Litigation Update: Apache Stronghold v. United States Goes En Banc at the Ninth Circuit

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Jack Capizzi:  Welcome to today’s Federalist Society virtual event. Today, March 24, 2023, we are excited to present a litigation update in the case of Apache Stronghold v. U.S. My name is Jack Capizzi, and I’m an assistant director of practice groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

After our speakers have given their remarks, we will turn to you, the audience, for any questions you might have. If you do have a question, please type it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of the program. Thank you all for being with us today, and with that, I’ll hand it over to Adam Griffin from our Environmental Law and Property Rights Practice Group Executive Committee who will be moderating today’s program. Thank you all for being with us. Adam, the floor is yours.

 

Adam Griffin:  Thank you, Jack, and thank you to The Federalist Society for hosting and to our audience for being here. This case is a really interesting one. It is Apache Stronghold v. United States. It was heard en banc by the Ninth Circuit this week. It presents an intersection between Native American tribes’ free exercise rights, religious liberty, and the government’s power to regulate its territories.

 

In 2014, Congress authorized a land exchange between Resolution Copper and the United States for a large parcel of the land so that Resolution Copper could engage in mining and build a mine because the land contains the third largest copper deposit in the world. There is a sacred site to the Apache, the Apache sacred site of Oak Flat that is on that parcel of land. And if the land exchange goes through, Resolution Copper plans to destroy that sacred site and build a mine in its place. The Apache Stronghold is arguing that would violate their religious liberty under RIFRA, the free exercise clause, and under a trust theory between the government and the Apache. And then the United States is arguing that it’s under its power to regulate the territories that it can engage in this exchange.

 

Here to talk about this interesting case on behalf of Apache Stronghold is the vice president and senior counsel for Becket, Luke Goodrich. Mr. Goodrich represents religious liberty clients across the country at Becket. He’s also an adjunct professor and the author of Free to Believe: The Battle Over Religious Freedom in America. He’s won numerous precedent setting circuit court decisions in his time at Becket, as well as worked on a number of pathbreaking victories at the Supreme Court, including Little Sisters of the Poor v. Burwell, Burwell v. Hobby Lobby, Holt v. Hobbs, and Hosanna-Tabor v. EEOC. He is one of the nation’s foremost religious freedom attorneys, and before joining Becket he was an appellate attorney at Winston Strong in Washington, D.C., worked as an advisor in the human trafficking office at the Department of State, and was a law clerk for Judge Michael W. McConnell on the United States Court of Appeals for the Tenth Circuit. Thank you, Mr. Goodrich, for being here.

 

On behalf of the United States, we have speaking Anthony J. Ferate. Mr. Ferate filed an amicus brief on behalf of the Arizona Chamber of Commerce and Industry in support of Appellee United States. Mr. Ferate has a multifaceted background in the areas of law, public policy, energy, campaigns and elections, and defense over the last 20 years. Recently, as Vice President of Regulatory Affairs to the Oklahoma Independent Petroleum Association, he has represented that association in various government efforts with water, electrical generation, commodity marketing, land matters, and other environmental and property rights issues.

 

He’s also volunteered as general counsel and spokesman for the Oklahoma Republican Party and served in various other governmental capacities, including service for Judge Gary L. Lumpkin, at the Oklahoma Court of Criminal Appeals, which is Oklahoma’s highest criminal appellate court. Thank you, Mr. Ferate, for being here to discuss the United States’ position in this case and the Arizona Chamber of Commerce’s amicus brief. With that introduction, thank you to our speakers, and I’ll turn it over to Mr. Goodrich.

 

Luke Goodrich:  Thank you, Adam. Thank you, AJ, for being here. Fascinating case. I will start out just kind of laying out our basic position on behalf of Apache Stronghold and then, since we have the en banc argument two days ago, address kind of four big issues of contention that came up at the oral argument, kind of how those can or should play out.

 

So as Adam mentioned, the facts here are not too complicated. The government has planned to hand over the central sacred site of western Apache, Oak Flat, to a copper mine that plans to completely destroy it, swallow it in a crater so it will be gone forever. And our central claim in the case is based on the Religious Freedom Restoration Act, a fairly simple statute. It says that the government shall not substantially burden a person’s exercise of religion unless the government can show that doing that satisfies strict scrutiny.

 

And so every RIFRA claim has two basic parts. First, the plaintiff has to show the substantial burden on religious exercise. And then second, if they show that, the government has to satisfy strict scrutiny. So our argument here is fairly simple. It's based on the plain meaning of the statute, based on precedent interpreting the statute, and based on logic. And our argument is that the term “substantial burden” it means that the government is making your religious exercise significantly more costly or difficult.

 

And there’s a number of cases that everybody agrees count as a substantial burden, like if the government imposes a fine on you, the case of Yoder where the government fined an Amish family for keeping their child out of public schools. However, if the government denies a benefit from you, like the case of Sherbert where the plaintiff lost unemployment compensation because she wouldn’t work on the Sabbath. Those types of indirect burdens where the government kind of puts you to a choice between exercising religion or losing out on a benefit or suffering a fine, everybody agrees that those count as a substantial burden. And our argument is here the government is doing something far worse.

 

It’s not just threatening the Apache with fines if they trespass at Oak Flat. It is handing over Oak Flat for physical destruction, swallowing it in a crater. It’ll be fenced off. The Apache will never be able to access it again, and it will end their core religious exercises forever, practices that must take place there and can’t take place anywhere else. So this is an obvious substantial burden. And earlier in the case, Judge Bumatay on the Ninth Circuit said this is an obvious substantial burden.

