RLUIPA, RFRA’s “sister statute,” which

applies RFRA’s “same standard” to prisons. Holt v.

Hobbs, 574 U.S. 352, 356, 358 (2015). There, the lower

court held that a prison’s prohibition on beards didn’t

substantially burden a Muslim prisoner’s religious exercise since the prison allowed numerous other religious items and observances. In support, the lower

court relied on the pre-Smith free-exercise decisions in

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), and

Turner v. Safley, 482 U.S. 78 (1987), which made “the

availability of alternative means of practicing religion”

a “relevant consideration.” Holt, 574 U.S. at 361.

Again, far from agreeing that “substantial burden”

in RLUIPA subsumed these cases, this Court unanimously reversed, explaining that the lower court had

“improperly imported a strand of reasoning from cases

involving prisoners’ First Amendment rights.” Holt,

574 U.S. at 361.

2. Even assuming Lyng could limit the plain meaning of “substantial burden,” the Ninth Circuit erred by

treating Lyng as a substantial-burden case, when this

Court has consistently treated it as a neutral-and-generally-applicable-law case. Besides never using the

phrase “substantial burden,” Lyng identified the “crucial word” for its analysis as the constitutional term

“‘prohibit,’” 485 U.S. at 450-451—which is not the term

in RFRA. Moreover, Lyng described the effect on religious exercise there as “incidental,” and contrasted the

government’s action with laws that “discriminate

against religions.” Id. at 445-450, 453. This is the classic language of general applicability later adopted in

Smith—then rejected in RFRA.

Next, Smith “drew support for the neutral and generally applicable standard from * * * Lyng.” Fulton,

593 U.S. at 536. Specifically, in rejecting “the Sherbert

test,” Smith cited Lyng as an example of a case that

“abstained from applying the Sherbert test” “at all”—

not one that applied the test but found no cognizable

burden on religious exercise. 494 U.S. at 883-884. Indeed, Smith expressly rejected the attempt (echoed by

the court below) to portray Lyng as a unique application of Sherbert to “internal affairs,” finding no “reason

in principle or practicality why” a different rule should

apply to “management of public lands.” 494 U.S. at 885

n.2; compare App.35a (Collins, J.) (applying a different

rule to “the Government’s management of its own land

and internal affairs”).

Since then, this Court has explicitly said Lyng was

a case about neutrality and general applicability—not

about what constitutes a cognizable burden on religious exercise. In Trinity Lutheran Church of Columbia, Inc. v. Comer, this Court explained that “[i]n recent years,” the Court has “rejected free exercise challenges” where “the laws in question have been neutral

and generally applicable.” 582 U.S. 449, 460 (2017).

The Court then gave two “example[s]” of cases involving neutral and generally applicable laws: Lyng and

Smith. Ibid. And it expressly described Smith as having been decided “[a]long the same lines as our decision in Lyng.” Ibid.

The en banc majority had no good answer for this.

In fact, it initially ignored Trinity Lutheran entirely,

insisting that “the [Supreme] Court has not said, and

could not have said, that Lyng was itself a case involving a neutral and generally applicable law.” App.296a

(original opinion). When Petitioner pointed out that

Trinity Lutheran says exactly that, the majority just

amended its opinion to dismiss Trinity Lutheran’s understanding of Lyng as “dicta.” App.11a-12a (amendment); App.38a-39a (amended opinion).

3. In all events, even assuming Lyng had some

bearing on the phrase “substantial burden,” it does not

remotely support the proposition that the government

imposes no cognizable burden when it completely destroys a sacred site, terminates access, and ends religious practices forever. Rather, Lyng emphasized that

the road was “removed as far as possible from [religious] sites,” and “[n]o sites where specific rituals take

place were to be disturbed.” 485 U.S. at 443, 454. Thus,

the plaintiffs weren’t restricted from “visiting” the

area or continuing their religious practices; they

claimed that the road would “create distractions” rendering their practices spiritually “ineffectual.” Id. at

448, 450, 452-453.

That is a far cry from this case—which explains

why the en banc majority’s “retelling of Lyng” “omits

[these] crucial facts.” App.237a (Murguia, C.J.). Here

it is undisputed that the site of specific rituals will be

completely obliterated. Apache practices will be rendered not just spiritually “ineffectual” but physically

impossible. Thus, unlike in Lyng, courts need not

“measur[e] the effects of a governmental action on a

religious objector’s spiritual development” to evaluate

the claim here. 485 U.S. at 451; see also id. at 448

(analogizing to Bowen, where plaintiffs claimed the

government’s use of their daughter’s Social Security

number would “rob [her] spirit”). They need only recognize what the government has itself conceded: that

“access to Oak Flat and the subsidence zone will” first

be “curtailed once it is no longer safe,” and “irreversibly los[t]” once Oak Flat is destroyed. App.205a (Murguia, C.J.).

C. The decision below conflicts with the

decisions of six other circuits.

The Ninth Circuit’s ruling not only defies this

Court’s precedent but conflicts with six other circuits’

decisions interpreting “substantial burden.”

Contrary to the decision below, the Fourth, Sixth,

Seventh, Eighth, Tenth, and Eleventh Circuits recognize that a substantial burden plainly exists “where

the government completely prevents a person from engaging in religious exercise.” App.232a n.13, 236a

(Murguia, C.J.); see supra at 22; Haight, 763 F.3d at

564-565 (Sutton, J.) (“barring access” to a practice is

“necessarily” a substantial burden); Yellowbear, 741

F.3d at 56 (Gorsuch, J.) (preventing access to a prison

sweat lodge “easily” qualifies as a substantial burden);

Bethel World Outreach Ministries v. Montgomery

Cnty. Council, 706 F.3d 548, 555-556 (4th Cir. 2013)

(“preventing a religious organization from building a

church” can be a substantial burden even if it does not

“force the organization to violate its religious beliefs”);

West v. Radtke, 48 F.4th 836, 845 n.3 (7th Cir. 2022)

(“a substantial burden may arise” not only “when a

prison threatens an inmate with some negative consequence” but also “when a prison declines to provide an

inmate access to something that will allow him to exercise his religion”); In re Young, 82 F.3d 1407, 1418

(8th Cir. 1996) (recovering tithing monies from debtors’ church was a substantial burden because it “would

effectively prevent the debtors from tithing”); Thai

Meditation Ass’n of Ala., Inc. v. City of Mobile, 980

F.3d 821, 830-831 (11th Cir. 2020) (land-use regulation that “completely prevents” religious exercise

“clearly satisfies the substantial-burden standard”).

