FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APACHE STRONGHOLD, a No. 21-15295
501(c)(3) nonprofit organization,
D.C. No.
Plaintiff-Appellant, 2:21-cv-00050-
SPL
v.
UNITED STATES OF AMERICA; OPINION
THOMAS J. VILSACK, Secretary,
U.S. 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,
______________________________
RESOLUTION COPPER MINING,
LLC,
Intervenor.
2 APACHE STRONGHOLD V. UNITED STATES
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted En Banc March 21, 2023
Pasadena, California
Filed March 1, 2024
Before: Mary H. Murguia, Chief Judge, and Ronald M.
Gould, Marsha S. Berzon, Carlos T. Bea, Mark J. Bennett,
Ryan D. Nelson, Daniel P. Collins, Kenneth K. Lee,
Danielle J. Forrest, Lawrence VanDyke and Salvador
Mendoza, Jr., Circuit Judges.
Per Curiam Opinion; Opinion by Judge Collins;
Partial Concurrence and Partial Dissent by Judge Bea;
Concurrence by Judge R. Nelson;
Concurrence by Judge VanDyke;
Dissent by Chief Judge Murguia;
Dissent by Judge Lee
APACHE STRONGHOLD V. UNITED STATES 3
SUMMARY *
Religious Freedom Restoration Act / Free Exercise
Clause
The en banc court affirmed the district court’s order
denying Apache Stronghold’s motion for a preliminary
injunction against the federal government’s transfer of Oak
Flat—federally owned land within the Tonto National
Forest—to a private company, Resolution Copper.
Oak Flat is a site of great spiritual value to the Western
Apache Indians and also sits atop the world’s third-largest
deposit of copper ore. To take advantage of that deposit,
Congress by statute—the Land Transfer Act—directed the
federal government to transfer the land to Resolution
Copper, which would then mine the ore.
Apache Stronghold, an organization that represents the
interests of certain members of the San Carlos Apache Tribe,
sued the government, seeking an injunction against the land
transfer on the ground that the transfer would violate its
members’ rights under the Free Exercise Clause of the First
Amendment, the Religious Freedom Restoration Act
(“RFRA”), and an 1852 treaty between the United States and
the Apaches.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 APACHE STRONGHOLD V. UNITED STATES
The per curiam opinion provides an overview of the
votes of the en banc court:
• A majority of the en banc court (Chief Judge
Murguia, and Judges Gould, Berzon, R. Nelson, Lee
and Mendoza) concluded that (1) the Religious Land
Use and Institutionalized Persons Act of 2000
(“RLUIPA”), and RFRA are interpreted uniformly;
and (2) preventing access to religious exercise is an
example of substantial burden. A majority of the en
banc court therefore overruled the narrow definition
of substantial burden under RFRA in Navajo Nation
v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008)
(en banc).
• A different majority of the en banc court (Judges
Bea, Bennett, R. Nelson, Collins, Forrest, and
VanDyke) concluded that (1) RFRA subsumed,
rather than overrode, the outer limits that Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485
U.S. 439 (1988), placed on what counts as a
governmental imposition of a substantial burden on
religious exercise; and (2) under Lyng, a disposition
of government real property does not impose a
substantial burden on religious exercise when it has
“no tendency to coerce individuals into acting
contrary to their religious beliefs,” does not
“discriminate” against religious adherents, does not
“penalize” them, and does not deny them “an equal
share of the rights, benefits, and privileges enjoyed
by other citizens.” Apache Stronghold’s claims
under the Free Exercise Clause and RFRA failed
under these Lyng-based standards and the claims
based on the 1852 treaty failed for separate reasons.
APACHE STRONGHOLD V. UNITED STATES 5
In his opinion for the court, Judge Collins, joined by
Judges Bea, Bennett, R. Nelson, Forrest, and VanDyke, held
that Apache Stronghold was unlikely to succeed on the
merits on any of its three claims before the court, and
consequently was not entitled to preliminary injunctive
relief.
• Apache Stronghold’s claim that the transfer of Oak
Flat to Resolution Copper would violate the Free
Exercise Clause failed under the Supreme Court’s
controlling decision in Lyng because the project
challenged here is indistinguishable from that in
Lyng. As in Lyng, the government’s actions with
respect to “publicly owned land” would “interfere
significantly with private persons’ ability to pursue
spiritual fulfillment according to their religious
beliefs,” but it would have no “tendency to coerce”
them “into acting contrary to their religious beliefs.”
Also, as in Lyng, the challenged transfer of Oak Flat
for mining operations did not discriminate against
Apache Stronghold’s members, did not penalize
them, or deny them an “equal share of the rights,
benefits, and privileges enjoyed by other citizens.”
• Apache Stronghold’s claim that the transfer of Oak
Flat to Resolution Cooper would violate RFRA
failed for the same reasons because what counts as
“substantially burden[ing] a person’s exercise of
religion” must be understood as subsuming, rather
than abrogating, the holding of Lyng.
• Apache Stronghold’s claim that the 1852 Treaty of
Sante Fe created an enforceable trust obligation that
would be violated by the transfer of Oak Flat failed
6 APACHE STRONGHOLD V. UNITED STATES
because the government’s statutory obligation to
transfer Oak Flat abrogated any contrary treaty
obligation.
Concurring in part and dissenting in part, Judge Bea,
joined by Judge Forrest except for footnote 1 and by Judge
Bennett with respect to Part II, dissented from paragraph one
of the per curiam opinion’s purported overruling of Navajo
Nation because a majority of the panel already affirmed the
district court, under the different rationale in Judge Collins’s
majority opinion, the district court’s finding that the transfer
of Oak Flat will impose no substantial burden under RFRA.
He concurred in full with Judge Collins’s majority opinion,
and wrote separately to provide additional reasons in support
of the conclusion that Apache Stronghold cannot obtain
relief under RFRA.
Concurring, Judge R. Nelson stated that en banc review
was warranted to correct the faulty legal test (not outcome)
in Navajo Nation. He explained that since Navajo Nation
was decided, it has become clear that “substantial burden”
means more in RLUIPA than the narrow definition Navajo
Nation gave it under RFRA, and a majority of the en banc
court now rejects the narrow construction of “substantial
burden” in Navajo Nation. While the dissent raises a
plausible textual interpretation of “substantial burden” under
RFRA, Judge R. Nelson ultimately disagrees with it.
Because RFRA does not overrule the Supreme Court’s
binding precedent in Lyng, Apache Stronghold has no viable
RFRA claim.
Concurring, Judge VanDyke agreed with the majority
that this decision is controlled by Lyng, and wrote separately
to elaborate on why the alleged “burden” in this case is not
cognizable under RFRA and to explain why reinterpreting
APACHE STRONGHOLD V. UNITED STATES 7
RFRA to impose affirmative obligations on the government
to guarantee its own property for religious use would
inevitably result in religious discrimination.
Dissenting, Chief Judge Murguia, joined by Judges
Gould, Berzon, and Mendoza, and by Judge Lee as to all but
Part II.H, wrote that the utter destruction of Oak Flat, a site
sacred to the Western Apaches since time immemorial, is a
“substantial burden” on the Apaches’ sincere religious
exercise under RFRA. Navajo Nation wrongly defined
“substantial burden” as a narrow term of art and foreclosed
relief. In light of the plain meaning of “substantial burden,”
RFRA prohibits government action that “oppresses” or
“restricts” “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief,” to
a “considerable amount,” unless the government can
demonstrate that imposition of the burden is in furtherance
of a compelling governmental interest and the least
restrictive means of furthering that compelling
governmental interest. Chief Judge Murguia would hold that
Apache Stronghold has shown that it is likely to succeed on
the merits of its RFRA claim, and would remand for the
district court to determine whether the Land Transfer Act is
justified by a compelling interest pursued through the least
restrictive means. Finally, Chief Judge Murguia rejected the
government’s eleventh-hour argument that RFRA does not
apply to the Land Transfer Act.
Dissenting, Judge Lee joined all of Chief Judge
Murguia’s dissent except for Section II.H because the
government waived the argument that RFRA cannot apply
to the Land Transfer Act.
8 APACHE STRONGHOLD V. UNITED STATES
COUNSEL
Luke W. Goodrich (argued), Mark L. Rienzi, Diana M.
Verm Thompson, Joseph C. Davis, Christopher Pagliarella,
Daniel D. Benson, and Kayla A. Toney, The Becket Fund
for Religious Liberty, Washington, D.C.; Michael V. Nixon,
Michael V. Nixon JD, Portland, Oregon; Clifford I.
Levenson, Law Office of Clifford Levenson, Phoenix,
Arizona; for Plaintiffs-Appellants.
Stephanie H. Barclay (argued) and Francesca Matozzo,
University of Notre Dame Law School Religious Liberty
Clinic, Notre Dame, Indiana; Meredith H. Kessler, Religious
Liberty Clinic, Notre Dame, Indiana; Michalyn Steele,
Brigham Young University Law School, Provo, Utah; for
Amicus Curiae National Congress of American Indians, a
Tribal Elder and other Federal Indian Law Scholars, and
Organizations.
Miles E. Coleman, Nelson Mullins Riley & Scarborough
LLP, Greenville, South Carolina; Thomas Hydrick,
Assistant Deputy Solicitor General, South Carolina Attorney
General’s Office, Columbia, South Carolina; Hunter
Windham, Duffy & Young LLC, Charleston, South
Carolina; Thomas C. Berg, Religious Liberty Appellate
Clinic, University of St. Thomas School of Law,
Minneapolis, Minnesota; W. Thomas Wheeler, Fredrikson
& Byron PA, Minneapolis, Minnesota; for Amici Curiae
Religious Liberty Law Scholars.
James C. Phillips, Chapman University, Dale E. Fowler
School of Law, Orange, California; Gene C. Schaerr, Joshua
J. Prince, Edward H. Trent, Riddhi Dasgupta, and Megan
Shoell, Schaerr Jaffe LLP, Washington, D.C.; for Amici
Curiae The Jewish Coalition for Religious Liberty, The
APACHE STRONGHOLD V. UNITED STATES 9
International Society for Krishna Consciousness, The Sikh
Coalition, and Protect the 1st.
Joshua C. McDaniel, Kelsey Baer Flores, Matthew E. Myatt,
and Parker W. Knight III, Harvard Law School Religious
Freedom Clinic, Cambridge, Massachusetts, for Amicus
Curiae The Sikh Coalition.
James C. Phillips, Chapman University, Dale E. Fowler
School of Law, Orange, California; Alexander Dushku, R.
Shawn Gunnarson, Justin W. Starr, and Jarom Harrison,
Kirton McConke, Salt Lake City, Utah; for Amici Curiae
The Church of Jesus Christ of Latter-Day Saints, The
General Conference of Seventh-Day Adventists, The Islam
and Religious Freedom Action Team of the Religious
Freedom Institute, and The Christian Legal Society.
Jason Searle and Beth Wright, Native American Rights
Fund, Boulder, Colorado; April Youpee-Roll, Munger Tolls
& Olson LLP, Los Angeles, California; for Amici Curiae
Tribal Nations and Tribal Organizations.
David T. Raimer, Megan L. Owen, and Anika M. Smith,
Jones Day, Washington, D.C., for Amicus Curiae The
Mennonite Church USA and the Pacific Southwest
Mennonite Conference.
Joan M. Pepin (argued), Andrew C. Mergen, Tyler M.
Alexander, Attorneys; Jean E. Williams, Acting Assistant
Attorney General; Todd Kim, Assistant Attorney General;
United States Department of Justice, Environment and
Natural Resources Division, Washington, D.C.; Katelin
Shugart-Schmidt, Attorney, United States Department of
Justice, Environment & Natural Resources Division,
Denver, Colorado; for Defendants-Appellees.
10 APACHE STRONGHOLD V. UNITED STATES
David Debold (argued), Thomas G. Hungar, and Matthew S.
Rozen, Gibson Dunn & Crutcher LLP, for Amicus Curiae
American Exploration & Mining Association, Women’s
Mining Coalition, and Arizona Rock Products Association.
William E. Trachman, Mountain States Legal Foundation,
Lakewood, Colorado; Timothy Sandefur, Goldwater
Institute, Phoenix, Arizona; for Amicus Curiae Towns of
Superior and Hayden, Arizona, and Jamie Ramsey, the
Mayor of Kearny, Arizona.
Kathryn M. Barber and Matthew A. Fitzgerald,
McGuireWoods LLP, Richmond, Virginia, for Amici Curiae
Pinal Partnership, Valley Partnership, PHX East Valley
Partnership, The Honorable Scott J. Davis, The Honorable
Myron Lizer, and Joshua Tahsuda, III.
Anthony J. Ferate, Andrew W. Lester, and Courtney D.
Powell, Spencer Fane LLP, Oklahoma City, Oklahoma, for
Amicus Curiae Arizona Chamber of Commerce and
Industry.
OPINION
PER CURIAM:
A majority of the en banc court (Chief Judge MURGUIA
and Judges GOULD, BERZON, R. NELSON, LEE, and
MENDOZA) concludes that (1) the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”), 42
U.S.C. § 2000cc, et seq., and the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq., are
interpreted uniformly; and (2) preventing access to religious
exercise is an example of substantial burden. A majority of
APACHE STRONGHOLD V. UNITED STATES 11
the en banc court therefore overrules Navajo Nation v. U.S.
Forest Service to the extent that it defined a “substantial
burden” under RFRA as “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).” 535 F.3d 1058 (9th
Cir. 2008) (emphasis added).
A different majority (Judges BEA, BENNETT, R.
NELSON, COLLINS, FORREST, and VANDYKE)
concludes that (1) RFRA subsumes, rather than overrides,
the outer limits that the Supreme Court’s decision in Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439
(1988), places on what counts as a governmental imposition
of a substantial burden on religious exercise; and (2) under
Lyng, a disposition of government real property does not
impose a substantial burden on religious exercise when it has
“no tendency to coerce individuals into acting contrary to
their religious beliefs,” does not “discriminate” against
religious adherents, does not “penalize” them, and does not
deny them “an equal share of the rights, benefits, and
privileges enjoyed by other citizens.” Lyng, 485 U.S. at
449–50, 453. The same majority holds that Apache
Stronghold’s claims under the Free Exercise Clause and
RFRA fail under these Lyng-based standards and that the
claims based on the 1852 Treaty fail for separate reasons.
We therefore AFFIRM the district court’s order denying
the motion for a preliminary injunction.
12 APACHE STRONGHOLD V. UNITED STATES
COLLINS, Circuit Judge, delivered the following opinion
for the court, in which BEA, BENNETT, R. NELSON,
FORREST, and VANDYKE, Circuit Judges, join:
Oak Flat, an area located on federally owned land within
Tonto National Forest, is a site of great spiritual value to the
Western Apache Indians, who believe that it is indispensable
to their religious worship. But Oak Flat also sits atop the
world’s third-largest deposit of copper ore. To take
advantage of that deposit, Congress by statute directed the
federal Government to transfer the land to a private
company, Resolution Copper, which would then mine the
ore. Apache Stronghold, an organization that represents the
interests of certain members of the San Carlos Apache Tribe,
sued the Government, seeking an injunction against the land
transfer on the ground that the transfer would violate its
members’ rights under the Free Exercise Clause of the First
Amendment, the Religious Freedom Restoration Act
(“RFRA”), and an 1852 treaty between the United States and
the Apaches. The district court denied Apache Stronghold’s
request for a preliminary injunction on the ground that
Apache Stronghold had not shown a likelihood of success on
the merits. See Apache Stronghold v. United States, 519
F. Supp. 3d 591, 598 (D. Ariz. 2021). We affirm.
I
A
Apache Stronghold is an Arizona nonprofit corporation
“based in the Western Apache lands of the San Carlos
Apache Tribe.” It describes itself as “connecting Apaches
and other Native and non-Native allies from all over the
world.” Its declared mission is “to battle continued
colonization, defend Holy sites and freedom of religion, and
APACHE STRONGHOLD V. UNITED STATES 13
. . . build[] a better community through neighborhood
programs and civic engagement.” The San Carlos Apache
Tribe of the San Carlos Reservation is a federally recognized
Indian tribe located on the San Carlos Reservation, roughly
100 miles east of Phoenix.
Apache Stronghold’s members engage in traditional
Western Apache religious practices. Among the locations
that are central to their religion is a place called “Chí’chil
Biłdagoteel,” which in English means “Emory Oak Extends
on a Level.” That accounts for the site’s more common
name, which is “Oak Flat.” According to Apache
Stronghold’s expert witness, Western Apache religious
practices at Oak Flat date back at least a millennium. The
Western Apache believe that Oak Flat is a “sacred place”
that serves as a “direct corridor” to “speak to [their] creator.”
Specifically, they believe that Oak Flat is the site where one
of the “Ga’an”—spirit messengers between the Western
Apache and their Creator—“has made its imprint, its spirit.”
The Western Apache believe that the Ga’an, and the Western
Apaches’ interaction with the Ga’an, constitute “a crucial
part” of their “personal being,” and that Oak Flat thus
provides them “a unique way . . . to communicate” with their
Creator.
Members of the tribe report that they “cannot have this
spiritual connection with the land anywhere else on Earth.”
Oak Flat is “the only area” with these unique features,
making it “crucial” to Western Apache religious life. As one
example, members of the tribe stated that certain Western
Apache religious practices must occur at Oak Flat and
cannot take place anywhere else. And even among those
religious practices that need not necessarily occur at Oak
Flat, some trace their origins to practices that were first
begun there. One such practice is the “Sunrise Ceremony,”
14 APACHE STRONGHOLD V. UNITED STATES
a rite of passage for Western Apache girls to recognize “the
gift of life and the bearing of children to the female.” The
Western Apache believe that “the place the ceremony takes
place is the life thread forever connecting the place and the
girls who have their ceremony there.” One member testified
that “the most important part about” the Sunrise Ceremony
“is that everything that we are able to use for the ceremony
comes from Chí’chil Biłdagoteel, Oak Flat.” Accordingly,
in Western Apache religious belief, harms to Oak Flat work
a corresponding spiritual harm to those who performed their
Sunrise Ceremonies there, damaging their “life and their
connection to their rebirth.”
B
In addition to being a sacred site for the Western Apache,
Oak Flat is also a place of considerable economic
significance. Located near the “Copper Triangle,” Oak Flat
sits atop the third-largest known copper deposit in the world.
Roughly 4,500 to 7,000 feet beneath Oak Flat is an ore
deposit containing approximately two billion tons of “copper
resource.” The U.S. Forest Service estimates that, if mined,
this deposit could yield around “40 billion pounds of
copper.” For that reason, there has long been considerable
interest among mining companies in gaining access to the
Oak Flat deposit.
Believing the copper beneath Oak Flat to be a significant
asset, various members of Arizona’s congressional
delegation drafted legislation to compel the Government to
transfer Oak Flat and its surroundings to Resolution Copper,
a private mining company. Such legislation was introduced
APACHE STRONGHOLD V. UNITED STATES 15
in each Congress from 2005 through 2014. 1 Although these
bills were the subject of numerous hearings and other
congressional action over the years, 2 these legislative efforts
1
See, e.g., Southeast Arizona Land Exchange and Conservation Act of
2005, H.R. 2618, 109th Cong. (2005); Southeast Arizona Land Exchange
and Conservation Act of 2005, S. 1122, 109th Cong. (2005); Southeast
Arizona Land Exchange and Conservation Act of 2006, H.R. 6373, 109th
Cong. (2006); Southeast Arizona Land Exchange and Conservation Act
of 2006, S. 2466, 109th Cong. (2006); Southeast Arizona Land Exchange
and Conservation Act of 2007, H.R. 3301, 110th Cong. (2007); Southeast
Arizona Land Exchange and Conservation Act of 2007, S. 1862, 110th
Cong. (2007); Southeast Arizona Land Exchange and Conservation Act
of 2008, S. 3157, 110th Cong. (2008); Southeast Arizona Land Exchange
and Conservation Act of 2009, H.R. 2509, 111th Cong. (2009); Southeast
Arizona Land Exchange and Conservation Act of 2009, S. 409, 111th
Cong. (2009); Southeast Arizona Land Exchange and Conservation Act
of 2011, H.R. 1904, 112th Cong. (2011); Southeast Arizona Land
Exchange and Conservation Act of 2013, H.R. 687, 113th Cong. (2013);
Southeast Arizona Land Exchange and Conservation Act of 2013, S. 339,
113th Cong. (2013).
2
A House subcommittee held a hearing on H.R. 3301 in the 110th
Congress, but no further action was taken on that bill. See H.R. 3301,
Southeast Arizona Land Exchange and Conservation Act of 2007:
Hearing Before the Subcomm. on Nat’l Parks, Forests, & Pub. Lands of
the H. Comm. on Nat. Res., SERIAL NO. 110-52 (Nov. 1, 2007). In the
111th Congress, a Senate subcommittee held a hearing on S. 409 on June
17, 2009, and that bill was subsequently reported on March 2, 2010 to
the Senate floor, where no further action was taken. See Public Lands
and Forests Bills: Hearing Before the Subcomm. on Pub. Lands &
Forests of the S. Comm. on Energy & Nat. Res., S. HRG. NO. 111-65
(June 17, 2009); S. REP. NO. 111-129 (March 2, 2010). In the 112th
Congress, H.R. 1904 was considered at a June 14, 2011 House
subcommittee hearing, reported out of committee on October 14, 2011,
and passed by the full House on October 26, 2011. See H.R. 473, et al.:
Hearing Before the Subcomm. on Nat’l Parks, Forests, & Pub. Lands of
the H. Comm. on Nat. Res., SERIAL NO. 112-40 (June 14, 2011); H.R.
REP. NO. 112-246 (Oct. 14, 2011); 157 CONG. REC. H7090–110 (Oct.
26, 2011). A Senate committee then held a hearing on H.R. 1904 on Feb.
16 APACHE STRONGHOLD V. UNITED STATES
did not bear fruit until late 2014, when Congress passed, and
the President signed, the Carl Levin and Howard P. “Buck”
McKeon National Defense Authorization Act for Fiscal
Year 2015 (“NDAA”). See Pub. L. No. 113-291, 128 Stat.
3292 (2014). Included as § 3003 of the NDAA was a version
of the previously oft-proposed “Southeast Arizona Land
Exchange and Conservation Act.” 3 Id. § 3003, 128 Stat. at
3732–41 (classified to § 539p of the unenacted title 16 of the
United States Code).
Section 3003’s declared purpose is “to authorize, direct,
facilitate, and expedite the exchange of land between
Resolution Copper and the United States.” 16 U.S.C.
§ 539p(a). To that end, it directs that “if Resolution Copper
offers to convey to the United States all right, title, and
interest of Resolution Copper” in certain “non-Federal land,”
then “the Secretary [of Agriculture] is authorized and
directed to convey to Resolution Copper, all right, title, and
interest of the United States in and to the Federal land.” Id.
9, 2012. See Resolution Copper: Hearing Before the S. Comm. on
Energy & Nat. Res., S. HRG. NO. 112-486 (Feb. 9, 2012). In 2013, both
House and Senate subcommittees held further hearings in the 113th
Congress on the respective versions of the legislation, and the House bill
was reported to the House floor on July 22, 2013. See Oversight Hearing
Titled “America’s Mineral Resources: Creating Mining and
Manufacturing Jobs and Securing America”: Hearing on H.R. 1063, et
al., Before the Subcomm. on Energy & Mineral Res. of the H. Comm. on
Nat. Res., SERIAL NO. 113-7 (March 21, 2013); Current Public Lands,
Forests, and Mining Bills: Hearing Before the Subcomm. on Pub. Lands,
Forests, & Mining of the S. Comm. on Energy & Nat. Res., S. HRG. NO.
113-342 (November 20, 2013); H.R. REP. NO. 113-167 (July 22, 2013).
3
Apache Stronghold derides § 3003 as a “midnight” rider attached to a
“must-pass” bill, but that characterization ignores the extensive hearings
and congressional consideration given to the land transfer proposal over
the previous seven years. See supra note 2.
APACHE STRONGHOLD V. UNITED STATES 17
§ 539p(c)(1). The referenced “Federal land” consists of
“approximately 2,422 acres of land located in Pinal County,
Arizona,” including Oak Flat and the surrounding area. Id.
§ 539p(b)(2); see U.S. Forest Service, Resolution Copper
Project & Land Exchange, Map of Land Exchange Parcels,
(2015), https://www.resolutionmineeis.us/documents/usfs-
resolution-land-exchange-parcels-2016
[https://perma.cc/JEC7-GUC4].
The land exchange is subject to certain conditions. For
example, title to the land the Government would receive
from Resolution Copper must be in a form that is acceptable
to the Secretaries of Agriculture and the Interior, and must
conform to the Department of Justice’s “title approval
standards.” 16 U.S.C. § 539p(c)(2)(A), (B). The federal and
non-federal land must be independently appraised, id.
§ 539p(c)(4), and the value of the exchanged land equalized
as set forth in the statute, id. § 539p(c)(5). Other provisions
of § 3003 provide direction concerning ancillary matters
related to the exchange. E.g., id. § 539p(i).
In recognition of the Western Apaches’ religious beliefs,
Congress incorporated an accommodation provision into
§ 3003. That provision directs the Secretary of Agriculture
to “engage in government-to-government consultation with
affected Indian tribes” to address concerns “related to the
land exchange.” 16 U.S.C. § 539p(c)(3)(A). Further, the
statute obligates the Secretary to work with Resolution
Copper to address those concerns and to mitigate any
possible “adverse effects on the affected Indian tribes.” Id.
§ 539p(c)(3)(B). The statute also requires Resolution
Copper to keep Oak Flat accessible to the public for as long
as safely possible, id. § 539p(i)(3), and Congress explicitly
set aside another religiously significant area, Apache Leap,
18 APACHE STRONGHOLD V. UNITED STATES
in order to “preserve [its] natural character” and “allow for
traditional uses of the area.” Id. § 539p(g)(2).
Lastly, Congress expressly stated that the land exchange
would generally be governed by the National Environmental
Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Thus,
§ 3003 requires that an environmental impact statement
(“EIS”) be prepared under NEPA prior to the Secretary
executing the land exchange. 16 U.S.C. § 539p(c)(9)(B).
Congress supplemented the ordinary NEPA requirements
for such statements and required that the EIS for the land
transfer also “assess the effects of the mining” on “cultural
and archaeological resources” in the area and “identify
measures . . . to minimize potential adverse impacts on those
resources.” Id. § 539p(c)(9)(C). The EIS was then to form
“the basis for all decisions under Federal law related to the
proposed mine,” such as “the granting of any permits, rights-
of-way,” and construction approvals. Id. § 539p(c)(9)(B).
The statute commands that the land transfer take place
“[n]ot later than 60 days after” the publication of the EIS.
16 U.S.C. § 539p(c)(10). Nowhere in § 3003 does Congress
confer on the Government discretion to halt the transfer. The
statute mandates that the Government secure an appraisal of
the land, id. § 539p(c)(4)(A); that it prepare the EIS, id.
§ 539p(c)(9)(B); and that it then transfer the land, id.
§ 539p(c)(10). Although Resolution Copper could
theoretically prevent the transfer by refusing “to convey to
the United States all right, title, and interest . . . in and to the
non-Federal land,” id. § 539p(c)(1), no corresponding
authority exists for the Government.
Once the land transfer takes place, Resolution Copper
plans to extract the ore by using “panel caving,” a technique
that entails digging a “network of shafts and tunnels below
APACHE STRONGHOLD V. UNITED STATES 19
the ore body.” Resolution Copper will then detonate
explosives to fracture the ore, which will “move[]
downward” as a result. That, in turn, will cause the ground
above to begin to collapse inward. Over the next 41 years,
Resolution Copper will remove progressively more ore from
below Oak Flat, causing the surface geography to become
increasingly distorted. The resulting subsidence will create
a large surface crater, which the Forest Service estimates will
span approximately 1.8 miles in diameter and involve a
depression between 800 and 1,115 feet deep.
This collapse will not occur immediately upon transfer
of the land. Even once Resolution Copper begins
construction on the mine, it will be as much as six years
before the mining facilities will be operational. And during
that time, Resolution Copper is required by the terms of
§ 3003 to keep Oak Flat accessible to “members of the
public, including Indian tribes, to the maximum extent
practicable, consistent with health and safety requirements.”
16 U.S.C. § 539p(i)(3). Even so, the Government conceded
at argument that “the access will end before subsidence
occurs, because it wouldn’t be safe to have people accessing
the land when it could subside.” Once the mine is
operational, the Forest Service estimates that it will produce
ore for at least 40 years before closure and reclamation
activities commence to decommission the mine.
C
On January 4, 2021, the Forest Service announced that
the EIS for the land transfer would be published in 11 days,
on January 15. That publication would trigger the 60-day
window for the federal Government to transfer title to the
land. 16 U.S.C. § 539p(c)(10). Seeking to halt the transfer,
Apache Stronghold sued the federal Government and its
20 APACHE STRONGHOLD V. UNITED STATES
relevant officials on January 12, requesting declaratory
relief, “a permanent injunction prohibiting” the “Land
Exchange Mandate,” and ancillary fees and costs. Three
days later, on January 15, the Government released the EIS
as planned.
Apache Stronghold asserted several different claims in
support of its prayer for relief. First, it alleged that the
Government provided too little advance notice of the
publication of the EIS, thereby infringing Apache
Stronghold’s members’ rights under the Due Process Clause
and under the Petition Clause of the First Amendment. Next,
Apache Stronghold alleged that the land transfer would
violate its members’ rights under the 1852 Treaty of Sante
Fe. As this treaty-based claim has been described by Apache
Stronghold in this court, the 1852 treaty assertedly imposed
fiduciary trust obligations on the Government to “protect the
traditional uses of ancestral lands,” even if the Government
“has formal title to the land.” The transfer would allegedly
violate the treaty—and this corresponding federal trust
obligation—because it would “allow total destruction” of the
property and prevent the Western Apache from conducting
their traditional religious practices.
Apache Stronghold also argued that the transfer would
violate its members’ rights under the Free Exercise Clause
of the First Amendment and under RFRA. With respect to
its Free Exercise Clause claim, Apache Stronghold argued
that § 3003 was not a neutral law of general applicability and
was therefore subject to strict scrutiny. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
546 (1993). And, according to Apache Stronghold, the
transfer was neither in support of a compelling governmental
interest nor narrowly tailored to accomplish such an interest.
As to RFRA, Apache Stronghold argued that the land
APACHE STRONGHOLD V. UNITED STATES 21
exchange “chills, burdens, inhibits, and destroys” the
religious exercise of its members, thus substantially
burdening their exercise of religion in violation of RFRA.
As with the Free Exercise Clause claim, Apache
Stronghold’s RFRA claim asserted that the transfer was not
narrowly tailored to accomplish a compelling governmental
interest. See 42 U.S.C. § 2000bb-1(b). Lastly, Apache
Stronghold alleged that the federal Government
intentionally discriminated against its members on account
of their religion in violation of the Free Exercise Clause.
Two days after filing suit, Apache Stronghold moved for
a temporary restraining order (“TRO”) and preliminary
injunction. Specifically, Apache Stronghold sought an order
“preventing Defendants from publishing a Final
Environmental Impact Statement . . . and from conveying
the parcel(s) of land containing Oak Flat.”
On January 14, 2021, the district court denied Apache
Stronghold’s motion for a TRO. After conducting an
evidentiary hearing on February 3, the district court denied
the preliminary injunction motion on February 12. Because
the district court concluded that Apache Stronghold had not
demonstrated “a likelihood of success on, or serious
questions going to, the merits” of its claims, the district court
did not consider the remaining preliminary injunction
factors. See Apache Stronghold, 519 F. Supp. 3d at 598,
611. Apache Stronghold timely appealed.
On March 1, 2021, during the pendency of this appeal,
the Government withdrew its EIS for the land transfer and
mine. It explained that “additional time is necessary to fully
understand concerns raised by Tribes” and to “ensure[] the
agency’s compliance with federal law.” To date, the
Government has provided the court no concrete estimate of
22 APACHE STRONGHOLD V. UNITED STATES
when the EIS will be issued, except to pledge that it is not
awaiting the decision in this case and to state that it will
provide the court and Apache Stronghold at least 60 days’
notice prior to issuing the EIS.
II
We have jurisdiction under 28 U.S.C. § 1292(a)(1). We
review the district court’s refusal to issue a preliminary
injunction for abuse of discretion. See AK Futures LLC v.
Boyd Street Distro, LLC, 35 F.4th 682, 688 (9th Cir. 2022).
We review the district court’s “underlying legal conclusions
de novo” and its “factual findings for clear error.” Id.
To show that it is entitled to a preliminary injunction,
Apache Stronghold “must establish [1] that [it] is likely to
succeed on the merits, [2] that [it] is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in [its] favor, and [4] that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). The first factor—
likelihood of success on the merits—is “the most important,”
and “when a plaintiff has failed to show the likelihood of
success on the merits, we need not consider the remaining
three [factors].” Garcia v. Google, Inc., 786 F.3d 733, 740
(9th Cir. 2015) (en banc) (citations and internal quotation
marks omitted). In this court, Apache Stronghold only
challenges the district court’s likelihood-of-success
determination with respect to its claims under the Free
Exercise Clause, RFRA, and the 1852 treaty. Because, as
we shall explain, Apache Stronghold has no likelihood of
success on any of those three claims, we have no occasion to
address the remaining Winter factors.
APACHE STRONGHOLD V. UNITED STATES 23
III
Apache Stronghold asserts that the transfer of Oak Flat
from the Government to Resolution Copper would “violate
the Free Exercise Clause.” This claim fails under the
Supreme Court’s controlling decision in Lyng v. Northwest
Indian Cemetery Protective Association, 485 U.S. 439
(1988).
A
The dispute in Lyng arose from the Government’s long-
running effort to build a road connecting the northwest
California towns of Gasquet and Orleans (the “G-O road”).
485 U.S. at 442. One of the final components of that project
involved the construction of “a 6-mile paved segment
through the Chimney Rock section of the Six Rivers
National Forest,” a section that had “historically been used
for religious purposes by Yurok, Karok, and Tolowa
Indians.” Id. As part of its preparation of a final
environmental impact statement concerning the completion
of the road through Chimney Rock, the Forest Service
“commissioned a study of the American Indian cultural and
religious sites in the area.” Id. That study recommended
against completion of the road, because “any of the available
routes ‘would cause serious and irreparable damage to the
sacred areas which are an integral and necessary part of the
belief systems and lifeway of Northwest California Indian
peoples.’” Id. (citation omitted). The Forest Service
nonetheless decided to proceed with the construction of the
road. Id. at 443. “At about the same time, the Forest Service
adopted a management plan allowing for the harvesting of
significant amounts of timber in this area of the forest.” Id.
The Forest Service’s actions were promptly challenged
in a federal lawsuit brought by “an Indian organization,
24 APACHE STRONGHOLD V. UNITED STATES
individual Indians,” the State of California, and others.
Lyng, 485 U.S. at 443. The district court permanently
enjoined both the timber management plan and the
construction of the remaining section of the road, holding
that these actions would infringe the rights of tribal members
under the Free Exercise Clause as well as violate other
provisions of federal law. Id. at 443–44. While the case was
pending on appeal in this court, Congress intervened by
enacting the California Wilderness Act of 1984, Pub. L. No.
98-425, 98 Stat. 1619 (1984). See Lyng, 485 U.S. at 444.
That statute designated much of the land governed by the
Forest Service’s timber management plan as protected
wilderness, thereby barring “commercial activities such as
timber harvesting.” Id. However, the Act specifically
“exempt[ed] a narrow strip of land, coinciding with the
Forest Service’s proposed route for the remaining segment
of the G-O road, from the wilderness designation.” Id. This
was done precisely “to enable the completion of the
Gasquet-Orleans Road project if the responsible authorities
so decide.” Id. (quoting S. REP. NO. 98-582, at 29 (1984)).
A panel of this court subsequently vacated the district court’s
injunction to the extent that it had been mooted by the
wilderness designations in the California Wilderness Act,
but otherwise largely affirmed the district court. See
Northwest Indian Cemetery Protective Ass’n v. Peterson,
795 F.2d 688, 698 (9th Cir. 1986); see also Lyng, 485 U.S.
at 444–45.
The Supreme Court reversed. In addressing the Free
Exercise Clause issue, which was a necessary component of
the relief granted by the district court, the Court began by
acknowledging that “[i]t is undisputed that the Indian
[plaintiffs’] beliefs are sincere and that the Government’s
proposed actions will have severe adverse effects on the
APACHE STRONGHOLD V. UNITED STATES 25
practice of their religion.” Lyng, 485 U.S. at 447. As the
Court explained, it was undisputed that the “projects at issue
in this case could have devastating effects on traditional
Indian religious practices,” and the Court therefore accepted
the premise that “the G-O road will virtually destroy the
Indians’ ability to practice their religion.” Id. at 451
(simplified); see also id. (acknowledging that the threat to
the Indian plaintiffs’ “religious practices is extremely
grave”). Despite these acknowledged severe impacts, the
Court nonetheless held that the Government was not
required to demonstrate a “compelling need” or otherwise to
satisfy strict scrutiny. Id. at 447. That was true, the Court
held, because the plaintiffs would not “be coerced by the
Government’s action into violating their religious beliefs,”
nor would that action “penalize religious activity by denying
any person an equal share of the rights, benefits, and
privileges enjoyed by other citizens.” Id. at 449.
The Court held that the case was, in that respect,
comparable to Bowen v. Roy, 476 U.S. 693 (1986), in which
the Court rejected a Free Exercise challenge to a federal
statute “that required the States to use Social Security
numbers in administering certain welfare programs.” Lyng,
485 U.S. at 448–49. The plaintiffs in Roy contended that the
governmental assignment of a “numerical identifier” would
seriously impede their ability to practice their religion by
“rob[bing] the spirit of their daughter and prevent[ing] her
from attaining greater spiritual power.” Id. at 448
(simplified) (quoting Roy, 476 U.S. at 696). Although the
result would be a significant interference with the Roy
plaintiffs’ religious beliefs, the Roy Court held that the
challenged governmental action—the state and federal
governments’ “internal” use of a Social Security number—
nonetheless did not implicate the Free Exercise Clause. Id.
26 APACHE STRONGHOLD V. UNITED STATES
As the Court explained, “[t]he Free Exercise Clause simply
cannot be understood to require the Government to conduct
its own internal affairs in ways that comport with the
religious beliefs of particular citizens.” Id. (quoting Roy,
476 U.S. at 699). “The Free Exercise Clause affords an
individual protection from certain forms of governmental
compulsion; it does not afford an individual a right to dictate
the conduct of the Government’s internal procedures.” Id.
(quoting Roy, 476 U.S. at 700).
The Lyng Court acknowledged that “[i]t is true that this
Court has repeatedly held that indirect coercion or penalties
on the free exercise of religion, not just outright prohibitions,
are subject to scrutiny under the First Amendment.” 485
U.S. at 450 (emphasis added). Such indirect coercion or
penalties would include a denial of program benefits “based
solely” on the claimant’s religious beliefs and practices, as
well as any other denial of “an equal share of the rights,
benefits, and privileges enjoyed by other citizens.” Id. at
449–50. But the Court held that the Free Exercise Clause’s
protection against government conduct “prohibiting” the
free exercise of religion, see U.S. CONST. amend. I, does not
protect against 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.”
Id. at 450; see also id. at 451 (noting that the “crucial word
in the constitutional text is ‘prohibit’”).
In light of these principles, the Court concluded, the
claim in Lyng could not “meaningfully be distinguished”
from that in Roy. Lyng, 485 U.S. at 449. Although the
resulting effects on the religious practices of the Indian
plaintiffs would “virtually destroy” their “ability to practice
their religion,” those religious impacts nonetheless did not
APACHE STRONGHOLD V. UNITED STATES 27
implicate the Free Exercise Clause because the
governmental actions that caused them had “no tendency to
coerce individuals into acting contrary to their religious
beliefs.” Id. at 450–51. Nor was this a situation in which
the Government had “discriminate[d]” against the plaintiffs,
as might be the case if Congress had passed “a law
prohibiting the Indian [plaintiffs] from visiting the Chimney
Rock area.” Id. at 453. According to the Court, the Indian
plaintiffs sought, not “an equal share of the rights, benefits,
and privileges enjoyed by other citizens,” but rather a
“religious servitude” that would “divest the Government of
its right to use what is, after all, its land.” Id. at 449, 452–
53.
The project challenged here is indistinguishable from
that in Lyng. Here, just as in Lyng, the Government’s actions
with respect to “publicly owned land” would “interfere
significantly with private persons’ ability to pursue spiritual
fulfillment according to their own religious beliefs,” but it
would have “no tendency to coerce” them “into acting
contrary to their religious beliefs.” 485 U.S. at 449–50. And
just as with the land use decisions at issue in Lyng, the
challenged transfer of Oak Flat for mining operations does
not “discriminate” against Apache Stronghold’s members,
“penalize” them, or deny them “an equal share of the rights,
benefits, and privileges enjoyed by other citizens.” Id. at
449, 453. Under Lyng, Apache Stronghold seeks, not
freedom from governmental action “prohibiting the free
exercise” of religion, see U.S. CONST. amend. I, but rather a
“religious servitude” that would uniquely confer on tribal
members “de facto beneficial ownership of [a] rather
spacious tract[] of public property.” Lyng, 485 U.S. at 452–
53. Under Lyng, Apache Stronghold’s Free Exercise Clause
claim must be rejected.
28 APACHE STRONGHOLD V. UNITED STATES
B
Apache Stronghold’s various arguments for
distinguishing Lyng are all without merit.
First, Apache Stronghold argues that Lyng is
distinguishable because, in that case, the virtual destruction
of the “Indians’ ability to practice their religion” was
accomplished without actually destroying any “sites where
specific rituals take place.” 485 U.S. at 451, 454. According
to Apache Stronghold, Lyng’s holding is limited to cases
involving only interference with “subjective” spiritual
experiences and therefore does not apply to a case, such as
this one, involving “physical destruction of a sacred site.”
