Apache Stronghold v. United States ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APACHE STRONGHOLD, a 501(c)(3) No. 21-15295
nonprofit organization,
Plaintiff-Appellant, D.C. No.
2:21-cv-00050-
v. SPL
UNITED STATES OF AMERICA; THOMAS
J. VILSACK, Secretary, U.S. OPINION
Department of Agriculture (USDA);
RANDY MOORE, Chief, USDA Forest
Service; NEIL BOSWORTH, Supervisor,
USDA Forest Service, Tonto National
Forest; TOM TORRES, Acting
Supervisor, USDA Forest Service,
Tonto National Forest,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted October 22, 2021
San Francisco, California
Filed June 24, 2022
2 APACHE STRONGHOLD V. UNITED STATES
Before: Mary H. Murguia, Chief Judge, and Marsha S.
Berzon and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Dissent by Judge Berzon
SUMMARY *
Religious Freedom Restoration Act /
Free Exercise Clause
The panel affirmed the district court’s denial of Apache
Stronghold’s motion for a preliminary injunction seeking to
stop a land exchange and prevent any copper mining on Oak
Flat, a plot of land in Arizona.
A 2014 act of Congress requires the U.S. Secretary of
Agriculture to convey Oak Flat to Resolution Copper, a
mining company. In exchange, Resolution Copper will
convey to the United States a series of nearby plots of land
(the “Land Exchange”). To the Apache American Indians,
Oak Flat, known to the Apache as Chi’chil Bildagoteel, is
sacred ground. Apache Stronghold, a nonprofit
organization, sued the government, alleging that the Land
Exchange violated the Religious Freedom Restoration Act
(“RFRA”), the Free Exercise Clause of the Constitution’s
First Amendment, and a trust obligation imposed on the
United States by the 1852 Treaty of Santa Fe between the
Apache and the United States.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
APACHE STRONGHOLD V. UNITED STATES 3
Concerning Apache Stronghold’s RFRA claim, the panel
began by addressing what constituted a “substantial burden”
under RFRA. First, RFRA by its text restored Sherbert v.
Verner, 374 U.S. 398 (1963), Wisconsin v. Yoder, 406 U.S.
205 (1972), their “compelling interest” test, and their
“substantial burden” inquiry, and defined a “substantial
burden” under RFRA as either of the burdens present in
those two cases. Second, the Supreme Court has used the
phrase “substantial burden” as a Free Exercise Clause term
of art that meant only the two burdens within the
Sherbert/Yoder framework, and a “substantial burden” under
RFRA must hold that same settled meaning. Third, Lyng v.
Northwest Indian Cemetery Protective Association, 485 U.S.
439 (1988), and Bowen v. Roy, 476 U.S. 693 (1986), the
cases most factually and legally analogous to Navajo Nation
v. United States Forest Service, 535 F.3d 1058 (9th Cir.
2008) (en banc), and this case, confirmed that even
burdensome government action did not constitute a
“substantial burden” (and did not trigger the “compelling
interest” test) if that action fell outside the Sherbert/Yoder
framework.
The panel next turned to Apache Stronghold’s main
argument that the Land Exchange would hand Oak Flat over
to Resolution Copper for its mining plan, thus incidentally
making it impossible for Apache Stronghold’s members to
worship on Oak Flat and thereby substantially burdening
them. The panel held that this argument could not succeed
in light of Navajo Nation. The Land Exchange’s effect on
Apache Stronghold’s members fell outside of the
Sherbert/Yoder framework, and thus outside of RFRA’s
definition of a substantial burden. No government benefits
will be lost (as in Sherbert) nor will governmental penalties
be imposed (as in Yoder). The Department of Agriculture
will simply transfer ownership of a plot of government land
4 APACHE STRONGHOLD V. UNITED STATES
to Resolution Copper, and the Land Exchange does not
coerce the Apache to abandon their religion by threatening
them with a negative outcome. Because Apache
Stronghold’s members have not established that they would
suffer a substantial burden under RFRA, Apache Stronghold
is not likely to succeed on its RFRA claim. The panel
rejected Apache Stronghold’s and the dissent’s contentions
to the contrary.
Next, the panel addressed Apache Stronghold’s
secondary argument that the Land Exchange did in fact
deprive its members of a benefit and subjected its members
to a penalty. Namely, the Land Exchange allegedly deprived
Apache Stronghold members of the “use and enjoyment of
‘government’ land for religious exercise” and subjected
them to penalties for “trespassing on now ‘private’ land.”
The panel disagreed. The government does not substantially
burden religion every time it ends a governmental benefit
that at one time went to religious beneficiaries: there must
be an element of coercion. The Land Exchange does not
“condition” any government benefits on the Apache
violating their religious beliefs. The panel also rejected
Apache Stronghold’s argument that the Land Exchange
subjected its members to penalties: liability for trespassing
on land that will be private after the Exchange. Apache
Stronghold has not shown a sufficiently realistic fear of
future criminal trespass liability. Also, Apache Stronghold
seeks relief that RFRA cannot provide: RFRA does not
authorize Apache Stronghold to enjoin the entire Land
Exchange. Similarly, it is not clear that the Apache will be
subject to civil trespass liability. But even if Apache
Stronghold’s members were subject to the threat of
imminent civil trespass suits, the panel could not enjoin the
entire Land Exchange as Apache Stronghold requested.
APACHE STRONGHOLD V. UNITED STATES 5
The panel rejected Apache Stronghold’s claim that the
Land Exchange would violate the Constitution’s Free
Exercise Clause. Apache Stronghold argued that the Land
Exchange Provision was neither neutral nor generally
applicable and thus was subject to strict scrutiny. The panel
held that the Land Exchange was neutral in that its object
was not to infringe upon the Apache’s religious practices.
All the evidence suggests that the Land Exchange was meant
to facilitate mineral exploration activities – nothing more
and nothing less. The panel concluded that the district court
properly found that Apache was not likely to succeed on its
Free Exercise claim.
Last, the panel considered Apache Stronghold’s trust
claim under the Treaty of Santa Fe. Namely, that the Treaty
created an enforceable trust obligation on the U.S.
government, and the Land Exchange was inconsistent with
the U.S.’s obligation to pass laws conducive to the prosperity
and happiness of the Apache. The panel agreed with the
government that on this record, Apache Stronghold has not
established that the Treaty of Santa Fe imposes on the United
States an enforceable trust obligation. The panel concluded
that Apache Stronghold’s trust claim was unlikely to
succeed.
The panel recognized the deep ties the Apache have to
Oak Flat, and acknowledged that the Land Exchange may
impact the Apache’s plans to worship at Oak Flat. But
RFRA, the Free Exercise Clause, and the 1852 Treaty of
Santa Fe do not afford Apache Stronghold the relief that it
seeks.
Dissenting, Judge Berzon wrote that the majority applied
an overly restrictive test for identifying a “substantial
burden” on religious exercise under RFRA. The majority’s
6 APACHE STRONGHOLD V. UNITED STATES
flawed test leads to an absurd result: blocking Apaches’
access to and eventually destroying a sacred site where they
have performed religious ceremonies for centuries did not
substantially burden their religious exercise. There was no
doctrinal basis for limiting the definition of “substantial
burden” to the types of burdens imposed in Sherbert and
Yoder. The majority’s proffered practical basis for its
constricted definition of “substantial burden” is also flawed.
Applying the correct definition of “substantial burden,”
Judge Berzon would hold that Apache Stronghold has shown
that it is likely to succeed on the merits of its RFRA claim.
She would remand for the district court to address the
remaining elements of the preliminary injunction test.
COUNSEL
Luke W. Goodrich (argued), Mark L. Rienzi, Diana M.
Verm, Joseph C. Davis, Christopher Pagliarella, Daniel D.
Benson, And Kayla A. Toney, The Becket Fund for
Religious Liberty, Washington, D.C.; Michael V. Nixon,
Portland, Oregon; Clifford Levenson, Phoenix, Arizona; for
Plaintiff-Appellant.
Joan M. Pepin (argued), Andrew C. Mergen, Tyler M.
Alexander, and Katelin Shugart-Schmidt, Attorneys; Jean E.
Williams, Acting Assistant Attorney General; Environment
and Natural Resources Division, U.S. Department of Justice,
Washington, D.C.; for Defendants-Appellees.
Gene C. Schaerr and Joshua J. Prince, Schaerr | Jaffe LP,
Washington, D.C.; James C. Phillips, Chapman University,
Dale E. Fowler School of Law, Orange, California; for
Amici Curiae Jewish Coalition for Religious Liberty, The
APACHE STRONGHOLD V. UNITED STATES 7
International Society for Krishna Consciousness, The Sikh
Coalition, and Protect The 1st.
Miles E. Coleman, Greenville, South Carolina; Thomas
Hydrick and Hunter Windham, Columbia, South Carolina;
for Amici Curiae Religious Liberty Law Scholars.
Stephanie Hall Barclay, Associate Professor of Law,
Director, Religious Liberty Initiative, Notre Dame Law
School, Notre Dame, Indiana; Michalyn Steele, Professor of
Law, BYU Law School, Provo, Utah; for Amici Curiae
National Congress of American Indians, A Tribal Elder, and
Other Federal Indian Law Scholars and Organizations.
William E. Trachman, Mountain States Legal Foundation,
Lakewood, Colorado; Timothy Sandefur, Goldwater
Institute, Phoenix, Arizona; for Amici Curiae the Towns of
Superior, and Hayden, Arizona, and Jamie Ramsey, the
Mayor of Kearny, Arizona.
David Debold, Thomas G. Hungar, and Matthew S. Rozen,
Gibson, Dunn & Crutcher, LLP, Washington, D.C.; for
Amici Curiae American Exploration & Mining Association,
Women’s Mining Coalition, and Arizona Rock Products
Association.
8 APACHE STRONGHOLD V. UNITED STATES
OPINION
BEA, Circuit Judge:
A 2014 act of Congress requires the U.S. Secretary of
Agriculture to convey Oak Flat, a plot of federal land in
Arizona, to a mining company named Resolution Copper. In
exchange, Resolution Copper will convey to the United
States a series of other nearby plots of land (the “Land
Exchange”). Resolution Copper is considering constructing
a copper mine under Oak Flat to access one of the world’s
largest undeveloped copper deposits. But to the Apache
American Indians, Oak Flat—or as the Apache call it,
Chi’chil Biłdagoteel—is sacred ground. So Apache
Stronghold, a non-profit organization formed to preserve and
protect American Indian sacred sites, sued the government
on the grounds that the Land Exchange violates each of:
1) the Religious Freedom Restoration Act (“RFRA”),
42 U.S.C. § 2000bb et seq; 2) the Free Exercise Clause of
the Constitution’s First Amendment; and 3) a trust obligation
that Apache Stronghold claims was imposed on the United
States by the 1852 Treaty of Santa Fe between the Apache
the United States. In the district court below, Apache
Stronghold moved for a preliminary injunction, seeking to
stop the Land Exchange and prevent any copper mining.
The district court reviewed Apache Stronghold’s evidence
and arguments and ruled that the non-profit was unlikely to
succeed on any of its claims. The district court thus denied
Apache Stronghold’s motion. We affirm.
I. Background
A. The At-Issue Land
The Tonto National Forest stretches across nearly 3
million acres (or about 4,500 square miles) across Arizona.
APACHE STRONGHOLD V. UNITED STATES 9
See Tonto National Forest, U.S. Dep’t of Agriculture,
https://www.fs.usda.gov/detail/tonto/home/?cid=fsbdev3_0
18924 (last visited June 15, 2022). Most of the forest is
owned by the United States and is managed by the United
States Forest Service, a division of the United States
Department of Agriculture. See id. Within the Tonto Forest
is Oak Flat, a 6.7-square-mile plot of plains, oak groves, and
rocky cliffs that sits about 4,000 feet above sea level.
Beneath Tonto Forest and extending under part of Oak Flat
lies “one of the largest undeveloped copper deposits in the
world,” containing an estimated 1,970 billion tons of copper.
Also within the Tonto National Forest are several areas
sacred to the Apache American Indians. Oak Flat is one of
these areas, as are Devil’s Canyon (called Ga’an Bikoh by
the Apache), a depression just east of Oak Flat, and Apache
Leap (called Dibecho Nadil by the Apache), a steep slope
just to Oak Flat’s west. These three adjacent areas are places
where the Apache’s Ga’an—beings that the Apache describe
as their “creators, [their] saints, [their] saviors, [their] holy
spirits”—live and where the Apache can communicate with
them. Currently, the federal government owns Oak Flat. 1
Devil’s Canyon is owned partially by Arizona state
government trusts 2 and partially by the federal government.
And Apache Leap is owned partially by Resolution Copper
1
Apache Stronghold may dispute the United States’ ownership of
part of Tonto National Forest later in this litigation but does not do so in
this appeal.
2
Arizona holds some land in trust on behalf of a group of public
entities, including state universities and state K-12 schools. See State
Trust Land Beneficiaries, Ariz. State Land Dep’t,
https://land.az.gov/our-agency-mission/beneficiaries (last visited June
15, 2022).
10 APACHE STRONGHOLD V. UNITED STATES
and partially by the federal government. See 16 U.S.C.
§ 539p(d)(1)(A)(v).
In recent years, Oak Flat has been used for a variety of
purposes, both religious and secular. After decades of
holding religious rituals on their reservations, the Apache
have recently returned to worship in Tonto Forest. In 2014,
the Apache held a “Sunrise Dance” on Oak Flat for just the
second time in “more than a hundred years.” That 2014
ceremony closely followed another Sunrise Dance held the
previous year at Mt. Graham, another sacred site elsewhere
in Arizona. Separately, recreational users often camp, hike,
or rock-climb throughout Tonto National Forest, including
on Oak Flat.
B. The Land Exchange Provision
After nearly a decade of debate, Congress included in the
2014 National Defense Authorization Act a provision (the
“Land Exchange Provision”) that requires the Secretary of
Agriculture to complete a land swap arrangement with
Resolution Copper. See National Defense Authorization Act
for Fiscal Year 2015, Pub. L. No. 113-291, § 3003, 128 Stat.
3732–41 (2014) (codified at 16 U.S.C. § 539p). Under the
Provision’s terms, the Department of Agriculture must
convey 2,422 acres of federal land, including Oak Flat, to
Resolution Copper in exchange for 5,344 acres of Arizona
land currently owned by Resolution Copper (again, the
“Land Exchange”). See 16 U.S.C. § 539p(b), (c). 3
3
The Land Exchange is also subject to several conditions not at
issue here. See, e.g., 16 U.S.C. § 539p(c)(2)(A), (B) (requiring that the
parcels of land conveyed by Resolution Copper to the United States be
“acceptable to the Secretary [of Agriculture or the Secretary of the
Interior, depending on the parcel,]” and “conform[] to the title approval
APACHE STRONGHOLD V. UNITED STATES 11
Once the Forest Service and Resolution Copper
exchange the land specified in the Land Exchange Provision,
Resolution Copper expects to take “several years” to conduct
a “detailed feasibility study” regarding whether to proceed
with a mine on the land it receives. Under Resolution
Copper’s current proposal, it would use a mining technique
called “panel caving”; while Resolution Copper would not
need to dig a mine on the surface, the land over the mine
would eventually subside, “profoundly and permanently
alter[ing]” the landscape.
The Land Exchange Provision also requires a series of
consultation and mitigation measures. The Secretary of
Agriculture must conduct “government-to-government
consultation” with all “affected Indian tribes,” 16 U.S.C.
§ 539p(c)(3)(A), and must also agree with Resolution
Copper on “mutually acceptable measures” to “address the
concerns of the affected Indian tribes” and “minimize the
adverse effects on the affected Indian tribes resulting from
mining and related activities,” id. § 539p(c)(3)(B), (B)(i),
(B)(ii).
The Secretary of Agriculture must also prepare an
environmental impact statement under the National
Environmental Policy Act of 1969. See id. § 539p(c)(9)(B).
This impact statement will guide any further federal
government decisions on permitting and other approvals
necessary for any development of the transferred land. See
id. To that end, the impact statement must “assess the effects
of the mining and related activities on the Federal land
conveyed to Resolution Copper under [the Land Exchange
Provision] on the cultural and archeological resources that
standards of the Attorney General of the United States applicable to land
acquisitions by the Federal Government”).
12 APACHE STRONGHOLD V. UNITED STATES
may be located on [that] land” and “identify measures that
may be taken, to the extent practicable, to minimize potential
adverse impacts on those resources.” Id. § 539p(c)(9)(C)(i),
(ii).