As Chief Judge Sutton aptly put it: “The greater restriction (barring access to the practice) includes the

lesser one (substantially burdening the practice).”

Haight, 763 F.3d at 564-565.

The Tenth Circuit’s standard has already produced

a conflicting result in an indistinguishable case involving government property. In Comanche Nation v.

United States, Native Americans challenged the

Army’s plan to build a warehouse on federal land in

Oklahoma near Medicine Bluffs, a sacred site. No.

5:08-cv-849, 2008 WL 4426621 (W.D. Okla. Sept. 23,

2008). They argued that the warehouse would substantially burden their religious exercise because it

would occupy “the precise location” where they stood

for worship. Id. at *7, *17. The government “urge[d]

the Court to adopt a definition [of ‘substantial burden’]

applied by the Ninth Circuit” in Navajo Nation. Id. at

*3 n.5. But the court refused, stating “[t]he Tenth Circuit has not adopted that definition.” Ibid. Instead, applying Tenth Circuit precedent, the court issued a preliminary injunction under RFRA, holding that permitting construction that would prevent Native American

religious exercise on federal land “amply demon-

strates” a “substantial burden.” Id. at *17; see also Perez v. City of San Antonio, No. 5:23-cv-977, 2023 WL

6629823, at *1, 11 (W.D. Tex. Oct. 11, 2023) (“fencing

off” Native American sacred site “substantially burdened Plaintiffs’ religious exercise” under state

RFRA).

The Ninth Circuit attempted to distinguish some of

the contrary circuit rulings (like Haight and Yellowbear) on the ground that they involved RLUIPA,

which applies only to prisons and land-use regulations—“contexts” where the “crucial element” of “coerci[on]” is “already baked in.” App.54a-55a. Thus, according to the majority, the “dictionary definitions of

‘substantial’ and ‘burden’ will adequately flesh out the

concept of ‘substantial burden’” under RLUIPA, but

not RFRA. Ibid. But “RFRA and RLUIPA are ‘sister

statute[s]’” that “apply the same test”—which is why

“the Supreme Court and virtually all the lower courts

have recognized that ‘substantial burden’ holds the

same definitional meaning in RFRA and RLUIPA.”

App.119a, 135a-136a (Nelson, J.) (quoting Holt). Indeed, RFRA itself applies to federal prisons—yet gives

not the slightest textual suggestion that “substantial

burden” has a different meaning in prison.

In any event, comparison to the prison and landuse contexts only supports a finding of substantial burden here. Unlike in most of “private life,” there are

some contexts in which the “government controls access to religious locations and resources”—with examples including prison and land use, but also the military and sacred sites on federal land. App.583a-584a

(Berzon, J., panel dissent); see Stephanie Hall Barclay

& Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1301, 1333-

1343 (2021). In these contexts, “[b]y simply preventing

access to religious locations and resources, the government may directly prevent religious exercise.”

App.585a; see also School Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 226 n.10 (1963) (“military personnel would be unable to engage in the practice of

their faiths” without religious services conducted

“with the use of government facilities”); Katcoff v.

Marsh, 755 F.2d 223, 234-235 (2d Cir. 1985) (military

chaplaincy required by Free Exercise Clause). That is

what is occurring here. And that is a substantial burden in six other circuits.

II. The decision below deepens a 5-3 circuit split

over the meaning of the Free Exercise Clause.

1. The decision below also deepens a circuit split

over the Free Exercise Clause. The majority acknowledged that the decision to authorize the transfer and

destruction of Oak Flat is “plainly not ‘generally applicable.’” App.36a-37a, 37a n.4. Nevertheless, the court

refused to apply strict scrutiny, holding that the

Apaches’ RFRA and free-exercise claims “fail[ ] for the

same reasons,” App.58a—i.e., the supposed lack of a

“substantial burden.”

That reasoning deepens an acknowledged split.

The First, Fourth, Eighth, Tenth, and D.C. Circuits,

like the court below, hold that regardless of whether

the government’s action is not “neutral and generally

applicable,” free-exercise claimants must still make a

“threshold showing” of “substantial burden.” Firewalker-Fields v. Lee, 58 F.4th 104, 114 n.2 (4th Cir.

2023); see also Roman Catholic Bishop of Springfield

v. City of Springfield, 724 F.3d 78, 98, 101 (1st Cir.

2013) (rejecting free-exercise claim for lack of “sub-

stantial burden” even though “we do not view the Ordinance as a ‘neutral law of general applicability’”);

Mbonyunkiza v. Beasley, 956 F.3d 1048, 1053-1054

(8th Cir. 2020) (“like other courts, we have made the

[free-exercise] standard more restrictive” by requiring

a “substantial burden”); Williams v. Hansen, 5 F.4th

1129, 1133 (10th Cir. 2021) (“To state a valid constitutional claim, a prisoner must allege facts showing that

officials substantially burdened a sincerely held religious belief.”); Levitan v. Ashcroft, 281 F.3d 1313, 1320

(D.C. Cir. 2002) (“threshold showing” of substantial

burden required “before the First Amendment is implicated”).