Although the dissent does not directly address the merits of
Apache Stronghold’s Free Exercise Clause claim, see
Dissent at 192, the dissent’s discussion of Lyng (undertaken
in the context of analyzing RFRA) seeks to distinguish the
case on the comparable ground that the project at issue there
would not have precluded physical access to the relevant
sacred sites, see Dissent at 215–21. These efforts to
distinguish Lyng are refuted by Lyng itself.
In Lyng, the State of California argued that Roy was
distinguishable on the ground that it involved only
interference with the plaintiffs’ “religious tenets from a
subjective point of view,” whereas Lyng involved a
“proposed road [that] will ‘physically destroy the
environmental conditions and the privacy without which the
religious practices cannot be conducted.’” 485 U.S. at 449
(simplified) (emphasis added). The Court rejected this
proffered subjective/physical distinction, expressly holding
that there was no permissible basis to “say that the one form
of incidental interference with an individual’s spiritual
activities should be subjected to a different constitutional
APACHE STRONGHOLD V. UNITED STATES 29
analysis than the other.” Id. at 449–50. This holding
requires rejection of Apache Stronghold’s analogous
proffered distinction between interference with subjective
experiences and physical destruction of the means of
conducting spiritual exercises.
The dissent contends that “Lyng did not specifically
address government action that prevented religious
exercise,” and that it therefore does not apply to a case, such
as this one, in which the Government’s actions will
physically destroy the site and thereby literally prevent its
future use for religious purposes. See Dissent at 223–24
(emphasis added). This effort to distinguish Lyng also fails,
because, once again, it ultimately relies on too expansive a
notion of what counts as “prohibiting” the free exercise of
religion. We readily agree that “prevent” can often be
synonymous with “prohibit,” see Prohibit, WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1813 (1981 ed.)
(“WEBSTER’S THIRD”) (“to prevent from doing or
accomplishing something”), and in that sense it is true that
“prevent[ing] the plaintiff from participating in an activity
motivated by a sincerely held religious belief” qualifies as
prohibiting free exercise. Yellowbear v. Lampert, 741 F.3d
48, 55 (10th Cir. 2014) (citing, inter alia, Lyng, 485 U.S. at
450); see also Graham v. Comm’r, 822 F.2d 844, 850–51
(9th Cir. 1987). But “prevent” also can have the broader
sense of “frustrate,” “keep from happening,” or “hinder,”
which is how the dissent uses the term here. See Prevent,
WEBSTER’S THIRD, supra, at 1798. Lyng squarely rejected
that broader notion of “prohibiting the free exercise” of
religion:
The dissent begins by asserting that the
“constitutional guarantee we interpret today
30 APACHE STRONGHOLD V. UNITED STATES
. . . is directed against any form of
government action that frustrates or inhibits
religious practice.” The Constitution,
however, says no such thing. Rather, it
states: “Congress shall make no law . . .
prohibiting the free exercise [of religion].”
485 U.S. at 456 (emphasis altered) (citations omitted).
Thus, contrary to what the dissent posits, it is not enough
under Lyng to show that the Government’s management of
its own land and internal affairs will have the practical
consequence of “preventing” a religious exercise. Indeed,
Lyng explicitly rejected that broader notion of “prohibiting”
religious exercise, concluding that it was foreclosed by Roy:
. . . Bowen v. Roy rejected a First Amendment
challenge to Government activities that the
religious objectors sincerely believed would
“‘rob the spirit’ of [their] daughter and
prevent her from attaining greater spiritual
power.” The dissent now offers to
distinguish that case by saying that the
Government was acting there “in a purely
internal manner,” whereas land-use decisions
“are likely to have substantial external
effects.” Whatever the source or meaning of
the dissent’s distinction, it has no basis in
Roy. Robbing the spirit of a child, and
preventing her from attaining greater spiritual
power, is both a “substantial external effect”
and one that is remarkably similar to the
injury claimed by [the plaintiffs] in the case
before us today. The dissent’s reading of Roy
APACHE STRONGHOLD V. UNITED STATES 31
would effectively overrule that decision,
without providing any compelling
justification for doing so.
Lyng, 485 U.S. at 456 (emphasis added) (citations and
further quotation marks omitted).
Second, Apache Stronghold argues that Lyng is
distinguishable because it involved application of a neutral
and generally applicable law, inasmuch as “the road in Lyng
was carried out pursuant to the California Wilderness Act of
1984.” By contrast, according to Apache Stronghold, this
case involves legislative action directed at “one ‘particular
property,’” which is the antithesis of a “generally
applicable” law. The dissent also endorses this ground for
distinguishing Lyng, arguing that Lyng merely stands for the
“proposition that the compelling interest test is
‘inapplicable’ to ‘across-the-board’ neutral laws.” See
Dissent at 224 (citation omitted). Once again, Lyng itself
refutes this ground for attempting to distinguish that
decision.
As Lyng itself makes clear, the California Wilderness
Act was not a neutral and generally appliable law in the sense
that Apache Stronghold posits, because it contained an
express exemption for the “narrow strip of land” that exactly
“coincid[ed] with the Forest Service’s proposed route for the
remaining segment of the G-O road.” 485 U.S. at 444. Thus,
contrary to what Apache Stronghold claims, the relevant
provisions of the statute at issue in Lyng likewise involved
legislative action directed at “one ‘particular property.’”
Indeed, it was precisely this feature of the challenged actions
in Lyng that the plaintiffs there sought to invoke as a ground
for distinguishing Roy: whereas Roy involved the
“mechanical” application of a general program requirement
32 APACHE STRONGHOLD V. UNITED STATES
for the welfare program at issue, Lyng involved “a case-by-
case substantive determination as to how a particular unit of
land will be managed.” 485 U.S. at 449. In rejecting this
effort to distinguish Roy, the Lyng Court did not dispute that
such a distinction existed as a factual matter between the two
cases. Instead, the Court held that the distinction simply
provided no grounds for distinguishing Roy. Id. at 449–50.
That was true, the Court explained, because the central
ingredient of a Free Exercise Claim—some “tendency to
coerce individuals into acting contrary to their religious
beliefs”—was absent in both cases. Id. at 450. 4
The dissent claims that, even if the Lyng decision did not
view itself as resting on a rule about neutral and generally
applicable laws, Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990),
and other post-Smith decisions have read it that way. See
4
The dissent nonetheless insists that the Forest Service’s plan and the
special legislative carve-out in Lyng—both of which were tailored for
the specific property at issue—were “generally applicable” because
“there was no indication” that they were “made because of, rather than
in disregard of,” the religious interest in that particular property. See
Dissent at 227–28 (emphasis added). This contention fails, because it
mixes up the distinct issues of whether a particular law is “neutral” and
whether it is “generally applicable.” Even if the plan and legislation at
issue in Lyng were “neutral” in the limited sense that it was not their
“object . . . to infringe upon or restrict practices because of their religious
motivation,” Church of the Lukumi, 508 U.S. at 533 (emphasis added),
they were plainly not “generally applicable” as that phrase is currently
understood, given that they were directed at one particular property. See,
e.g., International Church of the Foursquare Gospel v. City of San
Leandro, 673 F.3d 1059, 1066 (9th Cir. 2011) (“In this case, while the
zoning scheme itself may be facially neutral and generally applicable,
the individualized assessment that the City made to determine that the
Church’s rezoning and CUP request should be denied is not.” (emphasis
added)).
APACHE STRONGHOLD V. UNITED STATES 33
Dissent at 224–26. That is not correct. All that the Court
has stated is that Smith and its progeny “drew support for
[Smith’s] neutral and generally applicable standard from
cases involving internal government affairs,” such as Lyng.
Fulton v. City of Philadelphia, 593 U.S. 522, 536 (2021)
(emphasis added). Thus, in Smith, the Court stated that its
core holding—i.e., that strict scrutiny does not apply to
neutral laws of general applicability—was supported by
Lyng’s broader observation that the boundaries of the Free
Exercise Clause “cannot depend on measuring the effects of
a governmental action on a religious objector’s spiritual
development.” 494 U.S. at 885 (quoting Lyng, 485 U.S. at
451). But the Court has not said, and could not have said,
that Lyng was itself a case involving a neutral and generally
applicable law. As we have set forth, Lyng involved a
situation in which, after religious objections had been raised
to the G-O road and the road’s construction had been
enjoined, Congress proceeded to adopt an explicit statutory
gerrymander for the precise parcel at issue. See supra at 23–
24. That manifestly would not fit the Court’s current
understanding of a case involving a neutral and generally
applicable law. See, e.g., Church of the Lukumi, 508 U.S. at
542 (emphasizing that “categories of selection” in legislative
drafting “are of paramount concern when a law has the
incidental effect of burdening religious practice”). The
holding of Lyng therefore does not rest on the premise that
the laws at issue there were neutral and generally applicable.
The dissent also points to Lyng’s observation that,
because the “Constitution does not permit government to
discriminate against religions that treat particular physical
sites as sacred,” a “law prohibiting the Indian respondents
from visiting the Chimney Rock area would raise a different
set of constitutional questions.” 485 U.S. at 453 (emphasis
34 APACHE STRONGHOLD V. UNITED STATES
added); see also Dissent at 220. According to the dissent,
“the Land Transfer Act is exactly that kind of ‘prohibitory’
law.” See Dissent at 220. That contention is refuted by the
fact that, under the statute, any post-transfer prohibitions that
Resolution Copper may impose on public access to Oak Flat
would be nondiscriminatory. See 16 U.S.C. § 539p(i)(3)
(stating that, “[a]s a condition of conveyance,” Resolution
Copper must “provide access to the surface of the Oak Flat
Campground to members of the public, including Indian
tribes, to the maximum extent practicable . . . until such time
as the operation of the mine precludes continued public
access for safety reasons”). To the extent that the dissent
instead reads Lyng as endorsing the broader notion that the
Free Exercise Clause would be violated by a
nondiscriminatory law that will ultimately have the effect of
precluding public access to a particular parcel of land, that
view cannot be squared with Lyng’s explicit rejection of
such a broad concept of “prohibiting.” Indeed, under the
dissent’s expansive view, any transfer of Government land
without a condition guaranteeing access to a sacred site on
that parcel would amount to a prohibition on free exercise.
Lyng, however, explicitly rejects the view that the Free
Exercise Clause requires any such “religious servitude” on
Government land, which would confer “de facto beneficial
ownership of some rather spacious tracts of public property.”
485 U.S. at 452–53.
In sum, Lyng stands for the proposition that a disposition
of government real property is not subject to strict scrutiny
when it has “no tendency to coerce individuals into acting
contrary to their religious beliefs,” does not “discriminate”
against religious adherents, does not “penalize” them, and
does not deny them “an equal share of the rights, benefits,
and privileges enjoyed by other citizens.” Lyng, 485 U.S. at
APACHE STRONGHOLD V. UNITED STATES 35
449–50, 453. In such circumstances, the essential ingredient
of “prohibiting” the free exercise of religion is absent, and
the Free Exercise Clause is not violated. And because
Lyng’s application of that rule in the context of that case
cannot meaningfully be distinguished in this case, Apache
Stronghold has no likelihood of success on its Free Exercise
claim.
IV
Apache Stronghold also contends that the sale of Oak
Flat to Resolution Copper would violate its members’ rights
under RFRA. Congress enacted RFRA in 1993 “in direct
response” to Smith’s narrow construction of the Free
Exercise Clause, see City of Boerne v. Flores, 521 U.S. 507,
512 (1997), and Congress did so precisely “in order to
provide greater protection for religious exercise than is
available” under the Free Exercise Clause as construed in
Smith, see Holt v. Hobbs, 574 U.S. 352, 357 (2015). The
question here is whether the broader protection afforded by
RFRA has the practical effect of displacing, by statute, the
pre-Smith decision in Lyng. The answer to that question is
no.
A
In order to understand what RFRA enacts, it is important
to begin with the decision that RFRA sought to supersede,
namely, Employment Division v. Smith.
Smith involved a denial of unemployment benefits to two
Oregon workers who “were fired from their jobs with a
private drug rehabilitation organization because they
ingested peyote for sacramental purposes at a ceremony of
the Native American Church, of which both [were]
members.” 494 U.S. at 874. The claimants appealed that
36 APACHE STRONGHOLD V. UNITED STATES
denial of benefits to the Oregon Court of Appeals, which
held that the denial violated the Free Exercise Clause. Id.
On the State’s further appeal, the Oregon Supreme Court
agreed. Id. at 875. The U.S. Supreme Court granted
certiorari, but it initially held only that, “if a State has
prohibited through its criminal laws certain kinds of
religiously motivated conduct without violating the First
Amendment, it certainly follows that it may impose the
lesser burden of denying unemployment compensation
benefits to persons who engage in that conduct.”
Employment Div., Dep’t of Human Res. of Oregon v. Smith,
485 U.S. 660, 670 (1988). The Court therefore remanded
the case to the Oregon Supreme Court to address “whether
[the plaintiffs’] sacramental use of peyote was in fact
proscribed by Oregon’s controlled substance law.” Smith,
494 U.S. at 875. On remand, the Oregon Supreme Court
answered that question in the affirmative and otherwise
“reaffirmed its previous ruling” in the plaintiffs’ favor. Id.
at 876. The U.S. Supreme Court again granted review. Id.
Thus, although Smith had started out as an unemployment
compensation case, it returned to the Supreme Court as
squarely presenting the question of whether Oregon’s
criminal prohibition on all use of peyote violated the Free
Exercise Clause. Id. Accordingly, unlike Lyng, Smith
presented no threshold question as to whether the challenged
Oregon law actually “prohibit[ed]” the claimants’ religious
exercise. See U.S. CONST. amend I.
A sharply divided Court held that there was no violation
of the Free Exercise Clause. Justice Scalia’s majority
opinion for five Justices acknowledged what it described as
“the balancing test set forth in Sherbert v. Verner, 374 U.S.
398 (1963),” under which “governmental actions that
substantially burden a religious practice must be justified by
APACHE STRONGHOLD V. UNITED STATES 37
a compelling governmental interest.” Smith, 494 U.S. at
883. The Court noted that it had applied the Sherbert test in
three cases to “invalidate[] state unemployment
compensation rules that conditioned the availability of
benefits upon an applicant’s willingness to work under
conditions forbidden by his religion.” Id. The Court also
observed that, in several other decisions, the Court
“purported to apply the Sherbert test in contexts other than
that,” but that it had “always found the test satisfied.” Id.
Citing specifically to (among other decisions) Roy and Lyng,
the Court further noted that, “[i]n recent years [the Court]
ha[s] abstained from applying the Sherbert test (outside the
unemployment compensation field) at all.” Id. The Court
then held that, “[e]ven if we were inclined to breathe into
Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a
generally applicable criminal law.” Id. at 884 (emphasis
added). Reviewing its caselaw more broadly, the Court held
that its decisions had “consistently held that the right of free
exercise does not relieve an individual of the obligation to
comply with a ‘valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).’” Id. at 879
(citation omitted). Citing Lyng, the Court held that “[t]he
government’s ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to
carry out other aspects of public policy, ‘cannot depend on
measuring the effects of a governmental action on a religious
objector’s spiritual development.’” Id. at 885 (quoting Lyng,
485 U.S. at 451).
The Court’s holding that the Sherbert test does not apply
to neutral and generally applicable prohibitions drew the
sharp disagreement of four Justices, in a separate opinion
38 APACHE STRONGHOLD V. UNITED STATES
written by Justice O’Connor. 5 According to Justice
O’Connor, the Court’s caselaw has “respected both the First
Amendment’s express textual mandate and the
governmental interest in regulation of conduct by requiring
the government to justify any substantial burden on
religiously motivated conduct by a compelling state interest
and by means narrowly tailored to achieve that interest.”
Smith, 494 U.S. at 894 (O’Connor, J., concurring in the
judgment). Citing the unemployment compensation case of
Thomas v. Review Board of the Indiana Employment
Security Division, 450 U.S. 707 (1981), Justice O’Connor
elaborated on her understanding of what it meant for
government to impose a substantial burden on religious
exercise:
[T]he essence of a free exercise claim is relief
from a burden imposed by government on
religious practices or beliefs, whether the
burden is imposed directly through laws that
prohibit or compel specific religious
practices, or indirectly through laws that, in
effect, make abandonment of one’s own
religion or conformity to the religious beliefs
of others the price of an equal place in the
5
Because Justice O’Connor ultimately concurred in the judgment even
under the Sherbert test, her separate opinion was technically styled as a
concurrence in the judgment. See Smith, 494 U.S. at 891–907. The other
three Justices who joined Justice O’Connor’s criticism of the majority’s
abandonment of the Sherbert test did not agree that the Oregon law
survived that test, and they therefore only partially joined her
concurrence and also filed a separate dissent. See id. at 907–21
(Blackmun, J., dissenting).
APACHE STRONGHOLD V. UNITED STATES 39
civil community. As [the Court] explained in
Thomas:
“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,
thereby putting substantial pressure on an
adherent to modify his behavior and to
violate his beliefs, a burden upon religion
exists.” 450 U.S., at 717–718.
Smith, 494 U.S. at 897 (O’Connor, J., concurring in the
judgment). Thus, Justice O’Connor concluded, “[t]he
Sherbert compelling interest test applies” to both “cases in
which a State conditions receipt of a benefit on conduct
prohibited by religious beliefs and cases in which a State
affirmatively prohibits such conduct.” Id. at 898. In either
type of case, Justice O’Connor concluded, it did not matter
whether the law was a “neutral” or “generally applicable”
one. Id. at 898–900. The Court’s precedents, she explained,
reflected a “consistent application of free exercise doctrine
to cases involving generally applicable regulations that
burden religious conduct.” Id. at 892.
B
Congress promptly sought to supersede, by statute,
Smith’s holding that “neutral, generally applicable laws that
incidentally burden the exercise of religion usually do not
violate the Free Exercise Clause.” Holt, 574 U.S. at 356–57.
As stated expressly in § 2 of RFRA, Congress’s primary
purpose in enacting the Act was to “restore the compelling
interest test as set forth in Sherbert v. Verner, 374 U.S. 398
40 APACHE STRONGHOLD V. UNITED STATES
(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.” 42 U.S.C.
§ 2000bb(b)(1). That stated purpose was based on RFRA’s
express finding that “laws ‘neutral’ toward religion may
burden religious exercise as surely as laws intended to
interfere with religious exercise.” Id. § 2000bb(a)(1).
Section 3(a) of RFRA establishes the general rule that
“[g]overnment shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of
general applicability.” 42 U.S.C. § 2000bb-1(a). In its
current form, that prohibition extends to any “branch,
department, agency, instrumentality, [or] official (or other
person acting under color of law) of the United States” or of
the District of Columbia, the Commonwealth of Puerto Rico,
or the United States’ territories and possessions. Id.
§ 2000bb-2(1), (2). The sole exception to this general rule
is contained in § 3(b), which states:
Government may substantially burden a
person’s exercise of religion only if it
demonstrates that application of the burden to
the person—
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
Id. § 2000bb-1(b). The net effect is that the government may
substantially burden a person’s exercise of religion if and
only if the government’s action can survive “strict scrutiny.”
APACHE STRONGHOLD V. UNITED STATES 41
See Gonzales v. O Centro Espírita Beneficente União do
Vegetal, 546 U.S. 418, 430 (2006).
Congress also made clear its intent that RFRA operate as
a framework statute, “displacing the normal operation of
other federal laws.” Bostock v. Clayton Cnty., 590 U.S. 644,
682 (2020). Specifically, § 6 of RFRA provides that the Act
“applies to all Federal law, and the implementation of that
law, whether statutory or otherwise, and whether adopted
before or after” the date of RFRA’s enactment. 42 U.S.C.
§ 2000bb-3(a). Congress further provided that “[f]ederal
statutory law adopted after [RFRA’s enactment] is subject to
[RFRA] unless such law explicitly excludes such application
by reference to [RFRA].” Id. § 2000bb-3(b).
RFRA does not define what it means to “substantially
burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-
1(a), (b). But “Congress legislates against the backdrop of
existing law,” McQuiggin v. Perkins, 569 U.S. 383, 398 n.3
(2013), and the meaning of that phrase is clearly elucidated
by considering the body of law discussed in the “separate
opinions” in Smith, which “concerned the very issue
addressed” by Congress in § 3 of RFRA. Williams v. Taylor
(Terry Williams), 529 U.S. 362, 411 (2000). 6
As Terry Williams explained, in the unusual situation in
which the “broader debate and the specific statements” of the
Justices in a particular decision “concern[] precisely the
issue” that Congress later addresses in a statute that borrows
6
We refer to this case as “Terry Williams” because, in an extraordinary
coincidence, the Supreme Court on the very same day decided another
case named “Williams v. Taylor” (in which the petitioner was Michael
Williams). See 529 U.S. 420 (2000); see also Shinn v. Martinez Ramirez,
596 U.S. 366, 381 (2022) (similarly referring to the other case as
“Michael Williams”).
42 APACHE STRONGHOLD V. UNITED STATES
the Justices’ terminology, Congress should be understood to
have “adopt[ed]” the relevant “meaning given a certain term
in that decision.” 529 U.S. at 411–12. Thus, in construing
the standards of review applicable in deciding habeas corpus
petitions under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Terry Williams turned to “[t]he
separate opinions” in Wright v. West, 505 U.S. 277 (1992),
which concerned that “very issue.” 529 U.S. at 411. As
Terry Williams recounted, the respective opinions of Justice
Thomas and Justice O’Connor in Wright vigorously debated
whether habeas review should be deferential, with Justice
O’Connor concluding that a federal court should review de
novo whether the state court’s resolution of the federal issue
was “correct,” and Justice Thomas concluding that a federal
court should “simply” inquire as to whether the state
decision was “reasonable.” Id. at 410–11. In addressing the
issue of the appropriate standards of review in AEDPA’s
amendments to the habeas statute, see 28 U.S.C. § 2254,
“Congress specifically used the word ‘unreasonable,’”
thereby confirming that it had effectively adopted Justice
Thomas’s position and rejected Justice O’Connor’s. See
Terry Williams, 529 U.S. at 411.
RFRA presents exactly the sort of distinctive situation in
which the principles discussed in Terry Williams are
applicable. Terry Williams invoked those principles with
respect to AEDPA even though the Court conceded that
there was “no indication in § 2254(d)(1) itself that Congress
was ‘directly influenced’ by Justice Thomas’ opinion in
Wright.” 529 U.S. at 411 (emphasis added). As the Court
explained, “Congress need not mention a prior decision of
this Court by name in a statute’s text in order to adopt either
a rule or a meaning given a certain term in that decision.” Id.
But where, as with RFRA, Congress does specifically
APACHE STRONGHOLD V. UNITED STATES 43
“mention a prior decision of this Court by name in a statute’s
text,” id., the inference is all the more inescapable that, when
Congress borrows the Justices’ same phrasing, it does so
against the backdrop of how those terms were understood in
the relevant opinions accompanying that decision. Here,
RFRA was enacted against the backdrop of the vigorous
debate between Justice Scalia and Justice O’Connor in
Smith; both of their opinions used variations of the phrase
“substantially burden” in describing the pre-Smith
framework for evaluating Free Exercise Clause claims 7;
RFRA’s text states that its purpose is to supersede, by
statute, the decision in “Employment Division v. Smith, 494
U.S. 872 (1990),” see 42 U.S.C. § 2000bb(a)(4); and, in
superseding Smith, RFRA uses the phrase “substantially
burden,” id. § 2000b-1(a), (b). The inference is
overwhelming that Congress thereby “adopt[ed]” the
“meaning given [that] certain term in that decision.” Terry
Williams, 529 U.S. at 411. Consequently, RFRA
unmistakably sought to enshrine, by statute, the basic
principles reflected in the framework for applying the Free
Exercise Clause that is described in those opinions, and that
framework clearly includes Lyng.
Thus, for example, Justice O’Connor’s separate opinion
in Smith confirms that the “substantial burden” rule
established in the Court’s caselaw is consistent with, and
7
See 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.” (emphasis added)); id. at 894
(O’Connor, J., concurring in the judgment) (stating that, under the
Court’s existing caselaw, the government is required “to justify any
substantial burden on religiously motivated conduct by a compelling
state interest and by means narrowly tailored to achieve that interest”
(emphasis added)).
44 APACHE STRONGHOLD V. UNITED STATES
does not abrogate, the Court’s decision in Lyng (which she
wrote). As Justice O’Connor explained in her separate
opinion in Smith, Lyng did not “signal” a “retreat from [the
Court’s] consistent adherence to the compelling interest test”
in evaluating governmental action prohibiting the free
exercise of religion; instead, it reflected the underlying limits
in the governmental conduct reached by the Free Exercise
Clause. Smith, 494 U.S. at 900 (O’Connor, J., concurring in
the judgment). She argued that, like Roy, Lyng involved the
Government’s “conduct [of] its own internal affairs” in a
way that did not implicate the Free Exercise Clause’s rule
about “what the government cannot do to the individual.” Id.
(emphasis added) (citation omitted). That view is consistent
with Lyng, which—as we have exhaustively explained
earlier—rests on the premise that the Government’s actions
there, although substantially destructive of the Indians’
religious interests, did not involve “prohibiting the free
exercise” of religion within the meaning of the Free Exercise
Clause. See supra at 24–27.
Moreover, Justice O’Connor’s Smith concurrence
contained a detailed explication of what counts as a
cognizable burden under the Court’s then-existing caselaw,
and it closely dovetails with Lyng. As she explained, such
burdens may be “imposed directly through laws that prohibit
or compel specific practices”; they may be imposed
“indirectly through laws that, in effect, make abandonment
of one’s own religion or conformity to the religious beliefs
of others the price of an equal place in the civil community”;
or they may involve benefit conditions that “put[] substantial
pressure on an adherent to modify his behavior and to violate
his beliefs.” Smith, 494 U.S. at 897 (O’Connor, J.,
concurring in the judgment) (emphasis added) (citation
omitted).
APACHE STRONGHOLD V. UNITED STATES 45
Likewise, nothing in Justice Scalia’s majority opinion in
Smith suggested that the Court thought that Lyng was
inconsistent with the substantial burden test. Instead, in the
course of arguing for a broader jettisoning of Sherbert’s
compelling interest test, the Smith majority simply cited
Lyng as an instance in which that strict scrutiny test had not
been applied. See Smith, 494 U.S. at 883. As noted earlier,
the Smith majority also argued that its broader position drew
support from Lyng’s general observation that the limitations
imposed by the Free Exercise Clause “cannot depend on
measuring the effects of a governmental action on a religious
objector’s spiritual development,” id. at 885 (quoting Lyng,
485 U.S. at 451), but that likewise reflects no criticism of
Lyng’s holding about the scope of “prohibiting” under the
Free Exercise Clause.
Indeed, the only debate that Justice Scalia and Justice
O’Connor had concerning Lyng related to the majority’s use
of this latter comment to bolster its broader rule about neutral
laws of general applicability. Justice O’Connor objected
that the majority took that comment out of Lyng’s specific
context, which involved only the Government’s conduct of
its “internal affairs” and therefore did not implicate the Free
Exercise Clause’s rule about “what the government cannot
do to the individual.” Smith, 494 U.S. at 900 (O’Connor, J.,
concurring in the judgment) (citation omitted). The Court
responded that there was no basis for limiting the cited
principle in the way that Justice O’Connor posited. Lyng’s
observation should apply more broadly, the Court explained,
because “it is hard to see any reason in principle or
practicality why the government should have to tailor its
health and safety laws to conform to the diversity of religious
belief, but should not have to tailor its management of public
lands, Lyng, supra, or its administration of welfare
46 APACHE STRONGHOLD V. UNITED STATES
programs, Roy, supra.” Id. at 885 n.2. This debate about
whether and how to extend an observation made in Lyng
reflects no criticism of Lyng’s ultimate holding.
Accordingly, both Justice O’Connor’s concurrence and
the majority opinion in Smith strongly confirm that, under
the then-existing framework of Free Exercise Clause
jurisprudence, the proposition that the government must
justify, by strict scrutiny, any “substantial burden” on
religious exercise is one that subsumes, rather than
overrides, Lyng’s holding about the scope of government
action that is reached by the constitutional phrase
“prohibiting the free exercise thereof.” U.S. CONST. amend.
I. As a decision about the scope of the term “prohibiting,”
Lyng defines the outer bounds of what counts as a cognizable
substantial burden imposed by the government. That is
plainly how Justice O’Connor viewed Lyng in Smith, and the
Smith majority did not disagree. When Congress copied the
“substantial burden” phrase into RFRA, it must be
understood as having similarly adopted the limits that Lyng
placed on what counts as a governmental imposition of a
substantial burden on religious exercise. See Terry Williams,
529 U.S. at 411–12; see also ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 322 (2012) (“If a statute uses words or phrases that
have already received authoritative construction by the
jurisdiction’s court of last resort, . . . they are to be
understood according to that construction.”).
C
The dissent’s exclusive reliance on its composite
understanding of the dictionary definitions of “substantial”
and “burden,” see Dissent at 196, contravenes the
interpretive principles discussed in Terry Williams, as well
APACHE STRONGHOLD V. UNITED STATES 47
as the crucial context supplied by Smith and Lyng. As a
result, the dissent’s construction of the phrase elides the
crucial ingredient that Lyng reflects, which is that the phrase
“substantial burden” must ultimately be bounded by what
counts as within the domain of the phrase “prohibiting the
free exercise thereof.” U.S. CONST. amend. I (emphasis
added).
It is no answer to say, as the dissent does, that we have
applied that dictionary definition in construing the meaning
of the identical term “substantial burden” as used in the
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”). See Dissent at 203–05. The dissent overlooks
the fact that RLUIPA expressly applies only to “substantial
burdens” in two specific contexts—namely, “impos[ing] or
implement[ing] a land use regulation,” 42 U.S.C.
§ 2000cc(a)(1), and restrictions on “a person residing in or
confined to an institution” affiliated with a government, id.
§ 2000cc-1(a). See id. § 1997; see also Cutter v. Wilkinson,
544 U.S. 709, 715 (2005). Because both of these specific
contexts inherently involve coercive restrictions, they do not
raise a similar Lyng-type issue about the bounds of what
counts as “prohibiting” religious exercise. In RLUIPA’s two
specific contexts, where that crucial element is already
baked in, the dictionary definitions of “substantial” and
“burden” will adequately flesh out the concept of
“substantial burden” against that backdrop. The same is true
under RFRA, once it is recognized that RFRA preserves
Lyng’s understanding of what counts as “prohibiting” the
free exercise of religion. But the same is not true if, with
respect to RFRA, the critical context supplied by Smith and
Lyng is overlooked. That would yield a very different
concept of “substantial burden” under RFRA, one that
(unlike RLUIPA) is shorn of any requirement to show that
48 APACHE STRONGHOLD V. UNITED STATES
the governmental action has a “tendency to coerce
individuals into acting contrary to their religious beliefs,”
“discriminate[s]” against religious adherents, “penalize[s]”
them, or denies them “an equal share of the rights, benefits,
and privileges enjoyed by other citizens.” Lyng, 485 U.S. at
449–50, 453. Nothing in RFRA indicates that Congress
intended to eliminate this crucial element or to abrogate
Lyng.
The dissent’s contrary conclusion that RFRA does
supersede Lyng rests on the premise that Lyng was based on
a Smith-style holding about neutral and generally applicable
rules. See Dissent at 224–28. For the reasons that we have
already explained, that premise is patently incorrect. The
law at issue in Lyng was manifestly not generally applicable,
and nothing in Lyng rests upon, or endorses, the broad rule
later adopted in Smith. See supra at 24–25, 31–33. Indeed,
the most that the Smith majority claimed was that one
particular statement in Lyng should be extended in a way that
would support differential treatment of neutral laws of
general applicability. See Smith, 494 U.S. at 885.
The dissent is also wrong in asserting that a 2000
amendment to RFRA—enacted as part of RLUIPA—
demonstrates Congress’s intent that RFRA not be tied to the
constitutional understanding of what counts as “prohibiting”
the free exercise of religion. See Dissent at 200–01. Prior
to RLUIPA, RFRA defined the specific term “exercise of
religion” to “mean[] the exercise of religion under the First
Amendment to the Constitution.” See Pub. L. No. 103-141
§ 5(4), 107 Stat. 1488, 1489 (1993). However, a circuit split
developed as to whether, as a result, RFRA’s protections
were limited to only those practices that are “central” to, or
“mandated” by, a person’s faith. Compare Bryant v. Gomez,
46 F.3d 948, 949 (9th Cir. 1995) (adopting those limitations)
APACHE STRONGHOLD V. UNITED STATES 49
with Mack v. O’Leary, 80 F.3d 1175, 1178–79 (7th Cir.
1996) (noting the circuit split and rejecting Bryant), vacated
on other grounds, 522 U.S. 801 (1997). Congress, of course,
cannot statutorily change the scope of the Free Exercise
Clause as construed by the courts, but it could effectively
abrogate decisions such as Bryant by decoupling RFRA’s
definition of “exercise of religion” from the Free Exercise
Clause and then giving it a broader meaning for purposes of
RFRA. That is exactly what Congress did in RLUIPA. In
§ 7(a)(3) of RLUIPA, Congress rewrote the definition of
“exercise of religion” in RFRA to mean “religious exercise,
as defined in section 8 of the Religious Land Use and
Institutionalized Persons Act of 2000 [42 U.S.C. § 2000cc-
5].” See Pub. L. No. 106-274, § 7(a)(3), 114 Stat. 803, 806
(2000). Section 8 of RLUIPA, in turn, defines “religious
exercise” to mean “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief,” and
further provides that the “use, building, or conversion of real
property for the purpose of religious exercise shall be
considered to be religious exercise.” See 42 U.S.C.
§ 2000cc-5(7)(A)–(B). But in thus decoupling the definition
of what activities count as the “exercise of religion” from the
Free Exercise Clause,” Congress did not alter the phrase
“substantial burden,” nor did it suggest that that phrase
should be understood as somehow being decoupled from any
notion of what counts as “prohibiting” the free exercise of
religion under pre-Smith caselaw. 8
8
To the extent that the dissent insinuates that the amended RFRA’s
borrowing of RLUIPA’s definition of religious exercise has the effect of
abrogating Lyng, see Dissent at 200–01, that is quite wrong. The dissent
has not cited any authority—and we are aware of none—that would
support the extraordinary proposition that RFRA and RLUIPA purport
to grant freestanding rights to obtain otherwise unavailable access to the
50 APACHE STRONGHOLD V. UNITED STATES
The dissent further errs in contending that our
construction of “substantial burden” here disregards the
Supreme Court’s rejection of the view that “RFRA merely
restored th[e] Court’s pre-Smith decisions in ossified form.”
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 715–16
(2014); see also Dissent at 201. The proposition the Court
rejected in Hobby Lobby was that RFRA protected only the
particular collection of practices that happened to have been
“specifically addressed in [the Court’s] pre-Smith
decisions,” much like AEDPA requires a showing of
“‘clearly established Federal law, as determined by the
Supreme Court of the United States.’” Id. at 714 (quoting
28 U.S.C. § 2254(d)(1)). That “absurd” view, the Court
explained, would mean that “resident noncitizen[s]” would
not be protected by RFRA, given that there was no “pre-
Smith case in which th[e] Court entertained a free-exercise
claim brought by a resident noncitizen.” Id. at 715–16.
Hobby Lobby thus does not stand for the quite different—
and erroneous—proposition that RFRA is somehow exempt
from the settled rule that “Congress legislates against the
backdrop of existing law.” McQuiggin, 569 U.S. at 398 n.3.
Indeed, even the dissent concedes that RFRA must be
construed in light of “the Supreme Court’s pre-Smith Free
Exercise jurisprudence.” See Dissent at 205–06; see also id.
at 210 (noting that we have previously “relied on pre-Smith
Free Exercise Clause cases to define substantial burden”).
* * *
Accordingly, RFRA’s understanding of what counts as
“substantially burden[ing] a person’s exercise of religion”
real property of others for religious use. Put simply, neither statute
purports to grant persons a “religious servitude” over the property of
others. Lyng, 485 U.S. at 452.
APACHE STRONGHOLD V. UNITED STATES 51
must be understood as subsuming, rather than abrogating,
the holding of Lyng. That holding therefore governs Apache
Stronghold’s RFRA claim as well, and that claim therefore
fails for the same reasons discussed earlier. See supra at 27.
V
Finally, Apache Stronghold also argues that an 1852
treaty of “perpetual peace and amity” between the “Apache
Nation of Indians” and the United States, see TREATY WITH
THE APACHES, July 1, 1852, art. 2, 10 Stat. 979 (1853),
created an enforceable trust obligation that would be violated
by the transfer of Oak Flat. That trust obligation, Apache
Stronghold argues, stems from Article 9 of the treaty, which
provides, in relevant part, that
Relying confidently upon the justice and the
liberality of the [federal] government, and
anxious to remove every possible cause that
might disturb their peace and quiet, it is
agreed by the aforesaid Apache’s [sic] 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 territory such laws as
may be deemed conducive to the prosperity
and happiness of said Indians.
Id., art. 9; see also id., art. 11 (stating that “the government
of the United States shall so legislate and act as to secure the
permanent prosperity and happiness of said Indians”).
Specifically, Apache Stronghold argues that the
Government’s treaty obligation to “pass and execute . . .
such laws as may be deemed conducive to the prosperity and
happiness’” of the Apaches should be “construed to obligate
52 APACHE STRONGHOLD V. UNITED STATES
the United States to preserve traditional Apache religious
practices on their historic homeland.” Thus construed,
Apache Stronghold contends, the Government’s obligations
under the treaty override any power or obligation to transfer
Oak Flat under § 3003. This contention fails. Even
assuming arguendo that Apache Stronghold’s interpretation
of the Government’s treaty obligations is correct, the
Government’s statutory obligation to transfer Oak Flat under
§ 3003 clearly abrogates any contrary treaty obligation, not
the other way around. 9
“Congress has the power to abrogate Indians’ treaty
rights,” but Congress generally must “clearly express its
intent to do so.” South Dakota v. Bourland, 508 U.S. 679,
687 (1993). To the extent that Apache Stronghold is correct
in contending that the Government has a treaty-based trust
obligation to retain Oak Flat for the benefit of the tribe and
its members, § 3003 clearly and manifestly abrogates any
9
Although Apache Stronghold has adequately shown that its members
face an imminent threatened injury in fact that is fairly traceable to the
alleged treaty violation, see Susan B. Anthony List v. Driehaus, 573 U.S.
149, 157–58 (2014), the district court concluded that allowing its
members to assert what it deemed to be the tribe’s treaty rights violated
the “prudential requirement that a plaintiff ‘cannot rest his claim to relief
on the legal rights or interests of third parties.’” Apache Stronghold, 519
F. Supp. 3d at 598 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).
Because the parties’ dispute over this “prudential” requirement does not
involve our subject matter jurisdiction, we are not required to resolve it
before addressing the merits of the treaty issue. See FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 237 (1990) (finding that the relevant plaintiffs
had Article III standing and then rejecting a claim on the merits after
assuming arguendo that “prudential, jus tertii standing” was met); cf.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
125–28 (2014) (clarifying that “‘prudential standing’ is a misnomer” and
must be distinguished from the jurisdictional requirements of Article III
(citation omitted)).
APACHE STRONGHOLD V. UNITED STATES 53
such obligation. Section 3003 was passed to accomplish a
single goal: to “authorize, direct, facilitate, and expedite the
exchange of land between Resolution Copper and the United
States.” 16 U.S.C. § 539p(a). The entirety of the statute is
built around that ultimate objective. There are various
preparatory requirements, like consultations and report
generation, e.g., id. § 539p(c)(3), (c)(4), (c)(6)(A), (c)(9),
and post-transfer rules about land disposition and
management, id. § 539p(d)(2), (e), (g), (h), but they all lead
up to the transfer of Oak Flat. Indeed, § 3003
unambiguously states that, upon completion of the
preparatory steps, “if Resolution Copper offers to convey to
the United States all right, title, and interest of Resolution
Copper in and to the non-Federal land, the Secretary is
authorized and directed to convey to Resolution Copper, all
right, title, and interest of the United States in and to the
Federal land.” Id. § 539p(c)(1) (emphasis added). Section
3003’s clear direction that, after consultation with the tribe,
the transfer shall occur simply cannot co-exist with Apache
Stronghold’s claim that the treaty requires that it shall not
occur. Section 3003 plainly abrogates any tribal treaty rights
that would otherwise preclude the transfer. See Bourland,
508 U.S. at 687.
VI
For the foregoing reasons, Apache Stronghold is
unlikely to succeed on the merits of any of the three claims
before this court. It consequently cannot show that it is
entitled to preliminary injunctive relief, and we need not
consider the remaining Winter factors. See Garcia, 786 F.3d
at 740. The district court’s order denying Apache
Stronghold’s motion for a preliminary injunction is therefore
affirmed.
54 APACHE STRONGHOLD V. UNITED STATES
AFFIRMED.
BEA, Circuit Judge, dissenting in part and concurring in
part, with whom Circuit Judge FORREST joins except for
footnote one; Circuit Judge BENNETT joins with respect
to Part II:
I.
I dissent from paragraph one of the per curiam opinion,
which announces that the term “substantial burden” as used
in RFRA and RLUIPA “are interpreted uniformly,” declares
that Navajo Nation v. U.S. Forest Service, 535 F.3d 1058
(9th Cir. 2008), is overruled as a result of this interpretation
of uniformity between RFRA and RLUIPA, and volunteers,
in place of that 15-year precedent, a new test for when a
government action imposes a “substantial burden” under
RFRA that broadly asks whether the government conduct
“prevent[s] access to religious exercise.” We also did not
apply this test to arrive at the ultimate decision of this Court,
and this test does not address any “issue [that is] germane to
the eventual resolution of th[is] case.” United States v.
Johnson, 256 F.3d 895, 914–16 (9th Cir. 2001) (separate
opinion of Kozinski, J., Trott, T.G. Nelson, Silverman, JJ.)
(emphasis added). That is because a majority of this panel
has already affirmed, under the completely different rationale
in Judge Collins’s majority opinion, the district court’s
finding that the transfer of Oak Flat will impose no
substantial burden under RFRA. 1
1
The statements in paragraph one of the per curiam can be characterized
only as dicta that address “question[s] . . . not essential to the decision”
reached in this case. Judicial Dictum, Black’s Law Dictionary (11th ed.