 

And there’s a lot of precedent that supports this. There’s a lot of prison cases where in prison the government isn’t necessarily penalizing someone for exercising their religion. It can just use its control over the prison context to prevent someone from engaging in their religious practice. Say it decides not to bring in kosher meals for an Orthodox Jew. It happens in the military context. If you’re deployed somewhere, the government may need to give you access to clergy or access to religious meals in order to make you able to exercise your religion. It also happens in the land use context like zoning where the government has control and you can’t build or expand your sanctuary unless the government gives you permission to do so.

 

And so this case by analogy the government controls the land where the religious exercise needs to take place. And when it manages that religious resource in a way that cuts off your access or destroys it and ends your religious exercise forever, that easily qualifies as a substantial burden. And there’s cases that have found this in the Native American context, a case called Comanche Nation where the government was going to build a warehouse on the sacred site. The court said that’s an obvious substantial burden.

 

What does this mean? It doesn’t mean we automatically win the case. This is just the first half of the RIFRA claim. It just means we get to the second step of the analysis of strict scrutiny. And the question is can the government show that building the copper mine here is the least restrictive means of furthering compelling governmental interest? Here however the government has not made any argument on the second half of RIFRA. It’s placed all its eggs in the substantial burden basket, at least at the preliminary injunction stage. And so that’s the only question here is does destroying a sacred site constitute a substantial burden? So that’s our basic case.

 

There are four kind of areas where oral argument tended to center. First is a Supreme Court case called Lyng v. U.S. Forest Service. This is back in the 80s. The government was authorizing the building of a road through a forest that was sacred to Native Americans. They sued under the free exercise clause because RIFRA didn’t exist. And they lost.

 

And a lot of the questions at oral argument were what does Lyng mean for this case? And there’s a couple ways you could read Lyng. You could read Lyng as saying yeah, there’s a substantial burden when the government builds a road through a forest, but that burden doesn’t count because the government’s just doing something on its own land. That’s how the government tries to read Lyng.

 

The other way to read Lyng is as a proto Smith case. And what I mean by that is Employment Division v. Smith said when there’s a burden that results from a neutral and generally applicable law, you don’t apply strict scrutiny. And that was what Lyng said. Lyng said this is an incidental burden. They’re not targeting the Native Americans. So even though the burden may be substantial, it doesn’t count.

 

And we’ve argued that second reading of Lyng is a proper reading. It fits with language in Lyng itself talking about the burden is incidental. It also fits with the way that every subsequent Supreme Court case has talked about Lyng. Smith talked about Lyng as a case about a neutral and generally applicable government action. Trinity Lutheran talked about Lyng that way. Fulton talked about Lyng that way, and multiple lower courts have talked about Lyng that way.

 

A really interesting example is a Third Circuit case called Tenafly. That was where Orthodox Jews wanted to put up rubber strips on public utility poles to make an eruv, which allows them to carry objects during the Sabbath. So they’re trying to use government property for their religious exercise. The government said no. It didn’t penalize them. It didn’t deny benefits. It just said we’re going to take down the rubber strips that make your eruv, and we’re allowed to do that under Lyng.

 

And the Third Circuit said no, that’s the wrong reading of Lyng. Lyng was about neutral and generally applicable government laws. But it would be a burden to take this down. And you’re targeting the Jews, so that’s a substantial burden. And you get to strict scrutiny. So that’s the Lyng issue that came up at oral argument.

 

The second big issue that came up Judge VanDyke raised this issue several times. It was like if the government’s use of its own land could constitute a substantial burden and get you to strict scrutiny under RIFRA, well, that’s scary. Anybody can claim that if you don’t let me build a church on government land or if you use government land a certain way, that’s offensive to me or that’s going to cause me to go to hell. And there’s no stopping point. So we have to find some way to limit the burdens that count under RIFRA.

 

But I think this line of objection confuses two very different concepts. So when you’re talking about burdens under the free exercise clause or RIFRA, the burden is not the spiritual consequences to the plaintiff or the believer of not doing the religious exercise. So if you take like the Amish in Yoder, the burden is not my child will be harmed if I send my child -- spiritually harmed if she goes to public school. Or if you take the Sabbatarian cases, it’s not the burden is I will go to hell if I don’t keep the Sabbath. Those are the spiritual consequences. But the burden is the difficulty that the government puts in the way of that religious exercise.

 

So in Yoder for example it was the fines, the threat of criminal fines, if you don’t send your children to public schools. Or in Sherbert on the Sabbatarian case it was the loss of government benefits that you can’t get if you keep the Sabbath. And so the burden in these cases has to be some government action that objectively interferes with religious exercise.

 

So if you take our sacred site case, if the government were to fine the Apache for going to the sacred site, obvious substantial burden, objective interference with their religious exercise. If they were to physically restrain the Apache, arrest them to prevent them from going onto Oak Flat, obvious substantial burden, and similarly by blowing Oak Flat up and swallow it in a crater so they can never go there again, that as well is an objective burden on their religious exercise. And I think Judge VanDyke’s tendency to want to treat the spiritual consequences as the burden, that creates very significant problems for religious liberty because it means the courts, they either have to wade into religious questions and answer religious question and second guess the religious believer on the scope of their religious beliefs.