But the Second, Third, and Sixth Circuits hold the

opposite—that “there is no justification for requiring a

plaintiff to make a threshold showing of substantial

burden” when government action is “not neutral and

generally applicable.” Kravitz v. Purcell, 87 F.4th 111,

124-126, 126 n.11 (2d Cir. 2023) (“We disagree with

those circuits that continue to apply the substantial

burden test.”); see Tenafly Eruv Ass’n, Inc. v. Borough

of Tenafly, 309 F.3d 144, 170 (3d Cir. 2002) (“there is

no substantial burden requirement when government

discriminates against religious conduct”); Hartmann

v. Stone, 68 F.3d 973, 978, 979 n.4 (6th Cir. 1995)

(“[Plaintiffs] need not demonstrate a substantial burden” when “regulations are not neutral and generally

applicable”).

These latter circuits are correct. This Court’s decisions show that where a challenged law is not neutral

and generally applicable, no “substantial burden” is

needed. Rather, a claimant can “prov[e] a free exercise

violation” “by showing that a government entity has

burdened”—not substantially burdened—“his sincere

religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” Kennedy v. Bremerton

Sch. Dist., 597 U.S. 507, 525 (2022) (emphasis added);

see Kravitz, 87 F.4th at 124 (collecting this Court’s

post-Smith decisions).

Moreover, while the Ninth Circuit purported to locate its imposition of a substantial-burden-understood-as-coercion requirement in the First Amendment’s term “prohibiting,” App.34a-35a, that effort

flouts the original meaning of the term. As Justice

Alito has explained, the “‘normal and ordinary’ meaning” of “prohibit,” in 1791 as today, is “either ‘[t]o forbid’ or ‘to hinder.’” Fulton, 593 U.S. at 564-566, 565

n.30 (Alito, J., concurring in judgment) (emphases

added). And regardless of whether the government is

“forbidding” Apache religious practices, it is certainly

“hindering” them, by destroying the irreplaceable location at which they must take place.

2. If the Ninth Circuit is right about Lyng—and

Lyng means the Free Exercise Clause isn’t implicated

when the government knowingly singles out a sacred

site for complete physical destruction and ends

longstanding religious practices forever—this Court

should revisit Lyng. As an example of Smith avant la

lettre, Lyng is subject to criticism on the same grounds

Smith is. And Smith has been criticized as contrary to

the Constitution’s text, structure, original public

meaning, and longstanding precedent. Fulton, 593

U.S. at 543 (Barrett, J., joined by Kavanaugh, J., concurring); id. at 555-594 (Alito, J., joined by Thomas

and Gorsuch, JJ., concurring in judgment).

Making matters worse, the Ninth Circuit’s reading

of Lyng interprets the Free Exercise Clause even more

narrowly than Smith did—holding that strict scrutiny

applies only when governmental action is both not

neutral or generally applicable (Smith’s rule) and

meets some additional requirement of “coercion” (the

allegedly Lyng-derived addition). Thus, to the extent

Lyng adds yet another atextual and ahistorical requirement to the Free Exercise Clause, Lyng likewise

“lacks in originalist or textualist support,” and “it is

time for the Supreme Court to revisit Lyng.” App.156a157a (Nelson, J.).

III. This case is vitally important for people of all

faiths.

The question presented is exceptionally important—not only for Apaches and other Native Americans, but for all people of faith.

1. The transfer and destruction of Oak Flat would

end Western Apache religious existence as we know it.

Oak Flat is “‘crucial’ to Western Apache religious

life”—a “direct corridor” to the Creator and the site of

religious practices that “must occur at Oak Flat and

cannot take place anywhere else.” App.17a-18a (Collins, J.). The mining crater, nearly two miles wide and

over 1,000 feet deep, would completely engulf the irreplaceable locus of age-old sacred rituals. Once Oak

Flat is gone, “religious practices at Oak Flat [that]

date back at least a millennium” are gone forever,

App.17a—and with them, the bedrock of Western

Apache religious identity.

Yet the destruction of Oak Flat is far from the only

issue at stake. The decision below guts RFRA for all

Native Americans throughout the Ninth Circuit,

which encompasses 74% of all federal land 6 and almost a third of the nation’s Native American population 7—far more than any other circuit. Thus, the circuit with the most power over Native American lives

and liberty has given the federal government carte

blanche to destroy any sacred site on federal land for

any reason—without even undergoing RFRA review.

What’s more, the court’s aggressive expansion of

Lyng doesn’t just harm Native Americans; it undermines religious liberty for all faiths. One need look no

farther than the government’s actions in the wake of

the decision below. Two days after the decision, the

National Park Service denied permission for the

Knights of Columbus to hold an annual Memorial Day

Mass within Virginia’s Poplar Grove National Cemetery—a tradition they had maintained without objection for over 60 years. When the Knights sued, the

Park Service invoked the decision below, arguing that

“RFRA’s understanding of what counts as substantially burdening a person’s exercise of religion must be

understood as subsuming, rather than abrogating, the

holding of Lyng”—and thus, the Knights suffered “no

burden” under RFRA. Gov’t Br. at 20-21, Knights of

Columbus v. National Park Serv. 3:24-cv-363, ECF No.

21 (E.D. Va. May 22, 2024).

See Carol Hardy Vincent et al., Federal Land Ownership:

Overview and Data, Cong. Rsch. Serv., R42346, 7-8 (Feb. 21,

2020), https://perma.cc/67BD-PP7C; Our Mission Infographic,

Bureau of Land Management (May 2016), https://perma.cc/SFG9WJXY.

Eight of the sixteen states with the highest concentration of

Native Americans are in the Ninth Circuit. Race and Ethnicity in

the United States: 2010 Census and 2020 Census, U.S. Census

Bureau (Aug. 12, 2021), https://perma.cc/JX6W-EENT.

That same reasoning would let the government

shut down almost any religious exercise on federal

land. Many churches are situated on federal land—

some 70 within national parks alone, not to mention

Ebenezer Baptist Church (where Martin Luther King,

Jr., preached) and historic missions dotted throughout

the west. Barclay & Steele, 134 Harv. L. Rev. at 1341.