APACHE STRONGHOLD V. UNITED STATES 55
II.
I concur in full with Judge Collins’s majority opinion. I
agree that RFRA’s term “substantial burden” does not
include the governmental action at issue here “because the
plaintiffs would not ‘be coerced by the Government’s action
into violating their religious beliefs,’ nor would that action
‘penalize religious activity by denying any person an equal
share of the rights, benefits, and privileges enjoyed by other
citizens.’” And I agree that Congress “adopted the limits
2019); see Bryan A. Garner et al., The Law of Judicial Precedent 46–47
(1st ed. 2016). Our decision today—the only decision that resolves this
controversy—is that the transfer of Oak Flat will impose no “substantial
burden” on Apache Stronghold’s religious exercise under RFRA. To
state the obvious, it is unnecessary to overrule Navajo Nation to reach
that outcome because Navajo Nation directly supports our holding. See,
e.g., infra Part II.C.
Nor do I think the separate majority’s pronouncements in paragraph one
of the per curiam opinion deserve binding weight in future cases even
under our “well-reasoned” dicta rule. See Johnson, 256 F.3d at 914–16
(separate opinion of Kozinski, J., Trott, T.G. Nelson, Silverman, JJ.),
adopted as the law of the circuit in Miranda B. v. Kitzhaber, 328 F.3d
1181, 1186 (9th Cir. 2003). No majority of this panel has filed a separate
opinion setting forth the rationale behind paragraph one of the per curiam
opinion. Neither Chief Judge Murguia’s dissent nor Judge R. Nelson’s
concurrence reflect the rationale of this Court that would support
overruling Navajo Nation. We have, in other words, two sentences of
dicta in the opening of a majority per curiam opinion—which purport to
effect a seismic shift in our RFRA jurisprudence—but no guiding
rationale that explains this sea change in our law. This cannot be the
scenario that Johnson’s “well-reasoned” dicta rule was meant for. When
we held in Johnson that a panel’s ruling on an issue, though
“[un]necessary in . . . a strict logical sense,” can become the law of this
circuit so long as the panel “decide[s] [it] after careful analysis,” the
“analysis” we had in mind was the analysis “in a published opinion” of
the court, id. at 914; see id. at 909 n.1, not the separate rationales of a
fractured majority expressed in different writings.
56 APACHE STRONGHOLD V. UNITED STATES
that Lyng places on what counts as a governmental
imposition of a substantial burden on religious exercise”
when Congress passed the Religious Freedom Restoration
Act, 42 U.S.C. § 2000bb, et seq. (“RFRA”). Further, I agree
that RFRA and the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), are
applied in contexts so distinguishable from one another as to
make RLUIPA cases entirely unhelpful when interpreting
RFRA.
I write separately to provide additional reasons in
support of the conclusion that Apache Stronghold cannot
obtain relief under RFRA. First, I will discuss the further
textual and contextual evidence that the term “substantial
burden,” as used in RFRA, has the same limited meaning it
had in federal court cases decided prior to RFRA’s
enactment. Second, I will discuss how RFRA and RLUIPA,
in addition to having distinguishable applications, also have
distinguishable texts, such that RLUIPA cases ought not to
be used to interpret RFRA for this additional reason. Third,
I will discuss the serious practical problems that would arise
with the test proposed by Chief Judge Murguia in her lead
dissent. Last, I will discuss how, even were RFRA to
provide the Apache a viable claim for relief, RFRA’s
application in this case would nonetheless be abrogated by
Congress’s express direction in the Land Exchange Act that
the land exchange be consummated.
FACTUAL BACKGROUND
Congress passed the Land Exchange Act in 2015. The
Land Exchange Act authorizes and directs the exchange of
land between the United States Government and two foreign
mining companies (known collectively as “Resolution
Copper”). 16 U.S.C. § 539p. The 2,422-acre parcel of
APACHE STRONGHOLD V. UNITED STATES 57
Arizona land that Congress has expressly authorized and
directed the Secretary of the Interior to convey to Resolution
Copper is located within the Tonto National Forest and
includes a sacred Apache ceremonial ground called Chí’chil
Biłdagoteel—known in English as “Oak Flat.”
On January 12, 2021, Apache Stronghold, a nonprofit
organization with members who belong to Western Apache
tribes, filed suit seeking to prevent the land exchange and
ensure that its members would forever have a right to access
Oak Flat. Two days later, Apache Stronghold filed a Motion
for Temporary Restraining Order and Preliminary
Injunction. The district court held a hearing on the motion
on February 3, 2021, and denied it nine days later. The
district court found “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). The district court also
found that the Apache believed that “Resolution Copper’s
planned mining activity on the land will close off a portal to
the Creator forever and will completely devastate the
Western Apaches’ spiritual lifeblood.” Id. at 604. This
finding is undisputed.
Apache Stronghold appealed, and on June 24, 2022, a
three-judge panel of this court affirmed the denial of the
preliminary injunction. Apache Stronghold v. United States,
38 F.4th 742 (9th Cir. 2022). The panel opinion relied on
our en banc decision in Navajo Nation v. U.S. Forest Service,
535 F.3d 1058, 1069–70 (9th Cir. 2008) (en banc), to decide
the RFRA claim. 38 F.4th at 753.
On November 17, 2022, upon a vote of a majority of the
non-recused active judges, the court sua sponte ordered that
this case be reheard en banc.
58 APACHE STRONGHOLD V. UNITED STATES
LEGAL BACKGROUND
A. Pre-RFRA Jurisprudence
Before the 1993 enactment of RFRA, in Sherbert v.
Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406
U.S. 205 (1972), the Supreme Court had laid out a strict
scrutiny test for certain governmental actions that interfered
with the constitutional right of free exercise of religion as set
forth in the First Amendment. Under that strict scrutiny test,
the government cannot impose a substantial burden on the
exercise of a religious adherent’s sincerely held religious
beliefs unless that burden is outweighed by a compelling
governmental interest. Sherbert, 374 U.S. at 403–06. 2
In Sherbert, the plaintiff was fired from her job for
refusing to work on Saturday, the Sabbath day of her faith.
The Court held that the state’s denial of unemployment
benefits to the plaintiff substantially burdened her religious
exercise by forcing her to “choose between following the
precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion in
order to accept work, on the other hand.” Id. at 404.
In Yoder, members of the Old Order Amish religion
appealed their convictions under a law that required them to
send their children to school until the age of sixteen—a
violation of the tenets of the Amish religion, which prohibit
the schooling of children beyond the eighth grade. The
Court held that the state’s schooling mandate, as applied to
three Amish children who had completed the eighth grade
2
When we assess claims that the government has infringed on the free
exercise of religion, we use the terms “strict scrutiny” and “the
compelling interest test” to refer to the same test. See Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1876–77, 1881 (2021).
APACHE STRONGHOLD V. UNITED STATES 59
but who had not yet reached the age of sixteen, caused a
substantial burden because it “affirmatively compel[led] [the
Amish], under threat of criminal sanction, to perform acts
undeniably at odds with fundamental tenets of their religious
beliefs.” 406 U.S. at 218.
The Supreme Court’s analysis of burdens in Sherbert and
Yoder represented a fundamental inquiry: whether the
governmental action coerces the individual religious
adherent to violate or abandon his sincere religious beliefs.
See Hobbie v. Unemployment Appeals Comm’n of Fla., 480
U.S. 136, 144 (1987) (“[T]he forfeiture of unemployment
benefits for choosing [to engage in religious conduct] brings
unlawful coercion to bear on the employee’s choice.” (citing
Sherbert, 374 U.S. at 404)); Tilton v. Richardson, 403 U.S.
672, 689 (1971) (plurality) (“Appellants, however, are
unable to identify any coercion directed at the practice or
exercise of their religious beliefs.”); Bd. of Educ. of Cent.
Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 249 (1968)
(“[A]ppellants have not contended that the New York law in
any way coerces them as individuals in the practice of their
religion.”); Sch. Dist. of Abington Twp., Pa. v. Schempp, 374
U.S. 203, 223 (1963) (“[I]t is necessary in a free exercise
case for one to show the coercive effect of the enactment as
it operates against him in the practice of his religion.”).
The Supreme Court specifically addressed the
application of Sherbert’s and Yoder’s tests to the
Government’s excavation and reconfiguration of the
government’s own land in Lyng v. Northwest Indian
Cemetery Protective Association, 485 U.S. 439 (1988). In
Lyng, the United States Forest Service wanted to build a road
through an area “significant as an integral and
indispens[a]ble part of Indian religious conceptualization
and practice.” Id. at 442. The road was to be built on Forest
60 APACHE STRONGHOLD V. UNITED STATES
Service land, generally available to the public—Indians
included. A study by the Forest Service found that the
construction of the road “would cause serious and
irreparable damage to the sacred areas which are an integral
and necessary part of the belief systems and lifeway of
Northwest California Indian peoples.” Id. The Indians filed
suit, seeking to enjoin the construction of the road.
The Supreme Court held that the construction of the road
did not burden the Indians’ religious practices in a way that
would require the government to meet the compelling
interest test—not because the religious practices were
unaffected, but because the construction of the road did not
“coerce[]” the Indians “into violating their religious beliefs,”
as in Yoder, nor “penalize religious activity by denying any
person an equal share of the rights, benefits, and privileges
enjoyed by other citizens,” as in Sherbert. Id. at 449. In
other words, it was irrelevant that “the Indians’ spiritual
practices would become ineffectual” or made “more
difficult” because there was “no tendency to coerce
individuals into acting contrary to their religious beliefs.”
Id. at 450. Thus, the burden suffered by the Indians was
qualitatively different than the burden required to be proven
to obtain relief under Sherbert and Yoder. Even accepting
that the road-building project “could have devastating
effects on traditional Indian religious practices” or even
“virtually destroy the Indians’ ability to practice their
religion,” id. at 451, the project did not put the Indians to the
choice between violating or abandoning their religious tenets
and losing vested benefits or incurring a governmental
penalty. Because there was no personal coercion, the new
APACHE STRONGHOLD V. UNITED STATES 61
road did not substantially burden the Indians’ constitutional
right to the free exercise of their religion. Id. at 447. 3
The lead dissent argues, however, that Smith interpreted
“Lyng [as] stand[ing] for the proposition that the compelling
interest test is ‘inapplicable’ to ‘across-the-board’ neutral
laws” because Smith quoted from Lyng when it established
that rule. We addressed and rejected this same argument
fifteen years ago. See Navajo Nation, 535 F.3d at 1072–73.
The fact that Smith divined some support for its rule from the
Lyng’s language does not mean that Lyng was the case that
established the rule that “neutral, generally applicable laws”
are exempt from the Sherbert and Yoder test.4 That case was
Smith. And Congress cited Smith, not Lyng, as the case that
“virtually eliminated the requirement that the government
justify burdens on religious exercise imposed by laws neutral
toward religion.” See 42 U.S.C. § 2000bb(a)(4). 5
3
In dicta, the Supreme Court in Lyng mentioned that “a law prohibiting
the Indian respondents from visiting the [sacred] area would raise a
different set of constitutional questions.” Id. at 453. The Supreme Court
gave no indication as to what “different . . . constitutional questions”
would be raised under such circumstances, what analysis the Court
would use to answer those questions, or what answers the Court would
reach. We do not give any weight to “an unconsidered statement” found
in Supreme Court dicta, Valladolid v. Pac. Operations Offshore, LLP,
604 F.3d 1126, 1131–32 (9th Cir. 2010), aff’d, 565 U.S. 207 (2012), and
this language in Lyng does not establish that the term “substantial
burden” has any greater or different meaning than used in the remainder
of the opinion in Lyng and in other pre-RFRA cases.
4
I agree in full with Judge Collins’s explanation as to why the law at
issue in Lyng was not neutral or generally applicable. Simply put, an Act
of Congress that deals with a specific stretch of road in Northern
California is not, by definition, a “neutral law of general application.”
5
RFRA also explicitly endorsed “the compelling interest test as set forth
in prior Federal court rulings”—that is, the test used in federal court
62 APACHE STRONGHOLD V. UNITED STATES
Smith, if anything, construed Lyng as one of several
examples where the Court declined to apply the compelling
interest test because the government action in that case was
not coercive, making the burden it imposed on religious
practice not “substantial[]” within the meaning of Sherbert.
Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872,
883 (1990) (citing Sherbert, 374 U.S. at 402–03). Smith
explained that the government action in Sherbert
“substantially burden[ed] . . . religious practice” because it
coerced a religious adherent into violating her beliefs by
“condition[ing] the availability of [unemployment] benefits
upon [her] willingness to work under conditions forbidden
by h[er] religion.” Smith, 494 U.S. at 883 (citing Sherbert,
374 U.S. at 402–03). But the Court had “never invalidated
any governmental action on the basis of the Sherbert test”
outside the unemployment benefit context because none of
the challenged state actions in those cases were coercive.
Smith, 494 U.S. at 883. Whether it was the “military dress
regulations [in Goldman v. Weinberger] that forbade the
wearing of yarmulkes,” the state “prison’s refusal [in
O’Lone v. Estate of Shabazz] to excuse inmates from work
requirements to attend worship services,” the federal statute
in Bown v. Roy “that required [Social Security] benefit
applicants . . . to [obtain and] provide their Social Security
numbers,” or the “devastating effects on . . . religious
practices” caused by the “Government’s logging and road
construction activities on [sacred] lands” in Lyng—these
activities, at most, interfered with religious exercise as an
incident to the operation of governmental affairs. Smith, 494
rulings prior to Smith. 42 U.S.C. § 2000bb(a)(5) (emphasis added).
Lyng was handed down two years prior to Smith. Thus, Lyng was one of
the “prior Federal court rulings” which Congress explicitly wanted to
restore.
APACHE STRONGHOLD V. UNITED STATES 63
U.S. at 883–84 (internal citations and quotations omitted).
They did not entice religious adherents into violating the
tenets of their faith in exchange for government benefits, as
the government had done in Sherbert. See id.
Pre-RFRA cases applying (or refusing to apply)
Sherbert’s compelling interest test only confirm what Smith
later observed: that coercion is the sine qua non for what
constitutes a “substantial[] burden” under Sherbert. Id. at
883. In Thomas v. Review Board of the Indiana Employment
Security Division, 450 U.S. 707 (1981), a religious adherent
was fired for refusing to participate in the production of
armaments, and the state denied him unemployment
benefits. Although Thomas was a relatively easy application
of Sherbert, the Supreme Court took the occasion to reiterate
that only personal coercion qualifies as a substantial burden
under the Free Exercise Clause: “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, thereby putting
substantial pressure on an adherent to modify his behavior
and to violate his beliefs, a burden upon religion exists.” Id.
at 717–18. The Supreme Court held that a substantial burden
was placed on the religious adherent and granted relief under
the Free Exercise Clause. Id. at 720.
In Bowen v. Roy, 476 U.S. 693 (1986)—one of the
examples that Smith identified as not involving a substantial
burden, see Smith, 494 U.S. at 883—an Indian religious
adherent challenged the Government’s internal use of a
Social Security number to identify the religious adherent’s
daughter, Bowen, 476 U.S. at 699. The religious adherent
testified that the Government’s use of a Social Security
number would “rob” his daughter of “her spirit.” Id. at 697.
The Supreme Court explained how the use of the Social
64 APACHE STRONGHOLD V. UNITED STATES
Security number was not a substantial burden by drawing a
distinction between burdens that coerce the religious
adherent to violate or abandon his sincere religious beliefs
and those that do not:
The Free Exercise Clause simply cannot be
understood to require the Government to
conduct its own internal affairs in ways that
comport with the religious beliefs of
particular citizens. Just as the Government
may not insist that appellees engage in any
set form of religious observance, so appellees
may not demand that the Government join in
their chosen religious practices . . . .
Id. at 699–700. In other words, “[t]he Free Exercise Clause
affords an individual protection from certain forms of
governmental compulsion; it does not afford an individual a
right to dictate the conduct of the Government’s internal
procedures.” Id. at 700. The Supreme Court concluded that
the use of the Social Security number did not create a
substantial burden, even though it might “rob” the “spirit” of
the adherent’s daughter, because “in no sense d[id] it
affirmatively compel [the adherents], by threat of sanctions,
to refrain from religiously motivated conduct or to engage in
conduct that they f[ound] objectionable for religious
reasons.” Id. at 703. The Supreme Court thus denied relief
under the Free Exercise Clause. Id. at 712.
Only a few years before RFRA, the Supreme Court
decided Jimmy Swaggart Ministries v. Board of
Equalization of California, 493 U.S. 378 (1990), in which
the Court held that a generally applicable tax does not
impose a “constitutionally significant burden on [the
APACHE STRONGHOLD V. UNITED STATES 65
religious adherent’s] religious practices or beliefs.” Id. at
392. In explaining why the tax did not impose a substantial
burden, the Supreme Court reasoned that “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,
thereby putting substantial pressure on an adherent to modify
his behavior and to violate his beliefs.’” Id. at 391–92
(alterations adopted) (quoting Hobbie, 480 U.S. at 141).
In sum, pre-RFRA jurisprudence set forth very clear
guidelines as to what type of burden is “substantial” enough
to require the government to demonstrate a compelling
interest: government action that coerces a religious adherent
to violate or abandon the tenets of his religion—by
threatening, for example, the denial of a governmental
benefit to which the person is otherwise entitled or the
imposition of a penalty based on the religious adherent’s
choice to act in accordance with the protected tenets of his
religion. Whether one might think the phrase “substantial
burden” admits a broader definition, the Supreme Court did
not. It was with this clear jurisprudential history that RFRA
adopted “substantial burden” as a statutory term. 6
6
The Supreme Court’s jurisprudence prior to Smith used the term
“burden” or “undu[e] burden,” and did not specifically use the term
“substantial burden”—though our own pre-Smith jurisprudence certainly
did. See Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir. 1984). The
use of the term “substantial burden” did not appear in Supreme Court
case law until Smith itself. See 485 U.S. at 883. Nonetheless, Smith’s
use of the term “substantial burden,” as well as our own use of that term
in pre-Smith jurisprudence, invoked the entire line of cases, beginning
with Sherbert and Yoder, in which the Court had identified the kinds of
burdens on religious adherents which the government must justify with
a compelling interest.
66 APACHE STRONGHOLD V. UNITED STATES
The lead dissent disagrees, arguing that “pre-RFRA
precedents did not limit the kinds of burdens protected under
the Free Exercise Clause to the types of burdens challenged
in Sherbert (the choice between sincere religious exercise
and receiving government benefits) and in Yoder (the threat
of civil or criminal sanctions).” Instead, the dissent argues
that “the Supreme Court’s pre-Smith jurisprudence
recognizes at least one other category of government action
that violates the Free Exercise Clause: preventing a religious
adherent from engaging in religious exercise.” The dissent
cites two cases to support this theory.
First, the dissent cites Cruz v. Beto, 405 U.S. 319, 322
(1972) (per curiam). In Cruz, Texas state prison officials
barred a Buddhist prisoner from using a prison chapel, which
was available to prisoners who were members of other
religious sects. Id. at 319. Prison officials had also
facilitated distribution of religious materials of non-
Buddhist faiths. Id. at 319–20. But when the prisoner shared
Buddhist religious material with other prisoners, prison
officials retaliated by placing the prisoner in solitary
confinement and on a diet of bread and water for two weeks,
without access to newspapers, magazines, or other sources
of news. Id. at 319. Further, the prison officials prohibited
the prisoner from corresponding with his religious advisor,
even though prison officials facilitated correspondence with
religious advisors for prisoners of other faiths. Id.
The Buddhist prisoner sued the prison officials under 42
U.S.C. § 1983 for violating his rights to the free exercise of
his religion under the First and Fourteenth Amendments.
The district court denied relief under the theory that a
prisoner’s exercise of religion should be left “to the sound
discretion of prison administrators,” and held that
“disciplinary and security reasons . . . may prevent the
APACHE STRONGHOLD V. UNITED STATES 67
‘equality’ of exercise of religious practices in prison,” and
thus ruled that prisoners do not enjoy a right to the free
exercise of religion under the First and Fourteenth
Amendments. Id. at 321. The Fifth Circuit affirmed.
The Supreme Court reversed in a five-page, per curiam
opinion. The Court held that prisoners enjoy the right to the
free exercise of religion and held that the allegations in the
prisoner’s complaint were sufficient to state a claim under
the First and Fourteenth Amendments. Id. at 322. When the
Court analyzed the prisoner’s complaint, the Court did not
discuss which of the prison officials’ actions—the denial of
access to the chapel, a religious advisor, and news sources,
or the placement of the prisoner in solitary confinement and
on a diet of bread and water for two weeks—constituted a
qualifying burden for First Amendment purposes. The Court
never held that the denial of access to the prison chapel was
a sufficient burden on its own or that the burdens discussed
in Sherbert and Yoder were merely two examples of a
broader inquiry. The Court never even cited Sherbert or
Yoder.
It was unnecessary for the Court to conduct a detailed
analysis of the burden on the religious adherent in Cruz: the
religious adherent’s complaint easily stated enough facts to
allege a plausible Free Exercise Clause violation under
Sherbert or Yoder. The religious adherent in Cruz alleged
that prison officials denied access to governmental benefits
that were generally available to similarly situated prisoners
of other religions. The denial of those benefits plainly
qualified as a cognizable burden under Sherbert, 374 U.S. at
68 APACHE STRONGHOLD V. UNITED STATES
404. 7 Further, he alleged that the prison officials placed the
prisoner in solitary confinement and on a diet of bread and
water for two weeks as punishment for his distribution of
religious materials. Those penalties easily qualified as
burdens under Yoder, 406 U.S. at 218. Nowhere in the
Court’s decision is there any mention of a First Amendment
right to access and use governmental property for exercise
of a religious rite.
Second, the dissent cites O’Lone v. Estate of Shabazz,
482 U.S. 342 (1987). In O’Lone, prison officials in a New
Jersey state prison forced some Muslim prisoners to work
outside the prison during workdays, which included Friday
afternoons, the Muslim holy day. Id. at 345–47. The
Muslim prisoners filed suit to challenge the prison regulation
because the regulations prevented the prisoners from
attending a religious service, which their faith commanded
them to perform on Friday afternoons. Id. at 345. The
Supreme Court analyzed the claim not with Sherbert and
Yoder’s compelling interest framework, but with a
“reasonableness” test that the Court had used at that time for
Free Exercise claims arising in the prison context. Id. at 349.
The Court held that the prison regulations were reasonable.
Id. at 351–53.
O’Lone is clearly inapplicable. The Court barely
mentioned that the Muslim plaintiffs were barred from
attending their religious event and never analyzed whether
that bar constituted a qualifying burden under the First
Amendment. There was no discussion whether the bar might
have constituted or been backed by the denial of a vested
7
Moreover, these denials likely qualified as violations of the Equal
Protection Clause of the Fourteenth Amendment, which the prisoner had
also invoked as a basis for relief. See Cruz, 405 U.S. at 320 n.1.
APACHE STRONGHOLD V. UNITED STATES 69
governmental benefit or the imposition of a penalty. The
Court, of course, did not need to address the issue whether
the burden was a qualifying burden because the Court ruled
against the prisoners on the grounds that the prison
regulations were “reasonable.” Even had the court provided
some guidance on whether the denial of access to a religious
site was a qualifying burden in O’Lone, it would have been
inapplicable in the present case because RFRA adopted
Sherbert and Yoder’s compelling interest framework, not the
now-abandoned “reasonableness” framework in use in
prisoner cases at the time of O’Lone.
The mere fact that the governmental actions in Cruz and
O’Lone had caused, as one of their effects, what one could
describe as the prevention or denial of access to a location
for sincere religious exercise, does not mean that the
Supreme Court recognized that such an effect constitutes a
“substantial burden” for purposes of the Sherbert test. That
simply was not a finding in either case.
B. Smith, RFRA, and RLUIPA
In 1990, the Supreme Court decided Employment
Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872 (1990). In Smith, two individuals were
fired from their jobs at a private drug rehabilitation
organization because they ingested peyote at a ceremony of
the Native American Church. Id. at 874. An Oregon agency
denied both individuals unemployment compensation
because the agency determined that the individuals had been
discharged for work-related misconduct. Id. Oregon courts
reversed, holding that Sherbert and Yoder prohibited the
denial of unemployment benefits to the religious adherent on
the basis of his participation in religious conduct. Id. at 874–
76. The Supreme Court, however, disagreed, holding that
70 APACHE STRONGHOLD V. UNITED STATES
Sherbert and Yoder’s substantial burden test does not
prevent a state from enacting and enforcing “neutral,
generally applicable laws” such as Oregon’s criminal law
prohibition against the use of peyote. Id. at 878–82.
Congress responded to Smith in 1993 by enacting RFRA.
Congress disagreed with Smith’s exempting “neutral,
generally applicable laws” from the reach of Sherbert and
Yoder, saying that Smith had “virtually eliminated the
requirement that the government justify burdens on religious
exercise imposed by laws neutral toward religion.” 42
U.S.C. § 2000bb(a)(4). Congress required that “the
compelling interest test as set forth in prior Federal court
rulings” apply no matter whether the challenged law was one
of neutral, general applicability. 42 U.S.C. § 2000bb(a)(5).
RFRA then pointedly and specifically cited two Supreme
Court cases; RFRA explained that Congress’s intent was “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).” 42 U.S.C. § 2000bb(b)(1).
Against this backdrop, Congress provided the following
statutory language: “Government shall not substantially
burden a person’s exercise of religion even if the burden
results from a rule of general applicability,” unless the
government “demonstrates that application of the burden to
the person (1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.” 42
U.S.C. §§ 2000bb-1(a), (b)(1)–(2).
In 1997, the Supreme Court curtailed the scope of
RFRA. In City of Boerne v. Flores, the Supreme Court held
that RFRA was unconstitutional as applied to the actions and
laws of state governments because Congress had exceeded
APACHE STRONGHOLD V. UNITED STATES 71
the authority delegated to it in the Fourteenth Amendment to
the Constitution. 521 U.S. 507 (1997). When Congress
passed RFRA, Congress invoked its authority under the
Fourteenth Amendment to extend the reach of RFRA to
regulate state actions and lawmaking. Id. at 516; see also
U.S. Const. amend. XIV, § 5 (“The Congress shall have
power to enforce, by appropriate legislation, the provisions
of this article.”). In City of Boerne, the Supreme Court held
that Congress’s reliance on the Fourteenth Amendment as a
basis for regulating state actions and lawmaking was
misplaced because the Fourteenth Amendment permits
Congress to enforce only existing constitutional rights, not
to define new constitutional rights. Id. at 536. And because
the Supreme Court had held in Smith that the Free Exercise
Clause of the First Amendment did not provide any right to
be exempt from a neutral law of general applicability, the
rights protected in RFRA went beyond the rights protected
under the First Amendment and therefore exceeded
Congress’s power to regulate the state and local actions
under the Fourteenth Amendment. Id. at 534–35.
In 2000, in response to City of Boerne, Congress passed
a new, different, and narrower statute: RLUIPA. RLUIPA’s
application and text differs from RFRA’s in many important
and decisive ways, discussed further below. Most
significantly, RLUIPA makes no mention of Sherbert or
Yoder or any other case and does not purport to restore any
test “set forth in prior federal court rulings.”
C. Navajo Nation
In 2008, we took Navajo Nation v. United States Forest
Service en banc to resolve disagreement over what kinds of
burdens qualify as “substantial burdens” on the exercise of
religion under RFRA. 535 F.3d 1058 (9th Cir. 2008) (en
72 APACHE STRONGHOLD V. UNITED STATES
banc). In Navajo Nation, a coalition of Indian tribes and
environmentalist organizations filed a lawsuit seeking to
prohibit the United States Forest Service from approving
planned upgrades to a ski resort located on federal property.
Id. at 1062. The Indian plaintiffs, who considered the whole
mountain at issue to be a sacred place in their religion,
contended that the planned use of artificial snow made from
recycled wastewater containing microscopic amounts of
human fecal matter would spiritually contaminate the entire
mountain. Id. at 1062–63. The Indian plaintiffs claimed that
the use of recycled wastewater would cause:
(1) the inability to perform a particular
religious ceremony, because the ceremony
requires collecting natural resources from the
Peaks that would be too contaminated—
physically, spiritually, or both—for
sacramental use; and (2) the inability to
maintain daily and annual religious practices
comprising an entire way of life, because the
practices require belief in the mountain’s
purity or a spiritual connection to the
mountain that would be undermined by the
contamination.
Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1039 (9th
Cir. 2007) (vacated panel opinion). The panel opinion held
that the planned use of recycled wastewater would create a
substantial burden on the Indians’ religious practices, and
the panel granted relief under RFRA. See id. at 1042–43.
In reversing the panel decision, our en banc decision
noted that RFRA used “substantial burden” as “a term of art
chosen by Congress to be defined by reference to Supreme
APACHE STRONGHOLD V. UNITED STATES 73
Court precedent.” Navajo Nation, 535 F.3d at 1063. While
RFRA did not include a definition of “substantial burden”
among its several definitions, see 42 U.S.C. § 2000bb-2, the
en banc panel reasoned that “[w]here a statute does not
expressly define a term of settled meaning, ‘courts
interpreting the statute must infer, unless the statute
otherwise dictates, that Congress means to incorporate the
established meaning of that term.’” Id. at 1074 (alterations
adopted) (quoting N.L.R.B. v. Town & Country Elec., Inc.,
516 U.S. 85, 94 (1995)).
The en banc panel therefore applied the Sherbert and
Yoder framework and concluded that the planned use of
recycled wastewater to make artificial snow did not coerce
the religious adherents to violate the tenets of their religion
and therefore did not qualify as a “substantial burden.” Id.
at 1078. Despite the fact that the use of recycled wastewater
might destroy “an entire way of life,” the en banc panel
concluded that a substantial burden was not present because
the use of recycled wastewater did “not force the Plaintiffs
to choose between following the tenets of their religion and
receiving a governmental benefit, as in Sherbert,” nor did it
“coerce the Plaintiffs to act contrary to their religion under
the threat of civil or criminal sanctions, as in Yoder.” Id. at
1070.
Since our decision in Navajo Nation, a majority of
circuits have followed suit, defining the term “substantial
burden” as including only government actions which coerce
individual religious adherents to violate or abandon their
sincere religious beliefs. 8
8
See Perrier-Bilbo v. United States, 954 F.3d 413, 431 (1st Cir. 2020),
cert. denied, 141 S. Ct. 818 (Nov. 9, 2020); Newdow v. Peterson, 753
74 APACHE STRONGHOLD V. UNITED STATES
DISCUSSION
A. The Textual and Contextual Evidence Compels the
Conclusion That Congress Intended “Substantial
Burden” to Be Defined by Its Case-Based, Technical
Definition, Rather Than Its Dictionary Definition.
“Words are to be understood in their ordinary, everyday
meanings—unless the context indicates that they bear a
technical sense.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 69 (2012)
F.3d 105, 109 (2d Cir. 2014) (per curiam); Real Alternatives, Inc. v. Sec’y
Dep’t of Health & Hum. Servs., 867 F.3d 338, 356 (3d Cir. 2017); Liberty
Univ., Inc. v. Lew, 733 F.3d 72, 100 (4th Cir. 2013); U.S. Navy Seals 1-
26 v. Biden, 27 F.4th 336, 350 (5th Cir. 2022); New Doe Child #1 v.
United States, 901 F.3d 1015, 1026 (8th Cir. 2018); Kaemmerling v.
Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008).
Four circuits have used a definition of “substantial burden” that includes
both governmental actions that coerce religious adherents to violate or
abandon their sincere religious beliefs and governmental actions that
prevent the religious adherent from participating in religiously motivated
conduct. See Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014);
Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014); Lovelace v. Lee,
472 F.3d 174, 187–88 (4th Cir. 2006); Murphy v. Mo. Dep’t of Corrs.,
372 F.3d 979, 988 (8th Cir. 2004). The dissent cites to these circuits as
support for its proposed test. But these four circuits failed to provide any
statutory, textual, or historical reason for expanding the definition of
“substantial burden.” “An authority derives its persuasive power from
its ability to convince others to go along with it.” Regents of the Univ.
of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 509 (9th Cir. 2018)
(quoting Bryan A. Garner, et al., The Law of Judicial Precedent 170
(2016)), rev’d in part and vacated in part on other grounds, 140 S. Ct.
1891 (2020); see also Chad Flanders, Toward A Theory of Persuasive
Authority, 62 Okla. L. Rev. 55, 65 (2009) (“[T]he force of persuasive
authority is the unforced force of the better argument.”). Decisions from
other circuits made without any analysis are not valuable as persuasive
authorities.
APACHE STRONGHOLD V. UNITED STATES 75
(emphasis added). When a statute addresses a subject
already addressed in jurisprudence, “ordinary legal meaning
is to be expected, which often differs from common
meaning.” Id. at 73 (emphasis added). “If a word is
obviously transplanted from another legal source, whether
the common law or other legislation, it brings the old soil
with it.” Id. (quoting Felix Frankfurter, Some Reflections on
the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947))
(alteration adopted); see also Twitter, Inc., v. Taamneh, 143
S. Ct. 1206, 1218 (2023); Sekhar v. United States, 570 U.S.
729, 733 (2013).
“If a statute uses words or phrases that have already
received authoritative construction by the jurisdiction’s
court of last resort, . . . they are to be understood according
to that construction.” Scalia & Garner at 322. Of course,
“[t]he clearest application” of this canon occurs when the
legislature codifies a test previously expressed in judicial
cases. Id.; see also United States v. Hansen, 143 S. Ct. 1932,
1942 (2023) (“[W]hen Congress ‘borrows terms of art in
which are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts the
cluster of ideas that were attached to each borrowed word.’”
(quoting Morissette v. United States, 342 U.S. 246, 263
(1952))). 9
When the full context is considered—the discussion in
pre-Smith jurisprudence of which governmental actions
9
The lead dissent cites Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020), to
support the proposition that dictionary definitions should be used to
define RFRA’s terms. In Tanzin, the Supreme Court used a dictionary
to define the term “appropriate relief” under RFRA because no party
argued that the term had taken on a technical meaning. The fact that one
term in a statute does or does not have a technical meaning has no effect
on the interpretation of other terms in the statute.
76 APACHE STRONGHOLD V. UNITED STATES
generate cognizable burdens, the agreement between the
majority and concurrence in Smith that only those
governmental actions that coerce the religious adherent to
violate or abandon his religious tenets are cognizable
burdens, the use of the term “substantial burden” by both the
majority and concurrence in Smith to describe such burdens,
the fact that RFRA cited to Smith, and the fact that RFRA
adopted the term “substantial burden” without modification
and without noting any disapproval of the limited scope
given to that term by the majority and concurrence in
Smith—it is clear that Congress employed the term
“substantial burden” in RFRA not for its dictionary
definition but for the technical definition given to that term
by Smith and prior federal court rulings.
This view is confirmed by two pieces of textual evidence
in the body of RFRA itself: RFRA’s statement of purpose
and RFRA’s dual citation to Sherbert and Yoder.
1. RFRA states that its purpose is to “restore” the free
exercise of religion test “as set forth in prior federal court
rulings.”
When Congress expressly states a purpose for a statute,10
that statement of purpose “is ‘an appropriate guide’ to the
‘meaning of the statute’s operative provisions.’” Gundy v.
United States, 139 S. Ct. 2116, 2127 (2019) (quoting Scalia
& Garner at 218) (alteration adopted). “Purpose sheds light
. . . on deciding which of various textually permissible
meanings should be adopted.” Scalia & Garner at 57.
10
My discussion here references Congress’s statements of purpose
explicitly laid out in the text of 42 U.S.C. § 2000bb, not any purpose
which might be divined from the legislative history of the statute, such
as the records of the Congressional committee reports or debates.
APACHE STRONGHOLD V. UNITED STATES 77
Congress’s expressed desire to “restore” the free
exercise of religion test “as set forth in prior federal court
rulings” is a strong indication that Congress meant to have
the term “substantial burden” in RFRA mean the same thing
the term had meant “in prior federal court rulings.” 42
U.S.C. § 2000bb(a)(5).
The lead dissent argues that this analysis prioritizes
RFRA’s statement of purpose over RFRA’s operative
language. Not so. As the dissent acknowledges, “RFRA
does not define ‘substantial burden.’” Thus, there is no such
“operative language” in the statute to be overridden and the
statement of purpose is “an appropriate guide” to clarify the
undefined term. Gundy, 139 S. Ct. at 2127.
2. RFRA directly cites and incorporates Sherbert and
Yoder as setting forth Congress’s desired test.
RFRA’s direct citation to Sherbert and Yoder—and lack
of citation to any other pre-Smith case—cannot be overstated
for purposes of properly interpreting RFRA. Congress
rarely chooses to cite and incorporate directly a judicial case
into the body of a statute. When it does so, courts
interpreting that statute always give the case citation and its
incorporation dispositive or at least highly persuasive
effect. 11
11
See Lusnak v. Bank of Am., N.A., 883 F.3d 1185, 1191–94 (9th Cir.
2018) (giving dispositive weight to 12 U.S.C. § 25b’s citation to Barnett
Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25 (1996)); Cantero v.
Bank of Am., N.A., 49 F.4th 121 (2d Cir. 2022) (same); Baptista v.
JPMorgan Chase Bank, N.A., 640 F.3d 1194, 1197 (11th Cir. 2011)
(same); United States v. Alabama, 691 F.3d 1269, 1297 (11th Cir. 2012)
(giving dispositive weight to 8 U.S.C. § 1643’s citation to Plyler v. Doe,
457 U.S. 202 (1982)); Ass’n of Banks in Ins., Inc. v. Duryee, 270 F.3d
397, 405 (6th Cir. 2001) (giving dispositive weight to 15 U.S.C. § 6701’s
78 APACHE STRONGHOLD V. UNITED STATES
But even more impressive is that in no statute other than
RFRA has Congress ever cited more than one case in setting
a single statutory test. Bearing in mind the canon of statutory
interpretation against surplusage—which teaches us that
neither citation “should needlessly be given an interpretation
that causes it to duplicate another provision or to have no
consequence,” Scalia & Garner at 174—we must ask why
Congress saw the need to cite both Sherbert and Yoder.
Sherbert and Yoder both held that no government action
can burden an individual’s free exercise of religion without
using means narrowly tailored to a compelling governmental
interest. See Sherbert, 374 U.S. at 406; Yoder, 406 U.S. at
213–15. If that was all the law that Congress wanted to
“restore,” 42 U.S.C. § 2000bb(b)(1), then citation to either
Sherbert or Yoder would have been adequate. Yet Congress,
citation to Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25
(1996)); Nat’l Treasury Emps. Union v. United States, 950 F.2d 1562,
1568 (Fed. Cir. 1991) (giving dispositive weight to 19 U.S.C. § 1451’s
citation to United States v. Myers, 320 U.S. 561, 566 (1944)); Long v.
Salt River Valley Water Users’ Ass’n, 820 F.2d 284, 287 (9th Cir. 1987)
(using Arizona v. California, 376 U.S. 340 (1964), to define the
Government’s duties under 43 U.S.C. § 1524 because § 1524 cites
Arizona); United States v. Bell, 761 F.3d 900, 913 n.6 (8th Cir. 2014)
(holding that 22 U.S.C. § 7101’s citation to and rejection of the narrow
scope of United States v. Kozminski, 487 U.S. 931 (1988), means that the
scope of § 7101 must at least include the scope of Kozminski); United
States v. Calimlim, 538 F.3d 706, 714 (7th Cir. 2008) (same); United
States v. Bradley, 390 F.3d 145, 150 (1st Cir. 2004) (same), cert.
granted, judgment vacated on other grounds, 545 U.S. 1101 (2005); see
also Taamneh, 143 S. Ct. at 1218 (using Halberstam v. Welch, 705 F.2d
472 (D.C. Cir. 1983), to define aiding and abetting under 18 U.S.C.
§ 2333 because Congress cited Halberstam in the findings section of the
Justice Against Sponsors of Terrorism Act, which amended § 2333).
APACHE STRONGHOLD V. UNITED STATES 79
legislating in response to Smith, nonetheless felt the need to
cite both Sherbert and Yoder.
The material difference between Sherbert and Yoder was
in the kind of coercive burden the Supreme Court recognized
as substantial in each case. In Sherbert, the Court recognized
that the denial of governmental benefits to which the
claimant was otherwise entitled because of her choice to
engage in religiously motivated conduct can be a substantial
burden; in Yoder, the Supreme Court recognized that the
imposition of a governmental penalty because of the
religious adherent’s participation in religiously motivated
conduct can have the same coercive effect. Sherbert, 374
U.S. at 403–04; Yoder, 406 U.S. at 218. Because Congress
cited both Sherbert and Yoder, those two cases and the two
types of coercion they recognized provide the lens through
which courts interpret RFRA’s “substantial burden.” 12
We must then ask why Congress cited only Sherbert and
Yoder. The canon of statutory interpretation expressio unius
12
The dissent and Judge R. Nelson argue that RFRA’s statement of
purpose referred to the “compelling interest” portion of Sherbert and
Yoder, but not the definition of “substantial burden.” The definition of
“substantial burden” used in pre-RFRA jurisprudence was a core
predicate part of the test that RFRA, in its own words, sought to
“restore.” 42 U.S.C. § 2000bb(b)(1) (“The purposes of this chapter are—
(1) 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).”); see also Tanzin, 592 U.S. at 45 (“RFRA sought to . . . restore
the pre-Smith ‘compelling interest test’ . . . .’”) (quoting 42 U.S.C.
§ 2000bb(1)–(2)). Smith itself defined the test as follows: “Under the
Sherbert test, governmental actions that substantially burden a religious
practice must be justified by a compelling governmental interest.” 494
U.S. at 883 (emphasis added). It is impossible to “restore” the
compelling interest test without restoring the original definition of its
essential predicate, the “substantial burden.”
80 APACHE STRONGHOLD V. UNITED STATES
est exclusio alterius teaches us that “[t]he expression of one
thing implies the exclusion of others.” Scalia & Garner at
107. Thus, by citing only Sherbert and Yoder, Congress did
more than merely endorse the two types of coercive burdens
recognized in those cases as determinative of the scope of
the term “substantial burden.” Congress could have just as
easily cited Cruz or O’Lone as additional examples of cases
where the burden at issue was “substantial,” but it did not.