Last, after the Department of Agriculture and Resolution
Copper complete the Land Exchange, the Land Exchange
Provision prohibits Resolution Copper from mining on
Apache Leap and obligates Resolution Copper to surrender
all rights to mine on or extract minerals from that land. See
id. § 539p(g)(3). Apache Leap will be designated the
“Apache Leap Special Management Area” with the goal of
preserving the area’s “natural character” and “cultural and
archeological resources” and protecting the “traditional uses
of the area by Native American people.” Id. § 539p(g)(1),
(2).
C. Administrative and Procedural History
In the years since Congress passed the Land Exchange
Provision, the Forest Service has engaged in a consultation
process with the public and with American Indian tribes.
The Forest Service held eleven public meetings and accepted
public comments for 120 days. Over that period, the Forest
Service received nearly 30,000 comments. Government
officials also met with American Indian tribes on dozens of
occasions between 2003 and 2020.
Separately, Resolution Copper has also collaborated
with Apache tribe members to conduct a series of surveys
that identified 6,906 “salvage locations” in Oak Flat,
including 6,871 plant salvage locations, 9 animal salvage
locations, and 26 mineral salvage locations. Resolution
Copper has committed to removing and relocating the
relevant articles from the salvage locations and preserving
them at another location. Still, these consultation processes
APACHE STRONGHOLD V. UNITED STATES 13
and mitigation measures were not enough to reach a solution
that satisfied all parties. This lawsuit stands as evidence of
this lack of success.
After these consultations, the Forest Service was
scheduled to publish its final environmental impact
statement on January 15, 2021. But several days before that
scheduled publication date, Apache Stronghold filed this
lawsuit, alleging that the Land Exchange violates RFRA, the
Free Exercise Clause, and certain trust duties that Apache
Stronghold argues were created by the 1852 Treaty of Santa
Fe between the U.S. government and the Apache. 4 Two days
after that, Apache Stronghold filed a motion for a temporary
restraining order and for a preliminary injunction to prevent
the Land Exchange. The district court denied the temporary
restraining order, reasoning that Apache Stronghold “could
not show immediate and irreparable injury,” and ordered
Apache Stronghold’s motion for a preliminary injunction to
be fully briefed. Apache Stronghold, 519 F. Supp. 3d at 597.
After a full round of briefing on Apache Stronghold’s
motion for a preliminary injunction, the district court held a
three-hour hearing, accepted documentary evidence, and
heard testimony from witnesses on Apache Stronghold’s
behalf. After considering the evidence and the parties’
arguments, the district court denied Apache Stronghold’s
motion. See id. at 611. As relevant here, the district court
found that Apache Stronghold was unlikely to succeed on its
claims under RFRA, the Free Exercise Clause, or the 1852
4
Apache Stronghold also brought claims under the Fifth
Amendment’s Due Process Clause and the First Amendment’s Petition
Clause. Those claims were rejected by the district court and Apache
Stronghold does not appeal those rulings. See Apache Stronghold v.
United States, 519 F. Supp. 3d 591, 609–11 (2021).
14 APACHE STRONGHOLD V. UNITED STATES
Treaty of Santa Fe. See id. at 598–609. Apache Stronghold
appealed, and also moved for an injunction pending appeal.
Separate from this litigation, the Forest Service had
issued its environmental impact statement on-time in
January 2021. But in March 2021, soon after Apache
Stronghold filed its motion for an injunction pending appeal,
the Department of Agriculture ordered the Forest Service to
rescind the environmental impact statement. The
Department of Agriculture explained that the government
needed “additional time” to “understand concerns raised by
Tribes and the public” and to “ensure the agency’s
compliance with federal law.” The Forest Service “cannot
give a precise length of time for completing the reinitiation
of consultation” but estimates that the process will take
“several months.”
Returning to this litigation, a Ninth Circuit motions panel
heard another full round of briefing, including additional
documentary evidence, as to Apache Stronghold’s motion
for an injunction pending appeal. The motions panel
eventually denied that motion, concluding that Apache
Stronghold had again failed to show that it needed
immediate relief to “avoid irreparable harm,” in large part
because the Forest Service expected to take “months” to
complete its revised environmental review. In dissent, Judge
Bumatay disagreed and would have granted Apache
Stronghold an injunction pending our resolution of this
appeal. Apache Stronghold’s appeal then reached this panel
for a decision on the appeal’s merits.
Besides this case, there are two other pending cases
brought by other plaintiffs who hope to prevent the Land
Exchange. Both of these cases were stayed by agreement of
the parties after the Forest Service withdrew its original
environmental impact statement. See Ariz. Mining Reform
APACHE STRONGHOLD V. UNITED STATES 15
Coal. v. U.S. Forest Serv., No. 21-00122 (D. Ariz. Mar. 15,
2021) (order granting, in light of the parties’ joint status
report, a stay “pending the Forest Service’s publication of a
future Final Environmental Impact Statement . . . for the
Resolution Copper Project and Land Exchange); San Carlos
Apache Tribe v. U.S. Forest Serv., No. 21-00068 (D. Ariz.
Mar. 15, 2021) (order granting the parties’ “Joint Motion to
Stay Proceedings”).
II. Standard of Review
We review for an abuse of discretion a district court’s
decision to deny a preliminary injunction but review de novo
any questions of law underlying that decision. See Env’t
Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020).
III. Discussion
A party seeking a preliminary injunction must show that:
1) it is “likely to succeed on the merits”; 2) it is “likely to
suffer irreparable harm in the absence of preliminary relief”;
3) “the balance of equities tips in [its] favor”; and 4) “an
injunction is in the public interest.” 5 Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).
In the district court, Apache Stronghold sought a
preliminary injunction on the grounds that the Land
Exchange violates RFRA, the Free Exercise Clause, and the
trust obligations that Apache Stronghold claims were created
by the Treaty of Santa Fe. The district court denied Apache
Stronghold’s motion, finding that it was unlikely to succeed
on the merits of any of those three claims. See Apache
5
Here, where “the government opposes a preliminary injunction,”
the third and fourth factors “merge into one inquiry.” Porretti v.
Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021).
16 APACHE STRONGHOLD V. UNITED STATES
Stronghold, 519 F. Supp. 3d at 598–609. The district court
did not analyze the other Winter factors. See id. at 611. On
appeal, Apache Stronghold argues both that it is likely to
succeed on the merits of its claims and that the other Winter
factors favor it. Apache Stronghold requests that the Court
reverse and remand for entry of a preliminary injunction.
We have jurisdiction under 28 U.S.C. § 1292, and we affirm
the district court’s decision to deny Apache Stronghold’s
motion for a preliminary injunction upon the grounds given
by the district court.
A. Apache Stronghold’s RFRA Claim
We first address Apache Stronghold’s claim under the
Religious Freedom Restoration Act (again, “RFRA”).
Under RFRA, the federal government may not “substantially
burden” a person’s sincere exercise of religion unless that
burden is both “in furtherance of a compelling governmental
interest” and is “the least restrictive means of furthering
that . . . interest.” 42 U.S.C. § 2000bb-1(a), (b). Congress
passed RFRA in response to the Supreme Court’s decision
in Employment Division, Department of Human Resources
of Oregon v. Smith, 494 U.S. 872 (1990), a case holding that
the Constitution’s Free Exercise Clause “does not relieve an
individual of the obligation to comply with a ‘valid and
neutral law of general applicability.’” Id. at 879 (quoting
United States v. Lee, 455 U.S. 252, 263 n. 3 (1982) (Stevens,
J., concurring in judgment)).
Apache Stronghold primarily argues that the Land
Exchange—by enabling Resolution Copper to mine on Oak
Flat if the company so decides—will render Apache
religious exercise on Oak Flat “impossible” and thus
substantially burden the religious exercise of Apache
APACHE STRONGHOLD V. UNITED STATES 17
Stronghold’s Apache members. 6 Though that argument is
where Apache Stronghold focuses its efforts, Apache
Stronghold also contends that the Land Exchange
substantially burdens its members in another way: by
depriving its members of the “government benefit” of their
present right to access the government-owned land of Oak
Flat and by subjecting its members to the potential penalty
of a trespass lawsuit for entering Oak Flat once it becomes
the private property of Resolution Copper.
The government, for its part, concedes that Apache
Stronghold’s members seek to exercise sincere religious
beliefs by holding ceremonies on Oak Flat, see Apache
Stronghold, 519 F. Supp. 3d at 604, and wisely so. The
government’s only response to Apache Stronghold’s RFRA
claim, at least at this stage of the litigation, is to argue the
Land Exchange would not “substantially burden” Apache
Stronghold under RFRA. 42 U.S.C. § 2000bb-1(b).
We proceed as follows. First, we summarize the binding
Ninth Circuit case law that defines the term “substantially
burden” as used in RFRA. Second, we apply that settled
understanding of the term to the facts of the Land Exchange
and determine whether the Exchange will substantially
burden Apache Stronghold under Apache Stronghold’s
primary RFRA argument. And third, we discuss Apache
Stronghold’s secondary RFRA argument that the Land
Exchange deprives its members of the benefit of access to
6
Apache Stronghold further argues that the Land Exchange violates
RFRA because the “substantial burden” that the Exchange imposes is
unsupported by a compelling governmental interest. The district court
did not address this issue, see Apache Stronghold, 519 F. Supp. 3d at
603–08, and we have no need to do so here.
18 APACHE STRONGHOLD V. UNITED STATES
government land and subjects them to the potential penalty
of trespass lawsuits.
1. The Definition of a “Substantial Burden”
The parties contest what constitutes a substantial burden
under RFRA but fortunately, we do not write on a clean
slate. This Court previously addressed this same question in
Navajo Nation v. United States Forest Service, 535 F.3d
1058 (9th Cir. 2008) (en banc). In Navajo Nation, our en
banc court faced facts that mirror those here. Plaintiffs in
Navajo Nation, several American Indian tribes and
individuals, sued the U.S. Forest Service to enjoin the
Service from allowing a ski resort operating on government
land to use recycled wastewater to make artificial snow for
skiing. See id. at 1063. Like Oak Flat, the site of the ski
resort (a mountain named Humphrey’s Peak) was “sacred in
[the American Indians’] religion” and was a site for religious
ceremonies. Id. Like the Land Exchange, the Forest
Service’s plan in Navajo Nation to permit the ski resort to
use recycled wastewater on Humphrey’s Peak would
indisputably “spiritually contaminate” a sacred area and
inhibit religious ceremonies. Id. And like Apache
Stronghold, the Navajo Nation plaintiffs claimed that the
challenged government action would violate RFRA. See id.Just as the facts in Navajo Nation parallel the facts here,
so do the legal issues. On appeal in Navajo Nation was
whether Forest Service’s proposed plan would create a
“substantial burden” under RFRA. Id. at 1067.
To determine the definition of a “substantial burden”
under RFRA, Navajo Nation turned to RFRA’s text.
RFRA’s stated statutory purpose is to “restore the
compelling interest test as set forth in [two landmark Free
Exercise Clause cases,] Sherbert v. Verner, 374 U.S. 398APACHE STRONGHOLD V. UNITED STATES 19
(1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to
guarantee [that test’s] application in all cases where free
exercise of religion is substantially burdened.” 42 U.S.C.
§ 2000bb(b)(1). (This “compelling interest test” is what we
typically call strict scrutiny, and it requires that any
substantial burden on religion both be “in furtherance of a
compelling governmental interest” and be “the least
restrictive means of furthering that . . . interest.” Id.
§ 2000bb-1(a), (b).)
But Sherbert and Yoder did not only “set forth the
compelling interest test.” Navajo Nation, 535 F.3d at 1069.
These two cases also “define[d] what kind or level of burden
on the exercise of religion is sufficient to invoke” that test—
in other words, what burden counts as a “substantial
burden.” Id. So, because RFRA expressly “restore[d]”
Sherbert and Yoder’s compelling interest test, 42 U.S.C.
§ 2000bb(b)(1), we concluded that Sherbert and Yoder must
“also control [RFRA’s] ‘substantial burden’ inquiry,” the
step that determines whether the compelling interest test
applies to government action in the first place, Navajo
Nation, 535 F.3d at 1069.
Accordingly, to define a “substantial burden” under
RFRA, Navajo Nation looked to the type of burden on
religion that was imposed in Sherbert and in Yoder. In
Sherbert, the Supreme Court held that denying government
benefits on account of religion imposes a substantial burden
on religion. See 374 U.S. at 410. South Carolina thus
violated the Free Exercise Clause by withholding
unemployment benefits from a worker who was fired
because she refused to work on her faith’s day of rest. See
id. In Yoder, the Supreme Court held that imposing a
government penalty on account of religion also imposes a
substantial burden. See 406 U.S. at 213, 234. Wisconsin
20 APACHE STRONGHOLD V. UNITED STATES
thus violated the Free Exercise Clause by fining Amish
parents for violating a state truancy law that required
children to attend school until age sixteen, even though
sending children to high school was “contrary to the Amish
religion.” Id. at 208. So under RFRA, the government
imposes a substantial burden on religion only when the
government action fits within the framework established by
Sherbert and Yoder: “when individuals are forced to choose
between following the tenets of their religion and receiving
a governmental benefit,” as in Sherbert, or when individuals
are “coerced to act contrary to their religious beliefs by the
threat of civil or criminal sanctions,” as in Yoder. Navajo
Nation, 535 F.3d at 1070.
A second textual clue also supports our holding in
Navajo Nation. RFRA explicitly defined numerous terms
but not the phrase “substantial burden.” See 40 U.S.C.
§ 2000bb-2. This omission has a simple explanation:
“substantial burden” already had a well-established
definition in the religious liberty context. The phrase
“substantial burden” is “a term of art . . . previously used in
numerous Supreme Court cases in applying the Free
Exercise Clause.” Navajo Nation, 535 F.3d at 1074–75; see
also Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“The
free exercise inquiry asks whether government has placed a
substantial burden on the observation of a central religious
belief or practice and, if so, whether a compelling
governmental interest justifies the burden.” (citing Yoder,
406 U.S. at 220–21)); Smith, 494 U.S. at 883 (“Under the
Sherbert test, governmental actions that substantially burden
a religious practice must be justified by a compelling
governmental interest.”).
How did the Supreme Court define this “substantial
burden” term of art? By reference to the Sherbert/Yoder
APACHE STRONGHOLD V. UNITED STATES 21
framework. In Jimmy Swaggart Ministries v. Bd. of
Equalization of California, for instance, the Supreme Court
held that a generally applicable tax “impose[d] no
constitutionally significant burden on [the] appellant’s
religious practices or beliefs” because “in no sense has the
State ‘conditioned receipt of an important benefit upon
conduct proscribed by a religious faith, or . . . denied such a
benefit because of conduct mandated by religious belief.’”
493 U.S. 378, 391–92 (1990) (quoting Hobbie v.
Unemployment Appeals Comm’n of Florida, 480 U.S. 136,
141 (1987))). Other Free Exercise cases echoed this
understanding of when the Free Exercise Clause applies—in
other words, this understanding of when the government has
created a substantial burden. 7 See, e.g., Thomas v. Rev. Bd.
of Indiana Emp. Sec. Div., 450 U.S. 707, 717–18 (1981)
(“Where the state conditions receipt of an important benefit
upon conduct proscribed by a religious faith, or where it
denies such a benefit because of conduct mandated by
religious belief . . . a burden upon religion exists. While the
compulsion may be indirect, the infringement upon free
exercise is nonetheless substantial.”). With this background
in mind, Navajo Nation’s conclusion about the meaning of
“substantial burden” is even stronger. Where, as here, a
statute does not expressly define a term of settled meaning,
courts “must infer . . . that Congress means to incorporate
the established meaning of that term.” NLRB v. Town &
Country Elec., Inc., 516 U.S. 85, 94 (1995) (quoting
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322
(1992)). Guided by this mandate, Navajo Nation recognized
that the Supreme Court’s settled definition of a “substantial
7
While some of these cases refer to “conditioning receipt” of a
benefit and “den[ying]” a benefit, e.g. Thomas, 450 U.S. at 717, rather
than conditioning the receipt of a benefit or imposing a penalty, see
Navajo Nation, 535 F.3d at 1070, denying a benefit and imposing a
penalty are two sides of the same coin.
22 APACHE STRONGHOLD V. UNITED STATES
burden” in the Free Exercise context—a burden within the
Sherbert/Yoder framework—governs that same phrase’s
meaning under RFRA.
Navajo Nation drew further support from Lyng v.
Northwest Indian Cemetery Protective Association, 485 U.S.