 

Or the courts either have to just lay down and take the plaintiff at their word and anything they say counts as a burden, which is a very extreme position. And then the courts will feel compelled to carve out different areas that can’t qualify as a substantial burden. Here it’s the government’s use of land. But in future cases there’s all kinds of things that people would want to carve out. Like if an action might cause third party harms, if a religious claim might cause third party harms, let’s carve that out. And it's ultimately going to harm religious liberty in the long run.

 

But even if you take -- so the government tries to carve out and say you have to be coercing the person. The only types of burdens that count are if you’re coercing the person. But that fails on several grounds. Number one, coercion is not in RIFRA’s text at all. Coercing the person or burdening the person is not in RIFRA’s text at all. It’s burdening the exercise of religion. And the case law doesn’t bear out this coercion of the person type of rubric.

 

One of the cases that led to RIFRA’s enactment was a case called Yang where the government just conducted an autopsy on a boy who died unexpectedly. And the parents objected to that. It wasn’t coercing the parents. It wasn’t penalizing them. It wasn’t even regulating them. It just conducted the autopsy, and yet that seriously interfered with their religious beliefs. Everybody in Congress and the Supreme Court decided that as an example of a substantial burden.

 

Same with the eruv case like Tenafly. That was putting up rubber strips on utility poles. Third Circuit said that was a cognizable burden. Even many prison cases don’t fit that rubric of coercion where the prison is just managing its internal operations, deciding what meals to bring in, how to run its cafeteria. Yet that can still count as a substantial burden.

 

And even if you say that coercion is the touchstone, we obviously have coercion in the Apache Stronghold case. Coercion simply means the government uses its power to force you to do something you don’t want to do or to prevent you from doing something you do want to do. And here we have coercion in spades.

 

Right now, the Apache are free to go to Oak Flat, access it, carry out their religious practices there. But the government is using its power to swallow it in a crater. And it’s going to stop the Apache from ever doing that again. Even more coercively and more convincingly than if they just fine the Apache or imprison the Apache. So we have plenty of coercion here. And then a third key issue that came up -- how am I doing on time, Adam? I think I got ten minutes to start?

 

Adam Griffin:  Yeah. I think you have about like three more minutes if you’d like.

 

Luke Goodrich:  Okay. I might not get to all four. I can do a fourth one in rebuttal. But the third issue that came up at oral argument was really kind of about the scope of relief. And Judge Nelson asked a number of questions about this, like what are we supposed to enjoin here? Let’s say you win on substantial burden. What is the appropriate relief? Do we enjoin the transfer of the land to the mining company? Do we say that the transfer can go forward but you can mine it in some less intrusive way?

 

And there’s a couple important points to bring out there. Number one is we’re just on a preliminary injunction right now. We aren’t even at summary judgment. We’re not talking about a permanent injunction. All we’ve asked for is a preliminary injunction. Let’s preserve the status quo while the litigation plays out. And so the question is not what is the ultimate scope of relief; it’s just would enjoining the land transfer temporarily -- would that preserve the status quo and allow the court to decide the case? The answer is clearly yes.

 

The question about the scope of relief, narrower forms of mining, the things that Judge Nelson was bringing up, that’s really a question about strict scrutiny. And that’s specifically what RIFRA is designed to allow courts to take into account on strict scrutiny. It’s are there less restrictive alternatives for accomplishing the government’s goals?

 

On the record as we came before the court two days ago, there’s only one proposal. It’s in the government’s final environmental impact statement. The proposal is mine the entire area of Oak Flat and swallow the entire area in a crater so it can never be done again, no religious exercise can ever be taken place there again. The government hasn’t offered any alternatives to that. So when that’s the only alternative on the table and that’s the only purpose of the transfer, it’s appropriate to enjoin the transfer. On remand at the summary judgment stage, permanent injunction stage, the government may come forward with different alternatives it wants to pursue, and those may result in a different ruling or a different possible scope of relief. But really all that gets handled on strict scrutiny, not on the substantial burden prong at the preliminary injunction stage.

 

So that’s three out of the four areas that came up. In the interest of time I’ll just sum up. Again, our core position is just very simple based on the text of RIFRA. What does it mean to substantially burden religious exercise? If fining the Apaches for going to Oak Flat counts, if restraining them from going to Oak Flat counts, then blowing Oak Flat to smithereens so they can never go there again and never exercise their religion there again obviously counts as a substantial burden.

 

And again, that’s not a broad position; it’s a narrow position because all it means is we get to the second step of the analysis, the strict scrutiny analysis. And if the government has really important reasons for carrying out the mine or things like that, it can try to demonstrate that on strict scrutiny. The court can engage in that balancing, and that’s exactly how RIFRA is designed to operate. Thanks.

 

Adam Griffin:  Great. Thank you, Mr. Goodrich. Mr. Ferate?

 

Anthony J. Ferate:  Well, thank you very much, Adam. It’s good to be with you today, and it’s good to be with Mr. Goodrich. He did a great job on behalf of his clients at the Ninth Circuit. But I do have a few differing views on that as you might assume in a Federalist Society discussion.

 

And the first one that I want to note is we heard regularly that the land will be destroyed, and I think that the court heard very clearly when Mr. Debold  stood before them that that’s not going to occur. It’s not going to be a giant crater. The first issue is certainly that anything that goes on is going to be decades in advance. This is the third largest copper deposit in the world. Some of it may not be accessible, and other parts may. But the one thing that the mining company has already committed to is the campground. A particular sacred area of the land will remain.