Congress therefore implied that any other kinds of burdens
on religious exercise are excluded from the meaning of
“substantial burden” in RFRA. See United States v.
Giordano, 416 U.S. 505, 514 (1974) (a statute’s listing of
two individuals authorized to enforce the statute implied that
others were not authorized to enforce the statute).
Nor does RFRA’s choice of words suggest that Congress
cited Sherbert and Yoder as mere examples of the pre-Smith
test. We should not read into a statute a phrase that
“Congress knows exactly how to adopt . . . when it wishes,”
but which Congress has not adopted in the statute at issue.
Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1942
(2022); see also Astrue v. Ratliff, 560 U.S. 586, 595 (2010).
There are several phrases Congress has, and could have
again, employed to communicate that Sherbert and Yoder
should be treated as mere examples of substantial burdens.
See, e.g., 8 U.S.C. § 1368 (“for example”); 15 U.S.C. § 769
(“to include”); 34 U.S.C. § 12621 (“such as”). But Congress
used none of these phrases. The lead dissent offers no
rationale nor cites any authority for its suggestion that Yoder
and Sherbert were mere “examples” of substantial burdens.
These canons of statutory interpretation reinforce the
conclusion that RFRA codified only a limited definition of
“substantial burden”: “substantial burden” means personal
coercion, limited to the threatened denial of a vested benefit
APACHE STRONGHOLD V. UNITED STATES 81
or the threatened imposition of a penalty because of the
religious adherent’s participation in protected religious
conduct, as set forth in Sherbert and Yoder.
3. Hobby Lobby did not remove or alter the technical
definition of “substantial burden” adopted by Congress.
The lead dissent cites Burwell v. Hobby Lobby Stores,
Inc., 573 U.S. 682, 706, 714–15 (2014), for the proposition
that RFRA “goes ‘far beyond what is constitutionally
required’ under the Free Exercise Clause” and thus “Navajo
Nation made too much of the fact that RFRA explicitly
mentions Sherbert and Yoder by name in explaining the
statute’s purpose.”
The dissent’s citation to Hobby Lobby is an unfortunate
example of “snippet analysis”: the use of selected words in
a case as the basis for an argument, without mention of the
case’s actual issues, reasoning, and holding, or to what those
words actually referred to in that case. See Humphrey’s
Executor v. United States, 295 U.S. 602, 627 (1935)
(“[G]eneral expressions, in every opinion, are to be taken in
connection with the case in which those expressions are
used. . . . [T]heir possible bearing on all other cases is
seldom completely investigated.” (quoting Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821) (Marshall,
C.J.))).
The Hobby Lobby decision lends no support to the
dissent’s proposed expansion of the definition of
“substantial burden.” At issue in Hobby Lobby was a
governmental mandate that required employers to provide
insurance coverage to employees for certain forms of
contraception. Id. at 689–90. The government threatened
penalties against the employers if they did not comply with
the mandate. The employers sued to enjoin the imposition
82 APACHE STRONGHOLD V. UNITED STATES
of such penalties, invoking RFRA. The question presented
to the Supreme Court was whether corporations, such as
Hobby Lobby, enjoy protection under RFRA even though
pre-RFRA jurisprudence had been applied only to protect the
right to free exercise of religion of natural persons. The
Supreme Court held that RFRA applies to a broad category
of plaintiffs, including plaintiffs who do not necessarily
“f[a]ll within a category of plaintiffs one of whom had
brought a free-exercise claim that [the Supreme] Court
entertained in the years before Smith.” Id. at 716. The
Supreme Court therefore held that certain corporations may
bring suit under RFRA.
Hobby Lobby emphasized that RFRA is not limited to the
factual incidences of pre-RFRA jurisprudence as to who can
sue the federal government under RFRA. But neither Hobby
Lobby nor RFRA went “far beyond” pre-RFRA First
Amendment cases as to what could be sued on: what
constituted an actionable “substantial burden.” Hobby
Lobby never rejected the test used by pre-RFRA
jurisprudence, including the portion of the test at issue here:
the definition of “substantial burden.” Nothing about Hobby
Lobby can be read to suggest that “substantial burden” is
anything but a term of art or that it extends past the
definitions provided in Sherbert and Yoder. To the contrary,
Hobby Lobby held that a substantial burden was present in
that case by using the pre-RFRA test. See id. at 726 (holding
that regulation at issue created a “substantial burden” under
RFRA because the governmental action threatened penalties
against religiously adherent employers who refused to
provide contraceptive care as part of their heath provision
plans, and therefore involved “coercion”). Thus, the snippet
of Hobby Lobby’s language quoted by the dissent dealt with
the expansion of the list of who could sue under RFRA. It
APACHE STRONGHOLD V. UNITED STATES 83
did not expand the list of what constitutes a “substantial
burden,” or which government actions can be halted. As to
what constituted a “substantial burden,” Hobby Lobby
simply followed Yoder and pre-RFRA Supreme Court
decisions. 13
B. The Textual Differences Between RFRA and
RLUIPA Make RLUIPA Cases Inapposite in the RFRA
Context.
Rather than utilize straightforward methods of statutory
interpretation based on the language of RFRA, as explained
above, the lead dissent gets to its proposed definition of
13
The dissent also cites 42 U.S.C. § 2000bb-3(c). Section 2000bb-3,
enacted as part of RFRA, is entitled “Applicability.” Subsection (c) says:
“Nothing in [RFRA] shall be construed to authorize any government to
burden any religious belief.” 42 U.S.C. § 2000bb-3(c). This statutory
language is unhelpful for two reasons. First, this kind of statutory
language merely acts as a failsafe provision, included to prevent any
unintended consequences of the operative language of the statute. Here,
the language ensures that RFRA’s terms are not somehow construed to
expand the government’s ability to burden religion. The language is
unhelpful for determining what the rest of the statute in fact prohibits.
We have reached the same conclusion when interpreting similar
language in other statutes. See Cabazon Band of Mission Indians v.
Wilson, 37 F.3d 430, 433 (9th Cir. 1994); Cath. Soc. Servs., Inc. v.
Thornburgh, 956 F.2d 914, 923 (9th Cir. 1992), vacated on other
grounds sub nom. Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43 (1993).
But second, even if the statute said what the dissent claims—that the
government “may not burden any religious belief”—that language would
nevertheless be unhelpful because we would still be required to
determine what kinds of government actions qualify as “burdens” and
whether the term “burden” is used in a technical sense. Nothing about
this statutory language states or implies that RFRA’s use of the term
“substantial burden” is anything but a reference to a term of art or that
Congress intended to expand the kinds of burdens that qualify under
RFRA beyond those identified in Sherbert and Yoder.
84 APACHE STRONGHOLD V. UNITED STATES
“substantial burden” by way of a different statute: RLUIPA.
The dissent argues that the term “substantial burden” “has
the same meaning under both RFRA and RLUIPA.” And
because, “under RLUIPA,” “denying access to or preventing
religious exercise qualifies as a substantial burden,” the lead
dissent’s conclusion then follows: “transferring Oak Flat to
Resolution Copper will amount to a substantial burden under
RFRA.”
This reasoning is erroneous for two reasons. First, as
explained by the majority, RFRA and RLUIPA apply in
contexts so distinguishable as to make any discussion of
burdens in RLUIPA cases entirely unhelpful when
interpreting RFRA. But second, RLUIPA cases are
unhelpful for interpreting RFRA because the text of
RLUIPA, especially its land use provision, uses language
that implies a broader test.
What the dissent refers to as “RLUIPA” in fact
encompasses two different statutory provisions. RLUIPA’s
first operative provision governs state land-use and zoning
regulations. 42 U.S.C. § 2000cc(a)(1). Its second operative
provision governs state regulation of institutionalized
persons. 42 U.S.C. § 2000cc-1(a). No party argues that
RLUIPA applies to this case. The Land Exchange Act is not
a state land-use law. The members of Apache Stronghold
are not institutionalized persons. Yet, Apache Stronghold
and the dissent argue that somehow the similarities between
RFRA and the two provisions of RLUIPA should make all
RLUIPA precedent binding when we interpret RFRA.
RLUIPA’s two operative provisions are somewhat
similar to RFRA, but they are not identical. The dissent
argues that RFRA and RLUIPA are “distinguished only in
that they apply to different categories of governmental
APACHE STRONGHOLD V. UNITED STATES 85
actions.” 14 However, several other distinctions must be
drawn between RFRA and RLUIPA, especially RLUIPA’s
land-use provision. First, RFRA cites and incorporates
Sherbert and Yoder, but no provision in RLUIPA mentions
either case, nor indeed any case. Second, RFRA restores a
test “set forth in prior Federal court rulings,” but no
provision in RLUIPA invokes any “prior Federal court
rulings” as a framework for its test. Third, RFRA must be
construed using normal tools of statutory interpretation,
including the presumption that Congress intended to
incorporate the settled meaning of a term of art, but RLUIPA
must “be construed in favor of a broad protection of religious
exercise, to the maximum extent permitted by” its terms. 42
U.S.C. § 2000cc-3(g).
For RLUIPA’s land-use provision in particular, the
distinctions from the text of RFRA are dramatic: RFRA
requires the government to provide a compelling interest to
justify substantial burdens on any person’s religious
14
The dissent cites Hobby Lobby for this proposition. The Court in
Hobby Lobby remarked in a passing comment that RLUIPA “imposes
the same general test as RFRA but on a more limited category of
governmental actions.” 573 U.S. at 695. Remember: Hobby Lobby was
exclusively a federal law action; no state, state land-use regulation, or
state prisoner was involved; hence, RLUIPA was inapplicable. The
Court never analyzed the differences between RFRA and RLUIPA and
never held that RFRA and RLUIPA are distinguished only in that they
apply to different categories of governmental actions. In any event, that
Hobby Lobby stated in the abstract that RLUIPA and RFRA “impose[]
the same general test” (i.e., that the Government may not “substantially
burden” a person’s “religious exercise” unless it is “in furtherance of a
compelling government interest” and does so by the “least restrictive
means”) is hardly a full-throated endorsement of the notion that the
discrete test for determining when Government action imposes
“substantial burden” is the same between the statutes.
86 APACHE STRONGHOLD V. UNITED STATES
exercise, but RLUIPA’s land-use provision requires a
compelling interest to justify substantial burdens on the
religious exercise of any person, religious assembly, or
religious institution. See 42 U.S.C. § 2000cc(a)(1). And
RLUIPA’s land-use provision contains multiple commands
specifically seeking to eliminate “land use regulations” that
substantially burden “[t]he use, building, or conversion of
real property” for religious purposes, but RFRA contains no
analogous language. See 42 U.S.C. § 2000cc(b)(1), (b)(2),
(b)(3).
Even accepting that the institutionalized-persons portion
of RLUIPA imposes the same standard as RFRA in some
ways, see Holt v. Hobbs, 574 U.S. 352, 358 (2015), that
comparison does not require any change to our interpretation
of RFRA. Under RLUIPA’s institutionalized persons
provision, the Supreme Court has assessed the question
whether the government action has created a “substantial
burden” by assessing whether the government action coerces
the religious adherent to violate or abandon his sincere
religious beliefs. E.g., id. at 361 (“If petitioner contravenes
[the prison grooming] policy and grows his beard, he will
face serious disciplinary action. Because the grooming
policy puts petitioner to this choice, it substantially burdens
his religious exercise.”). 15 Thus, the fact that the Supreme
15
The dissent cites Ramirez v. Collier, 142 S. Ct. 1264 (2022), for the
proposition that a prison official’s denial of an inmate’s access to the
inmate’s pastor during the inmate’s execution is a substantial burden.
The Supreme Court made no such holding in Ramirez. The Supreme
Court merely noted that there was no dispute on the “substantial burden”
prong and moved on with the analysis. The Supreme Court never
discussed whether a threat of governmental sanctions might have backed
the prison official’s decision or whether the denial of affirmative
APACHE STRONGHOLD V. UNITED STATES 87
Court has implied a connection between RFRA and
RLUIPA’s institutionalized-persons provision serves only to
reaffirm the result we reached in Navajo Nation.
RLUIPA’s land-use provision, however, clearly requires
a different standard. See Navajo Nation, 535 F.3d at 1077.
Sherbert’s and Yoder’s personal coercion test cannot provide
the full test for “substantial burden” under RLUIPA’s land-
use provision because the land-use provision does not
protect merely persons, nor does it protect merely the
“exercise of religion” as that term is understood in Free
Exercise Clause jurisprudence. Instead, the land-use portion
of RLUIPA targets a far broader kind of burden: regulations
that have any substantial effect on a religious assembly’s or
institution’s use, building, or conversion of real property
owned by that religious assembly or institution.
When addressing claims under the land-use provision of
RLUIPA, we have thus naturally taken a broader view of the
phrase “substantial burden”—though we have honored the
presumption of consistent usage by analogizing the burden
of the land-use regulations to the burden of personal
coercion set forth in Sherbert and Yoder. See, e.g., Guru
Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d
978, 988 (9th Cir. 2006) (comparing the burden of the land-
use regulation to the laws struck down by the Supreme Court
under the Free Exercise Clause as having a “tendency to
coerce individuals into acting contrary to their religious
beliefs”).
The Supreme Court has never held that RFRA and the
land-use provision of RLUIPA must be interpreted using the
approval for the minister’s presence might count as the denial of a vested
governmental benefit.
88 APACHE STRONGHOLD V. UNITED STATES
same standard, nor has the Supreme Court ever cited a
RLUIPA land-use case as setting the standard for a claim
brought under RFRA. Passing comments by the Supreme
Court which might suggest some connection between RFRA
and the institutionalized-persons portion of RLUIPA do not
mean that the Supreme Court meant to overrule its clear pre-
RFRA jurisprudence. Nor do such comments suggest the
Supreme Court intended to establish a legal rule that yoked
the definition of “substantial burden” under RFRA to the
analysis conducted under the textually distinguishable land-
use portion of RLUIPA.
Application of normal tools of statutory interpretation to
RFRA—the statute actually before us—provides a clear
result: the term “substantial burden” is a term of art and is
limited to those burdens identified in Sherbert and Yoder. 16
When the law provides such a clear result under RFRA, it is
unnecessary to divine what the Supreme Court might do
under RLUIPA.
William of Ockham’s razor teaches that when one is
faced with two competing ideas, the simplest explanation is
16
Judge R. Nelson argues that “substantial burden” is not a term of art
because pre-RFRA cases used it “not as [a phrase with a precise]
definition” but as a shorthand way for describing a “legal framework” or
test. But terms of art often are words that describe legal tests and
standards. See, e.g., United States v. Callahan Walker Const. Co., 317
U.S. 56, 60–61 (1942) (“[T]he phrase ‘fair and equitable’ had become a
term of art, [and] Congress used it in the sense in which it had been used
by the courts in reorganization cases, and that whether a plan met the test
of fairness and equity long established by judicial decision was . . . a
question to be answered . . . by the court as a matter of law.”); Twin City
Sportservice, Inc. v. Charles O. Finley & Co., Inc., 676 F.2d 1291, 1300
(9th Cir. 1982) (“[‘]Substitutability in production,[’] while a more
technical term of art, is another way of describing the analysis required
by the first Tampa Electric test.”)
APACHE STRONGHOLD V. UNITED STATES 89
generally the best. See United States v. Newhoff, 627 F.3d
1163, 1166 (9th Cir. 2010). “Congress does not ‘hide
elephants in mouseholes’ by ‘alter[ing] the fundamental
details of a regulatory scheme in vague terms or ancillary
provisions.’” Sackett v. EPA, 143 S. Ct. 1322, 1340 (2023)
(quoting Whitman v. Am. Trucking Assns., Inc., 531 U.S.
457, 468 (2001)). The dissent’s circuitous route through
RLUIPA to define a term for which RFRA already provides
a clear definition is unnecessary and contrary to these
principles of statutory interpretation.
C. The Lead Dissent Understates the Sea Change That
Its Proposed Definition of “Substantial Burden” Would
Cause.
For the entire history of our nation’s Free Exercise
jurisprudence, we have focused our analysis on “what the
government cannot do to the individual, not . . . what the
individual can exact from the government.” Lyng, 485 U.S.
at 451 (quoting Sherbert, 374 U.S. at 412 (Douglas, J.,
concurring)). Yet the lead dissent would violate this simple
principle by holding that RFRA empowers any individual to
exact what is in effect a government easement that entitles
his access and use of that land, so long as that is what his
sincere beliefs require. In so holding, my colleagues purport
to overrule the very type of claim that the Supreme Court
unambiguously rejected in Lyng. Id. at 452 (rejecting that
the First Amendment’s Free Exercise Clause entitled the
religious adherent to a “religious servitude” on federal
land). 17
17
Easements are a subset of servitudes. See Marvin M. Brandt
Revocable Tr. v. United States, 572 U.S. 93, 105 (2014).
90 APACHE STRONGHOLD V. UNITED STATES
If the dissent’s reading of RFRA were accepted, such
easements would be granted to sincere religious adherents
for access to and use of vast expanses of federal land 18—
perhaps even all federal land. See Lyng, 485 U.S. at 475
(Brennan, J., dissenting) (“Because of their perceptions of
and relationship with the natural world, Native Americans
consider all land sacred.” (emphasis added)). Even sensitive
federal facilities such as military installations could be
encumbered by such easements.
To obtain such an easement of access and use, the only
determinative issue would be whether the religious adherent
sincerely believes that such access to federal land is
important to him for his religious exercise. Binding
precedent forbids us from evaluating whether the religious
18
See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1066 n.7 (9th
Cir. 2008) (en banc) (“In the Coconino National Forest alone, there are
approximately a dozen mountains recognized as sacred by American
Indian tribes. The district court found the tribes hold other landscapes to
be sacred as well, such as canyons and canyon systems, rivers and river
drainages, lakes, discrete mesas and buttes, rock formations, shrines,
gathering areas, pilgrimage routes, and prehistoric sites. Within the
Southwestern Region forest lands alone, there are between 40,000 and
50,000 prehistoric sites. The district court also found the Navajo and the
Hualapai Plaintiffs consider the entire Colorado River to be sacred. New
sacred areas are continuously being recognized by the Plaintiffs.”).
One religious adherent has testified that the “entire state of Washington
and Oregon” is “very sacred” to him. Excerpts of Record at 716,
Slockish v. U.S. Dep’t of Transp., 2021 WL 5507413 (9th Cir. Nov. 24,
2021) (No. 21-35220), ECF No. 18-5. Another has claimed as sacred an
area “extending 100 miles to the east and 100 miles to the west of the
Colorado River from Spirit Mountain [in Nevada] in the north to the Gulf
of California in the south”—some 40,000 square miles. Excerpts of
Record at 27, La Cuna de Aztlan Sacred Sites Prot. Circle Advisory
Comm. v. U.S. Dep’t of the Interior, 603 F. App’x 651 (9th Cir. 2015)
(No. 13-56799), ECF No. 12-3.
APACHE STRONGHOLD V. UNITED STATES 91
adherent’s professed need to access federal land is true to his
religion’s tenets. Id. at 449–50 (majority op.). Equally out
of bounds is whether the access to federal land is necessary
or central to the religion. See Hobby Lobby, 573 U.S. at 696.
Were the religious adherent to say that access—at all times
of the day and on all days of the year—was necessary for his
religion, it would not be “for us to say that the line he drew
was an unreasonable one.” Thomas, 450 U.S. at 715.
So there is no limiting principle to the dissent’s proposal
of defining “substantial burden” to include all government
actions “prevent[ing] or den[ying] access to sincere religious
exercise.” 19 The result of each case would turn on the sole
issue of the litigant’s religious sincerity. And when
assessing that sincerity, the district court would not be
permitted to ask whether the religious adherent’s profession
of faith is “acceptable, logical, consistent, or comprehensible
to others.” Thomas, 450 U.S. at 714. In addition, if the
religious adherent only recently began to profess his beliefs,
that would be generally irrelevant because, after all, it is
possible that his beliefs were simply “late in crystallizing.”
Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (quoting
Ehlert v. United States, 402 U.S. 99, 103 (1971)); see also
Hobbie, 480 U.S. at 144 (“The timing of [the plaintiff]’s
conversion is immaterial.”). With so many traditional
indicators of testing sincerity off the table, a district court
might be required to grant a religious easement to nearly any
religious adherents who brought a land-based RFRA claim.
It is difficult to conceive of a sincerely held claim that would
19
The Supreme Court cautions us not to adopt a test that has “no real
limiting principle.” See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2206
n.11 (2020); see also Whole Woman’s Health v. Jackson, 142 S. Ct. 522,
532 (2021); Wos v. E.M.A. ex rel. Johnson, 568 U.S. 627, 637 (2013).
92 APACHE STRONGHOLD V. UNITED STATES
be rejected. Even our appellate review of the district court’s
sincerity determination would be limited because we would
be required to affirm unless the sincerity determination was
wholly “without support in inferences that may be drawn
from facts in the record.” United States v. Hinkson, 585 F.3d
1247, 1251 (9th Cir. 2009) (en banc).
This low bar the dissent would set to obtain such
religious easements contrasts sharply with the burden that
the government would be required to meet to forestall or
extinguish the easement: the compelling interest test. This
test requires the government “to demonstrate a compelling
interest and show that it has adopted the least restrictive
means of achieving that interest.” City of Boerne, 521 U.S.
at 509. Our relatively brief review of plaintiffs’ claims under
the dissent’s proposed test would be followed by a searching
and detailed inquiry of the government’s motivations and
methods. See Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 430–31 (2006). And, of
course, it would not be enough for the government merely to
assert a broad interest in the security of a particular piece of
land: the government must justify the application of its
exclusionary policies to each individual religious adherent
who seeks access. See Hobby Lobby, 573 U.S. at 726.
Courts would be required to “scrutinize[] the asserted harm
of granting specific exemptions to particular religious
claimants.” O Centro, 546 U.S. at 431. The government
would be forced to face “the most demanding test known to
constitutional law,” City of Boerne, 521 U.S. at 509, just to
keep trespassers, albeit devout trespassers, off its land and
out of its installations and buildings.
The dissent’s proposed expansion of the definition of
“substantial burden” is also not limited to this new easement
right. The dissent argues that “substantial burden” is not a
APACHE STRONGHOLD V. UNITED STATES 93
term of art, and should be defined as any “government action
that ‘oppresses’ or ‘restricts’ ‘any exercise of religion,
whether or not compelled by, or central to, a system of
religious belief,’ to a ‘considerable amount,’” without any
objective criteria or limiting principle as to what constitutes
either “substantial” in “substantial burden” or
“considerable” in “considerable amount.” Where Sherbert
and Yoder provide two clear qualitative burdens that meet
the definition of “substantial burden,” the dissent would
insert more—and argues that Sherbert’s and Yoder’s
qualitative burdens are merely illustrative “examples” of
burdens that would meet its objectively standardless,
quantitative definition of “substantial burden”
(i.e., “considerable amount”). No part of the dissent’s test
would prevent a panel in a future case from recognizing an
additional “example,” or would prevent a panel from simply
turning to the dissent’s dictionary definition of “substantial
burden” and ignoring the “examples” altogether.
In future cases, we would be asked to determine whether
religious exercises are “oppresse[d] or restrict[ed] . . . to a
considerable amount,” and we would thus be forced to
conduct a quantitative, rather than qualitative, analysis. In
other words, we would have to assess how much the
government action interferes with the religious practice—
i.e., an examination of the effects of the government action—
rather than in what way the government action interferes
with the religious practice—i.e., an examination of the kind
of government action at issue. This quantitative approach
would be inconsistent with Supreme Court precedent, as
explained above, but it also would be very difficult for a
court to administer.
So long as “substantial burden” is defined by reference
to the character of the governmental action, rather than the
94 APACHE STRONGHOLD V. UNITED STATES
particular effect it has on the claimant, the test is not difficult
to administer: we simply ask whether the government action
involves coercion in the form of denying the religious
adherent a vested benefit or imposing a penalty on the
religious adherent because of his participation in religiously
motivated conduct. But for a court to determine whether a
religious practice has been “oppresse[d] or restrict[ed] . . . to
a considerable amount,” the court would be required to
assess the importance of the particular religious practice to
the religious adherent and to the religious adherent’s
religion, and assess the extent to which the practice is
impaired by the relevant governmental action—inquiries
that not only stray far from our expertise but also enter areas
into which the Supreme Court has repeatedly told us courts
cannot venture. 20 See Lyng, 485 U.S. at 449–50 (“This Court
cannot determine the truth of the underlying beliefs that led
to the religious objections here or in Roy, and accordingly
cannot weigh the adverse effects on the appellees in Roy and
compare them with the adverse effects on the Indian
respondents. Without the ability to make such comparisons,
we cannot say that the one form of incidental interference
with an individual’s spiritual activities should be subjected
to a different constitutional analysis than the other.” (citation
omitted)); id. at 451 (“Whatever may be the exact line
between unconstitutional prohibitions on the free exercise of
religion and the legitimate conduct by government of its own
affairs, the location of the line cannot depend on measuring
the effects of a governmental action on a religious objector’s
20
A “substantial burden” on economic activity, for example, can be
measured in dollars and cents. See, e.g., Groff v. DeJoy, 143 S. Ct. 2279,
2294 (2023). But our precedent has yet to recognize a spiritual
“currency” or other quantitative way to measure a governmental action’s
impact on religion.
APACHE STRONGHOLD V. UNITED STATES 95
spiritual development.”); Hobbie, 480 U.S. at 144 n.9 (citing
United States v. Ballard, 322 U.S. 78, 87 (1944)) (“In
applying the Free Exercise Clause, courts may not inquire
into the truth, validity, or reasonableness of a claimant’s
religious beliefs.”); Thomas, 450 U.S. at 716 (“[I]t is not
within the judicial function and judicial competence to
inquire whether the petitioner or his fellow worker more
correctly perceived the commands of their common faith.
Courts are not arbiters of scriptural interpretation.”); see also
Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014)
(Gorsuch, J.) (“[W]e also lack any license to decide the
relative value of a particular exercise to a religion. That job
would risk in the attempt not only many mistakes—given
our lack of any comparative expertise when it comes to
religious teachings, perhaps especially the teachings of less
familiar religions—but also favoritism for religions found to
possess a greater number of ‘central’ and ‘compelled’
tenets.”).
To convince the reader that its proposed test is “narrow,”
the dissent attempts to distinguish between the facts of this
case and the facts of Navajo Nation and Lyng on the grounds
that the Indians in Navajo Nation and Lyng suffered only
“subjective” burdens, whereas the Indians here will suffer an
objective burden through the loss of access to the land.
However, the government actions in both Navajo Nation and
Lyng undoubtedly meet the dissent’s proposed test. In both
cases, the Government “prevent[ed] [the religious adherents]
from engaging in sincere religious exercise.” In Lyng, the
excavation and construction of the road caused “the Indians’
spiritual practices [to] become ineffectual.” 485 U.S. at 450.
In Navajo Nation, the use of recycled wastewater caused
“the inability to perform” certain religious ceremonies and
destroyed “an entire way of life.” 479 F.3d at 1039.
96 APACHE STRONGHOLD V. UNITED STATES
The ability to perform a ceremony gutted of all religious
meaning cannot be equated to the ability to perform the full
religious ceremony. Access to an area stripped of spiritual
significance—the mountain in Navajo Nation, the land near
the road in Lyng—is not the same as access to an extant
shrine for the religious adherent who wishes to use the land
as a shrine. 21 The “sincere religious exercises” in Navajo
Nation and Lyng were not only “prevent[ed] or denie[d],”
they were completely destroyed, even if the lands
themselves were not destroyed.
In any event, the dissent’s discussion of what might
count as the “prevent[ion] or deni[al of] access to sincere
religious exercise” is frankly irrelevant in light of the fact
that such prevention or denial of access would be merely one
“example” of a substantial burden under the dissent’s
proposed test. The real question under the dissent’s
proposed test would be whether the governmental action
“oppresses or restricts” the religious exercise “to a
considerable amount.” Under that test, the government
actions in Navajo Nation and Lyng would easily qualify as
“substantial burdens”—results that would directly contradict
our precedent and the Supreme Court’s precedent,
respectively.
21
For instance, at the corner of Fillmore and Fell Streets in San
Francisco, California, stands a building once known as Sacred Heart
Catholic Church. Today, the building has been de-consecrated and
converted into a roller-skate discotheque. See Amanda Font, Wanna Try
Roller-Skating in San Francisco? Better Head to Church, KQED (Sept.
22, 2022), https://www.kqed.org/news/11924576/wanna-try-roller-
skating-in-san-francisco-better-head-to-church. Can a Catholic register
as a parishioner at this roller disco—or expect to observe the Stations of
the Cross therein during Holy Week?
APACHE STRONGHOLD V. UNITED STATES 97
The dissent, in sum, favors the plaintiffs in this case over
the plaintiffs in Lyng and Navajo Nation simply because the
plaintiffs in this case will lose an aspect of their religious
practice that one can see and hear, whereas the plaintiffs in
Lyng and Navajo Nation lost an intangible aspect of their
religious practices. In short, the dissent would distinguish
and prioritize the tangible aspects of religious activity over
the intangible. This distinction finds no support in our
precedent. Cf. Everson v. Bd. of Educ. of Ewing Twp., 330
U.S. 1, 15 (1947) (“[T]he Federal Government . . . can[not]
pass laws which aid one religion . . . or prefer one religion
over another.”).
D. Even Were Apache Stronghold’s Claim Cognizable
Under RFRA, the Land Exchange Act Mandates That
the Land Exchange Occur. 22
Most claims under RFRA challenge a regulatory or
discretionary decision of a federal agency. However, the
claim in this case seeks to stop a federal action mandated by
an Act of Congress. The Land Exchange Act states that the
Secretary of Agriculture is “authorized and directed to
convey” more than two thousand acres of land, including
Oak Flat, to Resolution Copper if three main conditions are
met. 16 U.S.C. § 539p(c)(1) (emphasis added).
22
Judge Lee contends that the Government forfeited this argument when
it failed to raise it below. However, “in adjudicating a claim or issue
pending before us, we have the authority to identify and apply the correct
legal standard, whether argued by the parties or not.” Thompson v.
Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013). When a statute is invoked
by the parties, we can inquire, even sua sponte, whether the statute has
been expressly or impliedly repealed. See generally U.S. Nat. Bank of
Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993).
98 APACHE STRONGHOLD V. UNITED STATES
The three conditions are simple: (1) the Secretary must
“engage in government-to-government consultation with
affected Indian tribes concerning issues of concern to the
affected Indian tribes related to the land exchange,” and then
“consult with Resolution Copper and seek to find mutually
acceptable measures to (i) address the concerns of the
affected Indian tribes; and (ii) minimize the adverse effects
on the affected Indian tribes resulting from mining and
related activities on the Federal land conveyed to Resolution
Copper under this section,” 16 U.S.C. § 539p(c)(3); (2) the
Secretary must ensure that the land exchanged is of equal
value, 16 U.S.C. § 539p(c)(5); and (3) the Secretary must
ensure that the land exchange complies with the National
Environmental Policy Act of 1969, 16 U.S.C. § 539p(c)(9).
Congress knew the adverse effects that the Land
Exchange Act would have upon the Indian tribes with
respect to the planned excavation of the Oak Flat area.
Wendsler Nosie, Sr., Chairman of the San Carlos Apache
Tribe and leader of Apache Stronghold, testified before the
House Natural Resources Committee, Subcommittee on
National Parks, Forests, and Public Lands, in a hearing on
the Land Exchange Act. Nosie testified that “[t]he lands to
be acquired and mined . . . are sacred and holy places.”
Southeast Arizona Land Exchange and Conservation Act of
2007: Hearing on H.R. 3301 before the H. Comm. on Nat.
Res., Subcomm. on Nat’l. Parks, Forests, and Pub. Lands.,
110th Cong. 18 (2007). Nosie explained that Apache Leap
is “sacred and consecrated ground for our People” because
“seventy-five of our People sacrificed their lives at Apache
Leap during the winter of 1870 to protect their land, their
principles, and their freedom.” Id. at 19. He testified that
“Oak Flat and nearby Devils Canyon are also holy, sacred,
APACHE STRONGHOLD V. UNITED STATES 99
and consecrated grounds” that should not be transferred. Id.
at 21–22.
Ultimately, Congress struck a compromise. The Land
Exchange Act directed the Forest Service to transfer the Oak
Flat parcel to Resolution Copper, 16 U.S.C. § 539p(c)(10),
but also required Resolution Copper to surrender all rights it
held to mine under Apache Leap, 16 U.S.C. § 539p(g)(3).
The Act directs the Forest Service to preserve Apache Leap
“for traditional uses of the area by Native American people.”
16 U.S.C. § 539p(g)(1), (2)(B).
The question is whether Congress’s careful compromise
in the Land Exchange Act can be undone by Apache
Stronghold’s invocation of a prior Act of Congress—
namely, RFRA. The dissent argues that “[i]f Congress
meant to exempt the Land Transfer Act from RFRA,
Congress could and would have done so explicitly.” The
dissent therefore argues that “RFRA applies to the Land
Transfer Act.” But one Congress cannot prohibit a future
Congress from using one of the most commonplace tools of
lawmaking—the implied repeal. See Great N. Ry. Co. v.
United States, 208 U.S. 452, 465 (1908). And while a
statute’s anti-implied-repeal provision should be given some
interpretive weight, the dissent’s proposed test would turn
RFRA’s anti-implied-repeal provision into an impenetrable
fortress—in direct contradiction to multiple Supreme Court
cases.
1. RFRA’s Anti-Implied-Repeal Provision
RFRA states that “[f]ederal statutory law adopted after
November 16, 1993, is subject to this chapter unless such
law explicitly excludes such application by reference to this
chapter.” 42 U.S.C. § 2000bb-3(b). The Land Exchange
Act, in turn, is silent on the applicability of RFRA.
100 APACHE STRONGHOLD V. UNITED STATES
Such statutory language purporting to restrict the ability
of later Congresses to repeal an act of an earlier Congress by
implication cannot bar all implied repeals. See Great N. Ry.
Co., 208 U.S. at 465 (“As the section of the Revised Statutes
in question has only the force of a statute, its provisions
cannot justify a disregard of the will of Congress as
manifested, either expressly or by necessary implication, in
a subsequent enactment.”).
In Dorsey v. United States, 567 U.S. 260 (2012), for
example, the Supreme Court invalidated a statute which
purported to authorize criminal prosecutions under any later-
repealed criminal statute that was in force at the time of the
crime unless the repealing statute “expressly provide[d]”
that such prosecutions would be barred. 23 The Court held:
statutes enacted by one Congress cannot bind
a later Congress, which remains free to repeal
the earlier statute, to exempt the current
statute from the earlier statute, to modify the
earlier statute, or to apply the earlier statute
but as modified. And Congress remains free
to express any such intention either expressly
or by implication as it chooses.
Id. at 274 (emphasis added) (citations omitted). Thus, a
statutory provision that requires future Congresses to use
23
See 1 U.S.C. § 109 (“The repeal of any statute shall not have the effect
to release or extinguish any penalty, forfeiture, or liability incurred under
such statute, unless the repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force for the purpose of
sustaining any proper action or prosecution for the enforcement of such
penalty, forfeiture, or liability.”).
APACHE STRONGHOLD V. UNITED STATES 101
express language to exempt an enactment from the earlier
statute’s terms is not constitutional.
However, that is not to say that the anti-implied-repeal
language has no effect whatsoever. In Dorsey, the Court said
that the anti-implied-repeal provision created “an important
background principle of interpretation” and that the
provision required courts, before finding an implied repeal
in the face of an anti-implied-repeal provision, “to assure
themselves that ordinary interpretive considerations point
clearly in that direction.” Id. at 274–75; see also Marcello
v. Bonds, 349 U.S. 302, 310 (1955) (giving significant
weight to an anti-implied-repeal provision). The Supreme
Court “has described the necessary indicia of congressional
intent by the terms ‘necessary implication,’ ‘clear
implication,’ and ‘fair implication,’ phrases it has used
interchangeably.” Dorsey, 567 U.S. at 274. And in two
cases, the Supreme Court has given some weight to RFRA’s
anti-implied-repeal provision. See Little Sisters of the Poor
Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367,
2383 (2020); Hobby Lobby, 573 U.S. at 719 n.30. 24
But the dissent’s proposed method of interpreting anti-
implied-repeal provisions is incompatible with the Supreme
Court’s method. The Supreme Court has held that one
Congress cannot force a future Congress “to employ magical
24
Of course, even without an anti-implied-repeal provision, a party
seeking to prove implied repeal carries a weighty burden. “The cardinal
rule is that repeals by implication are not favored. Where there are two
acts upon the same subject, effect should be given to both if possible.”
Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503 (1936). “An
implied repeal will only be found where provisions in two statutes are in
‘irreconcilable conflict,’ or where the latter Act covers the whole subject
of the earlier one and ‘is clearly intended as a substitute.’” Branch v.
Smith, 538 U.S. 254, 273 (2003) (quoting Posadas, 296 U.S. at 503).
102 APACHE STRONGHOLD V. UNITED STATES
passwords in order to effectuate an exemption” from a
statute. Marcello, 349 U.S. at 310. Yet the dissent argues
that the Land Exchange Act should be required to employ
one of two passwords to avoid the reach of RFRA: either an
explicit reference to RFRA or “some variation of a
‘notwithstanding any other law’ provision.” The Supreme
Court has held that implied repeals must remain available to
future Congresses. See Dorsey, 567 U.S. at 274; Great N.
Ry. Co., 208 U.S. at 465. But the dissent argues that an
implied repeal, as traditionally understood, is impossible
because the Land Exchange Act must include an “explicit[]”
exemption to avoid the reach of RFRA. The dissent’s
approach affords far too much power to RFRA’s anti-
implied-repeal provision.
2. Whether the Land Exchange Act Can Be Reconciled
with RFRA
The irreconcilability question must be read in the context
of the relief sought by Apache Stronghold. As is relevant to
Apache Stronghold’s RFRA claim, Apache Stronghold’s
complaint sought a declaration that the land exchange
between the United States and Resolution Copper “violate[s]
the Religious Freedom Restoration Act.” The complaint
prayed that the district court “[i]ssue a permanent injunction
prohibiting [the land exchange].” Apache Stronghold’s
motion for a temporary restraining order and preliminary
injunction filed in the district court sought “to preserve the
status quo by preventing Defendants from publishing a Final
Environmental Impact Statement (‘FEIS’) on the ‘Southeast
Arizona Land Exchange and Resolution Copper Mine
Project’ and from conveying the parcel(s) of land containing
Oak Flat.” Similarly, Apache Stronghold’s motion for
injunction pending appeal sought an injunction against “the
transfer and destruction of Oak Flat.”
APACHE STRONGHOLD V. UNITED STATES 103
The Land Exchange Act grants some authority to the
Secretary to “minimize the adverse effects on the affected
Indian tribes” and to ensure that the land exchange complies
with the National Environmental Policy Act of 1969. 16
U.S.C. § 539p(c)(3)(B)(ii), (c)(9). But the plain text of the
Land Exchange Act requires that the land exchange,
including the exchange of Oak Flat, must occur if the
preconditions are met. In fact, Apache Stronghold’s
complaint refers to the land exchange as “The Land
Exchange Mandate” and recognizes that “Section 3003 of
the [Land Exchange Act] mandates that the [land exchange]
shall be done.”
Apache Stronghold claims that the Government should
be enjoined from transferring the land to Resolution Copper
pursuant to RFRA. But that is the one thing that the Land
Exchange Act clearly requires. If RFRA did provide a legal
basis for Apache Stronghold’s claim, RFRA would be in
“irreconcilable conflict” with the Land Exchange Act. See
Branch, 538 U.S. at 273.
That is not to say that all potential RFRA claims would
be irreconcilable with the Land Exchange Act. Instead of
seeking to block the entire land exchange, a plaintiff might,
for example, claim that the conditions imposed upon
Resolution Copper in the FEIS should be modified to
provide greater accommodation for the religious practices of
the Indians.
But that is not the claim advanced by Apache
Stronghold, and adopted by the dissent, in this case. 25 The
claim here is that the land exchange should be stopped
25
Indeed, such a claim would likely fail on ripeness grounds because the
terms of the final FEIS are not yet known.
104 APACHE STRONGHOLD V. UNITED STATES
altogether. And that relief is directly in conflict with the
Land Exchange Act. See 16 U.S.C. § 539p(c)(1). Because
the RFRA claim advanced by Apache Stronghold is
irreconcilable with the terms of the Land Exchange Act, the
Land Exchange Act necessarily requires that the claim be
rejected. See Dorsey, 567 U.S. at 274.
CONCLUSION
Pre-RFRA jurisprudence demonstrates that only
governmental actions which coerce religious adherents to
violate or abandon their religious tenets can constitute
“substantial burdens” on the free exercise of religion. See
Hobbie, 480 U.S. at 144; Tilton, 403 U.S. at 689; Allen, 392
U.S. at 249; Schempp, 374 U.S. at 223; Lyng, 485 U.S. at
450; Bowen, 476 U.S. at 703. For coercion to affect a
religious adherent personally, the coercion must involve
either the denial of a vested benefit to the religious adherent
or the imposition of a penalty on the religious adherent
because of the religious adherent’s participation in
religiously motivated conduct. See Hobbie, 480 U.S. at 144;
Lyng, 485 U.S. at 449; Bowen, 476 U.S. at 703; Thomas, 450
U.S. at 717–18; Jimmy Swaggart, 493 U.S. at 391–92.
RFRA incorporated this settled definition of the term,
and RFRA made this incorporation explicit when it stated
that its purpose was to “restore” the free exercise of religion
test “as set forth in prior federal court rulings,” and when it
directly cited Sherbert and Yoder. The text of the statute and
pre-RFRA jurisprudence command that the definition of
“substantial burden” be limited to those burdens recognized
in Sherbert and Yoder.