Many host active religious communities and ongoing

religious worship. Yet under the decision below, the

federal government could shut down and destroy them

all—for any reason or no reason at all.

And it’s not just federal land; other circuits have

used the same expansive reading of Lyng to undermine religious exercise in many contexts. Four circuits

have stretched Lyng to find no burden when the government required religious groups to facilitate distribution of contraception and abortion-causing drugs.

Geneva Coll. v. HHS, 778 F.3d 422, 435-436 (3d Cir.

2015); Little Sisters of the Poor v. Burwell, 794 F.3d

1151, 1193 (10th Cir. 2015); Priests For Life v. HHS,

772 F.3d 229, 246 (D.C. Cir. 2014); East Tex. Baptist

Univ. v. Burwell, 793 F.3d 449, 458 (5th Cir. 2015); all

vacated sub nom Zubik v. Burwell, 578 U.S. 403

(2016). Two circuits have extended Lyng to find no burden when public schools require young children to attend religiously objectionable, sexually themed lessons

with no parental notice or consent. Mahmoud v.

McKnight, 102 F.4th 191, 204-205, 210 (4th Cir. 2024);

Parker v. Hurley, 514 F.3d 87, 103-106 (1st Cir. 2008).

Other courts have expanded Lyng to find no burden

when public schools give young students condoms

without parental notice or consent, Curtis v. School

Committee of Falmouth, 652 N.E.2d 580, 589 (Mass.

1995), or when public health clinics give a minor the

morning-after pill without informing her parents or

letting her know it could cause an abortion, Anspach

ex rel. Anspach v. Philadelphia, 503 F.3d 256, 272-273

(3d Cir. 2007). All these actions were deemed the government’s “internal affairs.” Ibid.

2. The Ninth Circuit didn’t deny the sweeping implications of its ruling. Instead, it professed concerns

that recognizing a substantial burden here would

grant Apaches a “religious servitude” that would “divest the Government of its right to use what is, after

all, its land,” App.32a, 40a (Collins, J.), or “entitle a

wide variety of religions to government handouts,”

App.193a (VanDyke, J.). But these are the same sort

of policy arguments “made forcefully by the Court in

Smith”—and rejected by Congress in RFRA. Hobby

Lobby, 573 U.S. at 735. Moreover, they have nothing

to do with the question of whether permanently ending Apache religious exercises “substantially burdens”

those exercises. Rather, they “slip[ ] * * * into the substantial burden analysis” the very different question

of how to balance “competing claims on federal land”—

the question to be resolved on strict scrutiny.

App.598a-599a (Berzon, J., panel dissent).

Strict scrutiny, as “Congress determined,” “‘is a

workable test for striking sensible balances between

religious liberty and competing prior governmental interests.’” Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418, 436 (2006) (quoting 42

U.S.C. 2000bb(a)(5)). It has proven workable in RFRA

and RLUIPA cases for over 30 years, in every context

from prisons to drug laws to military bases. See

App.599a-600a (Berzon, J., panel dissent). And it’s the

statutorily prescribed mechanism for addressing the

real question at the heart of this case: whether the government has a compelling interest in exploiting this

particular copper deposit, and whether destroying Oak

Flat is the only way to do so.

Meanwhile, it’s the Ninth Circuit’s opinion that

produces untenable results. Under that opinion, if the

government posts “No Trespassing” signs at Oak Flat

and imposes modest “penalties” for trespassing

(App.31a), Apaches suffer a substantial burden—even

though they can pay fines and still worship there. But

if the government blasts Oak Flat into oblivion,

Apaches suffer no burden at all. Likewise, if the government prevents a prisoner from using a sweat lodge

in prison, he suffers a substantial burden—even

though “those convicted of crime in our society lawfully forfeit a great many civil liberties.” Yellowbear,

741 F.3d at 52. But if the government prevents lawabiding Apaches from using a sweat lodge at Oak Flat,

they suffer no burden at all. Indeed, if a mine at Oak

Flat would kill endangered fish, the project could not

proceed, because “the balance has been struck in favor

of affording endangered species the highest of priorities.” TVA v. Hill, 437 U.S. 153, 156, 194 (1978). But if

a mine would terminate Apache rituals forever, the

government need offer no justification at all. All of this

is backwards.

More broadly, if policy concerns about protecting

the government’s “internal affairs” can override

RFRA’s ordinary meaning, that is a recipe for judicial

repeal of RFRA. Government officials routinely plead

the same policy concerns in other contexts—that

RFRA will make it impossible to manage prisons (Holt,

Ramirez), enforce drug laws (O Centro), maintain military discipline (Singh v. Berger, 56 F.4th 88, 97-99

(D.C. Cir. 2022)), or deliver contraception (Hobby

Lobby). Those concerns have never justified ignoring

RFRA’s text before, and land use is no different. But

by making an unprincipled exception for federal land,

the court below has created a roadmap for evading

RFRA in anything that can be deemed part of the government’s “internal affairs”—which would encompass

“most government action and indeed swallow RFRA

whole.” App.246a n.18 (Murguia, C.J.).

* * *

RFRA promises “very broad protection for religious

liberty” for all faiths across all federal law. Hobby

Lobby, 573 U.S. at 693. The decision below breaks that

promise, in derogation of RFRA’s text, this Court’s

precedent, and decisions from other circuits. Left

standing, it will end Apache religious existence as we

know it—without the government ever even having to

justify that extraordinary result under RFRA. Only

this Court can prevent that tragedy and ensure RFRA

is applied evenhandedly to all faiths according to its

text.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.