439 (1988) and Bowen v. Roy, 476 U.S. 693 (1986), two Free
Exercise Clause cases that asked and answered essentially
the same question that we ask here: what constitutes a
“substantial burden” on religion? In Lyng, a group of
American Indians challenged a federal plan to build a road
over, and permit logging on, land those American Indians
held sacred. See 485 U.S. at 441–42. The challengers
claimed that the planned construction would “physically
destroy the environmental conditions and the privacy
without which the [American Indian] religious practices
[could not] be conducted.” Id. at 449. In Bowen, the
petitioners challenged a federal statute that required state
agencies to use social security numbers to identify welfare
benefit recipients; according to the challengers’ American
Indian religion, assigning a numerical identifier to their
daughter would rob her of “spiritual power.” See 476 U.S.
at 695–96. But the petitioners in neither Lyng nor Bowen
had stated a valid Free Exercise claim because in “neither
case . . . would the affected individuals be coerced by the
Government’s action into violating their religious beliefs;
nor would either governmental action penalize religious
activity by denying any person an equal share of the rights,
benefits, and privileges enjoyed by other citizens.” Lyng,
485 U.S. at 449; see Bowen, 476 U.S. at 700. This was true,
the Supreme Court held, even if the government’s action in
Lyng would “virtually destroy the . . . Indians’ ability to
practice their religion.” 485 U.S. at 451. Lyng and Bowen
thus confirmed that a “substantial burden” in the Free
Exercise context consists only of those government actions
APACHE STRONGHOLD V. UNITED STATES 23
that fall within the Sherbert/Yoder framework—actions that
impose a penalty or deny a benefit—no matter how
otherwise burdensome the government might be. 8 The same
must be true for substantial burdens under RFRA, given that
“Sherbert, Yoder, and federal court rulings prior to Smith”—
that is, rulings like Lyng and Bowen—“control [RFRA’s]
‘substantial burden’ inquiry.” Navajo Nation, 535 F.3d at
1069.
To summarize, Navajo Nation held that a “substantial
burden” under RFRA consists only of burdens within the
Sherbert/Yoder framework for three reasons. First, RFRA
by its text “restored” Sherbert, Yoder, their “compelling
interest” test, and their “substantial burden” inquiry, thus
defining a “substantial burden” under RFRA as either of the
burdens present in those two cases. Second, the Supreme
Court has long used the phrase “substantial burden” as a Free
Exercise Clause term of art that meant only the two burdens
within the Sherbert/Yoder framework, and a “substantial
burden” under RFRA must hold that same, settled meaning.
And third, Lyng and Bowen, the cases most factually and
legally analogous to Navajo Nation (and for that matter, to
this case) confirmed that even burdensome government
action does not constitute a “substantial burden” (and thus
does not trigger the “compelling interest” test) if that action
falls outside the Sherbert/Yoder framework.
8
Admittedly, Lyng’s terminology was imprecise. It did not use the
phrase “substantial burden” but instead used different words for the same
idea: the proposed road through the American Indian sacred site did not
impose a “burden on [the American Indians’] religious practices [] heavy
enough to violate the Free Exercise Clause,” or even heavy enough to
“require [the] government to bring forward a compelling justification”
for its plan. 485 U.S. at 447, 450.
24 APACHE STRONGHOLD V. UNITED STATES
Applying Navajo Nation’s “substantial burden” standard
to that case’s facts, we held that under RFRA the Navajo
suffered no “substantial burden” on their religion and thus
had no RFRA claim against the Forest Service. See id. at
1070. To the Navajo, the Forest Service’s decision to permit
wastewater on Humphrey’s Peak would “spiritually
desecrate a sacred mountain.” Id. But that government
decision lay outside the Sherbert/Yoder framework to which
RFRA applies. The Forest Service did not “coerce the
[Navajo] to act contrary to their religion” by imposing a
penalty or denying a governmentally granted benefit when it
authorized the ski resort to use wastewater on the peaks. Id.
The Service thus imposed no substantial burden under
RFRA. See id. This was so, we held, “[e]ven were we to
assume . . . that the government action in this case will
‘virtually destroy the . . . [Navajo’s] ability to practice their
religion.’” Id. at 1072 (quoting Lyng, 485 U.S. at 451).
Where there is no substantial burden, there is no ground to
apply the “compelling interest” test, and thus no RFRA
violation—no matter how dire the practical consequences of
a government policy or decision. Any other result would be
inconsistent with RFRA’s text and with the Supreme Court’s
understanding of what constitutes a substantial burden on
religious exercise.
While Navajo Nation’s “substantial burden” holding has
firm doctrinal roots, we noted further that our holding there
also has a strong practical basis. Were the scope of a
substantial burden under RFRA broader than the
Sherbert/Yoder framework, “any action the federal
government were to take, including action on its own land,
would be subject to the personalized oversight of millions of
citizens.” Id. at 1063. And in the specific factual context of
Navajo Nation—federal land use decisions—“giving one
religious sect a veto over the use of public park land would
APACHE STRONGHOLD V. UNITED STATES 25
deprive others of the right to use what is, by definition, land
that belongs to everyone.” Id. at 1063–64.
2. Apache Stronghold’s Primary RFRA Argument
With this background in mind, we turn to Apache
Stronghold’s arguments. Apache Stronghold’s main
argument is that the Land Exchange would hand Oak Flat
over to Resolution Copper for the latter’s mining plan, thus
incidentally making it “impossible” for Apache
Stronghold’s members to worship on Oak Flat and thereby
substantially burdening them. Even assuming that the Land
Exchange would in fact make Apache Stronghold’s
members worship “impossible,” this argument cannot
succeed in light of Navajo Nation.
The Land Exchange’s effect on Apache Stronghold’s
members falls outside of the Sherbert/Yoder framework and
thus outside of RFRA’s definition of a substantial burden.
Under RFRA, the government imposes a substantial burden
on religion in two—and only two—circumstances: when the
government “force[s individuals] to choose between
following the tenets of their religion and receiving a
governmental benefit” and when the government “coerce[s
individuals] to act contrary to their religious beliefs by the
threat of civil or criminal sanctions.” Id. at 1070. Here, the
government will do neither by transferring Oak Flat to
Resolution Copper. No government benefits will be lost (as
in Sherbert) nor will governmental penalties be imposed (as
in Yoder). The Department of Agriculture will simply
transfer ownership of a plot of government land to
Resolution Copper. The Land Exchange’s “incidental
effects” on the religious exercise of Apache Stronghold’s
members, as significant as they may be to the Apache, “may
make it more difficult [for them] to practice [their religion]
but [will] have no tendency to coerce [the Apache] into
26 APACHE STRONGHOLD V. UNITED STATES
acting contrary to their religious beliefs.” Lyng, 485 U.S. at450–51. Hence, under RFRA the Land Exchange imposes
no substantial burden and RFRA thus does not limit the
government’s ability to complete the Land Exchange.
This is true even if the Land Exchange makes worship
on Oak Flat “impossible.” The government makes exercises
of religion more difficult all the time. Doing so is not
inherently coercive. As one example, the United States has
a special visa program for “[m]inisters of [r]religion.” See
Visas for Immigrant Religious Workers, U.S. Dep’t of State,
https://travel.state.gov/content/travel/en/us-visas/immigrate/
visa-religious-workers.html (last visited June 15, 2022).
When the government denies one of these visas, the
government no doubt makes it more difficult for that
minister’s following to exercise their faith. But the visa
denial does not coerce those followers by threatening them
with a negative outcome (i.e., a penalty or the denial of a
governmental benefit) if they continue to worship despite
that hardship. So too here: the Land Exchange does not
coerce the Apache to abandon their religion by threatening
them with a negative outcome. Accordingly, Apache
Stronghold’s members have not established that they would
suffer a substantial burden under RFRA. Apache Stronghold
is not likely to succeed on its RFRA claim.
Between them, Apache Stronghold and the dissent offer
three arguments in response. First, the dissent argues that
Navajo Nation misread RFRA and should have held that the
definition of a “substantial burden” under RFRA extends
beyond the Sherbert/Yoder framework. Second, both the
dissent and Apache Stronghold contend that Navajo Nation
contains exceptions that permit the panel to find a substantial
burden here. And third, the dissent would hold that
intervening Supreme Court precedent since Navajo Nation
APACHE STRONGHOLD V. UNITED STATES 27
is “clearly irreconcilable” with Navajo Nation, permitting
the panel to disregard Navajo Nation in its entirety. Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). None
of these responses persuades us.
The dissent first argues that Navajo Nation misread
RFRA in concluding that RFRA defines a “substantial
burden” as those burdens falling within the Sherbert/Yoder
framework. As an initial matter, our en banc decision in
Navajo Nation binds this panel—we cannot overrule Navajo
Nation even if we do not agree with it. See Robbins v. Carey,
481 F.3d 1143, 1149 n.3 (9th Cir. 2007). But even
considering the points that the dissent raises as grounds for
overruling Navajo Nation, we find them unconvincing.
At the outset, the dissent contends that RFRA was not
“concern[ed]” with defining a “substantial burden” but
instead with “ensuring that the compelling interest standard
would be applied once a substantial burden had been
demonstrated.” Dissent at 61. In support, the dissent notes
that RFRA “offers no definition” of a “substantial burden.”
Id.We do not agree. The two cases that RFRA explicitly
cited and “restored”—Sherbert and Yoder—both defined the
“compelling interest” test and set out the two burdens that
satisfy the predicate “substantial burden” inquiry: a penalty
imposed and a governmental benefit denied. Navajo Nation,
535 F.3d at 1069. Moreover, the phrase “substantial burden”
was not defined in RFRA’s text but was a term of art in Free
Exercise Clause doctrine that referred to those same two
burdens set out in Sherbert and Yoder. See id. at 1074. With
this background in mind, the best reading of RFRA’s text is
that RFRA “restore[d]” both Sherbert and Yoder’s
“compelling interest” test and their “substantial burden”
inquiry. 42 U.S.C. § 2000bb(b)(1). RFRA both explicitly
28 APACHE STRONGHOLD V. UNITED STATES
adopted Sherbert and Yoder’s “compelling interest” test and,
in the same sentence, used the term of art “substantial
burden,” a related concept also based on those two cases. Id.
It would make no sense for RFRA to do all of this, only to
silently reject the definition that those same two cases gave
that same term of art. We thus have no need to concoct our
own definition of a “substantial burden,” distinct from the
one that Congress chose.
The dissent also argues that Navajo Nation’s “substantial
burden” definition “lacks a basis in pre-Smith precedent.”
Dissent at 64. Not so. The dissent has identified some cases
where courts may have suggested that Free Exercise Clause
violations could fall outside of the Sherbert/Yoder
“substantial burden” framework. But the two cases that
RFRA specifically “restore[d]” and cited in its very text
were indeed Sherbert and Yoder. 42 U.S.C. § 2000bb(b)(1).
Relying on that statutory text, Navajo Nation rightly focused
on the burdens on religion imposed in those two cases.
Moreover, the cases that the dissent cites all predate Lyng,
which confirmed that under Free Exercise doctrine, the
Sherbert/Yoder framework defines the scope of a
“substantial burden.” See Lyng, 485 U.S. at 449 (noting that
the government imposes no substantial burden unless
“affected individuals [are] coerced by the Government’s
action into violating their religious beliefs” or
“governmental action penalize[s] religious activity by
denying any person an equal share of the rights, benefits, and
privileges enjoyed by other citizens”). Before Lyng made
this clear, it is perhaps not surprising that Free Exercise cases
occasionally diverged from that framework.
Further, and as noted above, the Supreme Court’s post-
Lyng but pre-Smith Free Exercise doctrine reinforces Navajo
Nation’s understanding of the scope of a “substantial
APACHE STRONGHOLD V. UNITED STATES 29
burden.” Pre-Smith, the Free Exercise Clause applied only
when the government “placed a substantial burden” on
religious exercise. Hernandez, 490 U.S. at 699. And a
“substantial burden” referred only to burdens within the
Sherbert/Yoder framework. See Lyng, 485 U.S. at 449;
Jimmy Swaggart Ministries, 493 U.S. at 391–92.
With the above in mind, we also reject the dissent’s
suggestion that Navajo Nation “constricted” the definition of
a “substantial burden” relative to pre-Smith Free Exercise
Clause doctrine. Dissent at 67. As just shown, and setting
aside the potential outliers that the dissent identified, pre-
Smith Free Exercise Clause doctrine already defined a
“substantial burden” as only those burdens that fall within
the Sherbert/Yoder framework: coercion caused by the
government either imposing a penalty or denying a benefit.
See Lyng, 485 U.S. at 449; Jimmy Swaggart Ministries, 493
U.S. at 391–92. So, when Navajo Nation recognized that
this same framework also defines the scope of a “substantial
burden” under RFRA, Navajo Nation did not narrow or
constrict the definition of a “substantial burden.” Rather,
Navajo Nation stayed faithful to a substantial burden’s
already settled scope.
The dissent also points to the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc et seq, as evidence that “the definition of
‘substantial burden’ [under RFRA] includes the denial of
access to religious locations and resources.” Dissent at 69.
RLUIPA imposes RFRA’s “compelling interest” test on
substantial burdens on religion in two specific contexts:
prison and local land use regulation. See 42 U.S.C.
§§ 2000cc, 2000cc-1.
Yet we disagree with the dissent here too: RLUIPA’s
definition of a “substantial burden” casts no doubt on how
30 APACHE STRONGHOLD V. UNITED STATES
Navajo Nation defined that term as to RFRA. We have
previously interpreted a “substantial burden” under RLUIPA
to be defined not by the Sherbert/Yoder framework but by
the “plain meaning” of the phrase “substantial burden.” San
Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,
1034 (9th Cir. 2004). But unlike RFRA, RLUIPA’s text
does not even mention, much less cite, either Sherbert or
Yoder. Compare 42 U.S.C. §§ 2000cc, 2000cc-1, with id.
§ 2000bb. So Navajo Nation’s key inference—that a
“substantial burden” under RFRA is defined by the burdens
in Sherbert and Yoder—does not carry over to RLUIPA.
While a “substantial burden” under RLUIPA is defined by
the “plain meaning” of the phrase “substantial burden,” San
Jose Christian Coll, 360 F.3d at 1034, Navajo Nation
correctly held otherwise as to RFRA.
The dissent also equates the two contexts covered by
RLUIPA—prisons and local land regulation—to situations
involving “Native American sacred sites located on
government land.” Dissent at 62. In all three contexts, the
dissent contends, the government substantially burdens
religion by “denying access” to “religious locations and
resources.” Id. at 63. But while RLUIPA covers the first
two contexts (again, prisons and local land regulation), the
third context—the context actually at issue here—falls to
RFRA. Compare 42 U.S.C. §§ 2000cc, 2000cc-1, with id.
§ 2000bb-1. RFRA’s definition of a “substantial burden”
thus governs here, regardless what the dissent’s RLUIPA
cases say, because the Land Exchange involves neither
prisons nor local land regulation. See also Navajo Nation,
535 F.3d at 1077 (“RLUIPA is inapplicable to this case . . . .
RLUIPA applies only to government land-use regulations of
private land—such as zoning laws—not to the government’s
management of its own land.”). For all these reasons, we
APACHE STRONGHOLD V. UNITED STATES 31
reject the dissent’s argument that Navajo Nation misread the
scope of a “substantial burden” under RFRA.
Second, Apache Stronghold and the dissent both argue
that even under Navajo Nation, the Land Exchange may
substantially burden religious exercise. Both reach this
conclusion two ways. Neither approach persuades us.
They first seize onto a statement from Navajo Nation that
any “burden imposed on the exercise of religion short of that
described by Sherbert and Yoder is not a ‘substantial burden’
within the meaning of RFRA,” 535 F.3d at 1070 (emphasis
added), and argue that the Land Exchange constitutes a
substantial burden because it imposes a “greater burden on
religious exercise” than that imposed in Yoder or Sherbert.
Dissent at 71. Shorn of context, the “short of” phrase to
which the dissent and Apache Stronghold point might
conceivably support their interpretation. But considered
with the rest of the opinion, that phrase does not.
Properly understood, Navajo Nation did not set out a
quantitative floor for a “substantial burden” such that all
“greater” burdens qualify. Rather, Navajo Nation singled
out two specific qualitative burdens—denying a benefit or
imposing a penalty—that together form the complete
universe of “substantial burdens” under RFRA. For
evidence, look no farther than the sentence immediately
before the “short of” phrase, which reads: “Under RFRA, a
‘substantial burden’ is imposed only when individuals are
forced to choose between following the tenets of their
religion and receiving a governmental benefit (Sherbert) or
coerced to act contrary to their religious beliefs by the threat
of civil or criminal sanctions (Yoder).” Navajo Nation, 535
F.3d at 1069–70 (emphasis added). Further proving this
point, immediately after the “short of” phrase Navajo Nation
applies the test that it announced in the preceding sentences:
32 APACHE STRONGHOLD V. UNITED STATES
“[T]here is no ‘substantial burden’ on the Plaintiffs’ exercise
of religion in this case. The [challenged government action]
does not force the Plaintiffs to choose between following the
tenets of their religion and receiving a governmental benefit,
as in Sherbert. The [challenged action] also does not coerce
the Plaintiffs to act contrary to their religion under the threat
of civil or criminal sanctions, as in Yoder.” Id. at 1070.
