Amicus Curiae Brief — Apache Stronghold, Petitioner v. United States, et al.

No. 24-291

In the Supreme Court of the United States

APACHE STRONGHOLD,

v.

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

__________

BRIEF OF THE PRESBYTERIAN CHURCH (U.S.A.),

THE MENNONITE CHURCH USA, AND THE LIPAN NATIVE AMERICAN CHURCH AS AMICI CURIAE IN SUPPORT OF PETITIONER

__________

Steven T. Collis

Counsel of Record

John Greil

Law & Religion Clinic

University of Texas

School of Law

727 E. Dean Keeton St.

Austin, TX 78705

512-475-9090

Steven.Collis@law.utexas.edu

John.Greil@law.utexas.edu

QUESTION PRESENTED

As the Petition explains, the complete physical destruction of an indigenous sacred site, ending forever

the ability to engage in religious rituals, constitutes a

substantial burden on religious exercise. This brief addresses whether the government would be able to show

that its actions are the least restrictive means of

achieving its claimed interest when it neglects to investigate and use less restrictive alternatives. 1

1 Pursuant to Rule 37.2, amici affirm that counsel of record for all

parties received proper notice of amici’s intention to file this brief.

Pursuant to Rule 37.6, this brief was prepared and funded entirely by amici and their counsel. No counsel for a party authored

this brief in whole or in part.

i

TABLE OF CONTENTS

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

TABLE OF CONTENTS .............................................. ii

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI ................................................. 1

SUMMARY OF ARGUMENT...................................... 1

ARGUMENT ................................................................ 3

I. In free exercise cases involving strict scrutiny,

some circuits have misapplied and

misunderstood this Court’s precedents by

failing to require government to fully

investigate and use less restrictive alternatives

prior to litigation. ............................................ 5

II. This Court’s decisions in Ramirez and Holt

compel governments to “actually consider" and

use alternatives. .............................................. 6

A. Forcing Government to Investigate and Use

Alternatives Will Help Government Clarify

Its Interest.................................................. 8

B. Forcing Government to Investigate

Alternatives Ensures Government Will

Consider and Use the Best Alternatives. .. 9

C. Allowing Post Hoc Justifications Flips the

Burden Back onto Challengers or the

Courts. ...................................................... 10

D. Placing the Burden on Government to Find

and Use Alternatives Forces It to Account

for Religious Minorities. .......................... 13

III. The government failed to properly investigate

and use alternatives before adopting the Land

Transfer Act, and thus cannot demonstrate

that no less restrictive means are available.14

CONCLUSION ........................................................... 20

ii

TABLE OF AUTHORITIES

CASES

Apache Stronghold v. United States, 38 F.4th 742 (9th Cir.) .....18

Apache Stronghold v. United States, 519 F. Supp. 3d 591 (D.

Ariz. 2021) ................................................................................. 14

Apache Stronghold v. United States, No. 21-15295, 2021 WL

12295173 (9th Cir. Mar. 5, 2021) .............................................15

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156

(1962) ......................................................................................... 12

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ......6, 17

Couch v. Jabe, 679 F.3d 197 (4th Cir. 2012) .................................. 5

Dunn v. Smith, 141 S. Ct. 725 (2021)...........................................11

Employment Division v. Smith, 494 U.S. 872 (1990) .................... 4

Fulton v. City of Philadelphia, 593 U.S. 522 (2021)...................... 8

Gonzales v. Collier, 610 F. Supp. 3d 963 (S.D. Tex. 2022) ..........11

Griffin v. School Bd. Of Prince Edward Cty, 377 U.S. 218 (1964)

.................................................................................................... 17

Holt v. Hobbs, 574 U.S. 352 (2015) .................................6, 7, 17, 18

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) ...............12

Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015) .................6, 9

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n,

584 U.S. 617 (2018) ..................................................................... 4

Ramirez v. Collier, 595 U.S. 411 (2022) .............................7, 10, 11

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63

(2020) ........................................................................................... 4

Spratt v. Rhode Island Dep’t of Corrs., 482 F.3d 33 (1st Cir.