ERIN E. MURPHY

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

STEPHANIE HALL BARCLAY

GEORGETOWN LAW SCHOOL

600 New Jersey Ave., NW

Washington, DC 20001

MICHAEL V. NIXON

101 SW Madison St. #9325

Portland, OR 97207

CLIFFORD LEVENSON

5119 N. 19th Ave., Ste. K

Phoenix, AZ 85015

LUKE W. GOODRICH

Counsel of Record

DIANA VERM THOMSON

REBEKAH P. RICKETTS

JOSEPH C. DAVIS

DANIEL L. CHEN

AMANDA L. SALZ

AMANDA G. DIXON

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave.,

NW, Suite 400

Washington, D.C. 20006

(202) 955-0095

lgoodrich@becketlaw.org

Counsel for Petitioner

SEPTEMBER 2024

ADDENDUM

Table of Relevant Excerpts of

U.S. Department of Agriculture, U.S. Forest Service,

Resolution Copper Project and Land Exchange

Environmental Impact Statement (January 15, 2021)

App.

Cite

EIS Cite

Excerpt

App.698a- 1-EIS699a

ES-28

“The NRHP-listed Chí’chil

Biłdagoteel Historic District

TCP would be directly and

permanently damaged by

the subsidence area at the

Oak Flat Federal Parcel.”

App.701a- 1-EIS702a

ES-29

“Oak Flat is a sacred place

to the Western Apache, Yavapai, O’odham, Hopi, and

Zuni. It is a place where rituals are performed, and resources are gathered; its loss

would be an indescribable

hardship to those peoples ....

Development of the Resolution Copper Mine would directly and permanently

damage the NRHP-listed

Chí’chil Biłdagoteel Historic

District TCP. One or more

Emory oak groves at Oak

Flat, used by tribal members

for acorn collecting, likely

would be lost. Other unspecified mineral or plant collecting locations and culturally

important landscapes are

also likely to be affected ....

Dewatering likely would impact between 18 and 20

GDEs, mostly sacred springs

.... Burials are likely to be

impacted. The numbers and

locations of burials would

not be known until such

sites are detected as a result

of project-related activities.”

1-EIS-9

“The land surface overlying

the copper deposit is located

in an area that has a long

history of use by Native

Americans, including the

Apache, O’odham, Puebloan,

and Yavapai people.”

1-EIS-10

“As the ore moves downward

and is removed, the land

surface above the ore body

also moves downward or

‘subsides.’ Analysts expect a

‘subsidence’ zone to develop

near the East Plant Site;

there is potential for downward movement to a depth

between 800 and 1,115 feet.

Resolution Copper projects

the subsidence area to be up

to 1.8 miles wide at the surface.”

App.712a

1-EIS-31

“[T]ailings storage facilities

are permanent and remain

part of the landscape in perpetuity.”

App.718a

1-EIS-40

“Construction and operation

of the mine would pro-

App.707a

App.710a

foundly and permanently alter the NRHP-listed Chí’chil

Biłdagoteel .... In addition,

development of the proposed

tailings storage facility at

any of the four proposed or

alternative locations would

permanently bury or otherwise destroy many prehistoric and historic cultural artifacts, potentially including

human burials.”

App.722a

App.726a

App.734a

1-EIS-42

“Construction and operation

of the Resolution Copper

Mine would, as a result of

anticipated geological subsidence at the East Plant

Site, permanently alter the

topography and scenic character of the Oak Flat area.”

1-EIS-58

“Approximately 1.37 billion

tons of tailings would be created during the mining process and would be permanently stored at the tailings

storage facility.”

1-EIS-84

“Reclamation activities

would not occur within the

subsidence area. There

would be a berm and/or

fence constructed around the

perimeter of the continuous

subsidence area.”

App.745a

1-EIS149

“All public access … would

be eliminated on 7,490

acres.”

App.745a

1-EIS154

“The NRHP-listed Chí’chil

Biłdagoteel Historic District

TCP would be directly and

permanently damaged.”

1-EIS156

“Development of the Resolution Copper Mine would directly and permanently

damage the NRHP-listed

Chí’chil Biłdagoteel Historic

District TCP .... Dewatering

or direct disturbance would

impact between 18 and 20

groundwater dependent ecosystems, mostly sacred

springs .... Burials are likely

to be impacted; the numbers

and locations of burials

would not be known until

such sites are detected as a

result of mine-related activities. Under this or any action alternative, one or more

Emory oak groves at Oak

Flat, used by tribal members

for acorn collecting, would

likely be lost. Other unspecified mineral- and/or plantcollecting locations would

also likely be affected; historically, medicinal and

other plants are frequently

App.746a

gathered near springs and

seeps, so drawdown of water

at these locations may also

adversely affect plant availability.”

App.750a- 1-EIS751a

185-86

“The removal of the Oak

Flat Federal Parcel from

Forest Service jurisdiction

negates the ability of the

Tonto National Forest to

regulate effects on these resources from the proposed

mine and block caving .... If

the land exchange does not

occur, not only would mineral exploration not take

place within the 760-acre

Oak Flat Withdrawal Area,

but subsidence caused by

block caving would not be allowed to impact the Withdrawal Area.”

1-EIS314

“The land exchange would

have significant effects on

transportation and access ....

[P]ublic access would be lost

to the parcel itself, as well as

passage through the parcel

to other destinations, including Apache Leap and Devil’s

Canyon.”

App.761a

2-EIS423

“Mine dewatering at the

East Plant Site under all action alternatives would result in the same irretrievable commitment of 160,000

acre-feet of water from the

combined deep groundwater

system and Apache Leap

Tuff aquifer over the life of

the mine .... [E]ven if the water sources are replaced, the

impact on the sense of nature and place for these natural riparian systems would

be irreversible. In addition,

the GDEs directly disturbed

by the subsidence area or

tailings alternatives represent irreversible impacts.”

App.798a

2-EIS558

“With respect to surface water flows from the project

area, all action alternatives

would result in both irreversible and irretrievable

commitment of surface water resources.”

App.800a

2-EIS575

“The entire subsidence area

would be fenced for public

safety.”

App.802a

2-EIS600

“The direct loss of productivity of thousands of acres of

various habitat from the project components would result

App.783a

in both irreversible and irretrievable commitment of the

resources.”