Navajo Nation did not further ask if the Forest Service had
imposed a burden greater than that imposed in Sherbert or
Yoder, reinforcing that such a step is not necessary. Other
passages in Navajo Nation similarly belie the dissent and
Apache Stronghold’s reading of the case. 9 Accurately read,
Navajo Nation recognized that the government imposes a
substantial burden under RFRA only when the government
denies the delivery of a benefit (as in Sherbert) or imposes a
penalty (as in Yoder). The “short of” language did not
change the character or type of government action that is
required to constitute a “substantial burden” under RFRA.
Apache Stronghold and the dissent contend also that both
Navajo Nation and Lyng are limited to cases where the
government action would interfere with “subjective spiritual
experience,” not cases where the government “objectively
and severely interfere[s] with a plaintiff’s access to religious
locations or resources.” Dissent at 72 (quoting Navajo
Nation, 535 F.3d at 1063). (Apache Stronghold’s
9
See, e.g., Navajo Nation, 535 F.3d. at 1075 (“In the pre-Smith cases
adopted in RFRA, the Supreme Court has found a substantial burden on
the exercise of religion only when the burden fell within the
Sherbert/Yoder framework.”) (emphasis added); id. at 1067 (“The
presence of recycled wastewater on the Peaks does not coerce the
Plaintiffs to act contrary to their religious beliefs under the threat of
sanctions, nor does it condition a governmental benefit upon conduct that
would violate their religious beliefs, as required to establish a
‘substantial burden’ on religious exercise under RFRA.” (emphasis
added)).
APACHE STRONGHOLD V. UNITED STATES 33
formulation of the same idea is that Navajo Nation and Lyng
do not apply to cases involving a “physical impact” on land.)
Because Resolution Copper’s mining plan would have such
an “objective” or “physical” impact here, they argue that
Navajo Nation and Lyng do not control. True enough, in
dicta, Navajo Nation pointed out that the challenged
government action would not make any “places of
worship . . . inaccessible” or physically affect any “religious
ceremonies.” 535 F.3d at 1063. Similarly, dicta in Lyng
states that “[n]o sites where specific rituals take place were
to be disturbed.” 485 U.S. at 454. But neither case is as
narrow as the dissent and Apache Stronghold suggest.
Neither Navajo Nation nor Lyng turned on whether the
challenged government action “objectively” interfered with
religious exercise or “physically” affected sacred land. The
rule that Navajo Nation drew from RFRA’s text and from
“Sherbert, Yoder, and federal court rulings prior to Smith”
was clear: “Under RFRA, a ‘substantial burden’ is imposed
only when individuals are forced to choose between
following the tenets of their religion and receiving a
governmental benefit (Sherbert) or coerced to act contrary
to their religious beliefs by the threat of civil or criminal
sanctions (Yoder).” Id. at 1069–70 (emphasis added). This
rule contains no exception for when the government neither
imposes a penalty nor denies a benefit but “objectively” or
“physically” interferes with religious exercise.
A close examination of the claimed burden on religion in
Lyng further refutes the dissent and Apache Stronghold’s
argument. It was true that “[n]o sites where specific rituals
take place were to be disturbed.” Lyng, 485 U.S. at 454. But
those opposed to the government action argued that “the
proposed road w[ould] ‘physically destroy the
environmental conditions and the privacy without which the
34 APACHE STRONGHOLD V. UNITED STATES
[American Indian] religious practices [could not] be
conducted.’” Id. at 449. And even so—despite this
“objective,” “physical” impact that could “virtually destroy”
the American Indians’ “ability to practice their religion,” the
Supreme Court found no substantial burden there. 10 See id.In sum, we cannot differentiate between physical and
intangible damage to religious sites as Apache Stronghold
asks because the Sherbert/Yoder framework turns on the
nature of government action, not on the severity of the
government’s encroachment on a religious site. See Lyng,
485 U.S. at 451 (noting that the substantial burden inquiry
“cannot depend on measuring the effects of a governmental
action” on religious exercise”); Navajo Nation, 535 F.3d at1070 n.12 (“[I]n Yoder, it was not the effect . . . on the
children’s subjective religious sensibilities that constituted
the undue burden on the free exercise of religion. Rather, the
undue burden was the penalty of criminal sanctions on the
parents.”); accord Burwell v. Hobby Lobby Stores, Inc., 573
U.S. 682, 723–24 (2014) (noting that courts have “have no
business addressing” whether the RFRA substantial burden
analysis changes if a religious adherent would only be forced
10
Apache Stronghold also notes that in Lyng, the Supreme Court
remarked that “a law prohibiting the Indian [plaintiffs] from visiting the
Chimney Rock area would raise a different set of constitutional
questions.” 485 U.S. at 453. But the full sentence reads: “The
Constitution does not permit government to discriminate against
religions that treat particular physical sites as sacred, and a law
prohibiting the Indian respondents from visiting the [sacred] area would
raise a different set of constitutional questions.” Id. Context thus makes
clear that the Court was referring to discriminatory prohibitions on
access. And even if Apache Stronghold were right that a non-
discriminatory access prohibition raises a “different set” of legal
questions than those covered in Lyng, Navajo Nation answers those
questions. Again, unless the government imposes a penalty or denies a
benefit, the government imposes no substantial burden under RFRA. See
Navajo Nation, 535 F.3d at 1069–70.
APACHE STRONGHOLD V. UNITED STATES 35
to participate in a religiously prohibited act in an
“attenuated” way).
If any doubts about Navajo Nation’s meaning survive the
arguments above, the many Ninth Circuit cases that have
applied Navajo Nation put those doubts to rest. These
cases—including one written by the author of the dissent—
betray no confusion about Navajo Nation’s “substantial
burden” holding: “Under RFRA, a ‘substantial burden’ is
imposed only when individuals are forced to choose between
following the tenets of their religion and receiving a
governmental benefit . . . or coerced to act contrary to their
religious beliefs by the threat of civil or criminal sanctions.”
Fazaga v. Fed. Bureau of Investigation, 965 F.3d 1015, 1061
(9th Cir. 2020) (Berzon, J.) (emphasis added) (quoting
Navajo Nation, 535 F.3d at 1069–70), rev’d on other
grounds by 142 S. Ct. 1051 (2022). 11
11
See also Does v. Wasden, 982 F.3d 784, 794 n.3 (9th Cir. 2020)
(“Under RFRA, by contrast, ‘a “substantial burden” is imposed only
when individuals are forced to choose between following the tenets of
their religion and receiving a governmental benefit . . . or are coerced to
act contrary to their religious beliefs by the threat of civil or criminal
sanctions.’” (quoting Navajo Nation, 535 F.3d at 1069–70)); Oklevueha
Native Am. Church of Hawaii, Inc. v. Lynch, 828 F.3d 1012, 1016 (9th
Cir. 2016) (“[W]e have held that a substantial burden under RFRA exists
in a context such as this one ‘only when individuals are . . . coerced to
act contrary to their religious beliefs by the threat of civil or criminal
sanctions . . . .’” (quoting Navajo Nation, 535 F.3d at 1070)); Ruiz-
Diaz v. United States, 703 F.3d 483, 486 (9th Cir. 2012) (“We have held
that the government imposes a substantial burden ‘only when individuals
are forced to choose between following the tenets of their religion and
receiving a governmental benefit or coerced to act contrary to their
religious beliefs by the threat of civil or criminal sanctions.’” (quoting
Navajo Nation, 535 F.3d at 1070)); Snoqualmie Indian Tribe v. FERC,
545 F.3d 1207, 1214–15 (9th Cir. 2008) (“[W]e have not found any
evidence demonstrating that Snoqualmie Tribe members will lose a
36 APACHE STRONGHOLD V. UNITED STATES
As the dissent notes, none of these post-Navajo Nation
cases addressed the precise facts at issue here. Dissent at 72
n.4. None need have. RFRA defined a “substantial burden”
according to the Sherbert/Yoder framework. See Navajo
Nation, 535 F.3d at 1069–70. This is an across-the-board
definition that applies in all cases under the statute, not a
“restricted railroad ticket, good for th[at] day and train only.”
Smith v. Allwright, 321 U.S. 649, 669 (Roberts, J.,
dissenting) (1944). And dispositive here, this definition
contains no exceptions for burdens on religion thought to be
quantitatively “greater” than the burdens in Sherbert and
Yoder or for burdens that neither impose a penalty nor deny
a benefit but “objectively” or “physically” interfere with
religious exercise in an incidental way.
Apache Stronghold (but not the dissent) also points to a
scattered set of cases that apply a definition of “substantial
burden” in a manner broader than the Sherbert/Yoder
framework. 12 But for a variety of reasons, these cases do not
government benefit or face criminal or civil sanctions for practicing their
religion. We therefore hold that . . . FERC’s decision relicensing the
project . . . does not impose a substantial burden under RFRA on the
tribal members’ ability to exercise their religion, as we have defined
substantial burden in Navajo Nation.”).
12
Apache Stronghold also argues briefly that RFRA’s legislative
history supports its reading of the statute. Regardless whether legislative
history is a valid tool of statutory interpretation, neither House reports
nor “discussion in Congress” can overcome RFRA’s clear text and
explicit statutory purpose, as applied in Navajo Nation. See 42 U.S.C.
§ 2000bb(b); Navajo Nation, 535 F.3d at 1069–70 (“Under RFRA, a
‘substantial burden’ is imposed only when individuals are forced to
choose between following the tenets of their religion and receiving a
governmental benefit (Sherbert) or coerced to act contrary to their
religious beliefs by the threat of civil or criminal sanctions (Yoder).”).
And in any event, other legislative history, were we to consider it,
APACHE STRONGHOLD V. UNITED STATES 37
affect our interpretation of Navajo Nation. As an initial
matter, even were courts from other circuits to take
approaches different than ours in Navajo Nation, Navajo
Nation binds this panel and this Circuit. 13 But turning to the
substance of the in-circuit cases that Apache Stronghold
cites, they either interpret RFRA but predate Navajo
Nation 14 or interpret not RFRA but RLUIPA instead. 15 To
the extent our pre-Navajo Nation RFRA cases defined a
“substantial burden” differently than did Navajo Nation, our
later en banc decision in Navajo Nation controls. See
Robbins, 481 F.3d at 1149 n.3. And the RLUIPA cases are
similarly unpersuasive. As we have explained, we have
interpreted RFRA and RLUIPA to apply different
substantial burden standards. Compare Navajo Nation, 535
F.3d at 1069–70 (“Under RFRA, a ‘substantial burden’ is
supports the government’s position instead. See S. Rep. No. 103-111, at
9 (1993) (“[P]re-Smith case law makes it clear that strict scrutiny does
not apply to government actions involving only management of internal
Government affairs or the use of the Government’s own property or
resources.” (emphasis added)).
13
As a three-judge panel, we are bound by circuit precedent like
Navajo Nation. See Robbins, 481 F.3d at 1149 n.3. We thus cannot rely
on conflicting out-of-circuit cases like Comanche Nation v. United
States, No. 08-00849, 2008 WL 4426621 (W.D. Okla. Sept. 23, 2008),
and Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).
14
See, e.g., United States v. Antoine, 318 F.3d 919 (9th Cir. 2003);
Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997).
15
See, e.g., Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022); Jones
v. Slade, 23 F.4th 1124 (9th Cir. 2022); Int’l Church of Foursquare
Gospel v. City of San Leandro, 673 F.3d 1059 (9th Cir. 2011); Greene v.
Solano Cnty. Jail, 513 F.3d 982 (9th Cir. 2008); Guru Nanak Sikh Soc’y
of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006);
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); San Jose
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004).
38 APACHE STRONGHOLD V. UNITED STATES
imposed only when individuals are forced to choose between
following the tenets of their religion and receiving a
governmental benefit (Sherbert) or coerced to act contrary
to their religious beliefs by the threat of civil or criminal
sanctions (Yoder).”), with San Jose Christian Coll., 360 F.3d
at 1035 (holding that under RLUIPA, the government
imposes a “substantial burden” on religion when it “imposes
a ‘significantly great’ restriction or onus” on religious
exercise). Apache Stronghold’s RLUIPA cases thus give us
no guidance for how to interpret the phrase “substantial
burden” under RFRA. 16
Last, the dissent argues that Navajo Nation is “clearly
irreconcilable” with recent Supreme Court precedent,
allowing the panel to ignore Navajo Nation entirely. Dissent
at 74 (quoting Miller, 335 F.3d at 900). Miller does permit
Ninth Circuit panels to treat as “effectively overruled” any
Ninth Circuit cases that are “clearly irreconcilable” with
“intervening Supreme Court authority.” 335 F.3d at 900.
But the “‘clearly irreconcilable’ requirement ‘is a high
standard.’” Fed. Trade Comm’n v. Consumer Def., LLC, 926
F.3d 1208, 1213 (9th Cir. 2019) (quoting Rodriguez v. AT &
T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013)).
If, as a panel, “we can apply our precedent consistently with
that of the higher authority, we must do so.” Consumer Def.,
926 F.3d at 1213.
In our view, Navajo Nation is fully reconcilable with the
Supreme Court’s recent cases. The dissent highlights
16
Apache Stronghold responds to this point by claiming that RFRA
and RLUIPA impose the “same standard.” Holt v. Hobbs, 574 U.S. 352,
358 (2015) (quoting Gonzales v. O Centro Espírita Beneficente Uniõ do
Vegetal, 546 U.S. 418, 436 (2006)). We address this point below. See
post at 39–40.
APACHE STRONGHOLD V. UNITED STATES 39
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014),
Holt v. Hobbs, 574 U.S. 352 (2015), and Ramirez v. Collier,
142 S. Ct. 1264 (2022). To this list we add Tanzin v. Tanvir,
141 S. Ct. 486 (2020), a case that Apache Stronghold cites,
and Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017). When we compare these cases to
Navajo Nation, we do not see any clear irreconcilability.
Turning first to Hobby Lobby, that case does not
contradict Navajo Nation’s “substantial burden” holding.
Hobby Lobby held that closely held corporations can
maintain a RFRA claim but it provided no comprehensive
definition of “substantial burden.” See 573 U.S. at 719. In
fact, Hobby Lobby framed a substantial burden in precisely
the way Navajo Nation did: Hobby Lobby suffered a
substantial burden because it would have had to “pay an
enormous sum of money” to the government—a government
penalty—“if [it] insist[ed] on providing insurance coverage
in accordance with their religious beliefs.” Id. at 726.
As the dissent rightly notes, Hobby Lobby made clear
that RFRA claims need not perfectly track pre-Smith Free
Exercise doctrine in every single way. RFRA plaintiffs are
not limited to those who “fell within a category of plaintiffs
[who] had brought a free-exercise claim that [the Supreme]
Court entertained in the years before Smith” because RFRA
did not “merely restore[ the Supreme] Court’s pre-Smith
decisions in ossified form.” Id. at 715–16.
But Navajo Nation did not assume otherwise. Rather,
Navajo Nation observed that RFRA, by its own terms,
“restore[d]” pre-Smith Free Exercise doctrine in a single,
limited way: it incorporated Sherbert and Yoder’s
“compelling interest test” and predicate “substantial burden”
inquiry. 42 U.S.C. § 2000bb(b)(1); Navajo Nation, 535 F.3d
at 1068. So, because “we can apply [Navajo Nation]
40 APACHE STRONGHOLD V. UNITED STATES
consistently with [Hobby Lobby],” “we must do so.”
Consumer Def., 926 F.3d at 1213.
Next is Holt. There, the Supreme Court stated that
RLUIPA “allows prisoners ‘to seek religious
accommodations pursuant to the same standard as set forth
in RFRA.’” 574 U.S. at 358 (quoting Gonzales v. O Centro
Espírita Beneficente Uniõ do Vegetal, 546 U.S. 418, 436
(2006)). From this connection, the dissent argues that
RFRA, like RLUIPA, recognizes a “substantial burden”
“when the government denies access to religious locations
or resources.” Dissent at 64. But we do not read Holt’s dicta
to support the dissent’s position. This quotation from Holt
is best read as applying to the “compelling interest” test—
that is, the stage of the RFRA (and RLUIPA) analysis at
which individuals “seek religious accommodations” and
have those accommodations assessed against the
government’s justification—not as applying to the predicate
“substantial burden” stage. The dissent seems to recognize
this nuance as well, observing that “RLUIPA sets forth the
‘same standard’ for evaluating governmental justifications
for imposing substantial burdens on religion as RFRA—
strict scrutiny.” Dissent at 68–69.