 

But more importantly, part of this whole transfer was actually a trade of land. So Congress when they actually passed the act to transfer the land actually received in trade a number of other sacred holy sites within the same area in Arizona. And so I think that those are important elements that some of those decision were weighed even before this case even came to be and frankly even long before this case was ever filed. So Mr. Goodrich talked about clear text, precedent, and substantial burden are on his side. Frankly, I view them very opposite as you might presume.

 

So let’s look at RIFRA’s legislative history. The House Committee, the judiciary report came out. And it says very clearly “The committee’s expectation is that the courts will look to free exercise religion cases decided prior to Smith for guidance in determining whether or not religious exercise has been burdened and the least restrictive means have been employed furthering a compelling government interest.” The footnotes of that House Committee report included mention directly of Lyng.

 

The Senate Committee report, “Pre-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 government’s own property or resources.” That’s the Senate Committee report with a footnote again to Lyng. And so what does Lyng do? Lyng was a situation -- and first of all, we started with Bowen prior to Lyng.

 

But Lyng was a successor to Bowen. And what Bowen said is there was a family who did not want their child to have a Social Security number. That was a concern for them, and they believed that identifying their child by a number would really impact that child’s ability to go to heaven. And the court said this is the government’s internal accounting system. We can’t just create a carve out system for any particular group and upheld the government’s right to issue Social Security numbers in their system.

 

Lyng was about destruction of land. In fact, Mr. Goodrich and Ms. Barclay said at argument that Lyng did not involve destruction of land. Quite candidly I beg to differ by looking at the briefs. In Navajo Nation, which we’ll discuss in a little bit, the brief of the Navajo Nation, their joint opening brief, they said very clearly “It will destroy Hopi culture and everything that they are as a people because the Peaks are sacred and powerful and give the Hopi life.”

 

In Lyng, again, this was in the brief of respondents. “The study concludes that intrusions on the sanctity of the Blue Creek High Country are potentially destructive to the very core of the Northwest Indian religious beliefs and practices.” So to identify Lyng or Navajo Nation as not complete destruction I think belies the actual arguments of the tribes in Lyng and Navajo Nation.

 

The other thing to contemplate when we’re dealing with RIFRA and Lyng analysis is what Professor Stephanie Barclay said. She argued on behalf of amici in this case. She’s also been involved with Becket in the past. She actually said in a law review article just last year that a reconceptualized approach would be necessary to prove a prima facie substantial burden much more easily. I think that there’s a -- I mean, there’s very clear recognition, and that’s at page 1343 of her article. But there’s a recognition that Lyng and Bowen and Navajo Nation and Snoqualmie really need to be overturned in order to get to the heart of what it is that they’re trying to accomplish in Apache Stronghold. Also be clear that this is not the only one of these cases going through. There’s another case that was tried before the Ninth Circuit and is currently on cert to the Supreme Court seeking review on these very same issues I believe led by Professor Barclay in that one.

 

So what are we really dealing with? And I think that what we heard I think in the argument was are RLUIPA or RIFRA -- there’s a preference for the RLUIPA type structure when we’re dealing with RIFRA cases. But that’s a little difficult given the existing case law. Another thing that I do want to mention as we’re talking about circuit courts, there’s very clear law on this, Wilson v. Block, Prater v. City of Burnside, Kentucky, Lockhart v. Kenops. There’s a number of cases as well I can cite showing the circuit examples that do bear out in favor of this mine going forward.

 

Now, I do want to talk briefly before I talk about the judges in conclusion -- I want to talk about the tribal law because Judge Gould talked at length -- or I guess he didn’t speak at length, but he asked at length. He asked multiple parties to talk about the treaty and whether or not the treaty had some semblance or stand alone could actually answer the questions here. And I think that the answer is no.

 

I think first of all that the plaintiffs in this case misunderstand the McGirt principles. As many of the viewers know, I’ve been involved in the McGirt issues and Teleforums on that in the past. But let me read to you directly from Article IX of the Treaty of 1852. It says, “Relying confidently upon the justice and liberty of the aforesaid government and anxious to remove every possible cause that might disturb their peace and quiet, it is agreed by the aforesaid Apaches that the government of the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries and pass and execute in their territories such laws as may be deemed conducive to the prosperity and happiness of said Indians.”

 

So when we’re looking at tribal arguments and when we’re looking particularly at treaties, Cougar Den is perhaps the most recent decision to say this, but it’s a longstanding principle that treaties are to be viewed in the light most favorably to the tribe that signed the agreement. But the problem here is that we don’t have a Cougar Den or a Herrera v. Wyoming example of a treaty. In those examples, for example, on Cougar Den it said very clearly that the Yakama tribe would have the ability to travel on the highways and roads outside of the reservation. That was an issue over fuel. Can they carry fuel, or can they just travel on the roads? And the Supreme Court said no, they can carry fuel onto the reservation as well.

 

In Herrera it was a question about hunting the buffalo in the area. And in that case the tribe won successfully because they hunted the buffalo in Wyoming land, and there was an attempt to assess a fine against the tribal members for harvesting I believe it was elk in that situation. But here we have a very generic, very vague type of explanation. There is nothing in here to provide any specificity to where that exists. And so that’s the first point I want to raise about that in regard to the land.

 

But the more specific one that I want to raise about the land is this land is not held in trust for any tribe. This land is not held in trust period. This is owned directly in fee transferred by the Mexican government in 1848.