App.806a- 2-EIS807a

620

“The land exchange would

have significant effects on

recreation .... Additional recreational activities that

would be lost include camping at the Oak Flat

Campground, picnicking,

and nature viewing. The

campground currently provides approximately 20

campsites and a large stand

of native oak trees.”

2-EIS716

“[O]nce the land exchange

occurs, Resolution Copper

could use hazardous materials on this land without approval.”

App.814a

App.816a- 2-EIS817a

766-67

“For all action alternatives,

there would be an irretrievable loss of scenic quality

from increased activity and

traffic during the construction and operation phases of

the mine .... There would be

an irretrievable, regional,

long-term loss of night-sky

viewing during project construction and operations because night-sky brightening,

light pollution, and sky glow

caused by mine lighting

would diminish nighttime

viewing conditions in the direction of the mine.”

App.823a- 2-EIS824a

774

“In consultation with SHPO,

ACHP, tribes, and other consulting parties, the Forest

Service determined that the

project will have an adverse

effect on historic properties.

However, because of the

complexity of the project, all

of the effects would not be

known prior to implementation of the project.”

App.825a- 2-EIS826a

776

“The project area is within

the traditional territories of

the Western Apache, the Yavapai, and the Akimel

O’odham or Upper Pima.

The histories of the Western

Apache—a group that includes ancestors of the

White Mountain, San Carlos, Cibecue, and Tonto

Apache—tell of migrations

into Arizona where they encountered the last inhabitants of villages along the

Gila and San Pedro Rivers

.... In the 1870s, the Apache

were forced onto reservations .... However, not all

Apache stayed on the reservations, and some continued

to use the vicinity of the project area into the twentieth

century.”

App.830a- 2-EIS831a

780

“The removal of the Oak

Flat Federal Parcel from

Forest Service jurisdiction

negates the ability of the

Tonto National Forest to

regulate effects on these resources. If the land exchange

occurs, 31 NRHP-eligible archaeological sites and one

TCP within the selected

lands would be adversely affected .... [H]istoric properties leaving Federal management is considered an adverse effect, regardless of the

plans for the land, meaning

that, under NEPA, the land

exchange would have an adverse effect on cultural resources.”

App.837a- 2-EIS838a

787

“[E]ven if recorded and documented, loss of these cultural sites contributes to the

overall impact to the cultural heritage of the areas

.... While the footprint of

these projects is used as a

proxy for impacts to cultural

resources, effects on cultural

resources extend beyond destruction by physical disturbance.”

App.840a- 2-EIS841a

789-90

“Cultural resources and historic properties would be directly and permanently impacted. These impacts cannot be avoided within the areas of surface disturbance,

nor can they be fully mitigated .... Physical and visual

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. Mitigation measures

cannot replace or replicate

the historic properties that

would be destroyed by project construction. The landscape, which is imbued with

specific cultural attributions

by each of the consulting

tribes, would also be permanently affected .... The direct

impacts on cultural resources and historic properties from construction of the

mine and associated facilities constitute an irreversible commitment of resources. Archaeological sites

cannot be reconstructed once

disturbed, nor can they be

fully mitigated. Sacred

springs would be eradicated

by subsidence or tailings

storage facility construction

and affected by groundwater

drawdown. Changes that

permanently affect the ability of tribal members to use

known TCPs for cultural and

religious purposes are also

an irreversible commitment

of resources.”

App.846a, 3-EIS848a

820

“No tribe supports the desecration/destruction of ancestral sites. Places where ancestors have lived are considered alive and sacred. It

is a tribal cultural imperative that these places should

not be disturbed or destroyed for resource extraction or for financial gain.

Continued access to the land

and all its resources is necessary and should be accommodated for present and future generations .... The Resolution Copper Project and

Land Exchange has a very

high potential to directly,

adversely, and permanently

affect numerous cultural artifacts, sacred seeps and

springs, traditional ceremonial areas, resource-gathering localities, burial locations, and other places of

spiritual value to tribal

members.”

App.848a- 3-EIS849a

821

“We received numerous comments from tribal members

about the sacredness and

importance of Oak Flat to

them, their lives, their culture, and their children.

Many expressed their sadness and anger that their sacred place would be destroyed and that they would

lose access to their oak

groves and ceremonial

grounds.”

App.851a- 3-EIS852a

824

“Direct impacts on resources

of traditional cultural significance (archaeological sites;

burial locations; spiritual areas, landforms, viewsheds,

and named locations in the

cultural landscape; water

sources; food, materials,

mineral, and medicinal

plant gathering localities; or

other significant traditionally important places) would

consist of damage, loss, or

disturbance .… [T]he land

exchange will have an adverse impact on resources

significant to the tribes.”

App.855a- 3-EIS856a

826

“In 2015, the Tonto National

Forest, in partnership with

the San Carlos Apache

Tribe, composed a nomination for Oak Flat, the area

originally known as Chí’chil

Biłdagoteel, to be listed in

the NRHP as a TCP ....

Places like springs, ancestral

(archaeological) sites, plants,

animals, and mineral resource locations are sacred

and should not be disturbed

or disrupted. The Oak Flat

Federal Parcel slated to be

transferred to Resolution

Copper was once part of the

traditional territories of the

Western Apache, the Yavapai, the O’odham, and the

Puebloan tribes of Hopi and

Zuni. They lived on and used

the resources of these lands

until the lands were taken

by force 150 years ago.”