2007)............................................................................................. 5

Tandon v. Newsom, 141 S. Ct. 1294 (2021) ................................... 4

United States v. Virginia, 518 U.S. 515 (1996) ............................12

United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...5, 9, 10,

12

Warsoldier v. Woodford, 418 F.3d 999 (9th Cir. 2005) ......5, 14, 19

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ......................... 5

STATUTES

42 U.S.C. § 2000bb–1(b) .................................................................. 8

Pub. L. No. 113-291, § 3003, 128 Stat. 3732-3741.......................15

iii

OTHER AUTHORITIES

Dunn v. Smith, Docket No. 20A128, Brief of Petitioner .............11

Letter from Rich Gonzales (Vice Chairman of the Advisory

Council on Historic Preservation) to Secretary of Agriculture

Tom Vilsack (March 29, 2021) ..................................................17

MARK CHAVES, CONGREGATIONS IN AMERICA (2004) ...................10

Ramirez v. Collier, No. 21-5592, Brief of Petitioner....................11

U.S. Forest Serv., Final Environmental Impact Statement:

Resolution Copper Project and Land Exchange (2021) ...14, 15,

16

U.S. Forest Serv., Resolution Copper Project and Land Exchange

Environmental Impact Statement: Draft Alternatives

Evaluation Report (2017) .............................................14, 15, 16

YUVAL LEVIN, AMERICAN COVENANT (2024) .................................12

iv

INTEREST OF AMICI

The Presbyterian Church (U.S.A.) is a national

Christian denomination with over 1.1 million members in more than 8,000 congregations. Through its

antecedent religious bodies, it has existed as an organized religious denomination within the current

boundaries of the United States since 1706.

https://www.pcusa.org/.

Mennonite Church USA is an Anabaptist Christian denomination, founded in 2002 by the merger of

the Mennonite Church and the General Conference

Mennonite Church. Members of this historic peace

church seek to follow Jesus by rejecting violence and

resisting injustice. MC USA’s Renewed Commitments

state the following shared commitments among its diverse body of believers: to follow Jesus, witness to

God’s peace and experience the transformation of the

Holy Spirit. Mennoniteusa.org.

The Lipan Native American Church teaches

Christianity and traditional indigenous beliefs, with

membership largely based in the American southwest. It is committed to religious freedom for all.

SUMMARY OF ARGUMENT

Petitioners ably explain why permanently destroying a sacred site substantially burdens their religious

exercise. This brief addresses the proper application

of strict scrutiny once that burden is recognized. Over

the last thirty years, the Religious Freedom Restoration Act (“RFRA”) and many other laws have demanded strict scrutiny of government actions that

burden religious exercise. Yet many lower courts still

1

misapply the test; particularly the least restrictive

means prong.

I. Many courts have applied this Court’s precedent

correctly and require the government, prior to litigation, to fully investigate less restrictive alternatives

and then use the ones it finds. But other courts mistakenly allow the government to not even explore alternatives, wait for litigation, then argue post hoc justifications of their actions. This is folly.

After resolving the substantial burden issue, this

Court should issue guidance on remand that will clarify the law for all courts: when strict scrutiny applies

to religious free exercise cases, government must investigate alternatives with the goal of accommodating

religion; it must use the alternatives that investigation uncovers; it must have legitimate reasons for rejecting alternatives; and it must stick to those same

reasons in court. These guidelines are not new. They

exist piecemeal and are already implied in this

Court’s cases, but too many lower courts have failed

to understand them.

II. Requiring an actual investigation with the goal

of discovering and using alternative means that will

not burden religion forces the government to frame its

interest with precision and to the person, in the context of the specific religious burden at issue. It ensures government will seek and use the best available

alternatives. It does not allow government actors to

flip the burden of proof back on to religious claimants.