 

Now, if I were to go down to the federal courthouse here in Oklahoma City and take a knee every day and I say that this is where god tells me that I must pray every day, I don’t have a right to that land. It’s not being held in trust or being protected for me in any way. I don’t have any possessory interest in it. It’s just where I go to pray.

 

And there may be some sort of an argument to be made if the tribe -- A, the land had been held in trust they certainly would in that situation. But if there was something more in the treaty that can be argued in the language of the treaty, they may actually have that benefit. But they don’t. And so given the elements that are involved in dealing with the tribal law elements in this, the very significant and very weighty decisions under Lyng and Bowen and Navajo Nation and Snoqualmie, frankly in Snoqualmie they first could even use a more favorable standard of review than they should have. And in that instance it was unsuccessful as well. Given these very weighty perspectives, I have difficulty finding any real basis not only for a temporary injunction but for this case period.

 

I think some of the discussion from the judges -- as we went through this Judge Brian Nelson as Luke mentioned spoke very lengthy trying to figure this out but did note near the end of that he was struggling with the arguments that were being provided on behalf of Apache Stronghold and was really going to have to contemplate them significantly. Judge Lawrence VanDyke, he and Judge Nelson frankly were the two that I was watching for in particular before arguments. And I think both of them had quite a significant amount of doubt as to the merits of the cause, the merits of the temporary injunction and were struggling with it.

 

I mentioned Judge Gould. Judge Bea who was on the three judge panel that decided this matter also chimed in with some questions but also stayed a little bit less active obviously than some of the others. And Judge Berzon was there. She had written a very strong dissent in the past on this and I think was following this very, very curiously. So with that I think that that is what I will pause on at this point and hand it back over to Luke.

 

Adam Griffin:  Thank you, Mr. Ferate. And sorry, Mr. Goodrich?

 

Luke Goodrich:  Thanks, AJ. Responding first, one of your first arguments was basically fighting the facts, saying the land won’t be destroyed or might not be destroyed or it might be decades away or the campground is going to remain. I would just say on this record there’s only one description of what is planned for this land, and it’s in the final environmental impact statement. And over 180 times the final environmental impact statement says the destruction in this case will be irreversible, irretrievable, permanent. It repeatedly says it will happen immediately. It says that access to the entirety of Oak Flat will be eliminated.

 

And a point about the campground, the campground is just about -- it’s a few acres. It’s about 1 percent of the area of Oak Flat that the plaintiffs use for their religious exercises. And Resolution has said oh, we’ll keep access to the campground until we, Resolution Copper, decide in our sole discretion that it’s not safe to do that anymore because of operation of the mine. So basically the only question of access here is we might get access to 1 percent of Oak Flat temporarily until the mine decides we shouldn’t have it anymore. But 99 percent is guaranteed to be cut off access immediately and completely destroyed. And that’s just the undisputed facts from the final environmental impact statement.

 

I mentioned four areas of contention at the argument. I only covered three. So briefly the fourth one, very interesting issue, not even specific to RIFRA, but it’s about when can one statute of Congress displace another one. And Judge Collins brought this up several times saying RIFRA’s enacted in 1993. This land transfer statute was enacted later. Does the later statute trump the former statute?

 

Textually, RIFRA already addresses this. RIFRA says it applies to later enacted laws, unless the later enacted law expressly exempts itself from RIFRA’s application by referencing RIFRA. And nobody here disputes that the land transfer statute doesn’t do that. So by its text RIFRA still controls here. So there’d have to be an argument that somehow RIFRA’s express reverence provision is unconstitutional. There’s no case that has ever held that.

 

Judge Collins brought up one case from the 1950s from the Supreme Court called Marcello. And it’s addressing APA, the Administrative Procedure Act, which has a kind of similar expressed reference provision. It says that later enacted laws can’t supersede the procedures in the APA “except to the extent that it does so expressly.”  And then in Marcello you had the INA, the Immigration and Naturalization Act. And the INA said, “The procedure herein proscribe shall be the sole and exclusive procedure for determining the deportability of aliens.” And what the Supreme Court said in Marcello was the INA satisfied the APA’s express reference provision by saying these are the express procedures, the only procedures that govern aliens.

 

And so the Supreme Court didn’t say the express reference provision is unconstitutional. It said the express reference provision is satisfied. But nobody has even argued that the express reference provision of RIFRA is satisfied here. And you actually have two Supreme Court cases that have expressly applied RIFRA to the later enacted Affordable Care Act.

 

So I think that’s kind of a side issue, but if it got traction, it would actually be devastating to religious liberty and to RIFRA. It would open up an entire new field of undermining RIFRA by arguing that any time a later enacted statute threatens religious freedom that later enacted statute trumps RIFRA. That would be an utter shock to Congress.

 

Just take one example, the Respect for Marriage Act that was passed very recently, much of the debate in Congress -- you got through the Respect for Marriage Act because everybody said, oh, that’s going to be subject to RIFRA. Religious liberty’s taken care of. But if this argument gains traction, all that goes out the window, and everybody who’s trying to force people to participate in same sex marriage can say the Respect for Marriage Act trumps RIFRA. So that was a fourth issue.

 

I think to wrap up I think what animates the government’s position here, and I’ve heard it a bit from AJ, it’s not really the text of RIFRA. Substantial burden, how it’s applied in RLUIPA, I’d be interested if AJ differs. But if you actually just look at the plain meaning of substantial burden and ask does it substantially burden the Apache’s religious exercise to blow up their sacred site and stop their religious exercise forever -- is that a substantial burden on their religious exercise, then the answer is obviously yes.