APACHE STRONGHOLD V. UNITED STATES 105
Our en banc decision in Navajo Nation correctly
interpreted RFRA, and our limited definition of “substantial
burden” has served as a workable test for fifteen years. 26
The proposed copper mine would not force the Apache
to choose between violating or abandoning their sincere
religious beliefs and receiving a governmental penalty or
losing a governmental benefit. Without any such coercion,
there is no substantial burden. Thus, the Apache’s claim
under RFRA must fail.
Moreover, even were the Apache’s claim cognizable
under RFRA, the language of the Land Exchange Act is
clearly irreconcilable with the Apache’s claim for relief
under RFRA. In such cases of direct conflict, the later
statute—the Land Exchange Act—must be given effect over
the earlier statute—RFRA.
For these reasons, in addition to those expressed in Judge
Collins’s majority opinion, I agree that the judgment of the
district court must be affirmed, and I dissent from the per
curium’s purported overruling of Navajo Nation.
R. NELSON, Circuit Judge, concurring:
In my view, en banc review was warranted to correct our
faulty legal test (not the outcome) in Navajo Nation v. United
States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en
26
Principles of stare decisis caution us not to overrule our precedent
lightly. See United States v. Heredia, 483 F.3d 913, 918 (9th Cir. 2007)
(en banc). These principles have a heightened effect in matters of
statutory interpretation because the losing parties in such cases can seek
relief in the halls of Congress. Kimble v. Marvel Ent., LLC, 576 U.S.
446, 456 (2015).
106 APACHE STRONGHOLD V. UNITED STATES
banc). Generally, we adopt the same definition of a term—
like “substantial burden” here—when that term is used in
similar statutes. For that reason, RFRA and RLUIPA apply
the same legal definition of “substantial burden.” Since
Navajo Nation was decided, it has become clear that
“substantial burden” means more in RLUIPA than the
narrow definition we gave it under RFRA. Today, a majority
of the panel rejects the narrow construction of “substantial
burden” in Navajo Nation. See Per Curiam at 10–11;
Murguia Dissent at 180, 202 n.8. Six judges adopt a new test
to define “substantial burden” going forward for both RFRA
and RLUIPA. See Per Curiam at 10–11. A government act
imposes a “substantial burden” on religious exercise if it (1)
“requires the plaintiff to participate in an activity prohibited
by a sincerely held religious belief,” (2) “prevents the
plaintiff from participating in an activity motivated by a
sincerely held religious belief,” or (3) “places considerable
pressure on the plaintiff to violate a sincerely held religious
belief.” Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir.
2014); see also Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir.
1995) (per curiam) (citing Graham v. C.I.R., 822 F.2d 844,
850–51 (9th Cir. 1987)) (holding that the “substantial
burden” test is met when a religious adherent proves that a
government action “prevent[ed] him or her from engaging in
conduct or having a religious experience which the faith
mandates”); Worldwide Church of God v. Phila. Church of
God, Inc., 227 F.3d 1110, 1121 (9th Cir. 2000); Goehring v.
Brophy, 94 F.3d 1294, 1299 (9th Cir. 1996); see also Per
Curiam at 10–11.
Even Judge Collins’s majority, which I join, adopts a
new test without relying on Navajo Nation. As explained
more fully in section V, the strained interpretation of
“substantial burden” announced in Navajo Nation is not
APACHE STRONGHOLD V. UNITED STATES 107
sustainable. In the last 15 years, the Supreme Court and
virtually all the lower courts have recognized that
“substantial burden” holds the same definitional meaning in
RFRA and RLUIPA. While the terms may apply in different
contexts that arise under the statutes, the definitions are the
same.
But the question remains—can RFRA be used to protect
a religious practice exercised on government property? This
case raises the prevent prong of RFRA’s “substantial burden”
definition announced by our court today. As Chief Judge
Murguia’s dissent notes, the ordinary meaning of
“substantial burden” suggests that in selling the land, the
government is preventing the Apache’s participation by
restricting their access to the land. See Murguia Dissent at
195– 96. That much is true. But that conclusion conflicts
with the Supreme Court’s direction in Lyng v. Northwest
Indian Cemetery Protective Association, 485 U.S. 439
(1988). Under Lyng, a “substantial burden” analysis does
not apply to the internal affairs of the government. I
therefore reach a different conclusion from the same
beginning premise as the dissenters.
Preventing access to religious exercise generally
constitutes a substantial burden on religion. But the
parameters of “substantial burden” are not unconstrained.
We cannot ignore RFRA’s statutory context. The Supreme
Court has distinguished the boundaries of cognizable
burdens under the Free Exercise Clause. Through decades
of case law, the Court formulated a test that examined
whether there was a cognizable, substantial burden on
religious exercise justified by a compelling government
interest. In RFRA, Congress then applied the Court’s
terminology, essentially codifying both the test and those
parameters. Neither the Court nor Congress has defined
108 APACHE STRONGHOLD V. UNITED STATES
“substantial burden.” But in Lyng, the Court held that the
government’s use and alienation of its own land is not a
substantial burden. And the Court repeated that principle
even more broadly: “The Free Exercise Clause simply
cannot be understood to require the Government to conduct
its own internal affairs in ways that comport with the
religious beliefs of particular citizens.” Id. at 448 (citing
Bowen v. Roy, 476 U.S. 693, 699 (1986)) (internal citation
omitted).
This case thus turns on whether Congress’s codification
of “substantial burden” in RFRA overruled Lyng’s
application of substantial burden under the First
Amendment. I am reluctant to conclude that a Supreme
Court opinion is implicitly reversed by Congress when
Congress specifically adopts a term used in the Court’s prior
opinions. I therefore conclude that Congress through RFRA
did not reverse the Supreme Court’s holding in Lyng. As
such, I join Judge Collins’s majority to affirm the district
court’s denial of injunctive relief.
I
The National Defense Authorization Act for Fiscal Year
2015 (NDAA) includes a section known as the Southeast
Arizona Land Exchange and Conservation Act (Land
Exchange). The Land Exchange requires the conveyance of
federal land, including a parcel known as Oak Flat, to
Resolution Copper, a foreign mining company. See 16
U.S.C. § 539p. Resolution Copper intends to construct a
large copper mine on Oak Flat. Once the transfer is
complete, Oak Flat, as it is now known, by all accounts will
eventually be destroyed by the mining activity. The planned
mining technique will leave a two-mile-wide crater hundreds
of feet deep and will affect about eleven square miles. The
APACHE STRONGHOLD V. UNITED STATES 109
mining will thus permanently alter Oak Flat beyond
recognition, destroying the Apache’s “cultural landscapes”
and barring all access to that land for religious or other
purposes. Additionally, spiritually significant objects, like
Emory Oak, that play a key role in Apache ceremonies will
be destroyed.
Congress acknowledged the impact that the Land
Exchange would have on the Apache’s religious practice. It
included several provisions in the NDAA to balance this
concern. The Land Exchange requires the Secretary to
engage in “government-to-government consultation with
affected Indian tribes concerning issues of concern to the
affected Indian tribes related to the land exchange.” Id.
§ 539p(c)(3)(A). Additionally, after consulting the tribes,
the Secretary shall consult Resolution Cooper 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 on the Federal land conveyed
to Resolution Copper.” Id. § 539p(c)(3)(B).
Noticeably, despite the undisputedly significant impact
that would befall Apache religious practice, Congress did not
exempt the Land Exchange from RFRA. See Murguia
Dissent § II.H. Perhaps Congress declined to do so because
it believed that under preexisting Supreme Court precedent,
including Lyng, no substantial burden was implicated and
RFRA did not apply. This case thus requires us to answer
whether RFRA imposes additional strictures on the land
transfer.
II
The Constitution provides Congress with plenary power
over Indian affairs. See United States v. Lara, 541 U.S. 193,
200–01 (2004); U.S. Const. art. I, § 8. Congress addressed
110 APACHE STRONGHOLD V. UNITED STATES
religious liberty for Native Americans in the American
Indian Religious Freedom Act of 1978 (AIRFA), declaring
that it
shall be the policy of the United States to
protect and preserve for American Indians
their inherent right of freedom to believe,
express, and exercise the traditional religions
of the American Indian, Eskimo, Aleut, and
Native Hawaiians, including but not limited
to access to sites, use and possession of
sacred objects, and the freedom to worship
through ceremonials and traditional rites.
42 U.S.C. § 1996.
In accordance with AIFRA, President Clinton signed
Executive Order No. 13007, 61 Fed. Reg. 26,771 (1996).
Like the Land Exchange, it requires agencies to, as
practicable, “(1) accommodate access to and ceremonial use
of Indian sacred sites by Indian religious practitioners and
(2) avoid adversely affecting the physical integrity of such
sacred sites.” Id. § 1. But that same Order meant “only to
improve the internal management of the executive branch”
and did not “create any right, benefit, or trust responsibility,
substantive or procedural, enforceable at law or equity by
any party against the United States, its agencies, officers, or
any person.” Id. § 4.
AIFRA does not confer “so much as a hint of any intent
to create a cause of action or any judicially enforceable
individual rights” and is merely a policy statement. Lyng,
485 U.S. at 455. This paradox fuels the criticism that
“despite its assertion of sweeping plenary power over Indian
affairs, the federal government has done little of
APACHE STRONGHOLD V. UNITED STATES 111
consequence to protect the ability of tribes to access and
preserve sacred sites.” Stephanie Hall Barclay & Michalyn
Steele, Rethinking Protections for Indigenous Sacred Sites,
134 Harv. L. Rev. 1294, 1297 (2021).
We would be daft to ignore that, historically, the
relationship between the American government and native
tribes has not been a pristine example of intergovernmental
relations. See, e.g., McGirt v. Oklahoma, 140 S. Ct. 2452,
2462 (2020) (“[I]t’s equally clear that Congress has since
broken more than a few of its promises to the Tribe[s].”).
Although this reality is regrettable, we are bound to enforce
only those statutory rights prescribed by Congress.
Apache Stronghold asserts that Congress has protected
native access to government land for religious practices in
RFRA, and that the statute prevents the government from
transferring Oak Flat to Resolution Copper. I do not agree.
We apply the law as Congress wrote it and as the Supreme
Court has interpreted it. Examination of the Supreme
Court’s pre-RFRA jurisprudence illuminates why RFRA
does not provide Apache Stronghold the right it seeks.
III
A
RFRA does not appear in our legal system from the ether.
It is a legislative response to the culmination of decades of
caselaw interpreting the Free Exercise Clause. So I begin
with the Free Exercise Clause.
Religious liberty and the concept of free exercise are
grounded in the bedrock of our founding and the structure of
our system of government. See generally Michael W.
McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
112 APACHE STRONGHOLD V. UNITED STATES
At the founding, various state constitutions recognized a
right to free exercise of religious beliefs. Even before
ratification of the First Amendment in 1791, many state
constitutions reflected the sentiment that “all men have a
natural and unalienable right to worship Almighty God
according to the dictates of their own consciences.” N.C.
Const. art. XIX (Dec. 18, 1776), reprinted in 5 The Federal
and State Constitutions, Colonial Charters, and Other
Organic Laws of the States, Territories, and Colonies Now
or Heretofore Forming the United States of America 2787,
2788 (Francis Newton Thorpe ed., 1909); see also Nathan S.
Chapman, Disentangling Conscience and Religion, Ill. L.
Rev. 1457, 1466 n.44 (2013) (listing state constitutional
provisions). In Virginia, for instance, Thomas Jefferson
drafted a 1779 bill establishing religious freedom that no one
“shall be enforced, restrained, molested, or burthened in his
body or goods, nor shall otherwise suffer, on account of his
religious opinions or belief; but that all men shall be free to
profess, and by argument to maintain, their opinions in
matters of religion . . . .” A Bill for Establishing Religious
Freedom (June 12, 1779), reprinted in 5 Founders’
Constitution.
Virginia’s view was echoed on the national level, too. Of
the newly established American government, George
Washington said: “All possess alike liberty of conscience
and immunities of citizenship. It is now no more that
toleration is spoken of, as if it was by the indulgence of one
class of people, that another enjoyed the exercise of their
inherent natural rights.” Letter to The Hebrew Congregation
in Newport, Rhode Island (Aug. 18, 1790), The Papers of
George Washington, Presidential Series, vol. 6, 1 July 1790 –
30 Nov. 1790, ed. Mark A. Mastromarino. Charlottesville:
University Press of Virginia, 1996, pp. 284–86. Washington
APACHE STRONGHOLD V. UNITED STATES 113
echoed this same sentiment to other religious groups: “[t]he
liberty enjoyed by the People of these States, of worshipping
Almighty God agreeable to their Consciences, is not only
among the choicest of their Blessings, but also of their
Rights.” From George Washington to the Society of Quakers
(Oct. 13, 1789), The Papers of George Washington,
Presidential Series, vol. 4, 8 Sept. 1789 –15 Jan. 1790, ed.
Dorothy Twohig. Charlottesville: University Press of
Virginia, 1993, pp. 265–69. Washington conveyed this same
sentiment to various religious groups, including Roman
Catholics, Presbyterians, the Moravian Society for Gospel,
and others. See George Washington to Religious
Organizations, https://www.mountvernon.org/george-
washington/religion/george-washington-to-religious-
organizations/. From the founding, free exercise of religion
was intended to apply to all faiths. Native American
religious practice is no exception. Their religious practice is
honored and respected the same as any other religious
practice or belief. 1 But their right to practice religion, like
1
The criticism that accommodating the Native American religious
practices here “would inevitably require the government to discriminate
between competing religious claimants,” VanDyke Concurrence at 162,
is misguided. I disagree with my dissenting colleagues’ conclusion in
this case because Apache Stronghold’s RFRA claim does not raise a
cognizable substantial burden under Lyng. The dissenters are not wrong,
however, because under their view “only some religions would benefit
from the precedent created by such a decision.” Id. Almost any
recognition of a substantial burden on religious practice would be subject
to the same criticism. Our court has issued opinions more hostile to
religion than any other court in the country. See, e.g., Huntsman v. Corp.
of the President of the Church of Jesus Christ of Latter-day Saints, 76
F.4th 962, 968 (9th Cir. 2023); Kennedy v. Bremerton Sch. Dist., 991
F.3d 1004 (9th Cir. 2021), reversed 597 U.S. 507 (2022); Tandom v.
Newsom, 992 F.3d 916 (9th Cir. 2021), disapproved 593 U.S. 61 (2021);
Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018), and Morrissey-Berru
114 APACHE STRONGHOLD V. UNITED STATES
all religious practice protected by the Free Exercise Clause
and our legal system, must track the law.
Even the Founders recognized that religious exercise in
a pluralistic society was bound to conflict with government
structure. From the beginning, the Founders attempted to
reconcile these competing views by distinguishing the
freedom to believe from the freedom to act. As to religious
freedom, Jefferson said that “the legislative powers of
government reach actions only, and not opinions.” The
Works, vol. 8 (Correspondence 1793-1798). G. P. Putnam’s
Sons, 1905. Jefferson was not alone. Oliver Ellsworth, a
member of the Constitutional Convention and later Chief
Justice of the United States, wrote: “But while I assert the
rights of religious liberty, I would not deny that the civil
power has a right, in some cases, to interfere in matters of
religion.” Connecticut Courant, Dec. 17, 1787, reprinted in
1 Stokes, Church and State in the United States, 535. The
question is, what are those cases?
v. Our Lady of Guadalupe Sch., 769 Fed. Appx. 460 (9th Cir. 2019),
reversed 140 S. Ct. 2049 (2020); Freedom from Religion Found., Inc. v.
Chino Valley Uni. Sch. Dist. Bd. of Educ., 896 F.3d 1132 (9th Cir. 2018).
But if courts were to deny religious claims based on how the decision
may benefit one religion over another, we would pit religious interests
against each other and undermine religious liberty far more than any
position previously taken by our court. Would we deny a Muslim from
growing a reasonable beard in prison because other religious prisoners
would not get the same benefit? Or would we deny allowing a church to
build a 100-foot spire because other religions do not have a similar
religious belief? Or would we deny a religious school a voucher because
some other religions do not operate schools? Such considerations by the
courts would be grossly inconsistent with religious liberty. Cf. VanDyke
Concurrence II.B.iii & II.C.
APACHE STRONGHOLD V. UNITED STATES 115
B
The First Amendment right to free exercise of religion is
not absolute. The Supreme Court has long formulated a legal
framework balancing the interests of religious free exercise
against the competing demands of government. For
example, the government cannot restrict an individual’s
religious opinion but may restrict individual religious action
when the government has a sufficient interest. See Reynolds
v. United States, 98 U.S. 145, 166 (1878) (While government
laws “cannot interfere with mere religious belief and
opinions, they may with practices.”).
The right to belief is distinct from the right to act and the
latter is not free from government restrictions. See
Braunfeld v. Brown, 366 U.S. 599, 603 (1961) (citing
Cantwell v. State of Connecticut, 310 U.S. 296, 303–04, 306
(1940)) (“[T]he freedom to act, even when the action is in
accord with one’s religious convictions, is not totally free
from legislative restrictions.”). Abraham Braunfeld, an
Orthodox Jew, owned a retail store, but state law prohibited
him from opening on Sunday, and his faith, from working on
Saturday. See id. at 601. He challenged the law as a
violation of the religious liberty clauses, claiming economic
concerns required his store to be open six days a week. See
id. at 602.
Braunfeld reflects the early development of the
“substantial burden/compelling interest” test that would later
be expanded by the Supreme Court and codified by Congress
in RFRA. The Court noted: “To strike down, without the
most critical scrutiny, legislation which imposes only an
indirect burden on the exercise of religion, i.e., legislation
which does not make unlawful the religious practice itself,
116 APACHE STRONGHOLD V. UNITED STATES
would radically restrict the operating latitude of the
legislature.” Id. at 606.
The Supreme Court later clarified the government
interest analysis. In Sherbert v. Verner, a Seventh-day
Adventist was terminated from her job and rejected
alternative employment because she would not work on
Saturday, her Sabbath. 374 U.S. 398, 399 (1963). South
Carolina law barred her unemployment benefits because she
declined an alternate suitable employment offer. See id. at
401.
The Court held that South Carolina’s law was
unconstitutional because the burden on Sherbert’s exercise
acted as a fine imposed against her worship and was not
justified by a compelling state interest. See id. at 403
(“[A]ny incidental burden on the free exercise of appellant’s
religion may be justified by a ‘compelling state interest in
the regulation of a subject within the State’s constitutional
power to regulate.’” (quoting NAACP v. Button, 371 U.S.
415, 438 (1963))). The Court first examined whether
Sherbert’s claim fell within the class of cognizable Free
Exercise claims. See id. at 402–03. Because it was
cognizable, the Court then examined whether Sherbert
suffered a burden to her religious practice and whether a
compelling state interest justified that “substantial
infringement on [Sherbert’s] First Amendment right.” Id. at
403–06.
A decade later, the Court reiterated that in some cases the
government can regulate “religiously grounded conduct.”
Wisconsin v. Yoder, 406 U.S. 205, 220–21 (1972). The Court
did not use the phrase “substantial burden” but invoked the
same theory: Wisconsin could not require religious parents
to send their children to school until age 16 because “only
APACHE STRONGHOLD V. UNITED STATES 117
those interests of the highest order . . . can overbalance
legitimate claims to the free exercise of religion.” Id. at 215,
220.
The Court returned to the idea of a “substantial burden”
another decade later. See Thomas v. Rev. Bd. of Ind. Emp.
Sec. Div., 450 U.S. 707, 717–18 (1981). It held that, while
compulsion regarding religious exercise could be incidental,
“the infringement upon free exercise is nonetheless
substantial.” Id. at 718. Because Thomas quit his job due to
his religious convictions against producing military
weapons, the denial of unemployment benefits was an
unconstitutional burden. See id. But the Court also stated
that “[t]he mere fact that the petitioner’s religious practice is
burdened by a governmental program does not mean that an
exemption accommodating his practice must be granted.
The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of achieving
some compelling state interest.” Id. (citing Yoder, 406 U.S.
at 215). The Court’s citation to Yoder confirms that the
substantial burden/compelling interest framework was
consistent even in cases that did not mention it by name.
The Court continued to make clear that its balancing
framework did not guarantee relief for all religious burdens,
even if those incognizable burdens were substantial in the
ordinary sense. See United States v. Lee, 455 U.S. 252, 257
(1982) (“The conclusion that there is a conflict between the
Amish faith and the obligations imposed by the social
security system is only the beginning, however, and not the
end of the inquiry.”). The Court held that “[n]ot all burdens
on religion are unconstitutional. The state may justify a
limitation on religious liberty by showing that it is essential
to accomplish an overriding governmental interest.” Id.
(internal citations omitted). The Court did not analyze how
118 APACHE STRONGHOLD V. UNITED STATES
substantial the burden of the tax law was on Amish beliefs
when it analyzed whether the burden was cognizable. See
id. at 257. The Court instead couched its holding on the
government’s “very high” interest in managing the social
security system. Id. at 259. And the government’s
compelling interest in preserving the social security program
outweighed the burden on religious exercise. See id. at 261.
The Court followed up in Bowen v. Roy, in which Native
American parents challenged the constitutionality of
requiring a social security number for their child to receive
federal food stamps and related benefits. 476 U.S. 693
(1986). The parents believed that a social security number
would “rob the spirit.” Id. at 696. In rejecting the religious
challenge, the Court echoed that “[n]ot all burdens on
religion are unconstitutional.” Id. at 702.
The Court again noted that the First Amendment does not
“require the Government itself to behave in ways that the
individual believes will further his or her spiritual
development or that of his or her family.” Id. at 699
(emphasis omitted). Instead, “[t]he Free Exercise Clause
simply cannot be understood to require the Government to
conduct its own internal affairs in ways that comport with
the religious beliefs of particular citizens.” Id. The Court in
Bowen did not analyze whether there was a “substantial
burden” on any religious practice; it determined that the
claim itself was not cognizable. Id. at 700 (“Roy may no
more prevail on his religious objection to the Government’s
use of a Social Security number for his daughter than he
could on a sincere religious objection to the size or color of
the Government’s filing cabinets.”).
Two years later, the Court decided Lyng, the most
factually relevant case here. In Lyng, Native American tribes
APACHE STRONGHOLD V. UNITED STATES 119
challenged the construction of a road connecting two towns.
485 U.S. at 442–43. The proposed six-mile paved road
would affect sacred area used for religious purposes and
rituals by Yurok, Karok, and Tolowa Indians. See id. A study
commissioned by the U.S. Forest Service concluded that
constructing the road “would cause serious and irreparable
damage to the sacred areas which are an integral and
necessary part of the belief systems and lifeway of
Northwest California Indian peoples.” Id.
The Court declined to interpret the Free Exercise Clause
as permitting a significant burden on religious practice to
weigh as equally, or even overrule, the government’s use of
its land. See id. at 452. Indeed, it echoed that the
Constitution “does not, and courts cannot, offer to reconcile
the various competing demands on government, many of
them rooted in sincere religious belief, that inevitably arise
in so diverse a society as ours.” Id. at 452.
Lyng’s analytical framework was not new. The Court
started by assessing whether the harms alleged were
cognizable under the First Amendment, holding that
“[w]hatever rights the Indians may have to the use of the area
. . . those rights do not divest the Government of its right to
use what is, after all, its land.” Id. at 452–53.
And the Court acknowledged that the burden on religion
was substantial because “the logging and road-building
projects at issue in this case could have devastating effects
on traditional Indian religious practices.” Id. at 451. No
doubt a “devastating” impact that would foreclose religious
practice is substantial in the ordinary sense. See Substantial,
BLACK’S LAW DICTIONARY (6th ed. 1990) (“Of real worth
and importance; of considerable value; valuable.”). But, like
in several prior cases, the Court determined that even the
120 APACHE STRONGHOLD V. UNITED STATES
potential foreclosure of the religious practice did not render
the tribes’ religious claim cognizable under the First
Amendment. See Lyng, 485 U.S. at 451–53. Lyng held that
the Free Exercise Clause does not encompass claims relating
to government management of its land. See id. And the
Court stated Lyng’s holding even more broadly: The “Free
Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that
comport with the religious beliefs of particular citizens.” Id.
at 448 (citing Bowen, 476 U.S. at 693) (internal citation
omitted).
Cases following Lyng but pre-Smith invoked the Court’s
preexisting framework, but notably use the phrase
“substantial burden.” This represents no new test but
articulates the test the Court had formulated all along: “Our
cases have established that ‘[t]he 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.’” Jimmy Swaggart Ministries v. Bd. of Equalization
of Cal., 493 U.S. 378, 384–85 (1990) (quoting Hernandez v.
Commissioner, 490 U.S. 680, 699 (1989)). Within this
framework, the Court separated cognizable substantial
burdens from the incognizable. In so doing, it was not
applying a uniform or literal dictionary construction of
“substantial.” It was defining the applicable constitutional
framework.
In the pre-Smith cases, the Supreme Court used different
variations to articulate the “substantial burden” standard.
See Lee, 455 U.S. at 257 (“The state may justify a limitation
on religious liberty” with “an overriding governmental
interest.”); Thomas, 450 U.S. at 717–18 (“[T]he
infringement . . . is nonetheless substantial.”); Yoder, 406
APACHE STRONGHOLD V. UNITED STATES 121
U.S. at 220 (“A regulation neutral on its face may, in its
application, nonetheless offend the constitutional
requirement for governmental neutrality if it unduly burdens
the free exercise of religion.”); Sherbert, 374 U.S. at 406
(assessing whether a compelling state interest justified a
“substantial infringement of appellant’s First Amendment
right”). But there is no indication these were different tests;
they are consistent applications of the same legal standard
over several decades.
Employment Division v. Smith, 494 U.S. 872 (1990), is
no exception. The Court again made clear that the Free
Exercise Clause recognizes only certain cognizable
substantial burdens. And “[u]nder the Sherbert test,
governmental actions that substantially burden a religious
practice must be justified by a compelling governmental
interest.” Id. at 883 (citing Sherbert, 374 U.S. at 402–03;
Hernandez, 490 U.S. at 699). Although Justice Scalia’s
majority opinion held that the Sherbert test does not apply to
neutral, generally appliable laws, it did not overrule Lyng.
Smith, 494 U.S. at 883; see also Collins Maj. at 45–46.
Therefore, Lyng is within the very pre-Smith framework
reinvigorated by RFRA.
IV
RFRA was a direct rejection of Smith’s holding that all
generally applicable laws that incidentally burden religious
practice present no First Amendment claim. See Holt v.
Hobbs, 574 U.S. 352, 356–57 (2015). RFRA codified the
compelling interest test as set forth by Yoder and Sherbert.
See id. As discussed above, under RFRA, a government’s
“substantial burden” on the exercise of religious practice
must be justified by a compelling interest narrowly tailored
to accomplish that interest. 42 U.S.C. § 2000bb-1(b).
122 APACHE STRONGHOLD V. UNITED STATES
RFRA’s text reflects the Supreme Court’s pre-Smith
jurisprudence: “[G]overnments should not substantially
burden religious exercise without compelling justification,”
and “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.” Id. § 2000bb-(a)(3), (5). Additionally, RFRA’s
purpose was “to restore the compelling interest test.” Id.
§ (b)(1). RFRA expressly draws this restored test from the
Court’s free exercise caselaw, discussed above.
Like the several cases to predate it, RFRA does not
define “substantial burden,” except “as set forth in prior
Federal court rulings.” Id. § (a)(5). But RFRA’s religious
protections are plainly robust. RFRA applies to all federal
law, statutory or otherwise, whether adopted before or after
RFRA’s enactment. Id. § 2000bb-3(a).
Shortly after RFRA was passed, the Court held that it
only applied to the Federal Government. See City of Boerne
v. Flores, 521 U.S. 507, 509 (1997). Congress then doubled
down on its codified protections for religious exercise. See
The Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA), 42 U.S.C. § 2000cc et seq. RLUIPA
amended RFRA’s definition of free exercise, both
broadening it to include the use of real property for religious
purposes and ensuring that RFRA and RLUIPA share the
same definition. See Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682, 696 (2014). RLUIPA echoes the same
command as RFRA that no government shall impose a
“substantial burden” on religious exercise unless the
government demonstrates that such an imposition “is in
furtherance of a compelling governmental interest; and is the
APACHE STRONGHOLD V. UNITED STATES 123
least restrictive means of furthering that compelling
governmental interest.” 2 Id. § 2000cc(a)(1).
As the court today holds, RFRA and RLUIPA apply the
same test—that is clear from the text of both statutes and
from the Supreme Court’s discussion of them. 3 See Per
Curiam at 11; Murguia Dissent at 202 n.8. RFRA and
RLUIPA are “sister statute[s]” enacted “in order to provide
very broad protection for religious liberty,” and RLUIPA
protects religious accommodations “pursuant to the same
standard as set forth in RFRA.” Holt, 574 U.S. at 356, 358
(internal citations omitted). Although I agree with Chief
Judge Murguia that RFRA and RLUIPA are interpreted
uniformly, I cannot join her in assigning “substantial
burden” its dictionary definition meaning. See Murguia
Dissent at 195–96. “[W]e do not follow statutory canons of
construction with their focus on ‘textual precision’ when
2
Chief Judge Murguia contends that RLUIPA’s amendment to RFRA’s
definition of “substantial burden” signals that Lyng does not apply to this
case. See Murguia Dissent at 200–01. Even though the Supreme Court
has noted that RLUIPA removed mention of the First Amendment and
the Court has questioned “why Congress did this if it wanted to tie RFRA
coverage tightly to the specific holdings of our pre-Smith free-exercise
cases,” Hobby Lobby, 573 U.S. at 714, this is not the same as finding
pre-Smith constructions of “substantial burden” inapplicable to its
meaning. See Murguia Dissent at 200–01. While pre-Smith cases do not
define “substantial burden,” this does not foreclose a holding that certain
categories of cases do not apply to the “substantial burden” analysis.
3
The Supreme Court in Hobby Lobby also disavowed differing
constructions of another phrase used in both statutes. “[T]he phrase
‘exercise of religion,’ as it appears in RLUIPA, must be interpreted
broadly, and RFRA states that the same phrase, as used in RFRA, means
‘religious exercis[e] as defined in [RLUIPA].’ . . . It necessarily follows
that the ‘exercise of religion’ under RFRA must be given the same broad
meaning that applies under RLUIPA.” 573 U.S. at 695 at n.5.
124 APACHE STRONGHOLD V. UNITED STATES
interpreting judicial opinions.” Upper Skagit Indian Tribe v.
Sauk-Suiattle Indian Tribe, 66 F.4th 766, 770 (9th Cir. 2023)
(quoting United States v. Muckleshoot Indian Tribe, 235 F.3d
429, 433 (9th Cir. 2000)); see also Parker v. Cnty. of
Riverside, 78 F.4th 1109 (9th Cir. 2023) (R. Nelson, J.,
concurring). Although “substantial burden” is in RFRA,
Congress adopted “substantial burden” in RFRA from “prior
Federal Court rulings,” 42 U.S.C. § 2000bb-(a)(5). Thus, we
do not use the ordinary meaning of “substantial burden,” but
the context given in those prior judicial opinions.
Interpreting “substantial burden” in RFRA and RLUIPA
consistently also follows rules of construction. Our notion
of “in pari materia,” stemming from the related-statutes
canon states that statutes concerning the same topic are to be
interpreted together, as though they were one law. See
Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (“[A]
legislative body generally uses a particular word with a
consistent meaning in a given context.”); Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 170 (2012). To conclude otherwise would depart from
the presumption of consistent usage—which has special
force where, as here, there is a recognized “connection”
between “the cited statute” and “the statute under
consideration.” Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 172–73. Because RFRA and
RLUIPA both restrict governments’ ability to impose
“substantial burdens” on religion, there is no reason to define
the same term differently. See id.
Although RFRA and RLUIPA share the same definition,
neither defines “substantial burden.” And the need to discern
that definition is central to this appeal.
APACHE STRONGHOLD V. UNITED STATES 125
V
Before Navajo Nation, our court consistently invoked
pre-Smith Free Exercise Clause cases and held that a
“substantial burden” under RFRA includes preventing an
individual from engaging in religious practice. See, e.g.,
Goehring, 94 F.3d at 1299 (quoting Graham, 822 F.2d at
850–51) (“substantial burden” test met when government
“prevent[ed] him or her from engaging in conduct or having
a religious experience which the faith mandates”); Bryant,
46 F.3d at 949 (citing Graham, 822 F.2d. at 850–51); see also
Worldwide Church of God, 227 F.3d at 1121; Stefanow v.
McFadden, 103 F.3d 1466, 1471 (9th Cir. 1996).
We then held that a substantial burden under RFRA “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 1070
(emphasis added). A majority of the panel reverses this
narrow holding of Navajo Nation today—specifically the
limitation to “only” the specific circumstances of Sherbert
and Yoder. See Per Curiam at 11; Murguia Dissent at 202
n.8. Not only has the Supreme Court foreclosed the
definition applied in Navajo Nation, but almost every circuit
has declined to adopt such a narrow construction of
“substantial burden.” “Substantial burden” is not limited to
the burdens that were at issue in Sherbert and Yoder. See Per
Curiam at 11; Murguia Dissent at 202. While I conclude that
Navajo Nation was wrong for some overlapping and
differing reasons than Chief Judge Murguia in her dissent, a
majority of the panel rejects that test, thus controlling this
question in future cases in this court.
126 APACHE STRONGHOLD V. UNITED STATES
A
The Supreme Court disavowed the narrow definition
applied by the majority in Navajo Nation and asserted by
Judge Bea here. See Bea Dissent at 87–88. The Supreme
Court said: “Even if RFRA simply restored the status quo
ante, there is no reason to believe . . . that the law was meant
to be limited to situations that fall squarely within the
holdings of pre-Smith cases.” Burwell, 573 U.S. at 706 n.18.
The Supreme Court, however, has left lower courts to
tackle the underlying definitional question; it has never
defined a “substantial burden” in post-Smith cases, either. In
Burwell, the Court had “little trouble concluding” that the
contraceptive mandate, which permitted millions of dollars
in fines, constituted a substantial burden on the exercise of
petitioner’s religious beliefs. Id. at 719–20, 726. And in
Holt, the Court found that a prison grooming policy
constituted a substantial burden because petitioner was
required to shave his beard in serious violation of his
religious beliefs or face discipline. See 574 U.S. at 361–62.
Here, both Burwell and Holt involved instances of
coercion akin to Yoder. See Bea Dissent at 82–83. While
true, the Court did not limit its definition of substantial
burden to Yoder or to any additional pre-Smith cases.
Burwell, 573 U.S. at 706 n.18.
Most of our sister circuits have heeded the Supreme
Court’s words. Many have analyzed “substantial burden” in
the presence of coercion like in Sherbert and Yoder. Still,
none have expressly limited the definition of substantial
burden only to that universe. Contra Bea Dissent at 73 n.8.
And aside from whether “substantial burden” under RFRA
is the same as under RLUIPA, many of our sister circuits
APACHE STRONGHOLD V. UNITED STATES 127
have rejected the notion that a substantial burden must fall
only under Sherbert or Yoder, and no other scenario.
To begin with, the Third, Fifth, Sixth, Seventh, Eighth,
Tenth, and Eleventh Circuits have treated RFRA and
RLUIPA as analogous statutes and define “substantial
burden” the same. 4 This underscores that RFRA and
RLUIPA share the same definition of “substantial burden”
and that Navajo Nation should be overruled on that issue.
It is not correct, see Bea Dissent at 73, that the majority
of circuits have followed Navajo Nation and these circuits
limit “substantial burden” to Sherbert and Yoder. Without
question, all courts apply the coercion and benefit tests
4
See, e.g., Mack v. Warden Loretto FCI, 839 F.3d 286, 304 n.103 (3d
Cir. 2016) (citing Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007))
(“although Klem examined the definition of ‘substantial burden’ in the
context of RLUIPA, the two statutes [RFRA and RLUIPA] are
analogous for purposes of the substantial burden test”); U.S. Navy Seals
1-26 v. Biden, 27 F.4th 336, 350 (5th Cir. 2022) (citing Adkins v. Kaspar,
393 F.3d 559, 570 (5th Cir. 2004), a RLUIPA case, to define “substantial
burden” in a RFRA case); New Doe Child #1 v. Cong. of United States,
891 F.3d 578, 588, (6th Cir. 2018) (citing Haight v. Thompson, 763 F.3d
554, 565–66 (6th Cir. 2018), a RLUIPA case, to define “substantial
burden” in a RFRA case); Korte v. Sebelius, 735 F.3d 654, 682–83 (7th
Cir. 2013) (citing Civil Liberties for Urban Believers v. City of Chicago,
342 F.3d 752, 761 (7th Cir. 2003), a RLUIPA case, to define “substantial
burden” in a RFRA case); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1138 (10th Cir. 2013), aff’d sub nom. Hobby Lobby, 573 U.S. 682
(describing RLUIPA as “a statute that adopts RFRA’s ‘substantial
burden’ standard”); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1237 (11th Cir. 2004) (“RLUIPA revives RFRA’s substantial
burden test”); Murphy v. Missouri Dep’t of Corr., 372 F.3d 979, 987 (8th
Cir. 2004) (“several factors cause us to conclude that Congress intended
that the language of the act [RLUIPA] is to be applied just as it was under
RFRA”). None of these cases reference Sherbert or Yoder, let alone limit
the definition of “substantial burden” to them.
128 APACHE STRONGHOLD V. UNITED STATES
identified in Navajo Nation. But no other court expressly
limits RFRA to only those scenarios. The D.C. Circuit, for
example, held that a substantial burden exists when the
government leverages
“substantial pressure on an adherent to
modify his behavior and to violate his
beliefs,” as in Sherbert, where the denial of
unemployment benefits to a Sabbatarian who
could not find suitable non-Saturday
employment forced her “to choose between
following the precepts of her religion and
forfeiting benefits, on the one hand, and
abandoning one of the precepts of her
religion in order to accept work, on the other
hand.”
Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008)
(first quoting Thomas, 450 U.S. at 718; and Sherbert, 374
U.S. at 404). The First Circuit applied a similar definition
and cited Navajo Nation favorably. See Perrier-Bilbo v.
United States, 954 F.3d 413, 431 (1st Cir. 2020) (“[C]ase law
counsels that a substantial burden on one’s exercise of
religion exists ‘[w]here 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, thereby putting substantial
pressure on an adherent to modify his behavior and to violate
his beliefs.’”) (citing Navajo Nation, 535 F.3d at 1069–70).
And while the Second Circuit recognizes Sherbert and Yoder
as examples of substantial burden, it does not limit the
definition to only those cases. See Jolly v. Coughlin, 76 F.3d
468, 477 (2d Cir. 1996).
APACHE STRONGHOLD V. UNITED STATES 129
Indeed, several other circuits adopt a test inconsistent
with Navajo Nation but consistent with our approach today.
The Eighth Circuit, for example, has held that a “substantial
burden”
must significantly inhibit or constrain
conduct or expression that manifests some
central tenet of a person’s individual religious
beliefs; must meaningfully curtail a person’s
ability to express adherence to his or her
faith; or must deny a person reasonable
opportunity to engage in those activities that
are fundamental to a person’s religion.
United States v. Ali, 682 F.3d 705, 709–10 (8th Cir. 2012)
(citing Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813
(8th Cir. 2008)). There is no way to square the Eighth
Circuit’s definition of “substantial burden” with Navajo
Nation.
The Seventh Circuit has also held that RFRA and
RLUIPA adopt the same meaning of “substantial burden”:
“[A] law, regulation, or other governmental command
substantially burdens religious exercise if it ‘bears direct,
primary, and fundamental responsibility for rendering a
religious exercise . . . effectively impracticable.’” Korte v.
Sebelius, 735 F.3d 654, 682–83 (7th Cir. 2013). The
Seventh Circuit definition of “substantial burden” is more
expansive than just Sherbert and Yoder.
The Tenth Circuit has similarly held that a government
act imposes a “substantial burden” on religious exercise if it:
(1) “requires participation in an activity prohibited by a
sincerely held religious belief,” (2) “prevents participation
in conduct motivated by a sincerely held religious belief,” or
130 APACHE STRONGHOLD V. UNITED STATES
(3) “places substantial pressure on an adherent . . . to engage
in conduct contrary to a sincerely held religious belief.”
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir.
2010); Yellowbear, 741 F.3d at 55. This is plainly contrary
to our prior holding in Navajo Nation. And it is the legal test
the majority adopts today to govern future RFRA cases.
A survey of the caselaw from our sister circuits is clear.
Our definition of substantial burden as articulated in Navajo
Nation has not been adopted by any court since it was
announced 15 years ago. “Substantial burden” is not limited
only to coercion or denial of a government benefit as
articulated under Sherbert and Yoder. The narrow
interpretation of “substantial burden” from Navajo Nation
misses a crucial nuance: what satisfies a condition does not
automatically set its parameters in stone. The Supreme
Court’s opinions in Holt and Burwell, and the holdings by
virtually all other circuits, supports our holding today.
Navajo Nation’s express limitation on the RFRA definition
of “substantial burden” is properly overruled and no longer
good law.
B
The majority’s holding overruling Navajo Nation’s legal
test of “substantial burden” is a fully binding holding of the
court. Judge Bea claims that the first paragraph of the per
curiam opinion is dicta and not well-reasoned. See Bea
Dissent at 54 n.1. He is wrong on both counts.
First, the holding is not dicta. To the contrary, when we
“confront[] an issue germane to the eventual resolution of
the case, and resolve[] it after reasoned consideration in a
published opinion, that ruling becomes the law of the circuit,
regardless of whether doing so is necessary in some strict
logical sense.” United States v. McAdory, 935 F.3d 838, 843
APACHE STRONGHOLD V. UNITED STATES 131
(9th Cir. 2019) (quoting Cetacean Cmty. v. Bush, 386 F.3d
1169, 1173 (9th Cir. 2004)). Judge Bea quotes that language
(Bea Dissent at 54 n.1), but conveniently omits the relevant
phrase: “regardless of whether doing so is necessary in some
strict logical sense.” He does not get to dictate what
reasoning is necessary to the ultimate conclusion in the case;
nor does that matter under McAdory. I voted to take this case
en banc to correct the wrong legal test of “substantial
burden” in Navajo Nation. The issue was central to the
parties’ arguments and fully briefed before the district court,
the three-judge panel, and the en banc panel.