It requires that the justifications government uses in

court are limited to the justifications government relied on when denying the accommodation. And it ensures that government employees will work with religious

groups—particularly

minority

religious

2

groups—who otherwise may struggle to ensure government actors understand their beliefs.

In contrast, under the no-investigation rule, governments are incentivized not to seek out alternatives

but instead to assert without effort that every accommodation is impossible. That is the opposite of what

strict scrutiny requires.

III. The present case illustrates the necessity for

actual investigation prior to litigation and use of less

restrictive alternatives. The Forest Service’s 2021 Environmental Impact Statement (“EIS”) identified multiple means of extracting copper in a less religiously

destructive way. This shows that government investigations can identify alternatives. But the EIS then rejected those alternatives because they involved

“higher operational costs.” In short, the government

failed to investigate less restrictive means with the

goal of accommodating religion; it was looking to maximize profit. That type of misguided investigation

does not meet the demands of strict scrutiny, and it

explains why the government here failed to use obviously available alternatives.

When strict scrutiny is properly applied, it shows

that the government here failed to satisfy its burden

to prove least restrictive means.

ARGUMENT

Over thirty years ago, a near-unanimous Congress

passed RFRA. Since that time, much has changed in

free-exercise jurisprudence across the United States.

Then, RFRA was one of the only sources of the compelling interest test in free exercise cases. In the intervening decades, many states have passed their

3

own versions of RFRA. After a back and forth with

this Court, Congress passed the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”), which

requires the compelling interest test for burdens on

religious exercise in prisons and the land use context.

And some state supreme courts have interpreted their

state constitutions to employ the compelling interest

test.

In a series of recent cases, this Court has clarified

that many laws assumed to be “neutral” and “generally applicable,” see Employment Division v. Smith,

494 U.S. 872 (1990), are not, and that governments

will need to face strict scrutiny when those laws burden religious exercise. Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Comm’n, 584 U.S. 617 (2018)

(providing guidance on the meaning of “neutrality”);

Tandon v. Newsom, 141 S. Ct. 1294 (2021) (providing

guidance on “general applicability”); Roman Catholic

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)

(same).

The result is that, today, in most instances where

government burdens the exercise of religion, it must

survive strict scrutiny. As the Petition notes, the

Ninth Circuit avoided strict scrutiny by determining

the destruction of a religious site would not burden

religious exercise. Pet. at 21–24. Assuming this Court

reverses, it should also give guidance to lower courts

about what strict scrutiny requires. Many lower

courts do not understand the burden government

faces when it must prove that its actions are the least

restrictive means for achieving its claimed interest.

They need clear direction, as do government actors.

4

I. In free exercise cases involving strict scrutiny, some circuits have misapplied and misunderstood this Court’s precedents by failing to

require government to fully investigate and use

less restrictive alternatives prior to litigation.

When the compelling interest test applies to government actions burdening the free exercise of religion, federal appellate courts have split on how government can satisfy its burden to demonstrate least

restrictive means. Some properly hold that the government’s least restrictive means obligation requires

actual consideration of alternative measures prior to

acting. Others are confused; they allow post hoc litigation arguments to suffice. The first group has carefully examined this Court’s jurisprudence and has

recognized that the former approach is the clear and

better rule. The second group has missed it entirely.

On one side of the split, the Ninth Circuit has

found that to satisfy the least restrictive means requirement the government must have “actually considered and rejected the efficacy of less restrictive

measures before adopting the challenged practice.”

Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.

2005) (emphasis added). The Fourth Circuit has also

adopted the “actually considered” approach to the

least restrictive means test. Couch v. Jabe, 679 F.3d

197, 203 (4th Cir. 2012) (“[T]he government . . . cannot

meet its burden to prove least restrictive means unless it demonstrates that it has actually considered

and rejected the efficacy of less restrictive measures

before adopting the challenged practice.”) (emphasis

added). Both the First and Third Circuits have

adopted it as well. See Spratt v. Rhode Island Dep’t of

5

Corrs., 482 F.3d 33, 41 (1st Cir. 2007) (adopting Warsoldier’s proof requirement); Washington v. Klem, 497

F.3d 272, 284 (3d Cir. 2007) (same).