 

So the government’s position here is not driven by text. It’s not even driven by precedent because Lyng is distinguishable, and it was actually addressing a different legal question under the free exercise. What’s really driving and animating here is a policy argument. It’s if we apply RIFRA according to its text, we’re afraid of the consequences. It might unduly restrict the government in managing its own land. That’s a policy argument that is commonly expressed.

 

But it’s also the policy argument that the Supreme Court made in Employment Division v. Smith saying if we apply strict scrutiny to all types of federal government action, it’s just going to unleash chaos. And government can’t function if we do that. That policy argument in Smith, that’s the exact policy argument that Congress rejected in enacting RIFRA. And that policy argument also doesn’t make sense when applied to federal land for several reasons.

 

Number one, federal decisions about federal land are already subject to the First Amendment in multiple respects. Just take public forum doctrine under the free speech clause. The government manages federal land if it said we’ll allow some protests here but not others. That would clearly violate the First Amendment under forum doctrine. If the government just transferred the land, said let’s give it to a church and tell them to put up a church and promote Christianity, that would clearly violate the establishment clause even under the most originalist interpretation of the establishment clause. That’s how the government funded the established church was transferring land to the established church to put up churches and to fund the minister.

 

But even setting aside the First Amendment, government land and government decisions about land are subject to a plethora of environmental laws: NEPA, FLPMA, NHBA, NAGPRA, Clean Water Act, Clean Air Act, and on and on. Just to give on example, the Endangered Species Act -- if the government wanted to do the exact same mine here at Oak Flat but there was an endangered snail darter that would be rendered extinct, we all know the government could not execute the mine. That’s the TVA case. In that case, the government wouldn’t even get a chance to satisfy strict scrutiny. The Endangered Species Act doesn’t give the government a strict scrutiny affirmative defense.

 

So really all we’re doing here -- if you apply RIFRA according to its text, all we’re doing here is giving the fundamental right of religious freedom a little bit less protection than we already give to endangered animals. And that is not at all an extreme position or a position under which the government can’t function. Congress said you can apply strict scrutiny. We have 30 years of experience under RIFRA, and it’s proven to be a workable test.

 

So I guess to sum up, I mean, AJ, maybe during your time the three things I’d love to hear is, number one, can you really square the government’s position with just a plain meaning interpretation of substantial burden? I don’t think you can do that. Number two, the whole prison analogy, there’s a case where Justice Gorsuch, then Judge Gorsuch, said that a convicted criminal in prison had to be given access to a sweat lodge. So how does it make sense that convicted criminals in prison in a high security prison have more freedom to access a sweat lodge on the federal land of prison than law abiding Apaches have to exercise their religion using a sweat lodge at Oak Flat? How does that make sense?

 

And then the third question would be why should endangered animals get far more protection than law abiding human beings seeking to exercise their fundamental First Amendment right of religious freedom just because it’s on government land? Thank you.

 

Adam Griffin:  Thank you, Mr. Goodrich. And AJ?

 

Anthony J. Ferate:  Thank you. I think I can generically sum up the last two points by just simply saying this. This is the government’s land. It has been since 1848 when they received it from Mexico. The Constitution allows them to dispose of their land as they see fit, and here they’re trying to do that.

 

Again, I can’t claim -- I mean, there’s no claim of adverse possession. There’s just simply a claim like as I was a kid when I would go play on somebody’s yard. I’d go play baseball. I didn’t own the land. I just played it for baseball. I didn’t have a right to it. I didn’t have a right to use it. I just did it until the land owner told us quit playing on my field. So I think that that’s really part of the situation that we’re dealing with here is this is the government’s land. The government doesn’t want it to be their land anymore. It’s going to transfer it for a very significant national security purpose.

 

So as far as endangered animals, the darter snail was actually in Memphis rather than in Arizona. But there’s been no evidence or claim that there’s an endangered animal here at Oak Flat. But more importantly, again, it’s the simple issue that while it may be used by individual parties, it doesn’t have any ownership interest that belongs to those individual parties. And so I just think that that’s the difficult answer.

 

Square plain meaning, we have very clear examples within the text that they are applying Yoder. They’re applying -- I’m sorry, not Schultheiss but they’re applying those other examples that really come through in the decision of which Lyng is a part of that process and element. And so that’s what we’re dealing with within RIFRA. And I think that it’s very clear not only from the text of RIFRA. I think from looking at this in a plain, practical way that you have individuals trying to use somebody else’s land and then getting upset when it’s their turn to sell it. That’s all I have.

 

Adam Griffin:  Thank you, Mr. Ferate. It’s been a great debate. Let me turn to our questions here. First is what if any significance is there to the U.S. government delivering the land to a private party for development?

 

Luke Goodrich:  Sure. I can address that. That question came up at oral argument to the federal government, with the court asking the federal government attorney what difference does it make that there’s a transfer to a private party? What if the government just kept the land and implemented the mine itself and destroyed Oak Flat? Would that change your position? And the government said no, it wouldn’t change our position. Whether we transfer it to a private entity or the government carries out the destruction itself, it just doesn’t count as a substantial burden.