Judge Bea would resolve this case on narrower grounds.
But had a majority of the panel been willing to uphold the
legal test for “substantial burden” in Navajo Nation, this case
could have been resolved on those narrower grounds. That
position, however, failed to garner a majority; it failed to
garner even a plurality. And rejecting the prior Navajo
Nation legal test was important to the legal analysis of a
majority of the judges on the panel in deciding this case.
Indeed, without a majority of the court rejecting Navajo
Nation’s legal test, this case could have been resolved simply
by applying Navajo Nation as the panel opinion did, rather
than on the narrower basis adopted in Judge Collins’s
majority opinion. To be clear, Judge Collins’s opinion would
not have garnered a majority vote of the panel had Navajo
Nation not been overruled. So it was important to address
that question.
Moreover, defining “substantial burden” in a case that
asks precisely whether the government imposed a substantial
burden can hardly be viewed as so tangential to the case to
be dicta in any meaningful sense. Nor can a majority’s
rejection of a primary argument raised by the parties before
resolving the case on other grounds be considered dicta. It
132 APACHE STRONGHOLD V. UNITED STATES
is clearly “germane” under our precedent. We do that every
day in our opinions. Judge Bea’s expansive view of dicta
would have far-reaching consequences for potentially
hundreds of our opinions if future panels were allowed to
parse what issues were germane to support a particular
result–and reject all other reasoning as dicta.
Second, the holding is well reasoned. I explain why
Navajo Nation applied the wrong legal definition of
“substantial burden.” See supra § V.A. And Chief Judge
Murguia explains why Navajo Nation was wrong, joined by
four other judges. See Murguia Dissent § II.A-C. True,
some of the reasoning differs. But much of it overlaps. For
example, I agree with Chief Judge Murguia’s reasoning that
RFRA and RLUIPA both apply the same legal test. See
Murguia Dissent § II.A (192–94); see also id. at 204 (quoting
Holt, 574 U.S. at 356–57, and citing Gonzales v. O Centro
Espírita Beneficente Uniaõ do Vegetal, 546 U.S. 418, 436
(2006); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct.
2356, 2365 (2019)). I also agree with her reasoning that
Navajo Nation adopted a narrow reading of ‘substantial
burden.’ See id. at 201–02. And my analysis that no other
circuit has adopted the “substantial burden” test in Navajo
Nation largely tracks with her similar reasoning. See id. §
II.C (204–05).
Judge Bea’s contention that the first paragraph of the per
curiam opinion is not well reasoned ignores the dozens of
pages of reasoning provided in my concurrence and Chief
Judge Murguia’s opinion. “Only ‘statements made in
passing, without analysis, are not binding precedent.’” City
of Los Angeles v. Barr, 941 F.3d 931, 943 n.15 (9th Cir.
2019) (quoting In re Magnacom Wireless, LLC, 503 F.3d
984, 993–94 (9th Cir. 2007)). The first paragraph of the per
curiam opinion was neither made in passing nor without
APACHE STRONGHOLD V. UNITED STATES 133
analysis. If anything, the holdings in the first paragraph of
the per curiam opinion are “too well reasoned.” No
reasonable reader (though perhaps aided by a strong dose of
caffeine) can walk away after reading the various opinions
without a plain understanding of how forcefully a majority
of this panel believes that Navajo Nation’s legal definition
of “substantial burden” was wrongly decided and must be
overruled to resolve this case; and the reasoning behind that
conclusion. Judge Bea is free to dissent from that view. But
he cannot bind future panels. No future panel of this court
(except a future en banc panel) may adopt Judge Bea’s
dissenting view.
VI
Even in overruling this aspect of Navajo Nation, our
inquiry is not complete. We still must decide this case. We
unanimously hold that Apache Stronghold has no First
Amendment claim under Lyng. See Collins Maj. at 35;
Murguia Dissent at 216–24. Apache Stronghold’s claim
under RFRA, however, is much closer. The question
remains—what constitutes a substantial burden and has that
standard been met here? I agree with Judge Collins’s
majority opinion that the burden here does not satisfy the
“substantial burden” applied under RFRA.
Two main theories emerge from the majority and
concurrences. The majority holds that because Congress
“copied the ‘substantial burden’ phrase into RFRA, it must
be understood as having similarly adopted the limits that
Lyng placed on what counts as a governmental imposition of
a substantial burden on religious exercise.” Collins Maj. at
46. I agree, but for additional reasons. I disagree, however,
with the separate theory that “substantial burden” is a term
134 APACHE STRONGHOLD V. UNITED STATES
of art with a specific definition. 5 See Bea Dissent at 88.
While RFRA relies on the prior Supreme Court analytical
framework of “substantial burden,” that term was never
defined as a term of art.
A
It is a longstanding principle that “[w]hen a statutory
term is obviously transplanted from another legal source, it
brings the old soil with it.” Taggart v. Lorenzen, 139 S. Ct.
1795, 1801 (2019) (citations and internal quotation marks
omitted). The question is what “old soil” regarding
“substantial burden” was grafted into RFRA. As explained
above, “substantial burden” was not defined by the Supreme
Court before the adoption of RFRA. “Substantial burden”
or related phrasing was used by the Court not as a definition
that could be transplanted, but as a legal framework to apply
the Free Exercise Clause. And a legal framework differs
from a precise definition.
5
“Terms of art are words having specific, precise meanings in a given
specialty.” Terms of Art, GERNER’S DICTIONARY OF LEGAL USAGE (3d
ed. 2011); see also Term of Art, BLACK’S LAW DICTIONARY (11th ed.
2019) (same). Judge Bea attacks this position, noting that “legal tests
and standards” can “often” be a “term of art.” Bea Dissent at 88 n.16.
His sole example, however, is the term “fair and equitable” which the
Supreme Court described as a term of art 80 years ago. But “fair and
equitable” had become a term of art because of the precise and consistent
definition attached to it over time. If 200 plus pages in six separate
opinions in this case prove anything, it is that the definition of
“substantial burden” has not been defined with the precision necessary
to be a well-defined term of art. The Supreme Court had not defined
“substantial burden” prior to Congress adopting RFRA. And other
federal courts had not adopted a consistent definition of the term either.
Our definition of “substantial burden” today, see Per Curiam at 10–11,
is consistent with the definition adopted by other federal courts and may
well constitute a term of art going forward.
APACHE STRONGHOLD V. UNITED STATES 135
Judge Bea asserts that we must look only to pre-RFRA
cases to define “substantial burden,” because the term was
taken by Congress, without modification, from the Supreme
Court’s pre-RFRA First Amendment jurisprudence; because
RFRA states that its goal is to restore the test used by pre-
RFRA federal court rulings; and because RFRA directly cites
two Supreme Court decisions—Sherbert and Yoder—as
determinative of the scope of the term “substantial burden.”
See Bea Dissent at 76–83. But even taking these three
assertions to their logical conclusions, this does not cabin
“substantial burden” to Sherbert and Yoder.
1
As outlined above, “substantial burden” was used in
several pre-Smith and pre-RFRA cases and referenced a prior
analytical approach. See supra § III.B; Jimmy Swaggart
Ministries, 493 U.S. at 384–85; Hernandez, 490 U.S. at 699.
Congress adopted “substantial burden” from those “prior
Federal court rulings.” 42 U.S.C. § 2000bb-(a)(5). None of
those cases define “substantial burden.” But Congress, in
adopting RFRA, expressly incorporated the contours and
limitations of the “substantial burden” framework into
RFRA.
This aligns with how the Supreme Court described its
own Free Exercise Clause jurisprudence. For example, the
Court in Sherbert held that the government may not compel
affirmation of a belief or penalize groups for holding certain
views. 374 U.S. at 402. Same with Bowen: Free Exercise
violation arises when “compulsion of certain activity with
religious significance was involved.” 476 U.S. at 704.
These holdings describe categories of claims protected by
the First Amendment, but do not define “substantial burden”
itself. There is again no definition of “substantial burden.”
136 APACHE STRONGHOLD V. UNITED STATES
Thus, the legal context here reveals no technical definition
or term of art.
2
Judge Bea next asserts that there is no evidence that
Congress intended to expand or alter the definition of
“substantial burden” in pre-RFRA cases. 6 See Bea Dissent
at 82. But this again assumes, incorrectly, that there ever
was a precise definition. True, RFRA’s use of “substantial
burden” strongly supports the conclusion that Congress was
satisfied with that portion of the test as set forth in prior
federal court rulings. But that does not mean that the terms
were defined as a term of art. Cf. Bea Dissent at 88.
Indeed, our sister circuits do not speak of “substantial
burden” as a term of art. See, e.g., Mack, 839 F.3d at 286;
U.S. Navy Seals 1-26, 27 F.4th at 336; New Doe Child #1,
891 F.3d at 578; Korte, 735 F.3d at 654; Hobby Lobby, 723
F.3d at 1114; Midrash, 366 F.3d at 1214; Murphy, 372 F.3d
at 979. And for good reason: There is no definition by which
they could do so. So while Lyng forecloses Apache
Stronghold’s RFRA claim here, see Collins Maj. at 35, that
is not because Lyng is part of any “old soil” that was used to
define “substantial burden,” Bea Dissent at 75. Indeed, Lyng
does not even use “substantial burden” or any analogous
framing of the phrase. Lyng therefore cannot be read as
establishing a precise definition of “substantial burden”
“carried over into the soil” of RFRA. Taggart, 139 S. Ct. at
1801 (emphasis added).
6
The Supreme Court seems to reject that premise: “[T]here 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, 573 U.S. at
706 n.18.
APACHE STRONGHOLD V. UNITED STATES 137
3
Judge Bea’s approach, which purports to be one
grounded in the statute’s text, also violates fundamental
principles of textualism. See Bea Dissent at 74–89. His
application of the soil theory disregards a textual analysis of
half of RFRA’s statutory language. The words of a
governing text are of paramount concern. We must analyze
those words in their full context and not focus exclusively on
particular provisions. See Textualism, BLACK’S LAW
DICTIONARY (11th ed. 2019).
Here, Judge Bea stresses that RFRA directly cites
Sherbert and Yoder. See Bea Dissent at 77–81. But this only
addresses half of the relevant textual inquiry. Section
2000bb states that a purpose of RFRA is “(1) 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).” The rest of § 2000bb, however, reads “and to
guarantee its application in all cases where free exercise of
religion is substantially burdened; and (2) to provide a claim
or defense to persons whose religious exercise is
substantially burdened by government.” Id. § 2000bb(1)–
(2) (emphasis added).
Congress explicitly codified the test formulated in
Sherbert and Yoder. But it did far more than that. It also
extended RFRA’s reach to include any other substantial
burdens (consistent with the Supreme Court’s application)
on religious practice. Congress employs not one but two
uses of “and.” Id. And Judge Bea ignores them both. We
cannot ignore statutory language like that. If Judge Bea were
correct, Congress would not need to have included language
guaranteeing RFRA’s application in all cases in which there
is a substantial burden. This is true even considering that
138 APACHE STRONGHOLD V. UNITED STATES
Congress referenced Sherbert and Yoder to the exclusion of
other cases, see Bea Dissent at 79–80, and that Congress
declined to use phrases like “for example” to indicate that
Sherbert and Yoder were mere examples of substantial
burdens, id. at 80. The entire text of the subsection does not
start and end with Sherbert and Yoder—it extends further to
all substantial burdens. We cannot read Congress’s words
out of existence. See TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)) (“We are ‘reluctant to treat statutory terms as
surplusage in any setting’ . . . .”).
Not only should we not read the statutory text out of
existence, we also ought not read words into RFRA that are
not there. That certain members of Congress made
statements about RFRA’s scope as Congress debated its
enactment does not provide any reliable evidence of RFRA’s
meaning. See VanDyke Concurrence at 155–56. “The
greatest defect of legislative history is its illegitimacy. We
are governed by laws, not by the intentions of legislators.”
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring). The use of such legislative history has been
properly criticized as being “neither compatible with our
judicial responsibility of assuring reasoned, consistent, and
effective application of the statutes of the United States . . .
.” Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia, J.,
concurring); see also Does 1-6 v. Reddit, Inc., 51 F.4th 1137,
1146 (9th Cir. 2022) (R. Nelson, J., concurring). And that
remains true even though one of the comments came from
Senator Hatch who sponsored and championed RFRA.
Particularly when legislative history supports our textual
interpretation of a statute, we must even more vigilantly
guard against encroaching on fundamental statutory
APACHE STRONGHOLD V. UNITED STATES 139
principles of construction. 7 Therefore, our assessment of
substantial burden and of any implication of pre-RFRA
cases, namely Lyng, must come from analysis grounded in
the text. And because “substantial burden” is not a term of
art with a specific definition, the soil theory is inapplicable.
B
I ultimately agree with Judge Collins’s majority opinion,
which relies on a more compelling theory in this case than
the soil theory. See Medina Tovar v. Zuchowski, 982 F.3d
631, 644 (9th Cir. 2020) (en banc) (Callahan, J., dissenting)
(“In the battle of competing aphorisms I think that ‘context
matters’ prevails over the interpretive canon ‘bringing the
old soil with it.’”). Judge Collins essentially invokes a
different understanding of the Canon of Prior Construction.
See Collins Maj. at 41–42 (citing Williams v. Taylor (Terry
Williams), 529 U.S. 362 (2000)). This familiar canon is one
of context: “If a statute uses words or phrases that have
already received authoritative construction by the
jurisdiction’s court of last resort, or even uniform
construction by inferior courts or a responsible
administrative agency, they are to be understood according
to that construction.” Scalia & Garner, Reading Law: The
Interpretation of Legal Texts 322.
7
Whether RFRA’s sponsor or a slew of law professors agree with our
reading of prior federal law has no bearing here where the statutory text
makes clear that RFRA did not overrule Lyng. Had these commentators
instead suggested that RFRA overruled Lyng, that would have similarly
been irrelevant. Relying on those subjective views undermines the long-
standing understanding that, “It is emphatically the province and duty of
the judicial department to say what the law is.” Marbury v. Madison, 5
U.S. 137, 177 (1803).
140 APACHE STRONGHOLD V. UNITED STATES
But construction is different than definition. Compare
Construction, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“The act or process of interpreting or explaining the
meaning of a writing”) with Definition, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“The meaning of a term as
explicitly stated in a drafted document such as a contract, a
corporate bylaw, an ordinance, or a statute”). Here, the
Supreme Court has not defined “substantial burden.” Even
so, the Court has construed the term. We apply that context
to this case. Lyng is an authoritative construction that the
substantial burden test codified in RFRA is inapplicable to
certain challenges, including one in which the government
manages its own land. True, the Smith majority rejected that
the application of the Sherbert test strictly turned on “the
government’s conduct of ‘its own internal affairs.’” 494
U.S. at 885 n.2 (citing Lyng, 485 U.S. at 439). But this was
to justify Smith’s rule of general applicability, which was
expressly overruled in RFRA. RFRA, however, does not
address, nor overrule Lyng.
This said, I do not read RFRA as enshrining just Justice
O’Connor’s view in her Smith concurrence. Cf. Collins Maj.
at 46. Justice O’Connor’s articulation of Sherbert’s
compelling interest test in her Smith concurrence was not her
mere opinion, nor was it “her” test—it was the test
established by decades of judicial precedent. Thus, in
overruling Smith, Congress codified this preexisting
framework in RFRA. And it follows that because RFRA’s
stated purpose was to reject Smith, § 2000bb(a), and its
effect was to codify the compelling interest test, id.
§ 2000bb(b)(1), RFRA therefore reinstated the legal
framework’s parameters as well. See Parker Drilling Mgmt.
Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (citing
McQuiggin v. Perkins, 569 U.S. 383, 398 n.3 (2013))
APACHE STRONGHOLD V. UNITED STATES 141
(“Congress legislates against the backdrop of existing law.”).
RFRA thus adopted the term “substantial burden” from the
Court’s prior construction of the Sherbert framework. It is
therefore not just Smith (or Justice O’Connor’s
concurrence), but the entirety of the Court’s pre-RFRA
jurisprudence, that provides the contours of substantial
burden.
I also have some reservations about Judge Collins’s
broad categorization of the Supreme Court’s opinion in Terry
Williams. That theory allows us to infer the meaning of a
word or phrase when “‘broader debate and the specific
statements’ of the Justices in a particular decision concern
‘precisely the issue’ that Congress later addresses in a statute
that borrows the Justices’ terminology.” Collins Maj. at 41–
42 (quoting Terry Williams, 529 U.S. at 411–12). There is
good reason to be cautious of an overapplication of this
theory. The Supreme Court has not relied on it in the 23
years since Terry Williams—and we never have previously.
Part of why Terry Williams has not been relied on more may
be the Supreme Court’s own limitation: “It is not unusual for
Congress to codify earlier precedent in the habeas context.”
529 U.S. at 380 n.11. That same principle has not been
established in the First Amendment context to date.
Given these concerns, this theory should be used
sparingly. But it is an appropriate application when
considering a unique context like habeas in Terry Williams
and an equally unique statute like RFRA where Congress
explicitly adopted a term from multiple cases to codify that
legal framework into law. See 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.’”). Thus, despite the
lack of explicit definition, the body of case law from which
142 APACHE STRONGHOLD V. UNITED STATES
“substantial burden” springs forecloses Apache Stronghold’s
RFRA claim here. A contrary conclusion would wrongfully
ignore the textualist roots of “substantial burden.”
The ultimate question is whether RFRA overrules Lyng.
As explained above, the stronger case is that Lyng remained
part of the “substantial burden” analysis. 8 The Supreme
Court has been clear: “‘If a precedent of this Court has direct
application in a case,’ . . . a lower court ‘should follow the
case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.’” Mallory v.
Norfolk S. Ry. Co., 143 S. Ct. 2028, 2038 (2023) (citing
Rodriguez de Quijas v. Shearson / Am. Express, Inc., 490
U.S. 477, 484 (1989)). “This is true even if the lower court
thinks the precedent is in tension with ‘some other line of
decisions.’” Id.
A commendable critique of Lyng might be that its
holding lacks in originalist or textualist support. As Smith
has been deeply criticized for its lack of original or textual
grounding, the same may be said about Lyng, which Smith
cites repeatedly. Cf. Fulton v. City of Philadelphia, 141 S.
Ct. 1868, 1888 (2021) (Alito, J., concurring) (Smith “can’t
be squared with the ordinary meaning of the text of the Free
Exercise Clause or with the prevalent understanding of the
scope of the free-exercise right at the time of the First
Amendment’s adoption.”). Justice Alito concludes that “the
ordinary meaning of ‘prohibiting the free exercise of
religion’ was (and still is) forbidding or hindering
unrestrained religious practices or worship. That
8
It has been argued that because RFRA applies to all federal government
action, 42 U.S.C. § 2000bb-3, it thus overrules Lyng. But RFRA also
instructs courts to look to “prior Federal court rulings.” 42 U.S.C.
§ 2000bb(a)(5). Lyng is such a prior federal court ruling.
APACHE STRONGHOLD V. UNITED STATES 143
straightforward understanding is a far cry from the
interpretation adopted in Smith.” Id. at 1896. Under that
definition, perhaps it is time for the Supreme Court to revisit
Lyng. But that is a task for a different Court on a different
day.
At any rate, Lyng remains the law. There, the Supreme
Court held that the government action at issue was not a
substantial burden because the First Amendment “simply
cannot be understood to require the Government to conduct
its own internal affairs in ways that comport with the
religious beliefs of particular citizens.” 485 U.S. at 448.
And because the land transfer here concerns the
government’s management and alienation of its own land,
which is no doubt part of its internal affairs, Lyng directly
applies to any statutory application of “substantial burden”
under RFRA as well. With no compelling evidence to
support a finding that Lyng was overruled when Congress
enacted RFRA, for the same reasons that Apache
Stronghold’s claim fails under the First Amendment, it fails
under RFRA too.
VII
RFRA is a unique statute. While the dissent raises a
plausible textual interpretation of “substantial burden,” I
ultimately disagree. In adopting RFRA, Congress used a
specific term—“substantial burden”—which should
reasonably be read to reject Smith but incorporate prior
Supreme Court construction of that term. While we lack a
precise definition, we are given guideposts. And Lyng is one
of those.
The phrase “substantial burden” does not exist in a
vacuum. Rather, decades of Supreme Court precedent
establish that only certain forms of substantial burdens are
144 APACHE STRONGHOLD V. UNITED STATES
cognizable as that term is used to apply the Free Exercise
Clause. And when the government seeks to manage its
internal affairs and operate on its own land, no such
cognizable burden exists under RFRA. Congress then
codified this standard and its associated boundaries in
RFRA. Because RFRA does not overrule the Supreme
Court’s binding precedent in Lyng, Apache Stronghold has
no viable RFRA claim here.
VANDYKE, Circuit Judge, concurring:
I agree with the majority that our decision in this case is
controlled by Lyng v. Northwest Indian Cemetery Protective
Association, 485 U.S. 439 (1988). I write separately to
elaborate on why the alleged “burden” in this case is not
cognizable under the Religious Freedom Restoration Act
(RFRA) and to explain why reinterpreting RFRA to impose
affirmative obligations on the government to guarantee its
own property for religious use would inevitably result in
religious discrimination. Occupying the background of the
majority opinion is a reality central to the resolution of this
case: there is no textual, historical, or precedential support
for the notion that a government’s refusal to use its own
property to enable or subsidize religious practice is a
cognizable burden under either the Free Exercise Clause or
RFRA. Even assuming it’s theoretically possible to
reconceptualize Uncle Sam’s parsimony as a “burden” on
religious exercise, such stinginess in the allocation of the
government’s own property isn’t the sort of burden our
religious freedom guarantees were ever meant to address.
And because the government action here did not constitute a
cognizable burden, any reliance on the substantiality of the
APACHE STRONGHOLD V. UNITED STATES 145
impact of the government’s decision on the plaintiffs in this
case is misguided.
I.
Enacted in response to one of the most criticized
Supreme Court decisions in history, 1 RFRA was a laudable
attempt to broadly restore religious liberty. But like any
rights-endorsing statute, no matter its scope, RFRA has its
limits. A cognizable RFRA claim arises only when (1) the
government (2) substantially (3) burdens (4) religious
exercise. 42 U.S.C. § 2000bb-1(a). Apache Stronghold
claims that the government will burden the Apaches’
religious exercise—specifically, their use of Oak Flat to
worship and conduct ceremonies—by transferring
ownership of the government’s property to Resolution
Copper.
Because it is undisputed that the Apaches’ desire to use
Oak Flat to worship and conduct ceremonies qualifies as
religious exercise, the only issue before our court is whether
the transfer is an instance of the government burdening the
Apaches’ religious exercise as that action has long been
understood under RFRA and the Free Exercise Clause. After
considering the logic underlying RFRA, and then reviewing
the proper Free Exercise Clause and RFRA frameworks, it
becomes apparent that the government does not burden
religious exercise by refusing to ensure the government’s
own property remains available to enable it.
1
Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990).
146 APACHE STRONGHOLD V. UNITED STATES
A. A commonsense reading of RFRA does not
suggest the government burdens religion by
refusing to use its property to enable religious
activity.
Notwithstanding the volume of ink spilt today by our en
banc court across multiple opinions, it’s safe to say that we
all agree on at least one thing: RFRA provides a claim for
some—but not all—burdens that a person may experience in
relation to his or her religious exercise. For starters, the
burden must have been imposed by a particular entity—
namely, the government. And related to that, when the
government acts (or fails to act), not all of its actions (or
inactions) that may have some incidental effect on an
individual’s religious exercise are deemed to “burden” that
person’s religious exercise within the meaning of our
guarantees of religious freedom. 2
This is confirmed by both common sense and the
ordinary meaning of the verb “burden,” as a few illustrations
will show. Imagine, for example, that a Muslim believes he
must complete a religious pilgrimage to Mecca during his
lifetime. But he lacks the money to do so. If his sister has
enough money to pay for the trip but refuses to give it to him,
no one would seriously claim that the sister “burdened” her
brother’s religious exercise by refusing to give him her
money to enable his exercise. Sure, there is a sense in which
the brother faces a burden on his religious exercise: he
doesn’t have something he needs to enable it. But few if any
2
Indeed, Apache Stronghold’s able counsel acknowledged at oral
argument that not every government action that might be characterized
as a “burden” is cognizable under RFRA, including when the
government refuses to sell its land to a private party to build a church on
the property.
APACHE STRONGHOLD V. UNITED STATES 147
would say his sister caused that burden by refusing to give
him her money.
If our example were changed slightly so that the brother
asked the government instead of his sister for the money, the
result would be unchanged. Characterizing the
government’s unwillingness to give its resources to our
disadvantaged Muslim friend as a government-imposed
burden on his religious exercise would be no less strange
than in our first example.
That is the key to this case. Much has been said about
the substantiality of the burden the Apaches will experience
when the government’s Oak Flat property is traded and
eventually destroyed. It is certainly true that the effect is
substantial. But its substantiality is irrelevant in this case.
Even assuming one could counterintuitively characterize the
government’s unwillingness to give someone its property as
a “burden,” such a burden is not the type of government-
imposed burden that is cognizable under RFRA or the Free
Exercise Clause. Few people today would characterize the
government withholding its own property as the government
imposing a burden. And there is no reason to think that such
a peculiar conception of a government-imposed burden had
any more purchase at the time of the nation’s founding, at
the time of the Fourteenth Amendment’s ratification, or at
the time of RFRA’s enactment. In short, Apache
Stronghold’s RFRA claim fails because the government’s
use of its own property simply does not impose on the
Apaches’ religious exercise the type of “burden” that either
RFRA or the Free Exercise Clause contemplate.
148 APACHE STRONGHOLD V. UNITED STATES
B. Under the Free Exercise Clause, the government
does not burden religious exercise by managing
its own property.
The Free Exercise Clause comes into play when the
government “prohibit[s]” the “free exercise” of religion,
U.S. Const. amend. I, which courts have long interpreted as
doing something that burdens such free exercise. Because
this constitutional right “is written in terms of what the
government cannot do to the individual, not in terms of what
the individual can exact from the government,” the Supreme
Court has recognized that government actions involving the
government’s use of its own resources do not impose a First
Amendment burden on a person’s religious exercise, even
when such government actions may indirectly—and
possibly even substantially—affect religious exercise. Lyng,
485 U.S. at 450–51 (emphasis added) (quoting Sherbert v.
Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring)).
Since well before Smith, it has been commonly understood
that the government does not impose a burden when it
merely refuses to subsidize a religious exercise. See, e.g.,
Regan v. Tax’n with Representation of Wash., 461 U.S. 540,
549 (1983) (“We have held in several contexts that a
legislature’s decision not to subsidize the exercise of a
fundamental right does not infringe the right, and thus is not
subject to strict scrutiny.”); Sherbert, 374 U.S. at 412
(Douglas, J., concurring) (“The fact that government cannot
exact from me a surrender of one iota of my religious
scruples does not, of course, mean that I can demand of
government a sum of money, the better to exercise them.”).
The understanding that a refusal to subsidize does not
burden religious exercise is obviously not limited to just the
government’s money. A Catholic priest can no more
demand that the government provide him with communion
APACHE STRONGHOLD V. UNITED STATES 149
wine than he can demand that the government provide him
with money to buy that wine. An elder of the Church of
Jesus Christ of Latter-Day Saints can’t insist that the
government give him either a bicycle or the cash to buy one.
Nor can a pastor require that the government provide him a
church on government land so that he can better serve his
flock. As in our initial Mecca example, the government has
not “burdened” anyone’s religious exercise in any of these
examples by withholding its own resources.
Of course, every level of government in our nation
distributes a variety of government benefits to a variety of
recipients. And when the government does that, it cannot do
so in a way that discriminates against or between religions.
In Sherbert, for example, a state government provided
unemployment benefits to workers who required Sunday off
to practice their faith, but not to those whose religion
required them to take Saturday off. 374 U.S. at 399–400,
406. The Supreme Court correctly concluded that the Free
Exercise Clause disallows such discrimination between or
against religions in the provision of government benefits. Id.
at 404. The Court explained that such differential treatment
of religious adherents in the allocation of government
benefits imposes the type of “burden” on religious liberty
that the Free Exercise Clause was meant to protect against.
Id. Indeed, it “puts the same kind of burden upon the free
exercise of religion as would a fine imposed against
appellant for her Saturday worship.” Id. This is because “to
condition the availability of benefits upon [a religious
observer’s] willingness to violate a cardinal principle of her
religious faith effectively penalizes the free exercise of her
constitutional liberties.” Id. at 406. Thus, Sherbert and its
progeny make clear that once the government chooses to
provide government benefits, it cannot do so in a
150 APACHE STRONGHOLD V. UNITED STATES
discriminatory fashion that effectively coerces potential
recipients into abandoning their constitutional right to freely
exercise their religion.
But of course, nowhere did Sherbert (or any case since)
conclude that the government had to provide unemployment
benefits to anyone in the first instance; it simply concluded
that if the government chose to do so, it couldn’t religiously
discriminate. See, e.g., Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017) (“[T]he
exclusion of Trinity Lutheran from a public benefit for
which it is otherwise qualified, solely because it is a church,
is odious to our Constitution … and cannot stand.”). I’m not
aware of any case applying Sherbert’s anti-discrimination
principle that holds the government must either start
providing or continue providing some government benefit—
again, those cases simply stand for the reasonable
proposition that if the government is doling out benefits, it
must not discriminate against religion in the process of doing
so.
Unsurprisingly, the Supreme Court has also made clear
that the Free Exercise Clause protects against the
government burdening religious exercise by directly
imposing requirements on people that are at odds with their
religious beliefs. The Supreme Court addressed this
situation in Wisconsin v. Yoder, 406 U.S. 205 (1972).
Wisconsin had attempted to make school attendance
mandatory until the age of 16. Id. at 207. This compulsory-
attendance law was “undeniably at odds with fundamental
tenets of [Amish] religious beliefs” and presented the Amish
with a classic dilemma: exercising their religious beliefs
would lead to criminal sanctions, but compliance with the
law would violate their beliefs. Id. at 218. Yoder and many
cases since then stand for the straightforward proposition
APACHE STRONGHOLD V. UNITED STATES 151
that, when the government says, “you must do X,” and your
religion says, “you must not do X,” then the government’s
demand has burdened your religious exercise.
Both the Yoder type of burden and Sherbert type of
burden, while different, converge under a single concept:
government coercion. Yoder involved the most direct form
of coercion: violate your religious scruples or be punished.
Sherbert’s coercion is less direct but not necessarily less
coercive: violate your religious scruples or be denied an
otherwise available government benefit. Both the Yoder and
Sherbert types of government coercion are conceptually
quite different from a theoretical third type: the government
simply refusing to give someone its property so that he can
use it to exercise his religion. 3 This third type of government
action is different in kind from the first two. In no way is
the government coercively inducing or requiring people to
3
It is important to distinguish between a Sherbert-type burden and this
third potential type of claim. Both involve the government withholding
its property, but in Sherbert the government is already giving its property
to some religious adherents, while discriminatorily withholding its
property from others of a different religion. Thus, in a Sherbert case, the
baseline condition is, so to speak, that the government is already
providing its property to some (but not all) religious adherents. In
contrast, the baseline condition in a case like this one is that the
government is not giving its property to anyone, and the religious
claimants nonetheless insist that the government must uniquely provide
them with government property to enable their religious exercise.
Apache Stronghold has not tried to make a Sherbert-type religious
discrimination claim in this case, presumably because the government
isn’t discriminatorily “giving” its land to anyone but is instead trading
the government-owned Oak Flat for other land owned by the mining
company. In other words, the government is effectively selling Oak Flat
to the mining company, and Apache Stronghold hasn’t claimed any
discriminatory action on the part of the government in, say, rejecting an
equivalent competing offer from Apache Stronghold.
152 APACHE STRONGHOLD V. UNITED STATES
violate their religious beliefs. Instead, any coercion works
in the opposite direction: people are demanding that the
courts make the government enable or subsidize their
religious beliefs by uniquely providing them with
government property.
While an able lawyer can certainly characterize this third
type of claim as a “burden,” it has been well understood
since before Smith that the Free Exercise Clause does not
cover any such government decisions, regardless of the
label. This is most unmistakably demonstrated by Lyng.
There, the federal government had permitted the building of
a road and the harvesting of timber on publicly owned land.
Lyng, 485 U.S. at 441–42. Some Native American tribes
argued that this would burden their religious practice on the
government’s land. Id. at 447. But as the Court explained,
the project did not burden religious exercise within the
meaning of the Free Exercise Clause. Id. at 452.
Notwithstanding that the claimed effects from the road-
building project could be “severe” and “virtually destroy
the … Indians’ ability to practice their religion,” those
effects did not give rise to a cognizable burden. Id. at 447,
450–51.
The reason the Indian tribes lacked a Free Exercise
Clause claim in Lyng was because, despite the “devastating”
incidental effect that the government’s management of its
own land would have on their religious exercise, id. at 451,
the tribes would not “be coerced by the Government’s action
into violating their religious beliefs; nor would [the]
governmental action penalize religious activity by denying
[them] … benefits,” id. at 449. As Lyng made clear, the
“Free Exercise Clause affords an individual protection from
certain forms of governmental compulsion; it does not afford
an individual a right to dictate the conduct of the
APACHE STRONGHOLD V. UNITED STATES 153
Government’s internal” affairs, particularly the
government’s management of its own property. Id. at 448
(emphasis added) (quoting Bowen v. Roy, 476 U.S. 693,
699–700 (1986)).
Nothing since Lyng has cast into question the
straightforward understanding that the Free Exercise Clause
does not require the government to let you use its property—
including its real property—to exercise your religion. Our
court, sitting en banc fifteen years ago, reviewed these same
cases and reached the same conclusion. See Navajo Nation
v. U.S. Forest Serv., 535 F.3d 1058, 1068–73 (9th Cir. 2008)
(en banc). 4 Regardless of how you label it, the government’s
nondiscriminatory use of its own property has never been
understood to impose a constitutionally cognizable burden
on someone’s religious freedom—even when such
governmental decisions incidentally have “devastating” and
“severe adverse effects on the practice of [a] religion.” Lyng,
485 U.S. at 447, 451.
C. RFRA adopted the ordinary meaning of
“burden” as that term had been uniformly
understood in Free Exercise Clause cases.
Echoing decades of Free Exercise precedent, RFRA
prohibits the government from burdening a person’s
religious exercise. 42 U.S.C. § 2000bb-1(a). As is typical
in many statutes, RFRA defined some but not all terms that
determine whether a person has a cognizable RFRA claim.
For example, RFRA tells us that a person’s “religious
exercise” includes “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” Id.
4
Our court reached the right result in Navajo Nation, although I might
quibble with some of its rationale.
154 APACHE STRONGHOLD V. UNITED STATES
at §§ 2000bb-2(4), 2000cc-5(7)(A). Since this is a clear
departure from how religious exercise had been understood
under the First Amendment, 5 it made sense for Congress to
provide that definition. But tellingly, RFRA does not define
what it means for the government to “burden” religious
exercise. The obvious reason for that, given the context of
RFRA’s enactment and its clear textual departures from the
First Amendment in other regards, is that RFRA meant
“burden” in the way it had been commonly understood in the
Free Exercise Clause context. Indeed, the Supreme Court
has acknowledged as much. See Tanzin v. Tanvir, 592 U.S.
43, 46–48 (2020) (citing Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 323 (2012)).
In pre-RFRA First Amendment caselaw, it was well
understood that the government burdens religious exercise
when it acts in a coercive manner, and that the government’s
decisions about how it uses its own property are not coercive
unless they discriminate (as in Sherbert). During and
immediately after RFRA’s enactment, everyone understood
that RFRA carried forward this ordinary understanding of
what it means to burden religious exercise. Post-RFRA
caselaw only further confirmed that RFRA adopted the
ordinary meaning of how the government may impose a
5
Prior to being amended by the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. (RLUIPA), RFRA
defined “exercise of religion” as “the exercise of religion under the First
Amendment to the Constitution.” Under this standard, courts had
required the burdened religious exercise to be “central to” or “compelled
by” the religion. See, e.g., Graham v. C.I.R., 822 F.2d 844, 850–51 (9th
Cir. 1987), aff’d sub nom. Hernandez v. Comm’r, 490 U.S. 680, 699
(1989); O’Lone v. Est. of Shabazz, 482 U.S. 342, 345 (1987); see also
Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995); Weir v. Nix, 114 F.3d
817, 820 (8th Cir. 1997).
APACHE STRONGHOLD V. UNITED STATES 155
burden—and specifically, as relevant to this case, that the
government’s use of its own property burdens religious
exercise only when it is allocated in a discriminatory
manner. Here, there is no claim that the government has
used its resources in a discriminatory manner, and the
government therefore has not burdened the Apaches’
religious exercise within the meaning of RFRA.
i. The ordinary understanding of RFRA does
not support the claim that the government
burdens religious exercise by using its own
resources in a nondiscriminatory manner.
If RFRA’s plain text doesn’t make it obvious enough that
RFRA did not depart from the ordinary meaning of “burden”
under the Free Exercise Clause, the discussion surrounding
the passage of RFRA further confirms that the government
does not burden religious exercise by using its own resources
in a nondiscriminatory manner.
When Congress enacted RFRA, it was well understood
that a burden is imposed by the government’s use of its own
resources only when the use of such resources discriminates
against or between religions. Readily accessible examples
of this widespread understanding are provided by
congressional statements explicitly maintaining that RFRA
“does not apply to government actions involving only
management of internal Government affairs or the use of the
Government’s own property or resources.” S. Rep. 103–
111, at 9 (1993); see also 139 Cong. Rec. 26193 (1993)
(remarks of Sen. Hatch) (explaining that Lyng and Bowen
are unaffected by RFRA). 6 Leading religious liberty
6
Judge R. Nelson mildly chastises me for engaging in supposed faint-
hearted textualism by citing the congressional record. I agree with both
156 APACHE STRONGHOLD V. UNITED STATES
scholars shared a similar understanding of RFRA’s effect,
observing immediately after its enactment that, under
RFRA, a “cognizable burden” does not exist when the
government uses its resources in a nondiscriminatory
manner that has only an indirect effect on religion. See
Douglas Laycock & Oliver S. Thomas, Interpreting the
Religious Freedom Restoration Act, 73 Tex. L. Rev. 209,
228–30 (1994) (footnotes omitted). 7 No burden exists
him and Justice Scalia, whom he quotes, that “[e]ven if the members of
each house wish to do so, they cannot assign responsibility or making
law—or the details of law—to one of their number, or to one of their
committees.” Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 386 (2012). But as should be sufficiently
clear from context, I am not citing to the views of specific legislators for
the purpose of conclusively determining what RFRA means. Nor am I
(as charged) preferencing legislative history just because it happens to
support my understanding of RFRA. Instead, I cite such statements as
further evidence of my point—with which I believe Judge Nelson
agrees—that at the time of RFRA’s enactment, nobody would have
understood the government’s decision about what to do with its own land
to be a cognizable burden under RFRA. Individual legislators are no
more able to authoritatively speculate about how a law will apply in a
certain case than anyone else. That goes for legal academics, too—who
I also cite. “The interpretation of the laws is,” after all, “the proper and
peculiar province of the courts,” not Congress or the academy or anyone
else. Alexander Hamilton, Federalist No. 78. My point is only to
demonstrate the unanimity of understanding about what did and did not
constitute a burden on religious exercise at the time of RFRA’s passage,
which matters here because RFRA’s text indicates that it should be
understood by reference to the state of Free Exercise jurisprudence
before Smith.
7
See also Luralene D. Tapahe, After the Religious Freedom Restoration
Act: Still No Equal Protection for First American Worshippers, 24 N.M.
L. Rev. 331, 345 (1994) (noting that pre-RFRA courts declined to extend
First Amendment protection to “challenges to government control of
non-Indian land” and later explaining that, “[s]ince RFRA mandates that
strict scrutiny be used only if a burden is first found, Indian free exercise
APACHE STRONGHOLD V. UNITED STATES 157
because citizens simply “may not demand that the
Government join in their chosen religious practices” by
providing the resources for such practices. Id. (quoting
Lyng, 485 U.S. at 448). Everyone understood that, under
RFRA, the government retains its right to use its resources
according to its own preferences. 8 It does not have the
claims will likely be resolved in the very same manner as before”); Ira
C. Lupu, Of Time and the RFRA: A Lawyer’s Guide to the Religious
Freedom Restoration Act, 56 Mont. L. Rev. 171, 202 (1995) (explaining
that the “developing case law” on “substantial burden” under RFRA
suggests that “religious exercise is burdened only by the combination of
legal coercion and religious duty”); Daniel O. Conkle, The Religious
Freedom Restoration Act: The Constitutional Significance of an
Unconstitutional Statute, 56 Mont. L. Rev. 39, 73 & n.172 (1995) (noting
that although “RFRA repudiates Smith, … it appears to leave the internal
operations cases,” such as Lyng and Bowen, “unaffected”).
8
I of course agree with Judge Nelson that “[i]t is emphatically the
province and duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But I
respectfully disagree with his insistence that the uncontradicted view of
a “slew of law professors” and legislators “has no bearing” on the proper
interpretation of RFRA. I presume that Judge Nelson and I agree that it
is the original public meaning of the text that controls our analysis, not
some hidden or idiosyncratic meaning devised by judges. See Lynch v.
Alworth-Stephens Co., 267 U.S. 364, 370 (1925) (“[T]he plain, obvious,
and rational meaning of a statute is always to be preferred to any curious,
narrow, hidden sense that nothing but the exigency of a hard case and
the ingenuity and study of an acute and powerful intellect would
discover.”). Part of the endeavor of surmising the original public
meaning is understanding what the public would have originally
understood the legislative enactment to mean, including the part of the
public that was elected to Congress. If, for example, every law professor,
every Congressman, and every other literate person in the United States
were on record opining that a particular statute meant “X,” I would hope
good originalists could count that as some useful evidence that its
original public meaning was indeed “X,” not “Y.” See, e.g., Bostock v.
Clayton County, 140 S. Ct. 1731, 1757 (Alito, J., concurring) (“As I will
158 APACHE STRONGHOLD V. UNITED STATES
obligation to enable religious practice by donating its own
property.
ii. Cases interpreting RLUIPA are not
inconsistent with this well-established
understanding of RFRA.