On the other side of the split, the Tenth and Eleventh Circuits allow government to satisfy its least restrictive means burden without showing that it considered alternatives. United States v. Wilgus, 638

F.3d 1274, 1289 (10th Cir. 2011) (“[T]he government’s

burden is two-fold: it must support its choice of regulation, and it must refute the alternative schemes offered by the challenger, but it must do both through

the evidence presented in the record.”); see Knight v.

Thompson, 797 F.3d 934, 946–47 (11th Cir. 2015) (rejecting the Warsoldier standard and holding that defendants need not have “considered alternatives to its

policy”).

These two interpretations of the least restrictive

means prong of the compelling interest test are incompatible. The first properly places the burden on

government to consider alternatives and use them

when they find them. The second relieves the government of its burden by relying on litigation justifications instead of considering and using less restrictive

alternatives during policy implementation. The split

reflects a confusion among lower courts regarding

how strict scrutiny works. It also illustrates a misunderstanding among some circuits of this Court’s decisions.

II. This Court’s decisions in Ramirez and Holt

compel governments to “actually consider” and

use alternatives.

Over the past decade, this Court has clarified the

burden on government when strict scrutiny applies.

6

In Holt v. Hobbs, nine Justices explained that “‘[t]he

least-restrictive-means standard is exceptionally demanding,’ and it requires the government to ‘sho[w]

that it lacks other means of achieving its desired goal

without imposing a substantial burden on the exercise of religion by the objecting part[y].’” 574 U.S. 352,

364–65 (2015) (emphasis added) (citing Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014)).

Later, in Ramirez v. Collier, eight Justices reiterated

that once strict scrutiny is triggered, “the burden flips

and the government must ‘demonstrate[ ] that imposition of the burden on that person’ is the least restrictive means of furthering a compelling governmental

interest.” 595 U.S. 411, 425 (2022) (citations omitted).

In both Holt and Ramirez, the Court faulted the

lower courts for their “unquestioning deference” to the

government agency. Holt, 564 U.S. at 364; accord

Ramirez, 595 U.S. at 429. Once strict scrutiny applies,

the Ramirez Court reasoned, “it is the government

that must show its ‘policy is the least restrictive

means of furthering a compelling government interest.’” 595 U.S. at 432 (internal quotations omitted).

The circuit split reveals that some lower courts

have not understood these rules. Simply put, the government cannot “sho[w] that it lacks other means”

when it never investigated prior to litigation whether

other means exist, or when it discovers plausible alternatives but refuses to use them. Holt, 574 U.S. at

352. This rule is not arbitrary. The requirement is

deeply rooted in the rationale for the strict scrutiny

test.

7

A. Forcing Government to Investigate and

Use Alternatives Will Help Government to

Clarify Its Interest.

In far too many free exercise cases, government

burdens religious exercise and then manufactures

“compelling” interests after litigation ensues. This often leads to excessive court battles over the government’s claimed interest and poorly argued post hoc

justifications. Forcing government to explore and use

the least restrictive alternatives to achieve its interests in advance will have the effect of ensuring government actors have a clear understanding of what

their interest is and how they can best achieve it.

This will not prevent all litigation, but it will limit

it. And when it does arise, the contours of any dispute

will be better defined, for the parties and the courts.

In litigation, governments frequently state their interests “at a high level of generality, but the First

Amendment demands a more precise analysis.” Fulton v. City of Philadelphia, 593 U.S. 522, 541 (2021).

Programs and policies will always further some interest, but the compelling interest test (and the text of

RFRA) require that the government justify “that application of the burden to the person.” 42 U.S.C.

§ 2000bb–1(b) (emphasis added).

An on-notice government actor who thinks about

the person being burdened will need to have their interest defined with precision to be able to consider and

use alternatives at the appropriately narrowed level.