 

To AJ’s point about playing baseball in somebody else’s yard, nobody disputes that this was Apache land originally. The 1852 Treaty the government promised to respect the Apache way of life on Apache land. The earliest maps from the Smithsonian show this as Apache land, and government destroying it is inconsistent with the treaty.

 

But even today, as we sit here today, the Apaches have gone onto Oak Flat for many years continuously since the 1800s and long before to engage in their religious exercise. There’s an Executive Order, 13007, that requires the government to preserve access and the physical integrity of Native American sacred sites. And that’s been held to be incorporated in FLPMA, the Federal Land Policy Management Act. So the Apaches aren’t going to play in somebody else’s neighbor’s yard. Everybody recognizes this was their land. It was taken from them by the federal government, and the federal government is currently obligated to preserve their access to that land. And it’s hereby taking that access away.

 

Adam Griffin:  Great. Any responses, Mr. Ferate, to those points?

 

Anthony J. Ferate:  Could you restate the question for me again, please?

 

Adam Griffin:  The question was whether it -- what the significance is the U.S. government is delivering it to a private party for development as, I guess, in contrast if the U.S. government was developing it itself or something?

 

Anthony J. Ferate:  Okay. Well, that last part is, I think, helpful. So if the federal government was developing the land themselves, obviously there would be a very significant and different approach to it. But they’re not. The United States government isn’t in the business of mining for copper. It’d probably be fairly -- there’s a lot of economic arguments I could probably make for why they should not try to do that. But they’re choosing not to. Under the Constitution they have the ability to dispose of their land.

 

And again, Mr. Goodrich cites it as Apache land. Again, the land transfer from Mexico was directly to the United States. It’s held in fee patent by the United States. There is no evidence that it’s being held in trust or any other basis on behalf of the Apaches. So certainly if they want to develop that argument at the next stepand I have no doubt there’s going to be a next step whoever winsthat’s something that they may want to do because as it stands now there is no evidence in this basis that this is Apache land. This is the United States’ land. They have the right under the Constitution to dispose of their land. And here they’re intending to do that with the intent of actually gaining other land with other sacred tribal protections that the government wants to place upon those.

 

Adam Griffin:  I think -- oh, go ahead.

 

Luke Goodrich:  I’d be interested -- so nobody disagrees that the government can dispose of federal land, but there are cases saying it has to do so subject to other provisions of the Constitution, subject to other federal laws. So just to take one example, if the federal government here gave the land to a Christian community and said we want you to promote Christianity at Oak Flat. Please build a church and promote Christianity. That’s the condition on which we’re giving you the land -- number one, would that violate the establishment clause? I think so.

 

And then number two, if the government said hey, we don’t like the pagan religious practices that the Apaches engage in in Oak Flat. We think those are harmful to society, so we’re going to sell the land to the highest bidder on the express condition that they destroy all the sacred sites at Oak Flat. You must destroy and desecrate them, and you must prevent the Apaches from ever entering the land again. We’re going to sell it to you for that reason -- would that violate the establishment clause? I mean, I think both the answers are yes. And the basic position we’re taking here is that yes, the government can sell land. But it does so subject to the First Amendment, subject to RIFRA, subject to other statutes that regulate the way it does that.

 

Anthony J. Ferate:  Yeah. Look, I think there may even be an establishment clause as is; right? If the government can’t transfer this land but for one individual organization’s religious liberty claims, we may actually have an establishment clause as is at this point. So just worth considering.

 

Luke Goodrich:  Well, the Supreme Court’s already addressed or rejected that argument, but can you speak to -- like, do you agree or disagree that it would violate the establishment clause to say we’re giving you this land so you can erect a church and promote Christianity or we’re giving you this land because we hate the Apache’s religious exercise and we want you to destroy their site and keep them out? Would that in your view violate or not violate the establishment clause and the free exercise clause?

 

Anthony J. Ferate:  I think to try to bootstrap in an example and say that the Resolution Copper folks hate the Apache Stronghold folks I think that that’s inappropriate for the conversation. But yeah, I’ll just stop there.

 

Luke Goodrich:  It’s a hypothetical just designed to isolate are federal land transfers -- are they ever subject to the First Amendment? So it’s a yes or no. I’m not saying Resolution Copper hates anybody. It’s a hypothetical. So is it a yes, violate establishment and free exercise, or no, it doesn’t?

 

Anthony J. Ferate:  And I suppose I’ll even respond. I’m happy to answer if you will answer the simple question of who owns this land? If you were to go look for title of this land, who owns this land?

 

Luke Goodrich:  The federal government owns it according to the federal government, so I’ve answered that. Now you’ll answer --

 

Anthony J. Ferate:  Well, yeah. I mean, we don’t have that situation here, and I’m not necessarily concerned with the federal government trying to --

 

Luke Goodrich:  You said you would answer it, not dodge it.

 

Anthony J. Ferate:  I’m about to. I’m trying to --

 

Luke Goodrich:  Yes or no, violate the establishment clause --

 

Anthony J. Ferate:  I’m trying to --

 

Luke Goodrich:  -- and free exercise clause?

 

Anthony J. Ferate:  No, I’m trying to. And the simple answer is we don’t have that situation here. But if there was actual evidence, if there was material evidence of that, yeah, there probably is a pretty significant establishment clause issue.

 

Adam Griffin:  Really interesting back and forth. So Alan Reinach asks, “The Supreme Court’s ruling upholding the treaty -- I think the treaty was with Oklahoma two years ago” —I think he’s referencing McGirt”—does McGirt have any relevance here? I think it’d probably be more on the trust side of things. But does McGirt have any relevance to this case?”