Further, the actual “substantial burden” standard that
Holt applied matches the Sherbert/Yoder framework almost
perfectly. Holt challenged a prison grooming policy that
required him to “shave his beard and thus to ‘engage in
conduct that seriously violates his religious beliefs.’” Holt,
574 U.S. at 361 (quoting Hobby Lobby, 573 U.S. at 720). If
Holt violated that policy, he would “face serious disciplinary
action” and the Supreme Court reasoned that “[b]ecause the
grooming policy puts [Holt] to this choice, it substantially
burdens his religious exercise.” Id. The Sherbert/Yoder
“substantial burden” framework includes situations when
APACHE STRONGHOLD V. UNITED STATES 41
individuals are “coerced to act contrary to their religious
beliefs by the threat of civil or criminal sanctions.” Navajo
Nation, 535 F.3d at 1070. The government action in Holt—
requiring a prisoner to violate his religious beliefs or “face
serious disciplinary action,” 574 U.S. at 361—falls squarely
within that framework. So here, too, “we can apply our
precedent consistently with that of the higher authority.”
Consumer Def., 926 F.3d at 1213.
For similar reasons, we dismiss the dissent’s appeal to
Ramirez. First, Ramirez was a RLUIPA case, not a RFRA
case. And more pointedly, the scope of a “substantial
burden” under either statute was explicitly not at issue. The
government “d[id] not dispute that any burden [its] policy
impose[d] on Ramirez’s religious exercise [wa]s
substantial,” and Ramirez accordingly provided no analysis
whatsoever concerning the scope of a substantial burden. 17
142 S. Ct. at 1278. Instead, the Court simply cited Holt,
which (as noted above) framed a “substantial burden”
consistent with those discussed in Navajo Nation. See id.;
ante at 40–41; Holt, 574 U.S. at 361.
Finally, Apache Stronghold points to Tanzin v. Tanvir,
141 S. Ct. 486 (2020), in which the Supreme Court held that
RFRA “permits litigants . . . to obtain money damages
against federal officials in their individual capacities.” Id. at
17
The dissent suggests that both Ramirez’s “locution” and ultimate
outcome in Ramirez’s favor indicate that the Supreme Court agreed with
the government’s waiver on the “substantial burden” issue. Dissent at
70 n.3. The outcome sheds no light here: Ramirez would have also
prevailed had the Court merely accepted the government’s concession.
And as for the Supreme Court’s locution, we take the Court at its word:
the scope of a “substantial burden” on religion was “not [in] dispute” in
Ramirez, 142 S.Ct. at 1278, so Ramirez neither created nor implied a
“substantial burden” rule that can be compared with Navajo Nation’s.
42 APACHE STRONGHOLD V. UNITED STATES
493. If such a citation sounds irrelevant, that’s because it is.
The district court below dismissed the plaintiffs’ RFRA
claims on the sole basis that “RFRA does not permit
monetary relief,” id. at 489; the Supreme Court rejected that
argument without discussing what constitutes a “substantial
burden” under RFRA. True, Tanzin explained that a
“damages remedy . . . is also the only form of relief that can
remedy some RFRA violations” and noted that “[f]or certain
injuries . . . effective relief consists of damages, not an
injunction.” Id. at 492. But that is as far as the case went.
Tanzin did not hold that a “substantial burden” extends
beyond the Sherbert/Yoder framework or even say as much
in dicta.
We also reject the idea that Tanzin implied any
substantial burden holding through its choice of lower-court
cases to cite. Tanzin included a “See, e.g.,” citation to
DeMarco v. Davis, 914 F.3d 383 (5th Cir. 2019), a Free
Exercise Clause case involving a prison officials’
destruction of a prisoner’s personal property—his legal and
religious books. 18 See id. at 389–90. From that citation,
Apache Stronghold divines the principle that the government
can violate RFRA through the “destruction of religious
property,” purportedly including government-owned real
property (i.e., land). But the DeMarco citation supported the
unremarkable proposition that “[f]or certain injuries . . .
effective relief consists of damages, not an injunction.” Id.
at 492. This proposition has nothing to do with what
qualifies as a substantial burden under RFRA. And in any
18
That “See, e.g.,” citation also included Yang v. Sturner, 728 F.
Supp. 845 (D.R.I.), withdrawn 750 F. Supp. 558 (D.R.I. 1990), a Free
Exercise Clause case involving an autopsy of a man whose parents’
religion holds that autopsies “are a mutilation of the body.” 750 F. Supp.
at 558.
APACHE STRONGHOLD V. UNITED STATES 43
event, we are skeptical that the Supreme Court would
revolutionize the scope of a “substantial burden” on
religion—as plainly set out in cases like Lyng—through its
choice of cases in a string citation. If we expect Congress
not to “hide elephants in mouseholes,” Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001), we should hold
the Supreme Court to the same standard.
We also add an overarching consideration that further
supports our conclusion that Navajo Nation and the Supreme
Court’s decisions cited by the dissent can be reconciled. We
must read Hobby Lobby, Holt, Ramirez, and Tanzin in
conjunction with the Supreme Court’s other precedents.
And the Supreme Court reaffirmed as recently as 2017 that
a “substantial burden” on religion is still defined by the
Sherbert/Yoder framework recognized in Navajo Nation. In
Trinity Lutheran Church of Columbia, Inc. v. Comer, the
Supreme Court quoted Lyng’s “substantial burden” rule:
even actions that “would interfere significantly with private
persons’ ability to pursue spiritual fulfillment according to
their own religious beliefs” pose “no free exercise
violation . . . [if] the affected individuals were not being
‘coerced by the Government’s action into violating their
religious beliefs.’” 137 S. Ct. 2012, 2020 (2017) (quoting
Lyng, 485 U.S. at 449). That reasoning matches ours here
perfectly. So when the dissent’s cases and Trinity Lutheran
are taken together, as they must be, they cast no doubt on the
scope of the Sherbert/Yoder framework or on Navajo
Nation’s “substantial burden” holding. 19 Given that we
19
In the dissent’s view, Trinity Lutheran “does not imply the Court
would reach the same result [as it did in Lyng] in a case in which the
government controlled access to religious resources and entirely denied
a plaintiff access to those resources.” Dissent at 73. To the contrary:
Trinity Lutheran must imply that result. Trinity Lutheran quotes Lyng’s
44 APACHE STRONGHOLD V. UNITED STATES
decline to apply our past precedents only when more recent
Supreme Court decisions are “clearly irreconcilable” with
those precedents, Miller, 335 F.3d at 893, we must apply
Navajo Nation here and we do so without hesitation.
We thus conclude that under Navajo Nation, the Land
Exchange does not substantially burden Apache Stronghold
within the meaning of RFRA, even if the Land Exchange
does make it “impossible” for Apache Stronghold’s
members to worship on Oak Flat. Apache Stronghold is
unlikely to succeed on its RFRA claim and the district court
was right to so find. We acknowledge that this is a harsh
result for Apache Stronghold’s members. But it is the result
that RFRA commands. And for multiple reasons, this result
is necessary.
As we observed in Navajo Nation, were the definition of
“substantial burden” under RFRA any broader than the
Sherbert/Yoder framework, “any action the federal
government were to take, including action on its own land,
would be subject to the personalized oversight of millions of
citizens.” Navajo Nation, 535 F.3d at 1063. Limiting RFRA
violations to government action that makes an exercise of
religion “impossible” or “deny access” to a religious site
unequivocal “substantial burden” rule: There is “no free exercise
violation . . . [if] the affected individuals were not being ‘coerced by the
Government’s action into violating their religious beliefs.’” Trinity
Lutheran, 137 S. Ct. at 2020 (quoting Lyng, 485 U.S. at 449). And as
discussed above, the Land Exchange may incidentally prevent religious
exercise on Oak Flat but involves no coercion. See ante at 25–26; see
also Lyng, 485 U.S. at 450–51 (rejecting the view that the “incidental
effects of government programs, which may make it more difficult to
practice certain religions but which have no tendency to coerce
individuals into acting contrary to their religious beliefs, require
government to bring forward a compelling justification for its otherwise
lawful actions”).
APACHE STRONGHOLD V. UNITED STATES 45
does little to reduce that risk. We recognize that currently,
Apache Stronghold objects only to the Land Exchange, and
not also to the presence on Oak Flat of hikers, climbers, and
other recreational users who now use the land. But other
religions have stricter requirements, and a wide array of
government or government-authorized actions could, in
some worshippers’ views, render “impossible” exercises of
religion or otherwise obstruct the land on which those
exercises would take place. In Lyng, in fact, the government
project took care not to disturb any “sites where specific
rituals [took] place,” but to the worshippers, the planned
paved road would still “physically destroy the environmental
conditions and the privacy without which the[ir] religious
practices [could not] be conducted.” Lyng, 485 U.S. at 449.
“[S]uch beliefs could easily require de facto beneficial
ownership of some rather spacious tracts of public property.”
Id. at 453. And again, when it comes to the federal
government’s use of its own land, “giving one religious sect
a veto over the use of public park land would deprive others
of the right to use what is, by definition, land that belongs to
everyone.” Navajo Nation, 585 F.3d at 1063–64.
The dissent is surely right that some government action
swept into RFRA by a more expansive “substantial burden”
definition would survive strict scrutiny. See Dissent at 77–-
77. But even so, RFRA cannot require the government to
satisfy strict scrutiny every time that the government,
through the management of its own land, interferes with
religion or denies “access to religious resources.” Every new
hiking path, ranger station, or “Keep Off the Grass” sign in
every National Park could deny access to land or “physically
destroy the environmental conditions and the privacy”
necessary to some religious practices. Lyng, 485 U.S. at 449.
The government need not satisfy strict scrutiny to manage
federal lands in these ways.
46 APACHE STRONGHOLD V. UNITED STATES
Apache Stronghold’s broader definition of “substantial
burden” would also create another, deeper problem: It would
force judges to make decisions for which we are
fundamentally unsuited. The dissenters in Navajo Nation
were correct on one important point: “[R]eligious exercise
invariably, and centrally, involves a ‘subjective spiritual
experience.’” 535 F.3d at 1096 (Fletcher, J., dissenting); see
also id. at 1070 n.12 (majority opinion) (agreeing with the
dissent on this point). Who are we to say whether
government action has an “objective” impact on religious
observance or merely “diminishes [a worshipper’s]
subjective spiritual fulfillment”? Id. Questions like this
raise issues on which judges must not pass. As we are often
reminded, it is outside the “judicial ken to question the
centrality of particular beliefs or practices to a faith.”
Hernandez, 490 U.S. at 699. The straightforward
Sherbert/Yoder framework avoids these problems.
Of course, the U.S. government may propose future
projects that, like the Land Exchange here, would impose no
substantial burden but still have an incidental impact on
religious observance or fulfillment. And someone must
decide whether the government should ultimately pursue
each such project. But RFRA’s text trusts that unenviable
task to the hands of those both more accustomed to these
tradeoffs and more accountable to the people: our elected
representatives in Congress.
3. Apache Stronghold’s Secondary RFRA
Argument
Apache Stronghold’s secondary argument is that the
Land Exchange does in fact deprive its members of a benefit
and subject its members to a penalty. Apache Stronghold
contends that the Exchange deprives its members of “the use
and enjoyment of ‘government’ land for religious exercise”
APACHE STRONGHOLD V. UNITED STATES 47
and subjects them to penalties for “trespassing on now
‘private’ land.” We disagree.
Turning first to Apache Stronghold’s argument that the
Land Exchange denies its members a benefit, that argument
has a problem. The government does not substantially
burden religion every time it ends a “governmental benefit”
that at one time went to religious beneficiaries. There must
be an element of coercion: the government must “condition”
the benefit upon conduct that would violate sincerely held
religious beliefs. Navajo Nation, 535 F.3d at 1067.
Consider this example. Suppose that for many years, the
Forest Service has paid Apache Stronghold’s members to
host educational sessions to teach local children about the
Apache’s history and culture, including the Apache’s
religious traditions. But this year, the Forest Service says to
Apache Stronghold: “our budget’s been cut—we can’t
renew your contract for more sessions next year.” Apache
Stronghold’s members have just been deprived of a
benefit—payment for the educational sessions that they
previously held—but they have not been coerced to abandon
their religious beliefs. We need not apply strict scrutiny to
every contract cancellation or revision.
Under this rubric, the Land Exchange thus presents no
“substantial burden.” The Exchange does not “condition”
any government benefits on the Apache violating their
religious beliefs. Like the cancelled educational sessions in
the hypothetical above, the Land Exchange does not force
Apache Stronghold’s members to choose between following
their religion and losing a benefit (the “use and enjoyment”
of Oak Flat). The Land Exchange just incidentally keeps
everybody—Apache Stronghold’s members included—
from using Oak Flat: No conditioning of a benefit; no
coercion. Were the rule otherwise, the federal government
48 APACHE STRONGHOLD V. UNITED STATES
would substantially burden religion any time it cancels a
contract with a religious entity or repeals a program that
subsidized both parochial and secular private schools.
Next is Apache Stronghold’s argument that the Land
Exchange subjects its members to penalties: liability for
trespassing on land that will be private after the Exchange.
We also reject this argument.
Turning first to criminal trespass liability, when a
religious plaintiff has a “sufficiently realistic fear” that the
government will punish him for exercising his religious
beliefs, he can sue the government under RFRA to forestall
any such prosecution. United States v. Christie, 825 F.3d
1048, 1055 (9th Cir. 2016); see also O Centro, 546 U.S. at
425 (affirming “declaratory and injunctive relief” after a
religious sect that used a prohibited hallucinogen in its
ceremonies had been “threatened . . . with prosecution”
under the Controlled Substances Act). If the government’s
intended prosecution cannot satisfy strict scrutiny, RFRA
“immuniz[es]” a religious adherent’s conduct “from official
sanction—even though such conduct violated a law that is
otherwise valid.” Christie, 825 F.3d at 1055.
But Apache Stronghold’s argument faces two problems.
For one, Apache Stronghold has not shown a “sufficiently
realistic fear” of future criminal liability. Christie, 825 F.3d
at 1055. Unlike in O Centro, there has been no threat of
prosecution here. The record shows no imminent plans by
Arizona state law enforcement (who are not defendants here
and thus could not be subject to the requested preliminary
injunction) or by the federal government to prosecute
Apache Stronghold’s members for any trespasses that may
or may not occur in the future.
APACHE STRONGHOLD V. UNITED STATES 49
And even had Apache Stronghold shown a “sufficiently
realistic fear” of criminal prosecution, it seeks relief that
RFRA cannot provide. Injunctive relief “must be tailored to
remedy the specific harm alleged.” Lamb-Weston, Inc. v.
McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).
Here, that means that RFRA could give Apache
Stronghold’s members “immun[ity]” from any criminal
trespass charges brought against them for entering Oak Flat
after the land passed into private hands unless the
government can prove a compelling and narrowly tailored
government interest. Christie, 825 F.3d at 1055. But
Apache Stronghold does not ask for immunity. It asks
instead that we enjoin a complex, multi-step land exchange
that does much more than (potentially) subject Apache
Stronghold’s members to criminal liability. RFRA does not
authorize Apache Stronghold to enjoin the entire Land
Exchange any more than RFRA authorized the O Centro
plaintiffs to strike down the entire Controlled Substances
Act.
Next, when we consider potential civil trespass suits
brought by Resolution Copper, we again see two problems
with Apache Stronghold’s argument. 20 The first problem is
factual. At this early stage in the litigation, it is not clear
whether the Apache will in fact be subject to civil trespass
liability. Even after the Land Exchange, Resolution Copper
“will ensure ongoing public access to the Oak Flat
Campground, recreational trails and climbing,” and will
“accommodate requests to periodically close the
campground to the public for traditional and ceremonial
purposes.” Resolution Copper also committed to “permit
20
RFRA is not a defense in private litigation. See Sutton v.
Providence St. Joseph Med. Ctr., 192 F.3d 826, 834 (9th Cir. 1999).
RFRA thus would not prevent Resolution Copper from pursuing private
trespass actions against any would-be worshipers.
50 APACHE STRONGHOLD V. UNITED STATES
harvesting of the Emory oak groves by individuals, or
commercially through an authorization.” And the Apache
need not rely on Resolution Copper’s goodwill alone. The
Land Exchange Provision itself obligates Resolution Copper
to “provide access to the surface of the Oak Flat
Campground to members of the public, including Indian
tribes.” 16 U.S.C. § 539p(i)(3). True, Resolution Copper
may restrict access once “the operation of the mine precludes
continued public access for safety reasons.” Id. But
Resolution Copper is still “several years” and a “detailed
feasibility study” away from any final decision as to whether
to proceed with the mine at all. So the mine may never come
to be, and Resolution Copper may never restrict access at all.