8

B. Forcing Government to Investigate Alternatives Ensures Government Will Consider and Use the Best Alternatives.

Once litigation ensues, government actors’ motivations shift. Even if the burden is placed upon them to

show less restrictive measures do not exist, their

goal—or, more accurately, the goal of their attorneys—is no longer to explore alternatives. Their goal

becomes to show why any conceivable alternative will

not work. The regulators and experts who have

knowledge about what is possible shift their attention

from imagining how something can work to focusing

on why it cannot.

Placing the burden on government to hunt for and

use least restrictive alternatives prior to litigation

helps avoid this hazard. At that stage, government actors are incentivized to avoid litigation, not to win it.

They will spend their time and resources talking over

the interest the government is trying to achieve, discussing with religious parties their concerns, and

then working with experts (if necessary) to find and

use plausible alternatives.

Taking the opposite approach undermines both

the compelling interest test and the free exercise of

religion. The reasoning of the Tenth and Eleventh

Circuits perversely incentivizes government actors

not to consider how a reasonable accommodation

could work. Instead, it incentivizes them to ignore accommodation requests and viable accommodations,

wait to get sued, manufacture supposed interests,

again wait for plaintiffs to proffer alternatives, and

then use their resources to shoot down those alternatives. See Wilgus, 638 F.3d at 1289; Knight, 797 F.3d

at 946–47. Many plaintiffs will not have access to the

9

resources needed to explore and provide those alternatives, so government will often win.

Instead of working together with their constituents to find a workable accommodation, government

actors can say, “We’ve tried nothing, and we’re all out

of ideas.”

C. Allowing Post Hoc Justifications Flips the

Burden Back onto Challengers or the

Courts.

Allowing the government to argue that no less restrictive alternatives exist without having properly

considered them, or to refuse to use alternatives government discovers, impermissibly flips the burden of

proof back onto those challenging government action.

This directly contradicts this Court’s rulings in Holt

and Ramirez.

Consider the Tenth Circuit’s test: the government’s burden is “two-fold: it must support its choice

of regulation, and it must refute the alternative

schemes offered by the challenger.” Wilgus, 638 F.3d

at 1289. The second part of the Tenth Circuit’s test

places the burden on the challenger to offer “alternative schemes.” Id. This is a burden that flouts this

Court’s strict scrutiny jurisprudence. As eight Justices reasoned in Ramirez, it “gets things backward.”

595 U.S. at 432.

It is easy to see why this occurs. In the course of

litigation, government litigators no longer have any

motivation even to hint that less restrictive alternatives might be available. Their best move is to stay

silent and offer only the conclusory argument that no

other alternatives exist; or to argue, as in this case,

that scarcely considered alternatives would not work.

10

In response, challengers will have no choice but to

try to offer alternatives or provide robust evidence as

to why alternatives would work. At that point, the

burden has flipped. And in many instances, those burdened by the action are often in no position to explore

alternatives. Frequently, they are small religious

groups or individuals with little funding. The largest

empirical study on congregation size in America

shows that half of congregations have seventy-five or

fewer regular attendees, with fifty or fewer being regular adult participants. MARK CHAVES, CONGREGATIONS IN AMERICA 18–19 & Table 2.1 (2004). In 2004,

the median congregation held just $1,000 in a savings

account and operated with an annual budget of

$56,000. Id. at 19–20. Their only hope lies in their

lawyers making arguments after the fact or experts

offering their time for free.

On occasion, the courts will find other, less restrictive means on their own. In Ramirez, for example, a

death row inmate requested his minister’s touch and

audible prayer at the moment of his execution, and

the Texas Department of Criminal Justice refused to

accommodate him. 595 U.S. at 416. This Court identified requiring training regarding the IV lines as a

less restrictive means. Id. at 432. The Court conceived

of that alternative sua sponte; it did not appear in the

petitioner’s brief or at oral argument. Cf. Ramirez v.