Understandably seeking to distance themselves from the
settled understanding that the government does not burden
religious exercise through the mere use of its resources in a
nondiscriminatory manner, Apache Stronghold and the
dissent focus heavily on caselaw interpreting a different
statute, RLUIPA, to argue that the government will burden
the Apaches’ religious exercise because the Apaches won’t
be able to access Oak Flat once it is physically destroyed. In
doing so, they improperly divorce the RLUIPA cases from
the comprehensive and individualized coercive context
inherent in every single RLUIPA case, implicitly endorsing
that the Apaches are effectively prisoners in this country and
therefore indistinguishable from the actual prisoners who
bring claims under RLUIPA. Applying that obviously
controversial assumption—and making no attempt to show
that this assumption was widely shared when RFRA was
enacted in 1993—the dissent relies heavily on what has been
show, there is not a shred of evidence that any Member of Congress
interpreted the statutory text that way when Title VII was enacted. …
And for good measure, the Court’s conclusion that Title VII
unambiguously reaches discrimination on the basis of sexual orientation
and gender identity necessarily means that the EEOC failed to see the
obvious for the first 48 years after Title VII became law.”). That is all I
mean by referencing legislative statements above—it is part of my proof
that everyone who knew anything about RFRA when it was enacted
understood it as not requiring holy handouts of the government’s own
property.
APACHE STRONGHOLD V. UNITED STATES 159
deemed a substantial burden on religious exercise in the
prison context.
I agree with the dissent that the substantiality of a burden
can be measured the same way under both RLUIPA and
RFRA. But whether a burden is cognizable in the first
instance has always been a context-dependent inquiry. And
what constitutes a cognizable burden in the prison context—
surely the most comprehensively coercive setting in
America today—obviously may be very different from what
constitutes a “burden” under RFRA. That is why, for
example, a Jewish prisoner has a right under RLUIPA to
require the government to provide him with kosher meals,
whereas a Jewish man outside of prison has no right to insist
that the government deliver him free kosher food. 9
The dissent’s need to resort to RLUIPA prison cases to
justify its preferred outcome in this case is very telling. In
9
The other category of cases addressed by RLUIPA—land-use
regulations, or “zoning”—is equally comprehensively coercive. Every
zoning case involves the government telling someone what he can or
can’t do with his own land. So when the government tells someone he
can’t build a church on his own land, for example, that is just as coercive
as forbidding someone from buying communion wine with his own
money. As such, RLUIPA land-use cases, like cases in the prison
context, usually don’t involve hard questions about whether the
government’s regulation actually causes a burden on religious exercise.
The coercive burden is obvious, inevitably making the litigated question
whether the burden is substantial. See, e.g., Guru Nanak Sikh Soc’y of
Yuba City v. County of Sutter, 456 F.3d 978, 988–92 (9th Cir. 2006)
(discussing whether the regulation was “oppressive to a significantly
great extent” (cleaned up)); Int’l Church of Foursquare Gospel v. City of
San Leandro, 673 F.3d 1059, 1066 (9th Cir. 2011) (citing Guru Nanak,
456 F.3d at 987) (“[O]ur practice is to examine the particular burden
imposed by the implementation of the relevant zoning code on the
claimant’s religious exercise and determine, on the facts of each case,
whether that burden is ‘substantial.’”).
160 APACHE STRONGHOLD V. UNITED STATES
prisons, the “government exerts a degree of control
unparalleled in civilian society.” Cutter v. Wilkinson, 544
U.S. 709, 720 (2005) (emphasis added). It controls every
aspect of an inmate’s life and renders him fully dependent
on the government by stripping him of his ability to provide
for his own needs. Brown v. Plata, 563 U.S. 493, 510
(2011). It is certainly true that in RLUIPA cases, courts have
concluded that the government must provide resources to
prisoners for their religious exercise. But that’s for the same
reason they require the government to provide prisoners with
basic sustenance like food and clothing, id., or medical care,
Estelle v. Gamble, 429 U.S. 97, 103 (1976), or protection
from other inmates, Farmer v. Brennan, 511 U.S. 825, 833
(1994)—because the government has coercively “stripped
them of virtually every means of” providing for themselves,
id. In a very real sense, the prisoner depends on the grace of
the government for all his needs and in all his activities. This
degree of direct and immediate coercion is, again,
“unparalleled in civilian society.” Cutter, 544 U.S. at 720
(emphasis added).
As a result, in the vast majority of RLUIPA cases there
is no need to explicitly analyze whether the government’s
action burdens religious exercise—it’s a given. The only
question is substantiality. And that may also be true for some
RFRA cases. But it is not true for all of them, and certainly
not this one. This case presents the opposite situation
encountered in most RLUIPA cases. The substantiality of
the effect on the Apaches’ religious exercise is obvious; it is
the legal cognizability of any burden that is at issue. Thus,
the dissent’s extensive reliance on inapt RLUIPA cases
analyzing the substantiality of an undisputed burden is badly
misplaced.
APACHE STRONGHOLD V. UNITED STATES 161
Ultimately, the dissent cannot rely on RLUIPA prison
cases without also showing that the Apaches are identically
situated vis-à-vis the government as the prisoners in those
cases. The dissent makes no attempt to do so, and more
importantly makes no attempt to show that this was the
common understanding when RFRA was enacted. Absent
such a showing, the only justification for the dissent’s
extensive reliance on inapt RLUIPA jurisprudence to defend
its result in this case is an implicit recognition that it can’t
find justification in RFRA and the Free Exercise Clause. As
discussed, all the RFRA and Free Exercise Clause cases
support the common understanding that, unless you’re the
government’s prisoner (literally, not metaphorically), the
government’s nondiscriminatory use of its own property is
not the type of action that gives rise to a cognizable burden
on religious exercise.
D. The government’s swap of Oak Flat for other
property does not burden the Apaches’ religious
exercise under RFRA.
This case is not meaningfully different from Lyng or
Navajo Nation. In all three cases, the government wanted to
do something with its own land. In all three cases, what the
government planned to do would substantially affect how the
tribes wanted to use the government’s land for their own
religious exercise. In Lyng and Navajo Nation, courts
rejected the First Amendment and RFRA claims because,
notwithstanding the “devastating effects” on religious
exercise resulting from the government’s planned use of its
land, the Free Exercise Clause and RFRA simply do not
recognize such burdens resulting from the government’s
nondiscriminatory use of its own property. This case is no
different, but the dissent would have this court reach the
opposite result. In doing so, it would for the first time
162 APACHE STRONGHOLD V. UNITED STATES
characterize something as a “burden” under RFRA that has
never before been considered a cognizable burden. To do so
would be an obvious rewriting of statutory law—a job for
Congress, not the courts.
II.
Reconceiving the government’s nondiscriminatory use
of its own property as a cognizable burden under RFRA
would not only require a judicial rewrite of the statute; it
would turn the statute on its head, requiring instead of
reducing religious discrimination. Because the
government’s resources are not infinite, the expansion of
RFRA advocated by Apache Stronghold and the dissent
would inevitably require the government to discriminate
between competing religious claimants. While no doubt
some such claims—including those made by Apache
Stronghold in this case—would be sympathetic, there is no
way to resolve this case in the Apaches’ favor without
endorsing a rule that would one day soon force the
government to pick religious winners and losers. So even if
this court did require the government to effectively hand
over Oak Flat as a religious offering to the Apaches, only
some religions would benefit from the precedent created by
such a decision. 10
10
In Part I of this opinion, I have endeavored to explain why I think the
dissent’s proposed interpretation of RFRA is wrong as a legal matter.
And now, in Part II, I explain why that view is also wrongheaded. Judge
Nelson misunderstands this approach, confusing the reasons I agree with
the majority’s interpretation of RFRA (Part I) with the warnings I make
about religious discrimination that would inevitably result if the dissent’s
rewrite of RFRA was adopted (Part II). But to be clear, I agree with
Judge Nelson that “[t]he dissenters are not wrong … because under their
view ‘only some religions would benefit from the precedent created by
such a decision.’” The reason the dissenters are wrong is because they
APACHE STRONGHOLD V. UNITED STATES 163
Eventually, lines limiting the court-enforced distribution
of the government’s largesse would need to be drawn. And
because, as explained above, the dissent’s novel approach
has no basis in the text or original understanding of RFRA,
any judicially created distinctions limiting the extent of the
resulting religious entitlement would similarly lack any
statutory justification. Worse, such distinctions would
necessarily discriminate between religions, offering
government property to some and not others and turning
RFRA into a tragic parody of itself. One need look no
further than the dissent itself to see early indications of the
kind of discriminatory distinctions that might flow from this
atextual understanding of RFRA.
A. The dissent would establish a discriminatory
preference in favor or older religions and against
newer ones.
Not far into the dissent, the reader encounters the first
such distinction: religious practices with a lengthy historical
pedigree apparently deserve more protection than newly
established ones. Parroting Apache Stronghold’s repeated
emphasis that the Apaches have worshipped at Oak Flat
“since time immemorial,” the dissent heavily implies the
Apaches should be treated preferentially because their
religious exercise is a long-established practice. 11
advance a view of RFRA that has no basis in its original public meaning.
My point here is that in addition to being the legally wrong interpretation,
the dissenters’ judicial revision of RFRA would also undermine the
equal protection of religion that RFRA was enacted to protect.
11
The dissent is not alone in emphasizing the ancient nature of the
Apaches’ religious practice. Both the panel and motion-stage dissents
164 APACHE STRONGHOLD V. UNITED STATES
The trouble with emphasizing the lengthy history of the
Apaches’ religious practice at Oak Flat is that it is entirely
irrelevant to our analysis under RFRA and the Free Exercise
Clause. Our religious liberty protections “apply to all
citizens alike,” Lyng, 485 U.S. at 452, and with equal force
to a religion founded yesterday as to one with roots deep in
prehistory. How long a person has practiced a religion, or
how old that religion is, should be “immaterial to our
determination that … free exercise rights have been
burdened; the salient inquiry under” both RFRA and the Free
Exercise Clause “is the burden involved.” Hobbie v.
Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144
(1987). It is bad enough that Apache Stronghold’s counsel
made this discriminatory argument. Our court has
thankfully refused to make things worse by imbuing it with
the force of law. 12
did so also. See, e.g., Apache Stronghold v. United States, 38 F.4th 742,
774 (9th Cir. 2022) (Berzon, J., dissenting).
12
It’s not hard to see how invidious this argument is when you consider
a sincere religious observer whose newer religion requires the
ceremonial use of Oak Flat, just like the Apaches. The government’s
action of trading Oak Flat for other land would have exactly the same
effect on both the observer of a newer religion and an Apache: neither
would be able to use Oak Flat for religious ceremonies. But accepting
the dissent’s implicit premise that the “time-immemorial” nature of the
Apaches’ religious practice at Oak Flat is legally significant could lead
to a different result in each of the two cases: the transfer of Oak Flat
would burden the Apaches’ religious exercise, but the same transfer
might not burden a similarly situated practitioner of the newer religion
simply because the person (or, more precisely, the person’s
predecessors) had not used the land before or for long enough. And what
about a religion of intermediate age—say, a hundred years or so? How
long is “long enough” to warrant protection under RFRA? By
introducing the age of a religion and the length of religious practice as
variables relevant to the analysis, the dissent offers an arbitrary and
APACHE STRONGHOLD V. UNITED STATES 165
Of course, the suggestion that long-established religious
practices should receive favorable treatment under RFRA is
made only lightly. The dissent stops short of a full-throated
defense of such a rule. Instead, it contents itself to repeatedly
emphasize the longstanding nature of the Apaches’ religious
practice and leaves the legal significance of that fact to
implication. Making the argument explicitly would lay its
blatantly discriminatory character bare, but subtle though it
may be, the dissent unmistakably lays the groundwork for a
discriminatory limiting principle that (need it be said?) could
never be supported under either the Free Exercise Clause or
RFRA.
B. The dissent’s interpretation of RFRA also
discriminates by providing more protection
against burdens accompanied by significant
physical or environmental impacts.
Both the dissent and Apache Stronghold also take care to
emphasize the extent of the physical destruction associated
with the transfer of Oak Flat. The import of such argument
is clear: as with age, the dissent and the Apaches would also
establish a discriminatory preference in favor of protecting
burdens on religious exercise with a significant physical or
environmental component when compared to burdens
associated with less physical manifestations. But doing so
would be double error, both because such a rule wrongly
implies that a practitioner’s religious harm under RFRA
claim is somehow predicated on the physical attributes of the
intrusion, and because it invites courts to measure the
comparative significance of religious harms in physical
terms, a behavior strictly prohibited in our jurisprudence.
discriminatory distinction between observers of newer religions and
long-established ones—a distinction that has no basis in RFRA.
166 APACHE STRONGHOLD V. UNITED STATES
Ultimately, this distinction too is contrary to both the text of
RFRA and the background precedent that informed its
understanding, and if adopted, it would likewise perpetuate
religious discrimination.
i. Attempting to distinguish Lyng and Navajo
Nation by focusing on the extent of the
physical impact reads a discriminatory
preference for land-based religious practices
into RFRA.
The biggest hurdle faced by the dissent and the Apaches
is that this case is strikingly similar to both the Supreme
Court’s decision in Lyng and our court’s en banc decision in
Navajo Nation. To get around these cases, which doom its
claims, Apache Stronghold attempts to distinguish them by
emphasizing the physical differences between the
government’s actions in those cases and this one. Navajo
Nation and Lyng are different, they contend, because
“neither … involved physical destruction of a sacred site.”
The dissent employs similar logic, distinguishing Lyng on
the basis that the transfer will result in the “utter destruction”
of Oak Flat, which “will prevent the Western Apaches from
visiting Oak Flat for eternity.” Not only does this argument
fail to provide a suitable basis to distinguish Lyng and
Navajo Nation, but it also introduces another arbitrary and
discriminatory limitation on the scope of RFRA’s
protection.
In Navajo Nation, the government allowed a mountain
sacred to multiple Indian tribes to be showered daily with 1.5
million gallons of poopy water that, according to those
tribes, would desecrate the mountain, render it impure, and
destroy their ability to perform certain religious ceremonies.
535 F.3d at 1062–63; id. at 1081 (Fletcher, J., dissenting).
APACHE STRONGHOLD V. UNITED STATES 167
So both Navajo Nation and this case present precisely the
same impact on religious exercise from government land-use
decisions: elimination of the ability to perform religious
ceremonies. The dissent here, however, distinguishes
Navajo Nation by asserting that “nothing ‘with religious
significance … would be physically affected’” by the
government’s decision to spray recycled wastewater
containing human waste onto a sacred mountain (emphasis
added). But that downplays the spiritual significance of the
government’s action in Navajo Nation and ignores the
court’s later reasoning in the same opinion that “[e]ven were
we to assume … that the government action in this case
w[ould] ‘virtually destroy the … Indians’ ability to practice
their religion,’” the result would not have changed. Navajo
Nation, 535 F.3d at 1072 (quoting Lyng, 485 U.S. at 451).
The dissent similarly distinguishes and downplays the
government’s land-use decisions in Lyng—notwithstanding
their “severe” and “devastating effects on traditional Indian
religious practices”—by highlighting the limited physical
effects of the government’s actions in Lyng. In the face of
Lyng and Navajo Nation, it nevertheless continues to rely on
the extent of the physical impact that will result from the
government’s decision to transfer Oak Flat.
There is little doubt that the government’s decision to
transfer Oak Flat will have consequences for the physical
environment in and around that area, but as much as some
may wish otherwise, this is not an environmental case. This
is a case about religious injury, and the measure of that injury
is the harm to religious exercise. That harm is precisely the
same here as it was in Lyng and Navajo Nation: the complete
inability of Native Americans to conduct certain religious
ceremonies because of government decisions about how it
uses government land.
168 APACHE STRONGHOLD V. UNITED STATES
The desire to distinguish Lyng and Navajo Nation by
emphasizing the physical impact of the challenged
government decision is certainly understandable from an
environmentalist’s perspective, but doing so would result in
an unfortunate perversion of RFRA. The view advocated by
Apache Stronghold and endorsed by the dissent threatens to
turn RFRA into a statute that arbitrarily gives greater
protection to burdens on religious exercise that are more
physical in nature, while downplaying equally significant
burdens on other forms of religious exercise simply because
they don’t similarly affect the physical environment. Such
an approach privileges forms of religious exercise that
preserve the physical environment at the expense of other
religious exercise that might arguably lack similar positive
environmental externalities. Again, it is understandable why
this might be an attractive rewrite of RFRA for some modern
judges—one could say that environmentalism is the favored
religion du jour 13—it just has no basis whatsoever in
RFRA’s text or original meaning.
13
See Joel Garreau, Environmentalism as Religion, The New Atlantis,
Summer 2010, at 61 (“For some individuals and societies, the role of
religion seems increasingly to be filled by environmentalism.”); Freeman
Dyson, The Question of Global Warming, The New York Review of
Books (June 12, 2008),
https://www.nybooks.com/articles/2008/06/12/the-question-of-global-
warming/ (“There is a worldwide secular religion which we may call
environmentalism …. Environmentalism has replaced socialism as the
leading secular religion.”); Robert H. Nelson, Environmental Religion:
A Theological Critique, 55 Case W. Res. L. Rev. 51, 51 (2004)
(“Environmentalism is a type of modern religion.… Indeed, many
leading environmentalists have characterized their own efforts in
religious terms.”); Andrew Sullivan, Green Faith, The Atlantic (March
28, 2007), https://www.theatlantic.com/daily-
dish/archive/2007/03/green-faith/229789/; Andrew P. Morriss &
APACHE STRONGHOLD V. UNITED STATES 169
ii. A rule that distinguishes religious harms by
their physical measurability finds no support
in either the text of RFRA or the body of
caselaw supporting it.
The physical impact of the government’s actions has no
basis in the text of RFRA, and it is just as foreign to the pre-
Smith understanding of the Free Exercise Clause that
informed RFRA. But it is not simply the case that the
dissent’s approach finds no support in RFRA’s text or
caselaw; it has already been affirmatively rejected. Focusing
on the physical destruction of Oak Flat resurrects an
argument that the Supreme Court rejected outright in Lyng.
In Lyng, the government sought to build a road that
would result in the physical destruction of wilderness
conditions necessary for the plaintiffs’ religious exercise,
including “privacy, silence, and an undisturbed natural
setting.” 485 U.S. at 442. The Court recognized that “too
much disturbance of the area’s natural state would clearly
render any meaningful continuation of traditional practices
impossible,” meaning the “projects at issue … could have
devastating effects on traditional Indian religious practices.”
Id. at 451. The Court nevertheless explained that the
incidental religious effect of such government action on
native tribal religious activity—“devastating” though it
might be—could not “meaningfully be distinguished from
the use of a Social Security number” in Bowen v. Roy, in
which a religious practitioner sincerely believed that merely
issuing a Social Security number (which had the slightest of
physical components) to a child would rob the child of her
spirit. Id. at 449, 456. “In both cases, the challenged
Benjamin D. Cramer, Disestablishing Environmentalism, 39 Env’t L.
309, 323–42 (2009).
170 APACHE STRONGHOLD V. UNITED STATES
Government action would interfere significantly with
private persons’ ability to pursue spiritual fulfillment
according to their own religious beliefs.” Id. at 449. Thus,
notwithstanding the significantly different physical effects
of the government action in each case, the religious harms
suffered were indistinguishable for purposes of determining
whether a burden existed. Id. at 449–50. The presence or
absence of the burden on religious exercise turns not on the
degree of any physical impact from the government’s
activity, as urged by Apache Stronghold and the dissent, but
on the asserted harm to religious exercise, as explained in
Lyng and Bowen.
iii. Analyzing burdens on religious exercise with
reference to their associated physical impacts
is inherently discriminatory.
Text and caselaw aside, it is also inequitable to let the
physical consequences of a government action determine
whether religious exercise has been burdened because
religions differ in what might burden their exercise. Some
religions place more emphasis on the material world, while
others are more spiritually directed. Some center their
devotion on historic rites held in set-apart, holy places, while
others are not as ceremonially or geographically constrained.
And of course, many faiths incorporate degrees of some or
all of these defining characteristics into their religious
practice. The dissent’s misguided emphasis on the
environmental consequences of the government’s action
preferences some of these religious aspects over others, and
if it were afforded legal significance, it would ensure that
RFRA would be applied discriminatorily going forward.
Religions that experience a substantial burden to their
exercise due to government action that also has a substantial
physical manifestation would be treated favorably.
APACHE STRONGHOLD V. UNITED STATES 171
Inversely, religions affected by government actions with less
physical impact would be sent to the back of the bus. But
our religious liberty protections were designed to extend to
all religions, not just to those that may suffer a tangibly
“objective” and “measurable” burden (whatever that might
mean) evaluated in physical terms. A test that relies on the
physical effects of government action could significantly
reduce protection for religions that do not rely on tangible
relics, material artifacts, or other paraphernalia. Such a test
would threaten to overtly discriminate against and
overwhelmingly under-protect religions less tied to the
material world.
C. The dissent encourages discrimination by
creating a baseless distinction between the
government’s real property and its other
property.
The dissent relatedly appears to infer that there’s
something legally special about the religious use of
government-owned real property that makes it materially
distinguishable from other forms of government resources.
But again, this distinction bears no connection to anything in
RFRA itself, and it too would invite future discrimination
between religious groups.
As a legal matter, limiting the dissent’s preferred rule
that the government must give out its resources for religious
exercise to religions that use particular real property in the
government’s control is clearly disconnected from RFRA’s
text. The practice of essentially every religion is resource
constrained, and nothing in the statutory text supports
distinguishing between the types of resources that religious
observers need to conduct their religious exercises. Some
need land, some need vehicles, some need cash (or Venmo).
172 APACHE STRONGHOLD V. UNITED STATES
Regardless of what they need in a particular instance to
exercise their religion, one commonality among religious
observers is that they are often limited in what religious
activities they can engage in based on the resources they
have available to them. And if the government owns the
resources they need, they face the exact same problem—
regardless of whether it’s land or legal tender, the
government’s refusal to contribute its stuff is hindering their
religious exercise.
Grafting onto RFRA a special rule favoring religions that
happen to require land would clearly discriminate against
other religions. What makes real property special,
particularly under RFRA? Is needing specific real property
to conduct a ceremony different under RFRA from needing
a bike to proselytize? Or needing a sweat lodge made from
certain trees under government control? There is no logical
or textual basis in RFRA for the dissent’s suggestion that
land is somehow special. While certain tracts of
government-owned land are religiously special for many
Native Americans, other government property may be (or
become) religiously special for other religions. Under the
dissent’s approach, the latter would be treated worse than the
former without any textual basis for the difference in
treatment.
The dissent tries to limit the discriminatory impact of the
rule it offers by limiting it to circumstances where the
government has unique control over access to religious
resources. But that’s no limitation at all. The government
has unique control over all its resources. Every dollar bill in
circulation was at one point owned and “uniquely
controlled” by the government—after all, the government
alone prints legal tender. So if a religious observer sincerely
believes he needs a government resource to exercise his
APACHE STRONGHOLD V. UNITED STATES 173
religion, including cash, the dissent’s “unique control”
principle offers no practical limitation on what resources the
government may need to give the religious observer.
Arbitrarily carving out government favors for a religion that
requires specific real property would invite discrimination
against religions with different property needs. 14
14
So to recap: I not only think it would badly misinterpret RFRA to
revise it the way the dissent does (Part I above), but I also think it would
be a bad idea that would necessarily force the government to
discriminatorily pick religious winners and losers in the distribution of
its largesse (this Part II). Judge Nelson does not dispute my prediction
that it would result in discrimination, but instead disputes my premise
that such discrimination would be odious to the promise of religious
liberty contained in both RFRA and the Constitution’s religion clauses.
That surprises me. Since long before Smith was decided, it has been a
bedrock principle of American religious liberty law that the government
“cannot prefer one religion over another.” Larson v. Valente, 456 U.S.
228, 246 (1982) (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)).
With that time-honored principle in mind, I’m not sure what Judge
Nelson is suggesting in his three hypotheticals. I would think it is beyond
dispute that the government cannot discriminate by allowing a devout
Muslim prisoner to grow a beard for religious reasons while disallowing
the same or a similar religious exception for devout Jewish or Native
American prisoners. See, e.g., Warsoldier v. Woodford, 418 F.3d 989
(9th Cir. 2005); Sprouse v. Ryan, 346 F. Supp. 3d 1347 (D. Ariz. 2017).
Is Judge Nelson seriously contending we could require a religious zoning
exemption for a Catholic cathedral to build a 100-foot steeple, yet deny
a mosque across the street the same exemption to build a 100-foot
minaret? And does anyone seriously believe that a school-choice
program that gave voucher money to Catholic schools but not Lutheran
schools would pass constitutional muster?
It has taken too long for the Supreme Court to recognize that
discrimination against religion vis-à-vis supposedly “secular”
counterparts is constitutionally problematic. See, e.g., Locke v. Davey,
540 U.S. 712 (2004). But there has always been widespread acceptance
that discrimination between religions is repugnant to the Constitution.
174 APACHE STRONGHOLD V. UNITED STATES
D. The dissent further encourages discrimination by
reading a reparations theory into RFRA.
Ultimately, none of the distinctions either explicitly or
implicitly relied on by the dissent to rationalize its rewrite of
RFRA have any basis in its text or original meaning. So
what might better explain the result the dissent would prefer
this court to reach? It appears that, buttressed by the
argument of academics who appeared as amici in this case,
what the dissent is really advocating for is what might best
be called a reparations version of RFRA. See Stephanie H.
Barclay & Michalyn Steele, Rethinking Protections for
Indigenous Sacred Sites, 134 Harv. L. Rev. 1294 (2021).
Under this “reconceptualized” and “alternative” theory
of RFRA, Native Americans have a special historical and
religious need for government-owned land because that land
once belonged to them. As the academics explain, because
the ancestors of Native Americans were mistreated and their
land was taken, RFRA (and other laws) should be re-read to
give current tribal members “unique” access to federal land.
Id. at 1297–1303. Whatever the merits of these academic
arguments, this court rightly declined to rewrite RFRA in
service to them. If Native Americans are going to get unique
protection of their religious exercise, they need to obtain it
from Congress, not ask the courts to pretend they already got
it from Congress.
i. Amici’s reparations theory of RFRA has no
basis in RFRA.
For starters, the academic argument motivating the
dissent’s approach has no basis in the text or original
meaning of RFRA, nor does it pretend to. The scholars
pushing their theory openly acknowledge that courts have
historically interpreted RFRA and the Free Exercise Clause
APACHE STRONGHOLD V. UNITED STATES 175
to the contrary, id. at 1297, and that their approach requires
courts to “recontextualize the way in which the
law … view[s] coercion”—and thus what constitutes a
burden—under RFRA, id. at 1302. Boiled down, theirs is a
reparations theory of religious liberty for Native Americans,
and Native Americans alone. Obviously, the reader will
search RFRA in vain for any intergenerational theory of
reparations, for Native Americans or otherwise. There is
simply nothing in the text to that effect, and unsurprisingly,
nobody at the time of RFRA’s enactment thought it was
providing some type of reparations benefit.
To overcome RFRA’s obvious textual silence, these
scholars try to draw an analogy from religious
accommodations in inherently coercive contexts—namely,
prisons. If this sounds familiar, that’s because it’s the same
analogy suggested by the dissent, which asserts that the
transfer of Oak Flat “prevents the Apaches from practicing
their religious beliefs … just as would an outright ban or
religious worship … in prison.” They correctly observe that
the reason religious inmates are entitled to receive
government property in prison to practice their religions
under RLUIPA is because of the inherently coercive
environment of prison. Id. at 1333. Just as prisons are under
exclusive government control, the argument goes, many
sites sacred to Native Americans are under exclusive
government control, and therefore the government should
more proactively give its property to indigenous persons to
offset the coercion suffered by their ancestors when the
government took their land in the first place. Id. at 1339–43.
It’s an interesting academic theory, and not one entirely
devoid of moral force. But as already noted, nothing shows
that Congress was attempting to do anything reparations-
related when it passed RFRA. Even assuming the coercive
176 APACHE STRONGHOLD V. UNITED STATES
removal of Native Americans from their lands can be
analogized in some way to the coercion experienced by
prison inmates, direct and immediate coercion is entirely
different from ancestral coercion. The religious liberty of an
inmate is directly and immediately implicated by the
extreme version of coercion the government has imposed on
that inmate. In contrast, the “reconceptualized” version of
coercion relied on by the scholars’ attempted rewrite of
RFRA is the governmental coercion of the ancestors of
present-day Native Americans. This reparations-based
theory is not entirely different from saying the Fourth
Amendment should be applied specially to modern-day
African Americans because of the lingering effects of
slavery. Again, regardless of whether the theory has any
merit, the idea that RFRA meant this when it was enacted in
1993 is entirely unfounded. RFRA was enacted to protect
religious freedoms from current and future interference, not
to turn back the clock and hunt for past burdens for which
future religious devotees might be remunerated.
ii. To avoid discrimination, a reparations theory
of RFRA would entitle a wide variety of
religions to government handouts.
But that isn’t the only problem with a reparations theory
of RFRA. Even assuming that religious reparations for
ancestral coercion were somehow legitimate, what is the
limiting principle? Should every religious person who can
plausibly claim ancestral discrimination be entitled to
religious reparations? RFRA is supposed to be generally
applicable to protect all religions, so surely if reparations for
government-sanctioned ancestral coercion of Native
Americans are available under RFRA, they should also be
available to others. Native Americans are not the only
recipients of past government-imposed or government-
APACHE STRONGHOLD V. UNITED STATES 177
allowed mistreatment arguably affecting their modern-day
religious exercise. Indeed, if the dissent’s reparations theory
of RFRA were ever adopted, one could expect swaths of
religious claimants to line up for government benefits, each
carrying the historical pedigree of discrimination against
their respective religious tradition in tow.
Baptists in colonial Virginia were horsewhipped and
their ministers were imprisoned when the Church of England
enjoyed a monopoly there. 15 Catholics were deprived of
their political and civil rights at various times in all thirteen
colonies, 16 antebellum mobs burned down their churches
and occasionally massacred them, 17 and efforts to ratify a
constitutional amendment designed to clamp down on their
parochial schools—the “Blaine Amendment of 1870”—
gained widespread traction after the Civil War. 18 Mormons
15
Michael W. McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1421–23 (1990).
16
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of
the Constitution 42 (1985).
17
E.g., Sydney E. Ahlstrom, A Religious History of the American People
561 (2d ed. 2004) (describing anti-Catholic riots in Boston), 563
(describing riots in Philadelphia and New York), 1090 (In the United
States, “Catholics were subjected to disabilities, intolerance, and
violence from the earliest times.”); Sean Wilentz, The Rise of American
Democracy: Jefferson to Lincoln 451 (2005); Kurt T. Lash, The Second
Adoption of the Establishment Clause: The Rise of the Nonestablishment
Principle, 27 Ariz. St. L.J. 1085, 1118–20 (1995) (describing a massacre
of Catholics in Kentucky).
18
Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2259 (2020)
(quoting Mitchell v. Helms, 530 U.S. 793, 828–29 (2000) (“The Blaine
Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive
hostility to the Catholic Church and to Catholics in general’; many of its
state counterparts have similarly shameful pedigree.”)); see Richard
White, The Republic for Which It Stands: The United States During
178 APACHE STRONGHOLD V. UNITED STATES
were violently expelled from Missouri in 1838,19 denied the
right to vote in Idaho in the 1880s, 20 and had their
settlements in Utah undercut by the federal government in
favor of Native Americans. 21 The first Jews to arrive in the
colonies were nearly expelled because of their religion,22
Ulysses S. Grant’s notorious “General Orders No. 11”
expelled Jews from defeated Confederate territories, 23 and
“anti-Semitism began to grow virulent as soon as the Jewish
immigration rate started to rise during the 1880s.” 24 And of
course, one could surely argue that some African Americans
today continue to experience the lingering effects of slavery
and segregation as resource constraints on the uninhibited
exercise of their religion. 25 Black churches were
Reconstruction and the Gilded Age, 1865–1896, at 317–21, in 7 Oxford
Hist. of the United States (David M. Kennedy ed. 2017). See generally
John C. Jeffries & James E. Ryan, A Political History of the
Establishment Clause, 100 Mich. L. Rev. 279, 301–05 (2001).
19
See, e.g., Marie H. Nelson, Anti-Mormon Mob Violence and the
Rhetoric of Law and Order in Early Mormon History, 21 Legal Stud. F.
353, 358–73 (1997).
20
Davis v. Beason, 133 U.S. 333, 345–48 (1890), overruled by Romer v.
Evans, 517 U.S. 620, 634 (1996).
21
See Uintah Ute Indians of Utah v. United States, 28 Fed. Cl. 768, 772–
73 (1993).
22
Eli Faber, America’s Earliest Jewish Settlers, 1654–1820, at 25, in The
Columbia Hist. of Jews and Judaism in Am. (Marc Lee Raphael ed.
2008).
23
See, e.g., Eric Muller, All the Themes but One, 66 U. Chi. L. Rev. 1395,
1420–24 (1999).
24
Ahlstrom, supra, at 973–74, 1090.
25
See, e.g., In re African-American Slave Descendants Litig., 471 F.3d
754, 759–60 (7th Cir. 2006); Cato v. United States, 70 F.3d 1103, 1105–
06, 1109–11 (9th Cir. 1995); see also Margaret Russell, Cleansing
APACHE STRONGHOLD V. UNITED STATES 179
sporadically suppressed by Southern states before the Civil
War, 26 Bull Connor arrested congregants by the busload as
they left the safety of the sanctuary to march for equal rights
in the streets, 27 and some of the church buildings they left
behind were bombed in their absence. 28
History is replete with examples of the mistreatment of
groups of people by other groups, and this nation’s history is
unfortunately not exempt. Given this reality, it’s unclear
why the reparations theory of RFRA offered by the dissent
would stop with Native Americans and not extend to
Baptists, Catholics, Mormons, Jews, and descendants of
slaves, to name but a few possible groups.
Regardless of the philosophical arguments for and
against reparations, RFRA was not designed to create
reparations for any aggrieved religious group. There is zero
legal or textual basis for reading such a program into RFRA.
If reparations are ever to come from any source, it must be
from Congress, not the courts. And until Congress enacts
religious reparations for Native Americans, courts should
Moments and Retrospective Justice, 101 Mich. L. Rev. 1225, 1240
(2003).
26
Steven Hahn, A Nation Under Our Feet: Black Political Struggles in
the Rural South from Slavery to the Great Migration 45 (2003).
27
Taylor Branch, Pillar of Fire: America During the King Years 1963–
65 77 (1998).
28
Id. at 137–38; see also Church Fires in the Southeast: Hearing Before
the H. Comm. on the Judiciary, 104th Cong. 9–13 (1996) (statement of
Donald L. Payne, Representative in Congress from the State of New
Jersey, summarizing church burning incidents under criminal
investigation in 1995–1996 in the Southeast states). See generally S.
Willoughby Anderson, The Past on Trial: Birmingham, the Bombing,
and Restorative Justice, 96 Calif. L. Rev. 471 (2008).
180 APACHE STRONGHOLD V. UNITED STATES
studiously avoid inventing such remedies under the auspices
of RFRA, a statute designed to protect religious liberty for
all. RFRA does not play favorites, and neither should we.
For these reasons, I wholeheartedly agree with the majority’s
refusal to rewrite RFRA to include an affirmative mandate
to discriminate.
MURGUIA, Chief Judge, dissenting, with whom GOULD,
BERZON, and MENDOZA, Circuit Judges, join, and LEE,
Circuit Judge, joins as to all but Part II.H:
We are asked to decide whether the utter destruction of
Chí’chil Biłdagoteel, a site sacred to the Western Apaches
since time immemorial, is a “substantial burden” on the
Apaches’ sincere religious exercise under the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb
to bb-4. Under any ordinary understanding of the English
language, the answer must be yes. This conclusion comports
with the First Amendment’s protection against government
conduct prohibiting the free exercise of religion, because the
destruction of the Apaches’ sacred site will prevent
worshipers from ever again exercising their religion. See
U.S. Const. amend. I.
Our decision in Navajo Nation v. United States Forest
Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), wrongly
defined “substantial burden” as a narrow term of art and
foreclosed any relief. Although a majority of this en banc
court rejects Navajo Nation’s reasoning, see Nelson Op. at
125; Collins Op. at 47 (no mention of Navajo Nation while
recognizing that in certain instances “substantial burden”
under RFRA can be read by its plain meaning), a different
majority concludes that the Apaches’ RFRA claim fails
APACHE STRONGHOLD V. UNITED STATES 181
under Lyng v. Northwest Indian Cemetery Protective
Association, 485 U.S. 439 (1988). Relying on Lyng, Judge
Collins’ majority opinion (“the majority”) holds that the
destruction of a sacred site cannot be described as a
substantial burden no matter how devastating the impact on
religious exercise, erroneously concluding that preventing a
religious practice is neither prohibitory nor coercive. In so
doing, the majority misreads RFRA, Supreme Court
precedent, and our own case law. And rather than using the
rare opportunity of sitting en banc to provide clarity, the
majority leaves litigants in the dark as to what “substantial
burden” means. I respectfully dissent.
I. Background
In a rider to a must-pass defense spending bill, Congress
directed the Secretary of Agriculture to transfer 2,422 acres
of federal land to Resolution Copper Mining, a foreign-
owned limited liability company, to build an underground
copper mine. The copper ore is located beneath Chí’chil
Biłdagoteel, also known as Oak Flat, a sacred place where
Western Apache people have worshiped and conducted
ceremonies since time immemorial. 1 Once the land transfer
occurs, Resolution Copper will mine the ore through a panel
caving process, causing the land to subside and eventually
creating a crater nearly two miles wide and a thousand feet
deep. It is undisputed that this subsidence will destroy the
Apaches’ historical place of worship, preventing them from
ever again engaging in religious exercise at their sacred site.
1
Western Apache generally refers to the Apaches living in modern day
Arizona, including ancestors of the White Mountain, San Carlos,
Cibecue, and Tonto Apache.
182 APACHE STRONGHOLD V. UNITED STATES
The land transfer, however, is subject to RFRA.
Congress enacted RFRA to protect the right to engage in
religious practice without substantial government
interference, which “the framers of the Constitution”
understood “as an unalienable right.” 42 U.S.C.
§ 2000bb(a)(1). Thus, under RFRA, the federal government
must provide a “compelling” justification pursued by the
least restrictive means for any action that “substantially
burden[s]” sincere religious exercise. Id. § 2000bb-1(b).
Apache Stronghold, an Arizona nonprofit organization
founded by a former Chairman of the San Carlos Apache
Tribe to preserve Indigenous sacred sites, sued to enjoin the
land transfer, arguing that, among other things, it violates
RFRA. The district court, relying on our decision in Navajo
Nation, declined to preliminarily enjoin the transfer,
concluding that the destruction of Oak Flat did not amount
to a substantial burden on the Apaches’ religious exercise.
The district court therefore did not determine whether the
government had provided sufficient justification for the land
transfer.
Because the land transfer will prevent Apache
worshippers from engaging in sincere religious exercise at
their sacred site, I would hold that Apache Stronghold is
likely to succeed in establishing that the government has
imposed a “substantial burden” on the Apaches’ religious
exercise. Such a holding stems from the Supreme Court’s
jurisprudence before and after the enactment of RFRA, as
well as our own case law, which have long recognized that
preventing people from engaging in religious exercise
impermissibly burdens that exercise. And such a decision
reflects the government’s unique control of access to Oak
Flat, a degree of control that is rare outside the prison and
land-use context. I would therefore reverse the district
APACHE STRONGHOLD V. UNITED STATES 183
court’s order concluding that there is no substantial burden,
vacate the rest of the order, and remand to the district court
to determine whether the government can demonstrate that
the substantial burden posed by the land transfer is justified
under subsection 2000bb-1(b).
A. Oak Flat and the Land Transfer
The Western Apache believe that their ancestral
landscape is imbued with diyah, or spiritual power. This is
especially true for Chí’chil Biłdagoteel, which means
“Emory Oak Extends on a Level” or “Flat with Acorn Trees”
or more simply “Oak Flat,” a 6.7-square-mile sacred site
located primarily in the Tonto National Forest. Oak Flat is
situated between Ga’an Bikoh (Devil’s Canyon), a canyon
east of Oak Flat, and Dibecho Nadil (Apache Leap), the edge
of a plateau west of Oak Flat.
Oak Flat, Devil’s Canyon, and Apache Leap comprise a
hallowed area where the Apaches believe that the Ga’an—
the “guardians” and “messengers” between Usen, the
Creator, and people in the physical world—dwell. Usen
created the Ga’an as “the buffer between heaven and earth”
and created specific “blessed places” for the Ga’an to reside.
The Ga’an are “the very foundation of [Apache] religion,”
and they protect and guide the Apache people. The Apaches
describe the Ga’an as their “creators, [their] saints, [their]
saviors, [and their] holy spirits.”
Through Usen and the Ga’an, the Apaches believe that
everything has life, including air, water, plants, animals, and
Nahagosan—Mother Earth herself. The Apaches strive to
remain “intertwined with the earth, with the mother” so they
can “communicate with what [is] spiritual, from the wind to
the trees to the earth to what [is] underneath.” Because of
the importance of remaining connected to the land, the
184 APACHE STRONGHOLD V. UNITED STATES
Apaches view Oak Flat as a “direct corridor” to their
Creator’s spirit and as the place where the Ga’an “live and
breathe.” Oak Flat is thus “uniquely endowed with holiness
and medicine,” and neither “the powers resident there, nor
[the Apaches’] religious activities . . . can be ‘relocated.’”
The Ga’an come “to ceremonies to impart well-being to”
the Apaches “to heal, and to help the people stay on the
correct path.” Oak Flat thus serves as a sacred ceremonial
ground, and these ceremonies cannot take place “anywhere
else.” For instance, 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.” Similarly, “young boys that are
coming into manhood” have a sweat lodge ceremony at Oak
Flat. There, the Apaches also conduct a Holy Grounds
Ceremony, which is a “blessing and a healing ceremony . . .
for people who are sick, have ailments[,] or seek guidance.”