At this preliminary injunction stage, these factual
uncertainties prevent Apache Stronghold from showing a
“likelihood” that Resolution Copper will subject Apache
Stronghold’s members to trespass liability for using Oak
Flat. 21
The second problem is legal. As with the (potential)
criminal charges, even were the Land Exchange to subject
Apache Stronghold’s members to the threat of civil trespass
lawsuits, the substantial burden would be the lawsuits
themselves, not Resolution Copper’s mining activities.
Again, injunctive relief “must be tailored to remedy the
21
We also acknowledge the novelty of Apache Stronghold’s
fallback argument. RFRA applies only to “[g]overnment” action that
substantially burden religious exercise, 42 U.S.C.A. § 2000bb-1, and it
is far from clear that it constitutes “government” action for the Forest
Service to transfer government land to a private entity which might (or
might not) sue other private parties for trespassing on that land. Cf. Vill.
of Bensenville v. Fed. Aviation Admin., 457 F.3d 52, 66 (D.C. Cir. 2006).
But the parties sparsely briefed Apache Stronghold’s secondary
argument and the government did not argue that there is no
“government” action here, so we leave this issue for another day.
APACHE STRONGHOLD V. UNITED STATES 51
specific harm alleged.” Lamb-Weston, Inc., 941 F.2d at 974.
Even assuming Apache Stronghold’s members were subject
to imminent civil trespass suits, we could at most require the
government to negotiate with Resolution Copper an
easement or a license giving Apache Stronghold’s members
some access to Oak Flat even after the Land Exchange. We
could not enjoin the entire Land Exchange as Apache
Stronghold asks us to do.
B. Apache Stronghold’s Free Exercise Clause Claim
We next address Apache Stronghold’s claim that the
Land Exchange would violate the Constitution’s Free
Exercise Clause. See U.S. Const. amend I (“Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .”). Under
Employment Division v. Smith, a “valid and neutral law of
general applicability” does not violate the Free Exercise
Clause, even if that law burdens religion. 494 U.S. at 879(quoting Lee, 455 U.S. at 263 n.3 (Stevens, J., concurring in
judgment)). But laws that are not neutral or are not generally
applicable are subject to strict scrutiny. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
533 (1993). A law is not neutral if the law’s “object . . . is
to infringe upon or restrict practices because of their
religious motivation”; a law is not “generally applicable” if
the law “impose[s] burdens only on conduct motivated by
religious belief” in a “selective manner.” Id. at 533, 543.
Apache Stronghold argues that the Land Exchange Provision
is neither neutral nor generally applicable and is thus subject
to strict scrutiny. We are not persuaded.
First, the Land Exchange is “neutral” in that its “object”
is not to infringe upon the Apache’s religious practices. Id.
at 533. The Land Exchange Provision never mentions
religion, and when it comes closest to doing so, the Provision
52 APACHE STRONGHOLD V. UNITED STATES
shows solicitude towards religion, not intent to infringe. See
16 U.S.C. § 539p(g) (designating a “special management
area” “to allow for traditional uses of the area by Native
American people”). And even though “[f]acial neutrality is
not determinative,” Apache Stronghold has identified no
“subtle departures from neutrality” here. Lukumi, 508 U.S.
at 534 (quoting Gillette v. United States, 401 U.S. 437, 452
(1971)). All the evidence suggests that the Land Exchange
is meant to facilitate “mineral exploration activities.”
16 U.S.C. § 539p(c)(6)(A)(i). Nothing more and nothing
less.
Apache Stronghold disagrees, arguing that the Land
Exchange “targets religious conduct for distinctive
treatment.” As evidence, it posits that Congress must have
known the adverse impact that the Land Exchange would
have on the Apache. But even assuming that 535 distinct
Congresspersons could have a single collective
“knowledge” or “purpose,” Congress’s knowledge is not
enough to prove its purpose. 22 It is one thing to pass a statute
22
Apache Stronghold cites, as “evidence of hostility” toward
religion, a snippet from the Congressional record where a “bill sponsor
criticized ‘the San Carlos Apache’ for ‘car[ing] more about some issues
[i.e., religion] than they do about the prospect of employment,’ and
called for ‘an end to’ religious ‘delays.’” (All alterations here are
Apache Stronghold’s.) This argument has two problems. First, once
Senator McCain’s remarks are shorn of all misleading editing, they show
no hostility toward religion. See Resolution Copper: Hearing on H.R.
1904 and S. 409 Before the S. Comm. on Energy and Nat. Res., 112th
Cong. 4 (2012) (statement of Sen. John McCain) (“So, the tribal
leaders . . . obviously care more about some issues than they do about
the prospect of employment for their tribal members . . . .”); id. at 4
(“Mr. Chairman, it is time for Congress to put an end to these delays.”).
And second, Senator McCain’s remarks shed no light on how Congress
as a whole perceived the Land Exchange’s purpose. They show only a
single Senator’s frustration with impediments to the Exchange achieving
APACHE STRONGHOLD V. UNITED STATES 53
with the knowledge that it could burden the Apache’s
religious exercise. It is another entirely to pass a statute with
the purpose or goal of creating that burden. Cf., e.g., Model
Penal Code § 2.02 (distinguishing between actions made
“knowingly” and actions made “purposely”).
The Land Exchange is also generally applicable: it does
not selectively “impose burdens only on conduct motivated
by religious belief.” Lukumi, 508 U.S. at 543. Rather, the
Land Exchange will also burden all manner of secular
activities on the areas to be transferred to Resolution Copper.
After the Land Exchange, parts of the Tonto National Forest
will “no longer [be] accessible to hikers, rock climbing
enthusiasts, cyclists, equestrians, campers, hunters, and
other recreational users.”
Apache Stronghold responds that the Land Exchange is
not generally applicable because it is “designed to apply to
only one piece of land,” but this argument misconstrues the
legal standard. We do not ask if the law was “designed to
apply to only one piece of land.” Indeed, the statute
challenged in Smith—and upheld there as neutral and
generally applicable—was designed to apply to only one
type of conduct: the “knowing or intentional possession of a
‘controlled substance.’” 494 U.S. at 874 (quoting Ore. Rev.
Stat § 475.992(4) (1987)). The question under Smith is
whether a government action “burdens only . . . conduct
motivated by religious belief.” Lukumi, 508 U.S. at 543; see
also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th
Cir. 2015) (“A law is not generally applicable if it, ‘in a
selective manner, imposes burdens only on conduct
motivated by religious belief.’” (quoting Lukumi, 508 U.S.
the purpose that particular Senator had in mind: increased gainful
employment.
54 APACHE STRONGHOLD V. UNITED STATES
at 543)). And again, the Land Exchange does not impose
such a selective burden. The Exchange affects not just the
Apache but all “hikers, rock climbing enthusiasts, cyclists,
equestrians, campers, hunters, and other recreational users”
who wish to enjoy the areas to be conveyed to Resolution
Copper. We thus hold that the Land Exchange Provision is
a neutral and generally applicable law and passes muster
under Smith. The district court properly found that Apache
Stronghold is not likely to succeed on its Free Exercise
claim.
C. Apache Stronghold’s Trust Claim
We last consider Apache Stronghold’s trust claim. As
relevant background, the Apache and the U.S. government
signed the Treaty of Santa Fe in 1852. In that treaty, the U.S.
promised to “designate, settle, and adjust [the Apache’s]
territorial boundaries, and pass and execute in their territory
such laws as may be deemed conducive to the prosperity and
happiness of [the Apache].” Importantly, however, Apache
Stronghold has not adduced any evidence that the U.S. ever
formally designated any such boundaries. Apache
Stronghold nevertheless argues that this language created an
enforceable trust obligation on the U.S. government’s part,
and that the Land Exchange is “inconsistent” with the U.S.’s
obligation to pass laws “conducive to the prosperity and
happiness” of the Apache.
The government responds that this trust claim fails for
three reasons: 1) Apache Stronghold cannot bring a trust
claim under the Treaty of Santa Fe because it is a non-profit
group, not the Apache tribe that signed the treaty; 2) the
Treaty of Santa Fe does not create an “enforceable trust
duty”; and 3) the Land Exchange Provision abrogated the
APACHE STRONGHOLD V. UNITED STATES 55
Treaty of Santa Fe by statute. We need address only the
second reason, as it is dispositive here. 23
We agree with the government that on this record,
Apache Stronghold has not established that the Treaty of
Santa Fe imposes on the United States an enforceable trust
obligation. As a general matter, the U.S. government
shoulders a trust obligation with respect to an American
Indian tribe when the U.S. government “takes on or has
control or supervision over tribal monies or properties.”
United States v. Mitchell, 463 U.S. 206, 225 (1983) (quoting
Navajo Tribe of Indians v. United States, 224 Ct. Cl. 171,
183 (Ct. Cl. 1980)). But here, the government does not
control or supervise tribal properties at Oak Flat. Oak Flat
belongs to the government, a fact that Apache Stronghold
does not presently contest. Apache Stronghold argues that
title over Oak Flat is irrelevant, as it seeks not title but
23
The government phrases its first argument—that a non-profit like
Apache Stronghold cannot bring claims under the Treaty of Santa Fe—
in terms of “standing.” But the government does not assert that Apache
Stronghold lacks Article III standing to bring this claim. Rather, the
government argues that treaties between the U.S. and American Indian
Tribes, like other “treaties between sovereigns,” “do not create privately
enforceable rights.” The government thus claims that the Treaty of Santa
Fe gives only the American Indian tribe that signed the treaty—and not
individual members of that tribe—a cause of action upon which a court
can grant relief. But this is a question of substantive law, not of Article
III, and thus “is not a jurisdictional question.” Pit River Tribe v. Bureau
of Land Mgmt., 793 F.3d 1147, 1156 (9th Cir. 2015). We thus need not
address the government’s first argument before considering its second
argument: that the Treaty of Santa Fe creates no enforceable trust duty.
And because we agree with that second argument, we need not address
the government’s first argument at all. “[I]f it is not necessary to decide
more, it is necessary not to decide more.” N. Cnty. Commc’ns Corp. of
Ariz. v. Qwest Corp., 824 F.3d 830, 838 n.2. (9th Cir. 2016) (quoting
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1030 (9th Cir. 2013) (Bea,
J., concurring in part and dissenting in part)).
56 APACHE STRONGHOLD V. UNITED STATES
“usufructuary rights to use land for traditional purposes.”
But the Treaty’s language explicitly tied any obligations that
it created to the Apache’s title to land. The government
promised to “designate, settle, and adjust [the Apache’s]
territorial boundaries, and pass and execute in their territory
such laws,” “their” referring to the Apache treaty signatories.
Even assuming that Oak Flat was once Apache land
according to historical maps, Apache Stronghold has not
pointed to any evidence indicating that the government
designated any boundaries of the Apache’s territory after the
1852 Treaty, let alone boundaries that encompass Oak Flat.
Because Apache Stronghold points to no evidence
establishing that the U.S. government “designate[d] . . .
territory” on which the government has any obligation to
“pass and execute” laws, it is not likely to prove that the
government has assumed any Treaty-based trust obligations
with respect to Oak Flat.
This conclusion accords with how both we and other
courts have interpreted identical treaty language in other
cases. The Treaty with the Utah, just like the Treaty of Santa
Fe, required the United States to “designate, settle, and
adjust [the American Indians’] territorial boundaries, and
pass and execute such laws, in their territory, as the [United
States] may deem conducive to the happiness and prosperity
of said [American] Indians.” Treaty with the Utah, Dec. 30,
1849, art. VII, 9 Stat. 984. But that language only “reserves
for a future date the final delineation of boundaries.” Uintah
Ute Indians of Utah v. United States, 28 Fed. Cl. 768, 788,
789 (Fed. Cl. 1993). The Treaty with the Utah “contains no
obligations with respect to property” and created neither “a
trust relationship [n]or trust protection,” at least not until
“the Government established boundaries” that delineated
American Indian land upon which the United States could
have some obligations. Id. We agreed in Robinson v. Jewell
APACHE STRONGHOLD V. UNITED STATES 57
when we held that the Treaty with the Utah did not “create[]
any enforceable property rights.” 790 F.3d 910, 916 (9th
Cir. 2015); see also id. at 917.
So too here. Apache Stronghold has not adduced
evidence which establishes that the U.S. government
implemented the Treaty of Santa Fe by designating any land
or recognizing any title vested in the Apache. And without
title vested in the Apache, there can be no trust relationship
arising from the Treaty of Santa Fe and no trust obligations
relating to “usufructuary rights.” Apache Stronghold’s trust
claim is thus unlikely to succeed.
***
We are a “cosmopolitan nation made up of people of
almost every conceivable religious preference.” Braunfeld v.
Brown, 366 U.S. 599, 606 (1961). This pluralism is a source
of strength, but it places demands on us all. In some cases,
the many must accommodate the needs of the few—we
accept that the government must sometimes “expend
additional funds to accommodate citizens’ religious beliefs.”
Hobby Lobby, 573 U.S. at 730. But in other cases, our need
to “maintain an organized society that guarantees religious
freedom to a great variety of faiths requires that some
religious practices yield to the common good.” Lee, 455
U.S. at 259. This give-and-take suits perfectly neither the
religious nor the secular. The “diversity of beliefs in our
pluralistic society” demands as much. Bowen, 476 U.S. at
712 (plurality opinion). Here, for the reasons given above,
this case is the second of those two types.
As we reach this conclusion, we do not rejoice. Rather,
we recognize the deep ties that the Apache have to Oak Flat
and to the nearby Apache Leap and Devil’s Canyon. And
we acknowledge that the Land Exchange may impact the
58 APACHE STRONGHOLD V. UNITED STATES
Apache’s plans to worship on Oak Flat. But RFRA, the Free
Exercise Clause, and the 1852 Treaty of Santa Fe do not
afford Apache Stronghold the relief that it seeks. This
dispute must be resolved as are most others in our pluralistic
nation: through the political process. In fact, legislation
seeking to repeal the Land Exchange Provision is already
before Congress. See Save Oak Flat Act, H.R. 1884, 117th
Cong. (2021).
The district court’s denial of Apache Stronghold’s
motion for a preliminary injunction is AFFIRMED.
BERZON, Circuit Judge, dissenting:
The majority applies an overly restrictive test for
identifying a “substantial burden” on religious exercise
under the Religious Freedom Restoration Act of
1993 (“RFRA”), 107 Stat. 1488, 42 U.S.C. § 2000bb to
§ 2000bb–4. The majority’s flawed test leads to an absurd
result: blocking Apaches’ access to and eventually
destroying a sacred site where they have performed religious
ceremonies for centuries does not substantially burden their
religious exercise. The majority offers both a doctrinal and a
practical basis for its unduly narrow definition of
“substantial burden.” Both are incorrect.
First, the doctrinal argument rests on the notion that
RFRA limited the concept of “substantial burden” to the
types of burdens the Supreme Court found in Sherbert v.
Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406
U.S. 205 (1972), two cases that preceded Employment
Division v. Smith, 494 U.S. 872 (1990), the case that
precipitated RFRA. But RFRA did no such thing. Instead,
RFRA codified only the “compelling interest test” from
Sherbert and Yoder—the level of justification the
APACHE STRONGHOLD V. UNITED STATES 59
government must provide after a substantial burden on
religion has been found. The statute does not define
“substantial burden,” and there is no doctrinal basis for
narrowing that term to the types of burdens described in
Sherbert and Yoder.
The majority ignores the reality that pre-Smith federal
cases applied a broader definition of “substantial burden,”
particularly in the prisoner context. Those cases recognized
that when a plaintiff depends on the government for access
to religious resources, the government’s withholding of
those resources can constitute a substantial burden on
religious exercise. By making religious practice impossible,
instead of merely discouraging or penalizing it, such a
burden can be greater than those imposed in Sherbert and
Yoder.