Collier, No. 21-5592, Brief of Petitioner at 26. In Dunn

v. Smith, a case with similar facts, four Justices identified pastor interviews or penalty-backed pledges as

less restrictive means that were not proffered by the

petitioner. Compare Dunn v. Smith, 141 S. Ct. 725,

726 (2021) (Kagan, J., concurring), with Dunn v.

Smith, Docket No. 20A128, Brief of Petitioner at 15.

In Gonzales v. Collier, the judge himself toured

11

Texas’s execution chamber to determine if less restrictive means existed. 610 F. Supp. 3d 963, 968 (S.D.

Tex. 2022). He then ruled that they did and that the

government had failed to meet its burden. Id. at 978–

981.

But shifting the burdens to the courts is no better

than shifting them to the challengers. In both instances, the one party required to explore, develop,

and use alternatives—the government—shirks its responsibility to do so.

Finally, demanding the government only “support

its choice of regulation,” Wilgus, 638 F.3d at 1289, in

court goes against the fundamental legal principle

disfavoring post hoc justifications. One of the bedrock

rules of administrative law is that “courts may not accept appellate counsel’s post hoc rationalizations for

agency action.” Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168 (1962). That same principle

governs religious liberty: “Government ‘justification[s]’ for interfering with First Amendment rights

‘must be genuine, not hypothesized or invented post

hoc in response to litigation.’” Kennedy v. Bremerton

Sch. Dist., 597 U.S. 507, 543 n.8 (2022) (quoting

United States v. Virginia, 518 U.S. 515, 533 (1996)).

But the Tenth Circuit’s Wilgus test allows crafty

lawyers to do just that: create new justifications for

litigation and see what sticks. The better rule is to put

the burden where the strict scrutiny test places it: on

the government.

12

D. Placing the Burden on Government to

Find and Use Alternatives Forces It to

Account for Religious Minorities.

Perhaps the deepest rationale for forcing government to investigate and use least restrictive alternatives lies in our constitutional ideals. By dividing

power among thousands of actors and forcing majorities to consider the rights of minorities, our constitutional framework forces different constituencies to engage in dialogue. See generally YUVAL LEVIN, AMERICAN COVENANT (2024). Small religious minorities will

rarely have the political power on their own to represent themselves before government or to force government to change its regulations. Most often, government actors will not even be aware of them and certainly will not understand their religious traditions.

Placing the burden on government to identify and

use less restrictive means requires government officials to open a dialogue with the religious groups in

their communities. It demands understanding the beliefs and needs of religious groups, especially minorities who are often not represented during the normal

course of business. This helps with religious literacy

in our nation, and it ensures little understood religious groups receive at least a bit more understanding.

This concern with dialogue gets to the heart of

strict scrutiny. It is designed to allow majorities to

govern but to protect minorities at the same time. Requiring government to think creatively and develop

and use alternatives will necessarily require dialogue

with minority religious groups. Such dialogue legitimizes government action, clarifies the government’s

interest, and brings into focus the religious exercise

13

being burdened. Remove the duty on government to

explore and use less restrictive means, and that entire

dialogical process vanishes.

It may be true that requiring government to explore and use alternatives at the outset will slow some

government action. But that is less expensive than

years-long battles that inevitably ensue once litigation begins. It is also the policy choice implemented in

RFRA and RLUIPA, demanded by the First Amendment, and required by state strict scrutiny regimes

across the country.

III. The government failed to properly investigate and use alternatives before adopting the

Land Transfer Act, and thus cannot demonstrate that no less restrictive means are available.

Here, despite awareness of the religious burden,

the government did not “actually consider[] and reject[] the efficacy of less restrictive measures” before

adopting the plan for destruction of the Apache sacred

site at Oak Flat. See Warsoldier, 418 F.3d at 999. Rather, it gave cursory attention to potential alternatives and refused to use them because they were less

profitable. E.g., U.S. Forest Serv., Final Environmental Impact Statement: Resolution Copper Project and

Land Exchange F-3 (2021) [hereinafter EIS] (rejecting less religiously restrictive techniques because

they involved “higher operational costs”).