App.858a- 3-EIS

860a

827-28

“After the signing of the

Treaty of Guadalupe in 1848

… Euro-American settlers

began arriving in Western

Apache lands in search of

mineral wealth and ranching lands .… Several massacres of Apache by soldiers

and civilians occurred from

the 1850s through the 1870s,

including the reported

events at Apache Leap. In

the 1870s, the Apache were

forced off their lands and

onto reservations …. All

these communities lost large

portions of their homelands,

including Oak Flat, and today live on lands that do not

encompass places sacred to

their cultures .… Knowing

these places is vital to understanding Apache history

and, therefore, identity. For

the Western Apache, ‘the

people’s sense of place, their

sense of the tribal past, and

their vibrant sense of themselves are inseparably intertwined’ (Basso 1996:35). The

Apache landscape is imbued

with diyah, or power. Diyah

resides in natural phenomenon like lightning, in things

like water or plants, and in

places like mountains. Gáán,

or holy beings, live in important natural places and

protect and guide the

Apache people. They come to

ceremonies to impart wellbeing to Apache, to heal, and

to help the people stay on

the correct path.”

App.864a

3-EIS833

“[T]he tribal monitors recorded 594 special interest

areas in the direct analysis

area. Of the 594, 523 are described as cultural resources, 66 as natural resources, and 5 as both cultural and natural resources.

The cultural resources generally correspond to prehistoric archaeological sites and

were categorized by the

tribal monitors as cultural

areas, settlement areas, resource gathering areas, resource processing areas, agricultural areas, and other.”

App.869a

App.870a

3-EIS837

“Oak Flat is a sacred place

to the Western Apache, Yavapai, O’odham, Hopi, and

Zuni. It is a place where rituals are performed, and resources are gathered; its loss

would be an indescribable

hardship to those peoples.

The following is the testimony of tribal members describing the spiritual significance of Oak Flat and what

its loss would mean to their

culture, especially Apache

culture, in their own words.”

3-EIS838

“For as long as may be recalled, our People have come

together here. We gather the

acorns and plants that these

lands provide, which we use

for ceremonies, medicinal

purposes, and for other cultural reasons .… These are

holy, sacred, and consecrated lands which remain

central to our identity as

Apache People.” [Congressional testimony of Dr.

Wendsler Nosie]

App.873a- 3-EIS875a

839-840

“Chí’chil Biłdagoteel (also

known as Oak Flat) is a

Holy and Sacred site ....

where we pray, collect water

and medicinal plants for ceremonies, gather acorns and

other foods, and honor those

that are buried here ....

Emory oak groves at Oak

Flat used by tribal members

for acorn collecting are

among the many living resources that will be lost

along with more than a

dozen other traditional plant

medicine and food sources

.… The impacts that will occur to Oak Flat will undeniably prohibit the Apache

people from practicing our

ceremonies at our Holy site

.… Our connections to the

Oak Flat area are central to

who we are as Apache people. Numerous people speak

of buried family members .…

The destruction to our lands

and our sacred sites has occurred consistently over the

past century in direct violation of treaty promises and

the trust obligation owed to

Indian tribes .... [T]he

United States incurred obligations to protect our lands

from harm, and to respect

our religion and way of life.

Despite these obligations,

the U.S. Government has

consistently failed to uphold

these promises or too often

fails to act to protect our

rights associated with such

places like Chí’chil Biłdagoteel.” [Congressional testimony of Dr. Wendsler Nosie]

App.875a- 3-EIS877a

840

“Throughout our history,

Oak Flat continues as a vital

part of the Apache religion,

traditions, and culture. In

Apache, our word for the

area of Oak Flat is Chí’chil

Biłdagoteel (a “Flat with

Acorn Trees”). Oak Flat is a

holy and sacred site, and a

traditional cultural property

with deep religious, cultural,

archaeological, historical

and environmental significance to Apaches, Yavapais,

and other tribes. At least

eight Apache Clans and two

Western Apache Bands have

documented history in the

area .… A number of Apache

religious ceremonies will be

held at Oak Flat this Spring,

just as similar ceremonies

and other religions and traditional practices have been

held for a long as long as

Apaches can recall. We do so

because Oak Flat is a place

filled with power, a place

Apaches go: for prayer and

ceremony, for healing and

ceremonial items, or for

peace and personal cleansing .… In the Oak Flat area,

there are hundreds of traditional Apache species of

plants, birds, insects, and

many other living things in

the Oak Flat area that are

crucial to Apache religion

and culture .… Only the species within the Oak Flat

area are imbued with the

unique power of this area.”

[Congressional testimony of

Terry Rambler]

App.878a

3-EIS841

“In the late 1800s, the U.S.

Army forcibly removed

Apaches from our lands, including the Oak Flat area, to

the San Carlos Apache Reservation. We were made

prisoners of war there until

the early 1900s. Our people

lived, prayed, and died in

the Oak Flat area .… Since

time immemorial, Apache

religious ceremonies and

traditional practices have

been held at Oak Flat. Article 11 of the Apache Treaty

of 1852, requires the United

States to “so legislate and

act to secure the permanent

prosperity and happiness” of

the Apache people. Clearly,

H.R. 687 fails to live up to

this promise.” [Congressional testimony of Terry

Rambler]

App.883a- 3-EIS885a

843

“How can we practice our

ceremonies at Oak Flat

when it is destroyed? How

will the future Apache girls

and boys know what it is to

be Apache, to know our

home when it is gone? ....

Chí’chil Biłdagoteel … is a

place where we pray, collect

water and medicinal plants

for ceremonies, gather

acorns and other foods, and

honor those that are buried

here. We have never lost our

relationship to Chí’chil

Biłdagoteel.” [Congressional

testimony of Naelyn Pike]

App.887a- 3-EIS888a

844

“My nine year old daughter

dreams about having her

Apache Sunrise dance ceremony at Oak Flat. The

Apaches see Oak Flat differently—it is a church, a place

for worship and the practice

of our traditional religion. It

is the center of our most sincerely held, religious beliefs,

where diyf'(sacred power)

can be called upon via prayers …. At least eight Apache

clans have direct ties to this

location. Tribal members

continue to visit Oak Flat for

prayer and a wide range of

traditional needs and practices .... I pray my son will

have the opportunity to

sweat at Oak Flat for the

first time, when he becomes

a young man. We have gone

to many Apache spiritual

ceremonies (Sunrise dances

and Holy ground ceremonies) at Oak Flat.” [DEIS

comment of Terry Rambler]