The majority derives its definition of “substantial
burden” from Navajo Nation v. U.S. Forest Service, 535 F.3d
1058 (9th Cir. 2008) (en banc). Because that case held that
RFRA did not remedy burdens “short of” those described in
Sherbert and Yoder, id. at 1070, I would read Navajo Nation
as leaving room for recognizing a greater burden as
actionable under RFRA. Alternatively, if Navajo Nation
does not bear that reading, it is irreconcilable with Supreme
Court precedent recognizing such burdens in the prisoner
context, see Ramirez v. Collier, 142 S. Ct. 1264, 1277–78
(2022), and so is no longer binding precedent, Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Second, the “practical basis” for the majority’s definition
stems from the concern that “giving one religious sect a veto
over the use of public park land would deprive others of the
right to use what is, by definition, land that belongs to
everyone.” Majority Op. 24–25 (quoting Navajo Nation, 535
F.3d at 1063–64). But redefining “substantial burden” to
60 APACHE STRONGHOLD V. UNITED STATES
exclude great burdens on religious exercise because
accommodating a religious practice could interfere with
other uses of federal land is a disingenuous means of
reconciling those competing claims. Instead of denying the
burden exists, the appropriate way to address the conflicting
interests is at the justification stage. If accommodating the
religious practice would cause other societal harms, then the
government may well be able to show that applying the
burden is the “least restrictive means of furthering [a]
compelling governmental interest.” 42 U.S.C. § 2000bb–
1(b). Here, the government has not attempted to make that
showing.
Applying the correct definition of “substantial burden,”
I would hold that Apache Stronghold has shown it “is likely
to succeed on the merits” of its RFRA claim. Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). I would
therefore remand for the district court to address the
remaining elements of the preliminary injunction test. 1
I.
I begin with the majority’s principal doctrinal
argument—that RFRA limited the definition of “substantial
burden” to the types of burdens described in Sherbert and
Yoder. RFRA certainly did not do so expressly. Instead,
Congress found that “governments should not substantially
burden religious exercise without compelling justification”;
that “in Employment Division v. Smith, 494 U.S. 872 (1990)
the Supreme Court virtually eliminated the requirement that
the government justify burdens on religious exercise
1
Because I would hold that Apache Stronghold is likely to succeed
on its RFRA claim, I would not reach its claims under the Free Exercise
Clause of the First Amendment or the 1852 Treaty of Santa Fe.
APACHE STRONGHOLD V. UNITED STATES 61
imposed by laws neutral toward religion”; and that “the
compelling interest test as set forth in prior Federal court
rulings is a workable test for striking sensible balances
between religious liberty and competing prior governmental
interests.” 42 U.S.C. § 2000bb(a)(3)–(5). The purpose of
RFRA was therefore “to restore the compelling interest test
as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee
its application in all cases where free exercise of religion is
substantially burdened.” Id. § 2000bb(b)(1). This recitation
makes evident that Congress’s concern was not with
defining “substantial burden”—for which RFRA offers no
definition—but with ensuring that the compelling interest
standard would be applied once a substantial burden had
been demonstrated.
The majority relies on Navajo Nation for the conclusion
that “Sherbert and Yoder must ‘also control [RFRA’s]
“substantial burden” inquiry.’” Majority Op. 19 (alteration
in original) (quoting Navajo Nation, 535 F.3d at 1069). As
explained in more detail below, I do not read Navajo Nation
as so instructing. And the idea that RFRA—a statute
intended to restore religious freedom—silently limited the
concept of “substantial burden” to the two types of burdens
found in Sherbert and Yoder requires an inferential leap
justified neither by logic nor by the pre-Smith federal case
law.
Sherbert and Yoder both addressed situations occurring
in private life—that is, life outside an institutional setting
such as a prison. In private life, “government inhibitions on
voluntary religious practice are the exception rather than the
norm.” Stephanie Hall Barclay & Michalyn Steele,
Rethinking Protections for Indigenous Sacred Sites, 134
Harv. L. Rev. 1294, 1301 (2021). Two common tools the
62 APACHE STRONGHOLD V. UNITED STATES
government uses to influence behavior “in contexts in which
voluntary choice is the baseline” are so-called “carrots and
sticks.” Id. at 1326. The government offers carrots, or
government benefits, to induce desired behavior, and uses
sticks, or penalties, to deter undesired behavior. As Sherbert
and Yoder recognized, the government substantially burdens
religious exercise when it denies carrots, or threatens sticks,
based on a person’s religious activity. Or, as the majority
puts it: “the government imposes a substantial burden on
religion . . . ‘when individuals are forced to choose between
following the tenets of their religion and receiving a
governmental benefit,’ as in Sherbert, or when individuals
are ‘coerced to act contrary to their religious beliefs by the
threat of civil or criminal sanctions,’ as in Yoder.” Majority
Op. 20 (quoting Navajo Nation, 535 F.3d at 1070).
But some Americans seek to practice their religion in
contexts in which voluntary choice is not the baseline. In
these contexts, the government controls access to religious
locations and resources. See Barclay & Steele, supra, at
1301. Three main examples of these contexts are prisons,
Native American sacred sites located on government land,
and zoning.
Prisoners “are unable freely to attend to their religious
needs and are therefore dependent on the government’s
permission and accommodation for exercise of their
religion.” Cutter v. Wilkinson, 544 U.S. 709, 720–21 (2005).
Prisons may allow or prevent access to resources such as
prison chapels or religious texts. Many traditional Native
American religious sites are located on federal land. The
government controls access to and other aspects of these
sites, leaving Native Americans “at the mercy of government
permission to access sacred sites.” Barclay & Steele, supra,
at 1301. And through zoning decisions, local governments
APACHE STRONGHOLD V. UNITED STATES 63
can limit religious groups’ ability to “build, buy, or rent” “a
place of worship . . . adequate to their needs and consistent
with their theological requirements,” which is “at the very
core of the free exercise of religion.” Int’l Church of
Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,
1069 (9th Cir. 2011) (quoting Vietnamese Buddhism Study
Temple in Am. v. City of Garden Grove, 460 F. Supp. 2d
1165, 1171 (C.D. Cal. 2006)). In these three contexts, the
government may exercise its sovereign power more directly
than by using carrots and sticks. By simply preventing access
to religious locations and resources, the government may
directly prevent religious exercise.
It would be an exceedingly odd statute that recognized
and provided remedies for government-created substantial
burdens on religious exercise only when the government
uses carrots and sticks to influence people’s behavior
indirectly but not when it directly prevents access to
religious resources. Yet the majority reaches just that
illogical interpretation of RFRA in this case, without
acknowledging its incoherence.
Of course, Congress can enact illogical laws if it
chooses. But there is no basis for concluding that RFRA is
such a statute, and several reasons for concluding it is not.
First, as discussed, the majority relies primarily on
RFRA’s invocation of Sherbert and Yoder in reinstating the
compelling interest test. RFRA also refers generally to
“Federal court rulings” “prior” to Smith. 42 U.S.C.
§ 2000bb(a)(5). But the majority overlooks the many pre-
Smith federal cases that recognized, in the prison context,
that the government may substantially burden religion
simply by controlling access to religious resources.
64 APACHE STRONGHOLD V. UNITED STATES
Second, the Supreme Court has held repeatedly that
courts should apply the “same standard” in deciding cases
under RFRA and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§§ 2000cc to 2000cc–5. Holt v. Hobbs, 574 U.S. 352, 358
(2015) (quoting Gonzales v. O Centro Espírita Beneficente
Uniõ do Vegetal, 546 U.S. 418, 436 (2006)). RLUIPA
prevents governments from substantially burdening
religious exercise in prisons or through zoning decisions
unless the compelling interest standard is met. 42 U.S.C.
§§ 2000cc, 2000cc–1. The Supreme Court, our court, and
other courts of appeals have recognized a substantial burden
under RLUIPA in prisoner and zoning cases when the
government denies access to religious locations or resources.
Third, recent Supreme Court case law makes evident that
pre-Smith cases should not be read to cabin RFRA’s reach.
As the Supreme Court has explained, there is “no reason to
believe” that RFRA “was meant to be limited to situations
that fall squarely within the holdings of pre-Smith cases.”
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 n.18
(2014). If this court held otherwise in Navajo Nation, 535
F.3d 1058—which I do not believe it did—then Navajo
Nation is in irreconcilable conflict with subsequent Supreme
Court case law and is no longer binding. See Miller, 335 F.3d
at 900.
A.
A review of the pre-Smith Free Exercise cases ignored
by the majority demonstrates that the majority’s constrained
definition of “substantial burden” lacks a basis in pre-Smith
precedent. In Cruz v. Beto, 405 U.S. 319 (1972) (per curiam),
for example, a Buddhist prisoner in Texas alleged that the
prison denied him access to the prison chapel and prohibited
him from corresponding with his religious adviser. The
APACHE STRONGHOLD V. UNITED STATES 65
Supreme Court reversed the dismissal of the complaint,
noting that if the allegations were “assumed to be true,”
“Texas has violated [the Free Exercise Clause of] the First
and Fourteenth Amendments.” Id. at 322. Later, in O’Lone
v. Estate of Shabazz, 482 U.S. 342 (1987), Muslim prisoners
assigned to an outside work detail were prevented from
attending “Jumu’ah, a weekly Muslim congregational
service.” Id. at 345. The Supreme Court held that the policy
requiring the prisoners to remain outside did not violate the
Free Exercise Clause, but not because there was no burden
on the prisoners’ religious exercise. Assuming a burden, the
Court went on to evaluate the question whether the burden
was justified by “legitimate penological objectives” and
found that it was. Id. at 352–53. In both these cases, the claim
was not that the plaintiffs were “forced to choose between
following the tenets of their religion and receiving a
governmental benefit” or “coerced to act contrary to their
religious beliefs by the threat of civil or criminal sanctions,”
Majority Op. 20 (internal quotation marks omitted), but that
they were directly denied access to religious resources.
Similarly, in McElyea v. Babbitt, 833 F.2d 196 (9th Cir.
1987), we reversed a grant of summary judgment in favor of
an Arizona prison because the plaintiff had raised triable
issues of fact regarding his claims that “(1) there were no
weekly Jewish services conducted at the prison; (2) he was
unreasonably denied permission to attend a special service
on the High Holy Days; (3) he was unable to obtain a kosher
diet; and (4) there were no Jewish religious writings
available at the prison.” Id. at 197. Our reversal for further
factual development recognized that, if true, the allegations
not only raised equal protection concerns but also showed a
burden on religious exercise that the government must
justify. Id. at 199. We explained, for example, that “the
defendants cannot erect a barrier to an inmate’s access to
66 APACHE STRONGHOLD V. UNITED STATES
religious reading material absent a security or penological
interest.” Id. 2
Other federal courts of appeals decided similar cases
before Smith. For example, in Williams v. Lane, 851 F.2d
867 (7th Cir. 1988), the Seventh Circuit upheld a district
court ruling that a prison “violated plaintiffs’ right to the free
exercise of their religion by not allowing communal
religious services, by not permitting prisoners participation
in rituals of their faith, and by depriving the inmates of
religious counseling and instruction.” Id. at 877–78. In
Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976), the
Tenth Circuit reversed the dismissal of a complaint alleging
that a prison violated the plaintiffs’ right to practice “the
Satanic religion” when, among other things, it “denied them
the right to possess necessary ritual items in their cell.” Id.
at 1059. The Court held that further factual development was
needed, as the prison’s “asserted justification of such
restrictions on religious practices based on the State’s
interest in maintaining order and discipline must be shown
to outweigh the inmates’ First Amendment rights.” Id. at
1061; see also LaReau v. MacDougall, 473 F.2d 974, 979–
80 & n.9 (2d Cir. 1972) (requiring case-by-case evaluations
of governmental justifications for banning prisoners in
segregation from attending chapel).
In short, federal cases prior to Smith accepted that
governments substantially burden religious exercise—and
2
In Allen v. Toombs, 827 F.2d 563 (9th Cir. 1987), we held that a
prison did not violate plaintiffs’ Free Exercise rights by denying them
access to a sweat lodge ceremony. But as in O’Lone, the reason was not
that plaintiffs’ religious exercise was not burdened, but because we
accepted the prison’s determination that allowing high-risk prisoners to
participate in the ceremony would present unacceptable security risks.
Id. at 567.
APACHE STRONGHOLD V. UNITED STATES 67
so must justify their actions—when they control access to
religious resources and deny plaintiffs access to those
resources. The notion that pre-Smith cases recognized a
substantial burden only when the government denied a
benefit or threatened a penalty is revisionist history not
supported by the case law.
B.
Nor is there any reason to believe that Congress, in
enacting RFRA, narrowed the definition of “substantial
burden” from what it had been in the pre-Smith Free Exercise
cases. Congress enacted RFRA as a reaction to Smith,
“which held that neutral, generally applicable laws that
incidentally burden the exercise of religion usually do not
violate the Free Exercise Clause of the First Amendment.”
Holt, 574 U.S. at 356–57. “Following . . . Smith, Congress
enacted RFRA in order to provide greater protection for
religious exercise than is available under the First
Amendment.” Id. at 357 (emphasis added). The majority’s
implicit suggestion that in so doing, Congress silently
constricted the definition of “substantial burden” is
exceedingly difficult to credit in light of the overall thrust of
RFRA.
If there were any question whether Congress intended for
RFRA’s definition of “substantial burden” to be broad
enough to encompass governmental denial of access to
religious resources, it is laid to rest by Congress’s passage of
RLUIPA seven years later. By then, City of Boerne v. Flores,
521 U.S. 507 (1997), had “invalidated RFRA as applied to
States and their subdivisions, holding that the Act exceeded
Congress’ remedial powers under the Fourteenth
Amendment.” Cutter, 544 U.S. at 715. “Congress responded
to City of Boerne by enacting RLUIPA, which applies to the
States and their subdivisions and invokes congressional
68 APACHE STRONGHOLD V. UNITED STATES
authority under the Spending and Commerce Clauses.” Holt,
574 U.S. at 357.
Section 2 of RLUIPA governs land-use regulation such
as zoning. It provides that “[n]o government shall impose or
implement a land use regulation in a manner that imposes a
substantial burden on the religious exercise of a person,
including a religious assembly or institution, unless the
government demonstrates that imposition of the burden . . .
(A) is in furtherance of a compelling governmental interest;
and (B) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C.
§ 2000cc(a)(1).
Section 3 of RLUIPA governs religious exercise by
institutionalized persons, such as prisoners. “Section 3
mirrors RFRA and provides that ‘[n]o government shall
impose a substantial burden on the religious exercise of a
person residing in or confined to an institution . . . even if the
burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on
that person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.’” Holt,
574 U.S. at 357–58 (alterations in original) (quoting
42 U.S.C. § 2000cc–1(a)). As the Supreme Court has
repeatedly recognized, “RLUIPA thus allows prisoners ‘to
seek religious accommodations pursuant to the same
standard as set forth in RFRA.’” Id. at 358 (quoting
Gonzales, 546 U.S. at 436).
Given that Congress enacted RLUIPA to restore part of
RFRA’s original reach, that RLUIPA uses the same
“substantial burden” language as RFRA, and that RLUIPA
sets forth the “same standard” for evaluating governmental
justifications for imposing substantial burdens on religion as
APACHE STRONGHOLD V. UNITED STATES 69
RFRA—strict scrutiny—there is no reason to believe that
“substantial burden” means something different under
RFRA and RLUIPA. Cases decided under RLUIPA, in both
the prison and zoning contexts, confirm that the definition of
“substantial burden” includes the denial of access to
religious locations and resources.
For example, in Greene v. Solano County Jail, 513 F.3d
982 (9th Cir. 2008), a county jail denied the plaintiff, a
maximum-security prisoner, the opportunity to attend group
worship services. We had “little difficulty in concluding that
an outright ban on a particular religious exercise is a
substantial burden on that religious exercise.” Id. at 988.
Similarly, in Yellowbear v. Lampert, 741 F.3d 48 (10th Cir.
2014) (Gorsuch, J.), the Tenth Circuit held that it did not
“take much work to see that” a prison substantially burdened
the plaintiff’s religious exercise by “flatly prohibiting” him
from using the prison’s sweat lodge. Id. at 56. And in Haight
v. Thompson, 763 F.3d 554 (6th Cir. 2014), the Sixth Circuit
held that prison officials substantially burdened plaintiffs’
religious exercise by denying them permission to buy
ceremonial foods for an annual event. Id. at 565.