Under its current proposal, Resolution Copper intends to use “panel caving” to extract copper ore from

beneath Oak Flat, which will result (as the district

court found) in the land being “all but destroyed.” See

Apache Stronghold v. United States, 519 F. Supp. 3d

14

591, 606 (D. Ariz. 2021). Panel caving involves the

fracturing of ore using explosives, followed by removal

of the ore from beneath. U.S. Forest Serv., Resolution

Copper Project and Land Exchange Environmental

Impact Statement: Draft Alternatives Evaluation Report

4

(2017)

[hereinafter

2017

Draft],

https://www.resolutionmineeis.us/sites/default/files/project-files/usfs-tonto-alternatives-evaluation-report-draft-final-201711.pdf. In the case of

Oak Flat, use of this technique is expected to cause

land subsidence (collapse) to a depth of up to 1,100

feet over approximately 1,750 acres. Id. Oak Flat will

no longer exist; “[t]he Western Apaches’ exercise of religion at Oak Flat will not be burdened—it will be

obliterated.” Apache Stronghold v. United States, No.

21-15295, 2021 WL 12295173, at *4 (9th Cir. Mar. 5,

2021) (Bumatay, J., dissenting).

However, surface-destructive panel caving is far

from the only option available to Resolution Copper.

The statute authorizing the land transfer was passed

in 2014. Pub. L. No. 113-291, § 3003, 128 Stat. 37323741. But the Forest Service’s 2021 Environmental

Impact Statement (EIS) presents several other mining techniques Resolution Copper could use to extract

copper—techniques the Forest Service acknowledged

“could substantially reduce impacts on surface resources.” EIS at F-4.

Specifically, the EIS details various “stoping,” or

underground mining techniques, of which Resolution

Copper (a highly sophisticated mining operation)

could avail itself and preserve the sacred religious

site. Stoping involves tunneling underground to carve

out “stopes” (underground excavations or rooms) and

15

extract ore. 2017 Draft at 10. The EIS discusses naturally supported stoping methods such as “open stoping,” where the excavation is naturally supported,

and “open stoping with pillars,” where the excavation

leaves pillars of ore in place to prevent collapse. EIS

at F-3; see 2017 Draft at 10–11 (providing descriptions

of alternative mining techniques). Other stoping options discussed include artificially supported stoping

methods such as “cut-and-fill stoping” (where tailings

of waste rock are used to support the excavation) and

“shrinkage stoping” (where fractured ore is left in the

stope during the mining process to provide support).

EIS at F-3; 2017 Draft at 10–11.

In each case, the stopes would be backfilled with

waste tailings once the copper ore is extracted. 2017

Draft at 11. Naturally supported stopes and artificially supported stopes “do not generally cause subsidence,” especially if they are backfilled. See id. And

the EIS concedes that “several underground stoping

techniques could physically and technically be applied to the deposit.” EIS at F-5. In short, the government could ensure preservation of a crucial and sacred religious site by directing Resolution Copper to

proceed with an alternative mining technique.

However, the government did not properly investigate these alternatives; it rejected them because of

the costs involved in implementing them. Although

the EIS claims the government is not prioritizing

“profitability over environmental protection,” the

EIS’s analysis rests on an economic feasibility assessment of current economic conditions like price, administrative costs, and taxes—not strict scrutiny factors. Id. at 47. The EIS states that “[w]hile there are

other underground stoping techniques that could

16

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.” Id. at F-3 (emphasis added). It

says that while other techniques “could substantially

reduce impacts on surface resources,” a more surfaceprotective method would reduce the amount of “ore

that could be profitably mined.” Id. at F-3–F-4 (emphasis added).