App.890a- 3-EIS891a

845

“My family, my ancestors

come from Oak Flat. I grew

up there, praying, picking

the medicine, picking the

acorn, going to the springs,

gaining the teachings of my

role as an Apache woman so

I can pass it down to my

daughters .… My daughter,

Nizhoni, held her Ceremony

at Oak Flat in October 2014

.... All the elements of the

wind, fire, water, and land

go into the Ceremony for my

daughter. Everything Usen

(Creator, God) has created

has a significant role in the

Ceremony [during] the 4

days that she prays, dances,

connects with all the elements, connected to our ancestors, connected to the

Holy Spirit. On the 3rd day

of the Ceremony she is

painted white with the white

clay that is provided from

Mother Earth, and that

paint blesses all living beings, followed by the next

day, the last day of the ceremony, she has to wash the

paint off and give it back to

the earth .… The exact

springs she went to wash

her paint off is being affected by Resolution Copper

Mine already by dewatering

the springs. You are already

tampering with her life.”

[DEIS comment of Vanessa

Nosie]

App.893a- 3-EIS894a

846

“For at least a half millennium through to the present

day, members of our Tribe

have utilized the Oak Flat

area for traditional religious

ceremonies, such as the Sunrise Dance .… It is a place

where Apache Holy Ground

rituals occur, where we commune with and sing to our

Creator God, and celebrate

our holy spirits, including

our mountain spirits, the

Ga'an. It is a place filled

with rock paintings and petroglyphs, what some may

describe as the footprints

and the very spirit of our ancestors, hallmarks akin to

the art found in gothic cathedrals and temples, like

the Western Wall in Jerusalem, St. Peter’s Basilica in

Vatican City, or Angor Wat

in Cambodia. This is why I

call Oak Flat the Sistine

Chapel of Apache religion.”

[DEIS comment of Terry

Rambler]

App.895a- 3-EIS896a

847

“I just recently had my coming of age ceremony at Oak

Flat and being there meant

a lot to me to have my ceremony in a place where all

my ancestors used to be. If

the Resolution Copper mine

continues with destroying

Oak Flat, then I will never

have a sacred place to come

back to or to show my kids

where our ancestors gathered.” [DEIS comment of

Gouyen Brown-Lopez]

“Oak Flat is so important to

me because I have a very

strong connection with the

land. Oak Flat gives me connection with my family and

my past ancestors.” [DEIS

comment of Waya Brown]

“Oak Flat is also a place

where our members still

conduct traditional harvesting of plants important to

our diet, such as acorns from

Emory oaks, and healing

plant-based medicines for a

wide range of ailments .…

The numerous natural elements, that come from these

Holy Sites, are used as tools

to conduct Religious Ceremonies, spiritual sweats,

and Sunrise Ceremonies.”

[DEIS comment of Terry

Rambler and Wendsler

Nosie on behalf of Apache

Stronghold]

3-EIS848

“Distinctive features of the

TCP include an Emory oak

stand that Apache and Yavapai use to harvest acorn,

and a nearby campground,

constructed by the Civilian

Conservation Corps, that

provides a convenient place

for family gatherings. All of

these resources would be adversely affected by leaving

Federal management. In

particular, as described

above, the loss of the ceremonial area and acorn-collecting area in Oak Flat

would be a substantial

threat to the perpetuation of

cultural traditions of the

Apache and Yavapai tribes,

because healthy groves are

few and access is usually restricted unless the grove is

on Federal land.”

App.909a, 3-EIS912a

854-55

“Maintaining access to Oak

Flat Campground .… represents only a small portion of

Oak Flat, and would not reduce the impact on tribal

cultural heritage caused by

the destruction of the

broader landscape due to the

subsidence area .… Significant tribal properties and

App.899a

uses would be directly and

permanently impacted.

These impacts cannot be

avoided within the areas of

direct impact, nor can they

be fully mitigated.”

App.912a- 3-EIS913a

856

“Physical and visual impacts

on TCPs, special interest areas, and plant and mineral

resources caused by construction of the mine would

be immediate, permanent,

and large in scale. Mitigation measures cannot replace or replicate the tribal

resources and traditional

cultural properties that

would be destroyed by project construction and operation .… Traditional cultural

properties cannot be reconstructed once disturbed, nor

can they be fully mitigated.

Sacred springs would be

eradicated by subsidence or

construction of the tailings

storage facility, and affected

by groundwater drawdown

.... For uses such as gathering traditional materials

from areas that would be

within the subsidence area

or the tailings storage facil-

ity, the project would constitute an irreversible loss of

resources.”

App.916a

App.919a

3-EIS871

“Native American communities would be disproportionately affected by the land exchange .… Loss of the culturally important area of

Oak Flat would be a substantial threat to the perpetuation of cultural traditions

of the Apache and Yavapai

tribes.”

3-EIS875

“[D]isturbance of the sites

would result in a disproportionate impact on the tribes,

given their historical connection to the land. Additionally, the potential impacts

on archaeological and cultural sites … are directly related to the tribes’ concerns

and the potential impacts on

cultural identity and religious practices. Given the

known presence of ancestral

villages, human remains, sacred sites, and traditional

resource-collecting areas

that have the potential to be

permanently affected, it is

unlikely that compliance

and/or mitigation would substantially relieve the disproportionality of the impacts

on the consulting tribes.”

App.931a

App.933a

4-EIS-F3

“While there are other underground stoping techniques that could physically

be applied to the Resolution

copper deposit, each of the

alternative underground

mining methods assessed

was found to have higher operational costs than panel

caving.”

4-EIS-F4

“The Forest Service recognizes and acknowledges

scoping comments that suggest the use of mining techniques other than panel caving could substantially reduce impacts on surface resources, both by reducing or

eliminating subsidence and

by allowing the potential of

backfilling tailings underground.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.