Most recently, the Supreme Court stayed the execution
of a prisoner who requested that “his long-time pastor be
allowed to pray with him and lay hands on him while he is
being executed.” Ramirez, 142 S. Ct. at 1272. The Court held
that Ramirez was entitled to a preliminary injunction
because, among other things, he was “likely to succeed in
showing that Texas’s” refusal to permit audible prayer or
70 APACHE STRONGHOLD V. UNITED STATES
religious touch “substantially burdens his exercise of
religion.” Id. at 1278. 3
In the zoning context, we have held that a county
“imposed a substantial burden” on a Sikh organization’s
“religious exercise under RLUIPA” by denying applications
from the group, Guru Nanak, for a conditional use permit to
build a temple. Guru Nanak Sikh Soc’y of Yuba City v. Cnty.
of Sutter, 456 F.3d 978, 981–82 (9th Cir. 2006). The denials
“to a significantly great extent lessened the prospect of Guru
Nanak being able to construct a temple in the future” and so
“imposed a substantial burden on Guru Nanak’s religious
exercise.” Id. at 992. Likewise, in International Church of
the Foursquare Gospel, which concerned a city’s denial of a
conditional use permit to build a church, we reversed the
district court’s grant of summary judgment to the city. 673
F.3d at 1061. The church “presented significant evidence
that no other suitable properties existed,” raising a “triable
3
The majority dismisses Ramirez as irrelevant because the
government officials in that case did “not dispute that any burden their
policy imposes on Ramirez’s religious exercise is substantial,” 142 S. Ct.
at 1278, and “the scope of a ‘substantial burden’ under either statute was
[therefore] explicitly not at issue,” Majority Op. 41. But the Court’s “do
not dispute” language was followed by the statement that “Ramirez is
likely to succeed in showing that Texas’s policy substantially burdens
his exercise of religion.” 142 S. Ct. at 1278. That statement, along with
the “do not dispute” locution, indicates agreement with the proposition
not disputed rather than a waiver determination, which is what the
majority suggests. Further, if the burden alleged by Ramirez were simply
not cognizable under RLUIPA no matter the actual impact on his
exercise of religion, as the majority’s ruling here would indicate, surely
the Supreme Court would not have taken the extraordinary measures of
staying his execution, requiring Texas to “prove that [its] refusal to
accommodate” his religious exercise furthered a compelling interest by
the least restrictive means, and—after finding Texas had not carried its
burden—ordering preliminary relief. Id. at 1278, 1284.
APACHE STRONGHOLD V. UNITED STATES 71
issue of material fact regarding whether the City imposed a
substantial burden on the Church’s religious exercise under
RLUIPA.” Id. at 1061, 1068.
As demonstrated by this case law in the prison and
zoning contexts, when the government controls access to
religious locations and resources, it substantially burdens
religious exercise by directly—rather than indirectly through
the use of carrots and sticks—denying access to those
locations or resources, objectively interfering with the
plaintiff’s religious practice.
C.
Navajo Nation is not to the contrary. There, we held that
“[a]ny burden imposed on the exercise of religion short of
that described by Sherbert and Yoder is not a ‘substantial
burden’ within the meaning of RFRA.” 535 F.3d at 1070(emphasis added). By excluding burdens “short of” those
described in Sherbert and Yoder, we left room for a more
severe burden to qualify as substantial.
As discussed, the government’s denial of access to
religious resources may result in a greater burden on
religious exercise—potentially preventing religious practice
altogether—than when it influences religious exercise
indirectly by withholding benefits or threatening penalties.
See Cutter, 544 U.S. at 720–21 (explaining that the “degree
of control” the government exercises in institutional contexts
is “severely disabling to private religious exercise”);
Yellowbear, 741 F.3d at 56 (holding that when a “prison
refuses any access” to a sweat lodge, the restriction does not
present “a situation where the claimant is left with some
degree of choice in the matter and we have to inquire into
the degree of the government’s coercive influence on that
choice,” but instead “easily” qualifies as a substantial
72 APACHE STRONGHOLD V. UNITED STATES
burden); Haight, 763 F.3d at 565 (“The greater restriction
(barring access to the practice) includes the lesser one
(substantially burdening the practice).”).
Navajo Nation’s failure to recognize a substantial burden
under the facts of that case supports rather than undermines
my reading of the opinion. In Navajo Nation, the plaintiffs
objected to the government’s planned “use of artificial
snow,” made from recycled wastewater, “for skiing on a
portion of a public mountain sacred in their religion.” 535
F.3d at 1062. “[N]o plants, springs, natural resources,
shrines with religious significance, or religious ceremonies
. . . would be physically affected by the use of such artificial
snow,” “no places of worship [would be] made
inaccessible,” and the plaintiffs would “continue to have
virtually unlimited access to the mountain, including the ski
area, for religious and cultural purposes.” Id. at 1063.
Additionally, the plaintiffs were unable to identify an
objective impact on their religious practice. We concluded
that “the sole effect of the artificial snow [would be] on the
Plaintiffs’ subjective spiritual experience.” Id. at 1063.
In short, in Navajo Nation, the government did not deny
access to or destroy a religious site, as the en banc court
emphasized. So the case did not involve a situation in which
the government objectively and severely interfered with a
plaintiff’s access to religious locations or resources. 4
4
The majority cites several cases in which it says we applied the
constrained definition of “substantial burden” the majority derives from
Navajo Nation. Majority Op. 37–38 & n.11. But none of those cases
addressed a situation in which the government entirely denied access to
or destroyed a religious site or resource. See, e.g., Snoqualmie Indian
Tribe v. FERC, 545 F.3d 1207, 1215 (9th Cir. 2008) (“The issuance of a
new license [to operate for another forty years the Snoqualmie Falls
APACHE STRONGHOLD V. UNITED STATES 73
Nor does Bowen v. Roy, 476 U.S. 693 (1986), Lyng v.
Northwest Indian Cemetery Protective Association, 485 U.S.
439 (1988), or Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (2017), support the majority’s
constricted understanding of the term “substantial burden”
in RFRA. In Bowen, the plaintiff objected to the
government’s use of a Social Security number in conducting
its “internal affairs.” 476 U.S. at 699. Bowen thus did not
address a context in which the government controlled the
plaintiff’s access to religious resources. In Lyng, as in
Navajo Nation, the government did control access to several
religious sites, but the government action at issue—a
proposed road in a national forest—did not deny access to or
directly damage the sites. “No sites where specific rituals
take place were to be disturbed” by the road, and the
government sited the road so as to minimize “audible
intrusions” and “visual impact” on the religious sites. 485
U.S. at 454. Last, Trinity Lutheran, in discussing the Court’s
Free Exercise Clause jurisprudence, simply noted that the
Court had not found government coercion in Lyng. 137
S. Ct. at 2020. That summation is accurate and does not
imply the Court would reach the same result in a case in
which the government controlled access to religious
resources and entirely denied a plaintiff access to those
resources.
In sum, there is no doctrinal basis for limiting the
definition of “substantial burden” to the types of burdens
imposed in Sherbert and Yoder. To the contrary, the case law
supports defining “substantial burden” to include, at a
minimum, situations in which the government controls
Hydroelectric Project] . . . does [not] prohibit or prevent the
Snoqualmies’ access to Snoqualmie Falls, their possession and use of
religious objects, or the performance of religious ceremonies.”).
74 APACHE STRONGHOLD V. UNITED STATES
access to religious resources and entirely denies access to or
destroys those resources, objectively interfering with the
plaintiff’s religious practice.
Finally, and alternatively, if—contrary to my view—
Navajo Nation’s discussion of the meaning of “substantial
burden” does not leave room to recognize greater burdens
than those described in Sherbert and Yoder, as the majority
insists it does not, Majority Op. 31–32, then I would hold
that the Supreme Court since Navajo Nation was decided has
“undercut the theory or reasoning underlying [Navajo
Nation] in such a way that the cases are clearly
irreconcilable.” Miller, 335 F.3d at 900.
As discussed, the Supreme Court has repeatedly
instructed courts to apply the “same standard” in cases under
RFRA and RLUIPA. Holt, 574 U.S. at 358 (quoting
Gonzales, 546 U.S. at 436). Recent Supreme Court cases
under RLUIPA and RFRA are irreconcilable with Navajo
Nation if that case is read, as the majority reads it, to limit
“substantial burden” to denied benefits and threatened
penalties. In Ramirez, a case under RLUIPA, the Court’s
holding rested on an understanding of “substantial burden”
that includes the denial of access to religious resources
where the government controls access to those resources.
142 S. Ct. at 1278. And Hobby Lobby emphasized that
Congress enacted RFRA “to provide very broad protection
for religious liberty” that goes “far beyond what [the
Supreme] Court has held is constitutionally required.” 573
U.S. at 693, 706. The Court rejected as “absurd” the notion
that “RFRA merely restored [the Supreme] Court’s pre-
Smith decisions in ossified form.” Id. at 715. If Navajo
Nation held that RFRA’s definition of “substantial burden”
is limited to the types of burdens described in Sherbert and
Yoder, that holding cannot be squared with Holt, Ramirez,
APACHE STRONGHOLD V. UNITED STATES 75
and Hobby Lobby, read together. See Miller, 335 F.3d at
900. 5
II.
The majority’s proffered “practical basis” for its
constricted definition of “substantial burden” fares no better
than its faulty doctrinal analysis. Majority Op. 24–25.
Practicality, the majority maintains, requires limiting the
concept of “substantial burden” to exclude burdens arising
from the government’s control over access to Native
American sacred sites on federal land because “giving one
religious sect a veto over the use of public park land would
deprive others of the right to use what is, by definition, land
that belongs to everyone.” Id. (quoting Navajo Nation, 535
F.3d at 1063–64).
True, recognizing Native Americans’ right of access to
traditional religious sites on federal land may sometimes
constrain competing uses of the land. But this “practical
basis” for the majority’s definition of “substantial burden” is
flawed in two ways. First, there is no justification for
resolving competing claims on the uses of federal land by
refusing to recognize the Native American claim at the
“substantial burden” stage of the analysis. Second,
recognizing a substantial burden on religious exercise does
5
If I am incorrect that Navajo Nation, if understood as the majority
posits, does not survive Holt, Ramirez, and Hobby Lobby, then our court
should reconsider en banc the majority’s holding here that “under RFRA,
the government imposes a substantial burden on religion only when the
government action fits within the framework established by Sherbert and
Yoder.” Majority Op. 20. That reading of RFRA is wrong for all the
reasons explained in this dissent.
76 APACHE STRONGHOLD V. UNITED STATES
not result in an automatic “veto” over other uses of the land.
I address these errors in turn.
First, burdens on Native Americans who practice land-
based religions and who depend on the federal government
for access to federal land are not excluded from RFRA’s
coverage. RFRA “applies to all Federal law, and the
implementation of that law, whether statutory or otherwise.”
42 U.S.C. § 2000bb–3(a). There is no exception for federal
laws relating to federal land or access to sacred sites.
Moreover, it is disingenuous to resolve the concern about
competing claims on federal land by slipping it into the
substantial burden analysis. The majority’s concern,
revealed by its discussion of the “practical basis” for its
holding, has nothing to do with whether the Apaches’
religious exercise is substantially burdened and everything
to do with how we address competing demands for
resources—in this case, federal land that hosts both a
traditional sacred site and a copper deposit. By pretending
that the question is whether there is a “substantial burden”
on the Apaches’ religious exercise, and not whether the
government has shown a compelling interest in putting the
site to a different use, we avoid a transparent inquiry into the
considerations that should determine the allocation of
resources for which there are competing demands, one of
which is religion-based.
That brings me to the majority’s second error, its
assertion that acknowledging a substantial burden when
Native Americans are denied access to sacred sites would
give Native Americans an automatic “veto” over competing
uses of federal land. Majority Op. 24–25. It would not.
Instead, it would lead us to the second step of the analysis,
the compelling interest test.
APACHE STRONGHOLD V. UNITED STATES 77
Unlike the substantial burden inquiry, the compelling
interest test provides a transparent tool for airing and
resolving conflicts between the interests of religious
adherents and those of others in society. It gives the
government an opportunity to provide a rationale for its
action and demonstrate the lack of viable alternatives. It
allows the court to engage in an open discussion about
balancing competing interests. And it does not result in an
automatic loss for the government. “Strict scrutiny is not
‘strict in theory, but fatal in fact.’” Grutter v. Bollinger, 539
U.S. 306, 326 (2003) (quoting Adarand Constructors, Inc. v.
Peña, 515 U.S. 200, 237 (1995)). According to one empirical
analysis, federal courts applying strict scrutiny in religious
liberty cases between 1990 and 2003 upheld the challenged
laws nearly 60 percent of the time. Adam Winkler, Fatal in
Theory and Strict in Fact: An Empirical Analysis of Strict
Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 796–
97 (2006).
The majority has demonstrated neither a doctrinal nor a
practical basis for its narrow definition of “substantial
burden” under RFRA. The case law and history of RFRA
instead support recognizing a substantial burden when the
government controls access to religious resources and
completely denies access to or destroy those resources,
objectively interfering with the plaintiff’s religious exercise.
After finding a substantial burden, courts still must apply
RFRA’s compelling interest standard, which permits a
transparent inquiry into the strength of the government’s
proffered justification for its action.
III.
Applying the proper definition of the term, there is no
doubt that the complete destruction of Oak Flat would be a
“substantial burden” on the Apaches’ religious exercise. As
78 APACHE STRONGHOLD V. UNITED STATES
the district court found, the “evidence . . . shows that the
Apache peoples have been using Oak Flat as a sacred
religious ceremonial ground for centuries.” Apache
Stronghold v. United States, 519 F. Supp. 3d 591, 603
(D. Ariz. 2021). And the Oak Flat location is not fungible
with other locations for purposes of the Apaches’ religious
activities. The Apaches perform ceremonies at Oak Flat
because they believe the site to be “a ‘direct corridor’ to the
Creator’s spirit.” Id. at 604. “Many of the young Apache
women have a coming of age ceremony, known as a ‘Sunrise
Ceremony,’ in which each young woman will ‘connect her
soul and her spirit to the mountain, to Oak Flat.’ . . . Apache
individuals pray at the land and speak to their Creator
through their prayers.” Id. “The spiritual importance of Oak
Flat to the Western Apaches cannot be overstated.” Id. at
603.
The purpose of the Land Transfer Act, and Resolution
Copper’s planned use of the land, is to extract copper ore
from below Oak Flat, using a technique called “block
caving” or “panel caving.” Once the ore is removed, the land
above the deposit will collapse, creating a “subsidence zone”
about 1.8 miles in diameter and about 1,000 feet deep,
destroying Oak Flat. According to the government’s
environmental impact statement, “the impacts on
archaeological sites, tribal sacred sites, cultural landscapes,
and plant and mineral resources caused by construction of
the mine would be immediate, permanent, and large in
scale.” As the district court found, “the land . . . will be all
but destroyed to install a large underground mine, and Oak
Flat will no longer be accessible as a place of worship.”
Apache Stronghold, 519 F. Supp. 3d at 606. By preventing
the Apache people from using Oak Flat as a site for religious
ceremonies as they have for centuries, the Land Transfer Act
will “have a devastating effect on the Apache people’s
APACHE STRONGHOLD V. UNITED STATES 79
religious practices.” Id. at 607. “The Western Apaches’
exercise of religion at Oak Flat will not be burdened—it will
be obliterated.” Order Denying Emergency Mot. for
Injunction Pending Appeal at 9, Apache Stronghold v.
United States, No. 21-15295 (9th Cir. Mar. 5, 2021)
(Bumatay, J., dissenting), ECF No. 26.
As the government controls access to Oak Flat and the
result of the Land Transfer Act will be to make the site
inaccessible and eventually destroy it, objectively
preventing Apaches from holding religious ceremonies
there, I would hold Apache Stronghold is likely to succeed
in showing a substantial burden on its members’ religious
exercise. 6
Once a court finds a substantial burden, “the burden of
persuasion shifts to the government to prove that the
challenged government action is in furtherance of a
‘compelling governmental interest’ and is implemented by
‘the least restrictive means.’” Navajo Nation, 535 F.3d at
1068. The government has not attempted to satisfy the
compelling interest test here or in the district court, instead
limiting its arguments to the substantial burden issue.
6
Alternatively, I would hold that even under the majority’s unduly
narrow definition of “substantial burden,” Apache Stronghold has
demonstrated that the Land Transfer Act will coerce its members “to act
contrary to their religious beliefs by the threat of civil or criminal
sanctions.” Navajo Nation, 535 F.3d at 1069–70. After Resolution
Copper closes Oak Flat, but before it is totally destroyed, Apache
Stronghold members will face penalties for trespassing if they attempt to
hold religious ceremonies there.
I do not stand principally on this point, however. I am reluctant to
lend credence to the notion that a trespass conviction is a substantial
burden on religion but complete destruction of an irreplaceable religious
location is not.
80 APACHE STRONGHOLD V. UNITED STATES
Because the government bears the burden of persuasion on
the compelling interest test and has not carried it, Apache
Stronghold is likely to succeed on the merits of its RFRA
claim. See Gonzales, 546 U.S. at 429 (confirming the
government bears the burden of satisfying RFRA’s
compelling interest test at the preliminary injunction stage).
As the district court did not address the other elements of the
preliminary injunction test, I would remand for the district
court to do so in the first instance.
I therefore respectfully dissent.