The EIS uses company costs to measure the feasibility of least restrictive means. That is not consistent

with the demands of strict scrutiny, which require the

government to explore and use alternatives that will

not burden religion, as opposed to alternatives that

will save a company money. At some point, excessive

cost renders an alternative unfeasible. But this Court

has long held that parties may need to expend additional funds to remedy or protect constitutional

rights. See, e.g., Griffin v. School Bd. Of Prince Edward Cty, 377 U.S. 218, 233 (1964). Indeed, RFRA

specifically “may require the Government to expend

additional funds to accommodate citizens’ religious

beliefs.” Hobby Lobby, 573 U.S. at 730.

A separate and independent federal agency even

acknowledged that the government here failed to adequately investigate and use less-destructive alternatives. The Advisory Council on History Preservation,

in a letter to the Secretary of Agriculture, advised

that the government needed to “reassess[] alternative

and more sustainable mining techniques in an effort

to prevent subsistence at Oak Flat.” Letter from Rich

Gonzales (Vice Chairman of the Advisory Council on

Historic Preservation) to Secretary of Agriculture

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Tom Vilsack (March 29, 2021), at 7. This included revisiting the alternatives the government had failed to

properly investigate in the first instance. Id.

Just as a prison must investigate alternatives before denying an inmate’s request to accommodate his

religious beliefs, so must the government investigate

alternatives before denying a tribe’s request for an accommodation of its religious beliefs on federal land. In

both instances, the goal must be to find ones that are

less restrictive of religious exercise.

And “if a less restrictive means is available for the

Government to achieve its goals, the Government

must use it.” Holt, 574 U.S. at 365. In Holt, this Court

determined that a prison enforcing its prohibition of

an inmate growing a half-inch beard was not the least

restrictive means of furthering prison safety and security. Id. The compelling interest test “requires the

Department not merely to explain why it denied the

exemption but to prove that denying the exemption is

the least restrictive means of furthering a compelling

governmental interest.” Id. Just as “it is hard to swallow the argument that denying petitioner a ½–inch

beard actually furthers the Department’s interest in

rooting out contraband,” so too is it hard to swallow

the government’s argument here that barely investigating alternatives and then refusing to use plausible

alternatives before destroying a sacred religious site

furthers its interest in economic profit. Id.

The government cannot meet its burden of proving

least restrictive means. Its application of terms like

“economically feasible” and “reasonable” plainly differs from a strict scrutiny analysis and departs from

its burden to “demonstrate the lack of viable alternatives.” Apache Stronghold v. United States, 38 F.4th

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742, 783 (9th Cir.), reh’g en banc granted, opinion vacated, 56 F.4th 636 (9th Cir. 2022), and on reh’g en

banc, 95 F.4th 608 (9th Cir. 2024) (Berzon, J., dissenting). By failing even to fully consider and then use alternative mining techniques that are “physically and

technically” possible, and instead approving a highly

destructive (if highly profitable) method of extraction,

the government substantially burdens Apache religious practices and fails to satisfy the “least restrictive means” prong of the strict scrutiny test.

Demonstrating that no less restrictive means exists

requires an investigation into whether alternative

means do exist. After-the-fact legal briefs are not

enough.

Government can only satisfy its least restrictive

means burden when it has “actually considered and

rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier,

418 F.3d at 999. And the reasons it rejected the practice must be the reasons it stands on in court: increased operating costs and reduced profitability. The

weakness of those reasons may be the reason the government did not even attempt to argue that it satisfied strict scrutiny in the district court, or court of appeals.

But clarifying those points—the government’s

duty to investigate alternatives, to use them if they

are available, and to rely on that same justification in

court—will bring more uniformity to the courts of appeals and more fidelity to this Court’s strict scrutiny

jurisprudence.

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CONCLUSION

The Court should grant the petition for writ of certiorari, reverse the judgment below, and clarify the

burden government faces under the compelling interest test.

Respectfully submitted,

Steven T. Collis

Counsel of Record

John Greil

Law & Religion Clinic

University of Texas

School of Law

727 E. Dean Keeton St.

Austin, TX 78705

512-475-9090

John.greil@law.utexas.edu

Steven.collis@law.utexas.edu

October 15, 2024

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