 

Anthony J. Ferate:  I would say McGirt only has relevance if this land had been held in trust for the tribes or under the federal statutes on what is a reservation, if it’s a reservation, if it’s a dependent community, which this is not a dependent community. I see no evidence that this is a reservation. And there’s one other example that I’m not recalling right now, but none of those elements of tribal lands of Indian Country apply to this situation. And that’s the reason I don’t think McGirt makes sense to connect here.

 

Luke Goodrich:  And just to remind people can send in more questions using the chat feature. I think that’s right. Right, Adam? Is McGirt relevant here?

 

Adam Griffin:  That’s correct.

 

Luke Goodrich:  There’s other treaty cases, Menominee, Mitchell, where the Supreme Court has looked at fairly general language in a treaty, like these lands are to be held as Indian lands are held or these lands should be managed “for the needs and best interests of the Indians.” And held that that gives rise to a treaty or a trust obligation. So the argument here is the treaty says that the government will settle the territorial boundaries of the Apaches and pass laws “conducive to their prosperity and happiness in their territory.” And the argument is nobody disputes that this was Apache territory at the time of the treaty. It was identified as such in U.S. government maps and that transferring it for destruction goes against that obligation to legislate for the prosperity and happiness.

 

Anthony J. Ferate:  If that’s where we’re going with that basis, both prior to McGirt what we had was a situation where we had the Solem analysis. You had about 15 different elements. None was more important than the other. But they would look at this amorphous thing and decide whether or not land was tribal land or not. Mr. Goodrich may have had an argument under the Solem analysis. But what McGirt did was say one thing, and it seems to be where we’re going with tribal law claims now is show me the words. Show me the words of establishment. Show me the words of disestablishment. Show me the words of diminishment. Show me the actual specific item. And in this case thus far that hasn’t been shown.

 

Adam Griffin:  Great. We have a few more minutes. I don’t see another question in the chat. I did have kind of a two sides of the coin sort of question. So I’m wondering to Mr. Goodrich why does the lesser include the greater? So we know that the pre-Smith case law penalty or fine -- we know that that is a violation of substantial burden. But here it’s a sale to a private party or a complete destruction of the land. It’s not really a penalty or a fine in that pre-Smith, Yoder -- and I forget the other case. It’s not really a penalty or fine in that context. So why would the lesser include the greater?

 

And then the other is to Mr. Ferate on the other side of this is if a substantial burden means a fine or a penalty, then why would complete destruction not be covered? I feel like there was some reference to legislative history and maybe to some precedent, but substantial burden -- if a penalty or a fine is a substantial burden, why would the greater not be covered? Why would a complete destruction not be covered?

 

Luke Goodrich:  Great question. Judge Sutton addressed that exact question in a case called Haight in the prisoner context and said, yeah, if you are punishing a prisoner for engaging in religious exercise like putting him in solitary confinement, or if you’re taking away benefits from a prisoner because of his religious exercise, that’s Sherbert and Yoder. That counts as a substantial burden. But then he said if you’re just preventing the religious exercise -- using your control over the prison facility and preventing the religious exercise, that is even more obviously a substantial burden because— he even used that word—the lesser includes the greater.

 

And I think it includes that as a matter of basic logic and text, substantial burden. Burden is in what way is the government making you worse off than you were before? When the government puts you to a choice of either giving up your religious exercise or suffering a penalty or fine, it’s making you worse off. It’s burdening you. But if the government prevents you, uses its power and control to completely prevent you—it doesn’t even give you the choice of suffering the penalty or fine—it’s burdened you in an even more significant way. That’s the plain textual argument, and there are multiple cases that agree with it.

 

Adam Griffin:  Mr. Ferate?

 

Anthony J. Ferate:  Yeah. And my answer to you, Adam, to your question is very simple. Lyng, Bowen, Navajo Nation, and Snoqualmie. Each of these cases lays out explicitly that that’s the test. I’m relying on what the law says on this as a short answer. And it really comes down to coercion as Mr. Goodrich said a little bit ago. In these cases there is a belief that there is no coercion here. I know that Mr. Goodrich disagrees with that, and he stated so at the Ninth Circuit.

 

But the case law says that this is how we analyze it. And Stephanie Barclay made very clear that it’s going to require a review or a relook -- a reconceptualized look to prove a prima facie case of substantial burden more easily. That’s where we are. That’s where we are is even folks supporting Mr. Goodrich’s argument recognize where we are in the case law. And so in order for Mr. Goodrich to succeed, the Ninth Circuit is going to have to overturn Navajo Nation. They’re going to have to overturn Snoqualmie, and then the Supreme Court is going to have to reassess Lyng and Bowen. That’s where we are at the end of the day with this case.

 

Adam Griffin:  Great. Thank you so much. Thank you to both of our excellent speakers. This has been a fantastic debate. I’m going to turn it over to Jack for closing words, and I appreciate so much all of your time today. Thank you.

 

 

Jack Capizzi:  Thank you. Yes, well, thank you as well, Adam, for helping moderate today and then to Luke and AJ for their valuable time and expertise in what was a really interesting discussion I’m sure for everybody. As always, we do welcome listener feedback by email at [email protected]. As always, please keep an eye on our website and your emails for announcements about upcoming programs. We’ve got a lot lined up for next week, so please be on the lookout. And with that, thank you all for joining us today. We are adjourned.