The Apaches gather “sacred medicine plants, animals, and
minerals essential to [these] ceremonies” from Oak Flat, and
they use “the sacred spring waters that flow[] from the earth
with healing powers” that are not present elsewhere.
“Because the land embodies the spirit of the Creator,” if the
land is desecrated, then the “spirit is no longer there. And so
without that spirit of Chí’chil Biłdagoteel, [Oak Flat] is like
a dead carcass.” Apache Stronghold v. United States, 519 F.
Supp. 3d 591, 604 (D. Ariz. 2021).
The Apaches have held Oak Flat sacred since long before
the United States government and its people ventured west
of the Rio Grande. The Apaches, however, were
dispossessed from their ancestral land during the nineteenth
century, when miners and settlers moved west and clashed
repeatedly with the local Apaches. To make peace, various
Apache leaders signed the Treaty of Santa Fe in 1852,
APACHE STRONGHOLD V. UNITED STATES 185
wherein the United States government promised the
Apaches that it would “designate, settle, and adjust their
territorial boundaries” and “pass and execute” laws
“conducive to the prosperity and happiness of” their people.
Despite the treaty, conflict continued as more settlers,
miners, and United States soldiers entered the Apaches’
ancestral land, resulting in several massacres of the Apaches
by soldiers and civilians. By the late 1870s, the United
States government forcibly removed the Apaches from their
ancestral homelands and onto reservations, so that today, the
Apaches no longer live on lands encompassing their sacred
places. Nonetheless, the Apaches “remain connected to their
spirituality” and “the earth,” and they continue to come to
Oak Flat to worship, conduct ceremonies, sing and pray, and
gather sacred plants. Apache Stronghold, 519 F. Supp. 3d at
603–04.
In the twentieth century, the United States government
took steps to protect Oak Flat from mining activity. In 1955,
President Eisenhower reserved 760 acres of Oak Flat for
“public purposes” to protect it from mineral exploration or
other mining-related activities. 20 Fed. Reg. 7319, 7336–37
(Oct. 1, 1955). President Nixon renewed that protection in
1971. 36 Fed. Reg. 18,997, 19,029 (Sept. 25, 1971). That
approach changed in 1995, after miners discovered a large
copper deposit 7,000 feet beneath Oak Flat. The following
decades saw several congressional attempts to transfer Oak
Flat to Resolution Copper. Those efforts reached fruition in
2014, when Congress passed the National Defense
Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291
(2014) (“NDAA”). The NDAA included a rider that stripped
Oak Flat’s mining protections and “authorized and directed”
the Secretary of Agriculture to convey 2,422 acres of federal
land, including Oak Flat, to Resolution Copper in exchange
186 APACHE STRONGHOLD V. UNITED STATES
for 5,344 acres of Arizona land currently owned by the
company. See id. § 3003, 128 Stat. 3292 (codified at 16
U.S.C. § 539p) (the “Land Transfer Act”). 2 Congress’s
stated purpose for authorizing the exchange is to “carry out
mineral exploration activities under” Oak Flat. 16 U.S.C.
§ 539p(c)(6)(A)(i).
Under the Land Transfer Act, the Secretary of
Agriculture must prepare an environmental impact statement
(“EIS”) before the land transfer may take place. See id.
§ 539p(c)(9)(B). 3 This EIS will “be used as the basis for all”
federal government decisions “significantly affecting the
quality of the human environment,” including permitting
necessary for any development of the transferred land. Id.
The EIS must “assess the effects of the mining and related
activities on the Federal land conveyed to Resolution Copper
under [the Land Transfer Act] on the cultural and
archeological resources that 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). Within sixty days of the
Final EIS’s publication, and regardless of its contents, “the
Secretary shall convey” the land to Resolution Copper. Id.
§ 539p(c)(10).
In January 2021, the Forest Service, a division of the
Department of Agriculture, issued an EIS, which has since
2
The 2,422-acre tract is known as the “Oak Flat Federal Parcel,” and
includes the 760-acre section of land originally protected by President
Eisenhower in 1955 (known as the “Oak Flat Withdrawal Area”) as well
as additional National Forest Service lands near Oak Flat. The copper
deposit sits primarily beneath the Oak Flat Withdrawal Area.
3
The Land Transfer Act is subject to several other conditions not at issue
here. See, e.g., 16 U.S.C. § 539p(c)(2)(A), (B).
APACHE STRONGHOLD V. UNITED STATES 187
been withdrawn. In that EIS, the Forest Service concluded
that the land transfer would remove Oak Flat from the Forest
Service’s jurisdiction, making the Forest Service unable to
“regulate” the mining activity under applicable
environmental laws. The Forest Service found that the mine
would be “one of the largest” and “deepest” “copper mines
in the United States,” with an estimated 1,970 billion metric
tons of copper situated 4,500 to 7,000 feet beneath Oak Flat.
Resolution Copper will use an underground mining
technique known as panel caving that carves a network of
tunnels below the ore. As the ore is removed, the land above
the ore “moves downward or ‘subsides.’” This “subsidence
zone” or crater will reach between 800 and 1,115 feet deep
and nearly two miles wide. The crater would start to appear
within six years of active mining. The crater and related
mining activity will have a lasting impact on the land of
approximately eleven square miles. The Forest Service
“assessed alternative mining techniques in an effort to
prevent subsidence, but alternative methods were considered
unreasonable.”
As a result of the crater, the Forest Service determined
that “access to Oak Flat and the subsidence zone will be
curtailed once it is no longer safe for visitors.” The Forest
Service therefore concluded that the mine would cause
“immediate, permanent, and large in scale” destruction of
“archaeological sites, tribal sacred sites, cultural landscapes,
and plant and mineral resources.” 4 Oak Flat would “be
permanently affected,” and tribal members would
4
Removing the ore will also create roughly one-and-a-half billion tons
of waste that will need to be stored “in perpetuity” at a site close to Oak
Flat. The Forest Service determined that development of the storage
facility will “permanently bury or otherwise destroy many prehistoric
and historic cultural artifacts, potentially including human burials.”
188 APACHE STRONGHOLD V. UNITED STATES
irreversibly lose access to the area for “religious purposes,”
thus resulting in “an indescribable hardship to [Indigenous]
peoples.” “[T]he impacts of the Resolution Copper [mine]
. . . are substantial and irreversible due to the changes that
would occur at Oak Flat.” The Forest Service also found that
there are no mitigation measures that could “replace or
replicate the historic properties that would be destroyed by
project construction. . . . Archaeological sites cannot be
reconstructed once disturbed, nor can they be fully
mitigated.”
In March 2021, the Department of Agriculture ordered
the Forest Service to rescind the EIS. The Department
explained that the government needed “additional time” to
“fully understand concerns raised by Tribes and the public”
and to “ensure the agency’s compliance with federal law.”
While counsel for the government informed the en banc
panel at oral argument in March 2023 that the environmental
analysis would be completed and the EIS republished by the
summer, the Forest Service has not yet issued a revised Final
EIS.
B. Procedural History
Apache Stronghold filed this action several days before
the government issued the now-withdrawn EIS. 5 As
5
Besides this case, there are two other pending cases seeking to prevent
the land transfer. In January 2021, the San Carlos Apache Tribe sued the
Forest Service to stop the land transfer under RFRA, the Free Exercise
Clause, and the 1852 Treaty of Santa Fe, and moved to vacate the now
withdrawn EIS as deficient under the Administrative Procedure Act
(“APA”), the National Environmental Policy Act (“NEPA”), the Land
Transfer Act, and the National Historic Preservation Act. See San Carlos
Apache Tribe v. U.S. Forest Serv., No. 21-cv-0068 (D. Ariz.). Also in
January 2021, a coalition of environmental and tribal groups sued the
Forest Service to enjoin the land transfer and vacate the EIS as deficient
APACHE STRONGHOLD V. UNITED STATES 189
relevant on appeal, Apache Stronghold alleges that the Land
Transfer Act violates RFRA, the First Amendment’s Free
Exercise Clause, and trust duties created by the 1852 Treaty
of Santa Fe. Two days after filing its complaint, Apache
Stronghold filed a motion for a temporary restraining order
and for a preliminary injunction to prevent the government
from transferring the land to Resolution Copper. The district
court denied the temporary restraining order, reasoning that
Apache Stronghold could not show immediate and
irreparable injury. Apache Stronghold, 519 F. Supp. 3d at
597.
The district court then held a hearing and took evidence
before denying Apache Stronghold’s motion for a
preliminary injunction. Id. at 611. The district court found
that Apache Stronghold was unlikely to succeed on the
merits of its RFRA, Free Exercise Clause, and breach of trust
claims. See id. at 598–609. As to the RFRA claim, the
district court concluded that although the “Government’s
mining plans on Oak [Flat] will have a devastating effect on
under the APA, NEPA, the Land Transfer Act, the Forest Service
Organic Act, the Federal Land Policy and Management Act, and other
statutory grounds. See Ariz. Mining Reform Coal. v. U.S. Forest Serv.,
No. 2:21-cv-0122-DLR (D. Ariz.). Resolution Copper intervened in
both cases, and the Defendants moved to consolidate all three cases. The
district court in this case denied that motion, concluding that “there is
minimal overlap in controlling questions of law between the pending
cases” given the different legal theories advanced by the three plaintiffs.
The parties agreed to stay both cases after the Forest Service
withdrew its original EIS. See San Carlos Apache Tribe, No. 21-cv-0068
(D. Ariz. Mar. 15, 2021); Ariz. Mining Reform Coal., No. 21-cv-0122
(D. Ariz. Mar. 15, 2021). Those cases remain stayed, and the parties
have filed regular joint status reports. The government has stated that it
will give the defendants sixty days’ notice prior to filing an updated Final
EIS. As of now, that notice has not been given.
190 APACHE STRONGHOLD V. UNITED STATES
the Apache people’s religious practices,” there was no
“substantial burden” under this circuit’s limited definition of
that term. Id. at 605–08 (citing Navajo Nation, 535 F.3d at
1063–72). The district court therefore did not determine
whether the government could establish a compelling
interest to justify its actions, nor did the district court analyze
the other preliminary injunction factors under Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20
(2008). See Apache Stronghold, 519 F. Supp. 3d at 611.
Apache Stronghold appealed, and moved for an injunction
pending appeal.
After the district court denied Apache Stronghold’s
preliminary injunction motion, the Forest Service withdrew
the Final EIS. The three-judge motions panel that
considered Apache Stronghold’s motion for an injunction
pending appeal therefore concluded that Apache Stronghold
had failed to show that it needed immediate relief to “avoid
irreparable harm,” because the Forest Service expected to
take “months” to complete its revised environmental review
and the land transfer would not occur until then. Apache
Stronghold v. United States, No. 21-15295, 2021 U.S. App.
LEXIS 6562, at *2 (9th Cir. March 5, 2021) (“Injunction
Order”). Accordingly, the divided motions panel denied
Apache Stronghold’s motion. Id. In dissent, Judge Bumatay
stated that he would have granted the motion and held that
the land transfer violated RFRA because “the complete
destruction of the land . . . . is an obvious substantial burden
on [the Apaches’] religious exercise, and one that the
Government has not attempted to justify.” Id. at *5
(Bumatay, J., dissenting).
On the merits, a divided three-judge panel affirmed the
district court’s order. Apache Stronghold v. United States,
38 F.4th 742 (9th Cir. 2022). We granted rehearing en banc.
APACHE STRONGHOLD V. UNITED STATES 191
Apache Stronghold v. United States, 56 F.4th 636 (9th Cir.
2022). 6
II. Discussion
In Winter, the Supreme Court emphasized that injunctive
relief, whether temporary or permanent, is an “extraordinary
remedy never awarded as of right.” 555 U.S. at 24. 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.” Id. at 20. “Where, as
here, 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).
The district court concluded that Apache Stronghold
could not establish a likelihood of success on any of its three
claims, so it denied the motion for a preliminary injunction.
See Apache Stronghold, 519 F. Supp. 3d at 598–609.
Because I conclude that Navajo Nation’s reasoning is
incorrect and because I would hold that preventing a person
from engaging in sincere religious exercise is a substantial
burden under RFRA, I would reverse and remand. I would
therefore consider neither the other two claims nor the
remaining Winter factors. Finally, I conclude that RFRA
applies to the Land Transfer Act. Because a majority of
judges have voted to affirm, I respectfully dissent.
6
After oral argument, Resolution Copper intervened in this case before
the district court, as well as before this court, for the limited purpose of
participating in potential future litigation before the Supreme Court.
192 APACHE STRONGHOLD V. UNITED STATES
A. RFRA and the Religious Land Use and
Institutionalized Persons Act
In RFRA, Congress crafted a statutory right to the free
exercise of religion broader than the corresponding
constitutional right delineated by the Supreme Court in
Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the
Supreme Court held that the First Amendment tolerates
neutral, generally applicable laws even when those laws
burden or prohibit religious acts. Id. at 885–90. The
Supreme Court explained that so long as the government’s
burden on religious exercise, even if substantial, was not the
“object of” a law, “the First Amendment has not been
offended” and the government need not demonstrate a
narrowly tailored, compelling governmental interest to
justify it. Id. at 878–79; see also id. at 886 n.3 (“[G]enerally
applicable, religion-neutral laws that have the effect of
burdening a particular religious practice need not be justified
by a compelling governmental interest.”).
In response, in 1993, Congress enacted RFRA. Congress
disagreed with the Supreme Court’s decision in Smith to
“virtually eliminate[] the requirement that the government
justify burdens on religious exercise imposed by laws neutral
toward religion.” 42 U.S.C. § 2000bb(a)(4). Instead,
Congress found that “the framers of the Constitution[]
recogniz[ed the] free exercise of religion as an unalienable
right,” and that governments, therefore, “should not
substantially burden religious exercise without compelling
justification.” Id. § 2000bb(a)(1), (3). Congress further
determined that “the compelling interest test”—i.e., strict
scrutiny—“is a workable test for striking sensible balances
between religious liberty and competing prior governmental
interests.” Id. § 2000bb(a)(5); see Gonzales v. O Centro
APACHE STRONGHOLD V. UNITED STATES 193
Espírita Beneficente Uniaõ do Vegetal, 546 U.S. 418, 430
(2006). Congress then stated that RFRA’s two “purposes”
were (1) “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,” and (2) “to provide a claim or
defense to persons whose religious exercise is substantially
burdened by government.” 42 U.S.C. § 2000bb(b). RFRA
therefore goes “far beyond what . . . is constitutionally
required” under the Free Exercise Clause, and thus
“provide[s] very broad protection for religious liberty.”
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706
(2014); see Ramirez v. Collier, 595 U.S. 411, 424 (2022).
Four years later, however, the Supreme Court struck
down the portion of RFRA regulating state and local
governments, concluding that Congress had exceeded its
power under § 5 of the Fourteenth Amendment to regulate
states. City of Boerne v. Flores, 521 U.S. 507, 511, 536
(1997). To repair RFRA’s constitutional defect, Congress
enacted the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 114 Stat. 803, 42 U.S.C.
§§ 2000cc to cc-5, “which applies to the States and their
subdivisions and invokes congressional authority under the
Spending and Commerce Clauses.” Holt v. Hobbs, 574 U.S.
352, 357 (2015). Recognizing their history and overlapping
purposes, the Supreme Court has characterized RLUIPA and
RFRA as “sister statute[s]” that “impose[] the same general
test,” distinguished only in that they apply to different
“categor[ies] of governmental actions.” Hobby Lobby, 573
U.S. at 695, 730. In contrast to RFRA’s more general
application to all federal government action, including
federal prisons and federal land-use regulations by the
194 APACHE STRONGHOLD V. UNITED STATES
District of Columbia or U.S. territories, see 42 U.S.C.
§§ 2000bb-1, 2000bb-3, RLUIPA governs only state land-
use regulations, see id. § 2000cc, and religious exercise by
institutionalized persons, typically in the state prison
context, see id. § 2000cc-1. RLUIPA otherwise generally
“mirrors RFRA.” Holt, 574 U.S. at 357–58; compare 42
U.S.C. § 2000cc-1(a) (providing that a “substantial burden”
in the state prison context must be justified by a compelling
governmental interest pursued through the least restrictive
means); with id. § 2000bb-1(b) (same test for federal
government action).
B. Defining “Substantial Burden”
i. Plain Meaning
With that background in mind, I turn to Apache
Stronghold’s claim that the government will violate RFRA
by transferring Oak Flat to Resolution Copper, which will
result in the destruction of the Apaches’ place of worship.
Under RFRA, the federal government may not “substantially
burden a person’s exercise of religion . . . except as provided
in subsection (b).” 42 U.S.C. § 2000bb-1(a). Subsection (b)
provides that the “Government may substantially burden a
person’s exercise of religion only if it demonstrates that
application of the burden to the person—(1) is in furtherance
of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling
governmental interest.” Id. § 2000bb-1(b). Thus, to proceed
with its RFRA claim, Apache Stronghold must show that (i)
its sincere religious exercise is (ii) subject to a substantial
burden imposed by the government. If Apache Stronghold
makes that showing, the government must then justify that
burden by demonstrating that (iii) it has a compelling interest
that (iv) it is pursuing through the least restrictive means.
APACHE STRONGHOLD V. UNITED STATES 195
As to the Apaches’ religious exercise, the district court
found, and the government does not dispute, that the
Apaches have a sincere religious belief in worshipping and
conducting ceremonies at Oak Flat. See Apache Stronghold,
519 F. Supp. 3d at 603; see also 42 U.S.C. §§ 2000bb-2(4),
2000cc-5(7)(A) (defining the “exercise of religion” to
include “any exercise of religion, whether or not compelled
by, or central to, a system of religious belief”). 7 Because the
government concedes that “it is undisputed that RFRA
applies to federal land-management statutes and their
implementation,” on appeal, we must determine whether the
transfer and resulting destruction of Oak Flat constitutes a
substantial burden on the Apaches’ religious exercise.
To define “substantial burden,” I begin with RFRA’s
text. Tanzin v. Tanvir, 592 U.S. 43, 46 (2020); Williams v.
Taylor, 529 U.S. 420, 431 (2000). Because RFRA does not
define “substantial burden,” I “turn to the phrase’s plain
meaning at the time of enactment.” Tanzin, 592 U.S. at 48;
see also FCC v. AT & T Inc., 562 U.S. 397, 403 (2011).
Indeed, when grappling with RFRA’s undefined terms, the
Supreme Court has done just that. Tanzin, 592 U.S. at 45–
49 (looking to RFRA’s plain meaning, using dictionaries, to
conclude that “appropriate relief” encompasses claims for
money damages against government officials in their
individual capacities).
7
RFRA appropriately does not permit courts to judge the significance or
“centrality” of a particular belief or practice, given that courts are not the
proper arbiters of religious doctrine. See 42 U.S.C. §§ 2000bb-2(4),
2000cc-5(7)(A). Courts can only inquire into the sincerity of the
professed religiosity. See Hobby Lobby, 573 U.S. at 696, 717 n.28; cf.
Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005).
196 APACHE STRONGHOLD V. UNITED STATES
At the time of RFRA’s passage, a “burden” was defined
as “[s]omething oppressive” or “anything that imposes either
a restrictive or onerous load” on an activity. Burden, Black’s
Law Dictionary (6th ed. 1990); Webster’s Third New
International Dictionary 298 (1986) (defining burden as
“something that weighs down [or] oppresses”). A burden is
“substantial” if it is “[o]f ample or considerable amount,
quantity, or dimensions.” Substantial, Oxford English
Dictionary 66–67 (2d ed. 1989). And “substantial” does not
mean complete or total. Substantial, Black’s Law Dictionary
(6th ed. 1990) (defining “substantial” as something
“considerable”; not “nominal”). In light of the plain
meaning of substantial burden, therefore, RFRA prohibits
government action that “oppresses” or “restricts” “any
exercise of religion, whether or not compelled by, or central
to, a system of religious belief,” to a “considerable amount,”
unless the government can demonstrate that imposition of
the burden is in furtherance of a compelling governmental
interest and the least restrictive means of furthering that
compelling governmental interest. Accord Injunction Order,
2021 U.S. App. LEXIS 6562, at *8–9 (Bumatay, J.,
dissenting).
ii. Navajo Nation’s Flawed Reasoning
Our decision in Navajo Nation, relied upon by the district
court, rejected a plain meaning reading of “substantial
burden.” There, Native American tribes and their members
sought to enjoin the use of artificial snow, made from
recycled wastewater, on a public mountain sacred to their
religion. Navajo Nation, 535 F.3d at 1062–63. This court
concluded that using artificial snow was not a substantial
burden under RFRA, because “the sole effect of the artificial
snow is on the Plaintiffs’ subjective spiritual experience.”
Id. at 1063, 1070 (emphasis added). Aside from holding that
APACHE STRONGHOLD V. UNITED STATES 197
subjective interference with religious exercise is not a
substantial burden under RFRA, Navajo Nation also
concluded that because Congress “incorporated” Sherbert
and Yoder into RFRA, the only two categories of burden that
could constitute a “substantial burden” are the specific types
of burdens at issue in those cases. 535 F.3d at 1069–70; see
also id. at 1063. Navajo Nation therefore held:
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). 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, and does not require the application
of the compelling interest test set forth in
those two cases.
Id. at 1069–70. This is erroneous for six reasons.
First, Navajo Nation made too much of the fact that
RFRA explicitly mentions Sherbert and Yoder by name in
explaining the statute’s purpose. See 535 F.3d at 1074–75.
Reading “substantial burden” by its plain language is fully
consistent with RFRA’s statements of purpose. Congress
explained that RFRA’s two “purposes” are (1) “to restore the
compelling interest test as set forth in Sherbert and Yoder[,]
and to guarantee its application in all cases where free
exercise of religion is substantially burdened,” and (2) “to
provide a claim or defense to persons whose religious
198 APACHE STRONGHOLD V. UNITED STATES
exercise is substantially burdened by government.” 42
U.S.C. § 2000bb(b) (emphasis added) (citations omitted).
Section 2000bb(b) thus links Sherbert and Yoder to the
“compelling interest test,” not to the “substantial burden”
inquiry. See 42 U.S.C. § 2000bb(b) (not mentioning
Sherbert or Yoder in RFRA’s second purpose). Consonant
with the statute’s purposes, the Supreme Court has
recognized that “RFRA expressly adopted the compelling
interest test ‘as set forth in Sherbert and Yoder.’” Gonzales,
546 U.S. at 431 (quoting 42 U.S.C. § 2000bb(b)(1)
(emphasis added) (citations omitted)). “In each of those
cases, [the] Court looked beyond broadly formulated
interests justifying the general applicability of government
mandates and scrutinized the asserted harm of granting
specific exemptions to particular religious claimants.” Id.
In other words, when enacting RFRA, Congress was
focused on governments’ justifications for burdens on
religious exercise created by generally applicable laws—the
requirement present in Sherbert and Yoder that Smith
eliminated—not the definition of substantial burden. Justice
O’Connor, concurring only in the judgment in Smith, made
this point when she critiqued the Smith majority for dropping
the “Sherbert compelling interest test” and argued that
“[r]ecent cases have instead affirmed that [compelling
interest] test as a fundamental part of our First Amendment
doctrine. The cases cited by the [majority] signal no retreat
from our consistent adherence to the compelling interest
test.” Smith, 494 U.S. at 898, 900 (O’Connor, J., concurring
in the judgment) (emphasis added) (cleaned up). Justice
O’Connor notably did not describe the test as the “Sherbert
substantial burden test,” because her disagreement with the
Smith majority was not with the meaning of substantial
burden but with the level of scrutiny. And the Smith majority
APACHE STRONGHOLD V. UNITED STATES 199
never defined substantial burden because it concluded the
Sherbert test was entirely “inapplicable” in cases
challenging neutral, generally applicable laws. See id. at
884–85.
Second, neither Sherbert nor Yoder contains the term
“substantial burden.” It would therefore be surprising for
Congress to invoke an interpretation of a purported term of
art by referencing two cases, neither of which uses the term.
See Sherbert, 374 U.S. at 406 (“substantial infringement”);
Yoder, 406 U.S. at 220 (“unduly burdens”). Navajo Nation’s
argument that “substantial burden” is a term of art from the
Supreme Court’s pre-RFRA First Amendment jurisprudence
makes little sense given that neither case includes that term.
535 F.3d at 1074. Indeed, the Supreme Court did not
commonly or consistently use the term “substantial burden.”
In Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, for example, decided just months before Congress
enacted RFRA, the Court explained that “[a] law burdening
religious practice that is not neutral or not of general
application must undergo the most rigorous of scrutiny,”
without using the term “substantial burden.” 508 U.S. 520,
546 (1993). If “substantial burden” truly was a term of art,
then one would expect consistent usage. See Yellen v.
Confederated Tribes of Chehalis Rsrv., 141 S. Ct. 2434,
2445 (2021) (“Ordinarily . . . this Court reads statutory
language as a term of art only when the language was used
in that way at the time of the statute’s adoption.”).
In looking to the term’s plain meaning, I do not ignore
the significance of RFRA mentioning Sherbert and Yoder by
name. But rather than implausibly reading “substantial
burden” as a term of art shackled to Sherbert and Yoder, I
rely on those cases—along with other “Federal court
200 APACHE STRONGHOLD V. UNITED STATES
rulings,” 42 U.S.C. § 2000bb(a)(5)—to properly situate
“substantial burden” within RFRA. See infra § II(D). And
it would unreasonably contort the English language to read
“substantial burden” to exclude the utter destruction of
sacred sites. “Because common sense rebels” at the
majority’s interpretation of RFRA, “we should not adopt that
interpretation unless the statutory language compels us to
conclude that Congress intended such a startling result.”
United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th
Cir. 2000) (Canby, J., dissenting).
Third, Navajo Nation (and the majority here) proceeds
as if RFRA’s coverage is identical to that of the Free
Exercise Clause, frozen in time at the moment of the
statute’s enactment. But Congress amended RFRA in 2000
and repealed RFRA’s previous definition of the “exercise of
religion” as “the exercise of religion under the First
Amendment to the Constitution.” Pub. L. No. 103-141, § 5
(1993). As the Supreme Court explained: “[t]hat
amendment deleted the prior reference to the First
Amendment,” and it is unclear “why Congress did this if it
wanted to tie RFRA coverage tightly to the specific holdings
of our pre-Smith free-exercise cases.” Hobby Lobby, 573
U.S. at 714. Congress also broadened the definition of
“religious exercise” in two ways: it eliminated any
requirement that a religious exercise be “compelled by, or
central to, a system of religious belief,” 42 U.S.C. § 2000cc-
5(7)(A), and it specified that “religious exercise” includes
“[t]he use, building, or conversion of real property for the
purpose of religious exercise,” 42 U.S.C. § 2000cc-5(7)(B).
The term “substantial burden” must therefore be construed
in light of Congress’s express direction that RFRA applies
to the use of property for religious purposes. See U.S. Nat’l
Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,
APACHE STRONGHOLD V. UNITED STATES 201
455 (1993) (explaining that statutory construction “is a
holistic endeavor,” so “in expounding a statute, we must not
be guided by a single sentence or member of a sentence, but
look to the provisions of the whole law” (quotation marks
omitted) (cleaned up)). That Congress amended RFRA to
expressly include religious use of property reinforces my
conclusion that the denial of religious exercise at a sacred
site is a substantial burden on religious exercise, contrary to
the holding of Navajo Nation.
Fourth, considering this amendment to RFRA, and after
Navajo Nation, the Supreme Court has rejected the notion
that RFRA “merely restored [its] pre-Smith decisions in
ossified form.” Hobby Lobby, 573 U.S. at 715–16. Instead,
the Court explained that “the amendment of RFRA through
RLUIPA surely dispels any doubt” that Congress did not
intend “to tie RFRA coverage tightly to the specific holdings
of our pre-Smith free-exercise cases.” Id. at 714; see also id.
at 706 n.18 (explaining that 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”). I
therefore rely on pre-Smith cases for guidance only.
Fifth, and relatedly, as discussed in the next section,
Navajo Nation’s choice to confine “substantial burden” to a
term of art cannot stand in the face of the Supreme Court’s
directive that RFRA and RLUIPA impose “the same
standard.” Holt, 574 U.S. at 356–58 (quoting Gonzales, 546
U.S. at 436); see also Food Mktg. Inst. v. Argus Leader
Media, 139 S. Ct. 2356, 2365 (2019) (noting that courts do
not “ordinarily imbue statutory terms with a specialized . . .
meaning when Congress has not itself invoked” one).
Finally, instead of just answering the question before it,
Navajo Nation’s decision to define substantial burden as a
202 APACHE STRONGHOLD V. UNITED STATES
narrow term of art swept too broadly. Cf. City of Ontario v.
Quon, 560 U.S. 746, 760 (2010) (“A broad holding . . . might
have implications for future cases that cannot be
predicted.”). This case asks whether the utter destruction of
a sacred site is a substantial burden. That is a fundamentally
different question than the one Navajo Nation considered,
because there, plaintiffs still had “virtually unlimited access
to the mountain” to “continue to pray, conduct their religious
ceremonies, and collect plants for religious use.” Navajo
Nation, 535 F.3d at 1063 (emphasis added); see id. (noting
that nothing “with religious significance, or religious
ceremonies . . . would be physically affected”). Because the
Navajo Nation majority went to great lengths to emphasize
that “no places of worship [were] made inaccessible,” id.,
Navajo Nation should not have adopted a rule that extends
to cases where places of worship will be obliterated. And by
adopting such a broad holding, it erred.
Accordingly, I would revise Navajo Nation’s definition
of “substantial burden” to the extent that it defined that
phrase as a term of art limited to the kinds of burdens at issue
in Sherbert and Yoder. Rather, as discussed infra § II(D),
the kinds of burdens challenged in Sherbert and Yoder are
examples sufficiently demonstrating a substantial burden,
not those necessary to do so. 8
C. RFRA and RLUIPA Are Interpreted Uniformly
RLUIPA, RFRA’s sister statute, supports my conclusion
to define substantial burden by its plain meaning. RLUIPA’s
8
As reflected in the first paragraph of the per curiam opinion, a majority
of this court has overruled Navajo Nation’s narrow test for a “substantial
burden” under RFRA. I echo Judge Nelson’s clear refutation of any
suggestion to the contrary. See Nelson Op. at 130–33.
APACHE STRONGHOLD V. UNITED STATES 203
“substantial burden” test largely mirrors RFRA’s test, and
like RFRA, it does not define “substantial burden.” See 42
U.S.C. §§ 2000cc, 2000cc-1, 2000cc-5(4)(A). So, as we did
in San Jose Christian College v. City of Morgan Hill, I look
to RLUIPA’s plain meaning to interpret “a ‘substantial
burden’ on ‘religious exercise’” in the land-use context as “a
significantly great restriction or onus upon such exercise.”
360 F.3d 1024, 1034 (9th Cir. 2004); id. (“When a statute
does not define a term, a court should construe that term in
accordance with its ordinary, contemporary, common
meaning.” (quotation marks omitted)). Since then, we have
relied on this plain meaning definition of substantial burden
in other RLUIPA cases. See, e.g., Guru Nanak Sikh Soc. of
Yuba City v. County of Sutter, 456 F.3d 978, 988–89 (9th
Cir. 2006); Int’l Church of Foursquare Gospel v. City of San
Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011). 9
That “substantial burden” has the same meaning under
both RFRA and RLUIPA is a logical application of statutory
construction for several reasons. First, it is significant that
these two Title 42 statutes use the same “substantial burden”
and “compelling interest” language. See United States v.
Nishiie, 996 F.3d 1013, 1026 (9th Cir. 2021) (“When
Congress uses the same language in two statutes having
similar purposes,” this Court starts with the “presum[ption]
9
Dictionaries contemporaneous with the enactments of RFRA and
RLUIPA define “substantial” synonymously as either a “considerable”
or a “significant” amount. To the extent there is any semantic difference,
I conclude that the meaning of “substantial” is the same under both
statutes, particularly given that RLUIPA was meant to restore part of
RFRA’s original reach. See Holt, 574 U.S. at 357–58 (RLUIPA “mirrors
RFRA”); Gonzales, 546 U.S. at 436 (RLUIPA allows incarcerated
people “to seek religious accommodations pursuant to the same standard
as set forth in RFRA.”).
204 APACHE STRONGHOLD V. UNITED STATES
that Congress intended that text to have the same meaning in
both statutes.” (quotation marks omitted) (cleaned up));
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 172–73 (2012) (presumption of
consistent usage). The term “religious exercise” also has an
identical definition in the two statutes. See 42 U.S.C.
§§ 2000bb-2(4), 2000cc-5(7)(A). The two sister statutes
differ only in what categories of government action they
control: RFRA applies to all federal action, including federal
prisons and land-use restrictions, whereas RLUIPA governs
state government land-use regulations and state prisons.
Diverging definitions for identical terms in the two statutes
would allow federal prisons to burden religious rights more
heavily than state prisons, or vice versa, which is implausible
given the statutes’ history and purpose. See Gonzales, 546
U.S. at 436; Holt, 574 U.S. at 356–58 (explaining that the
two statutes impose “the same standard”); Cutter, 544 U.S.
at 716–17 (“To secure redress for [incarcerated persons] who
encountered undue barriers to their religious observances,
Congress carried over from RFRA [to RLUIPA] the
‘compelling governmental interest’/‘least restrictive means’
standard.”); see also Austin v. U.S. Navy Seals 1–26, 142 S.
Ct. 1301, 1307 (2022) (Alito, J., dissenting) (explaining that
RLUIPA “essentially requires prisons to comply with the
RFRA standard”).
Second, the Supreme Court has cross-referenced the two
statutes for support. See, e.g., Holt, 574 U.S. at 356–57 (a
RLUIPA case invoking RFRA cases); Hobby Lobby, 573
U.S. at 695, 729 n.37 (a RFRA case invoking RLUIPA
cases).
Third, at least seven other circuits agree with my
conclusion that the two statutes’ “substantial burden”
standards are one and the same. See, e.g., Mack v. Warden
APACHE STRONGHOLD V. UNITED STATES 205
Loretto FCI, 839 F.3d 286, 304 n.103 (3d Cir. 2016) (“[T]he
two statutes are analogous for purposes of the substantial
burden test.”); Madison v. Riter, 355 F.3d 310, 315 (4th Cir.
2003) (RLUIPA “reinstate[d] RFRA’s protection against
government burdens” and “mirror[s]” its provisions); A.A. ex
rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248,
264 n.64 (5th Cir. 2010) (“same ‘substantial burden’
question”); Korte v. Sebelius, 735 F.3d 654, 682–83 (7th Cir.
2013) (“same understanding”); Patel v. U.S. Bureau of
Prisons, 515 F.3d 807, 813 (8th Cir. 2008) (“same
definition”); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1138 n.13 (10th Cir. 2013) (“interpreted uniformly”),
aff’d sub nom. Hobby Lobby, 573 U.S. 682; Eternal Word
Television Network, Inc. v. Sec’y of U.S. Dep’t of Health &
Human Servs., 818 F.3d 1122, 1144 n.23 (11th Cir. 2016)
(“same substantial burden analysis”); see also Sabir v.
Williams, 52 F.4th 51, 60 & n.5 (2d Cir. 2022) (applying
RLUIPA’s substantial burden precedent to a RFRA claim);
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d
560, 587 (6th Cir. 2018) (relying on Holt, a RLUIPA case,
to define substantial burden in a RFRA case), aff’d sub nom.
Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
The great weight of authority thus buttresses my
conclusion that RFRA and RLUIPA employ the same
substantial burden test defined by its plain meaning.
D. Preventing a Person from Engaging in Religious
Exercise Is an Example of a Substantial Burden
I next consider which government actions amount to a
substantial burden on religious exercise. Keeping in mind
that RFRA did not “merely restore[ the Supreme] Court’s
pre-Smith decisions in ossified form,” Hobby Lobby, 573
U.S. at 715, the Supreme Court’s pre-Smith Free Exercise
206 APACHE STRONGHOLD V. UNITED STATES
jurisprudence, as well as our own case law, provide at least
three clear examples of a substantial burden on religious
exercise: where the government (1) forces a religious
adherent to choose between sincere religious exercise and
receiving government benefits; (2) threatens a religious
adherent with civil or criminal sanctions for engaging in
sincere religious exercise; or (3) prevents a person from
engaging in sincere religious exercise.
i. Pre-Smith Free Exercise Jurisprudence
I begin with Sherbert and Yoder, the two pre-Smith cases
that RFRA mentions by name. See 42 U.S.C.
§ 2000bb(b)(1). In Sherbert, a state employer fired a
Seventh-day Adventist because she refused to work on
Saturdays, her faith’s day of rest. 374 U.S. at 399. The state
denied the plaintiff’s claim for unemployment compensation
benefits, finding that she had failed to accept work without
good cause. Id. at 399–401. The Supreme Court held that
the state’s denial of unemployment compensation to the
plaintiff because she was exercising her faith imposed a
“substantial infringement” under the Free Exercise Clause.
Id. at 403–04, 406. Such a condition unconstitutionally
forced the plaintiff “to choose between following the
precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion in
order to accept work, on the other hand.” Id. at 404. Having
determined that there was a “substantial infringement” on
religious exercise, the Court then “consider[ed] whether
some compelling state interest enforced in the eligibility
provisions of the [state] statute justifie[d] the substantial
infringement of [her] First Amendment right,” and held that
the state’s concern about protecting against “fraudulent
[unemployment] claims” was insufficiently compelling. Id.
at 406–09.
APACHE STRONGHOLD V. UNITED STATES 207
In Yoder, a state prosecuted members of the Amish faith
for violating a state law that required children to attend
school until the age of sixteen. 406 U.S. at 207–08. The
defendants sincerely believed that their children’s
attendance in high school was “contrary to the Amish
religion and way of life.” Id. at 209. The Supreme Court
reversed the convictions, holding that the application of the
compulsory school-attendance law to the defendants
“unduly burden[ed]” their exercise of religion in violation of
the Free Exercise Clause. Id. at 207, 220. According to the
Court, the state law “affirmatively compel[led the
defendants], under threat of criminal sanction, to perform
acts undeniably at odds with fundamental tenets of their
religious beliefs.” Id. at 218. As to the state’s interest
underlying its truancy law, the Court explained that a general
interest in compulsory education was insufficiently
compelling. Id. at 221.
But pre-RFRA precedents did not limit the kinds of
burdens protected under the Free Exercise Clause to the
types of burdens challenged in Sherbert (the choice between
sincere religious exercise and receiving government
benefits) and in Yoder (the threat of civil or criminal
sanctions). Beyond these two cases, the Supreme Court’s
pre-Smith jurisprudence recognizes at least one other
category of government action that violates the Free
Exercise Clause: preventing a religious adherent from
engaging in religious exercise. In Cruz v. Beto, for example,
a prison denied a Buddhist access to the prison chapel and
prohibited him from corresponding with his religious
advisor. 405 U.S. 319, 322 (1972) (per curiam). The Court
reversed the dismissal of the complaint and held that, taking
the allegations as true, the prison had violated the Free
Exercise Clause. Id.
208 APACHE STRONGHOLD V. UNITED STATES
And in O’Lone v. Estate of Shabazz, prison officials
“prevented Muslims . . . from attending Jumu’ah,” an
Islamic congregational service held on Friday afternoons.
482 U.S. 342, 347 (1987). The plaintiffs sued, “alleging that
the prison policies unconstitutionally denied them their Free
Exercise rights under the First Amendment.” Id. The
Supreme Court recognized that preventing Muslims from
engaging in religious exercise gave rise to a cognizable Free
Exercise Clause claim. But, at the time, before RFRA and
RLUIPA, prison officials were only required to show that a
policy that burdened religious exercise was “reasonable.”
Id. at 350. So the Court concluded that preventing Muslims
from attending religious services was “justified by concerns
of institutional order and security.” Id.; see id. at 351–52
(concluding that, although there were “no alternative means
of attending Jumu’ah,” the prison policy of preventing
religious exercise was reasonable because “alternative
means of exercising the [First Amendment] right” remained
open as the plaintiffs were “not deprived of all forms of
religious exercise” such as daily prayer).
In dissent, Justice Brennan agreed that preventing an
adherent from engaging in religious practices was sufficient
to demonstrate a Free Exercise claim, but disagreed with the
majority’s reasonableness standard:
The prison in this case has completely
prevented respondent inmates from attending
the central religious service of their Muslim
faith. I would therefore hold prison officials
to the standard articulated in Abdul Wali,
[which requires the government to
demonstrate a compelling interest] and would
find their proffered justifications wanting.
APACHE STRONGHOLD V. UNITED STATES 209
The State has neither demonstrated that the
restriction is necessary to further an
important objective nor proved that less
extreme measures may not serve its purpose.
Id. at 359 (Brennan, J., dissenting). RFRA and RLUIPA
later essentially codified Justice Brennan’s dissent,
eliminating the reasonableness test for evaluating prison
policies and instead requiring federal and state prison
policies that substantially burden religious exercise to be
justified by a compelling interest furthered by the least
restrictive means. See 42 U.S.C. § 2000cc-1(a); id.
§ 2000bb-1(b). 10
RFRA also instructs that courts look to “prior Federal
court rulings.” 42 U.S.C. § 2000bb(a)(5). Like the Supreme
Court, our own cases prior to Smith recognized that
preventing a person from engaging in religious exercise
implicates the Free Exercise Clause. For instance, in
Graham v. Commissioner of Internal Revenue, we required
a religious adherent, there a taxpayer, to show that the
10
Other pre-Smith examples falling outside the Sherbert/Yoder
framework are Free Exercise Clause challenges to government autopsies.
See Tanzin, 592 U.S. at 51 (noting that autopsies are among the cases in
which RFRA grants effective relief) (citing Yang v. Sturner, 728 F. Supp.
845 (D.R.I. 1990) (autopsy of son that violated Hmong beliefs), opinion
withdrawn in light of Smith, 750 F. Supp. 558 (D.R.I. 1990)); see also
City of Boerne, 521 U.S. at 547 (O’Connor, J., concurring in part)
(discussing Yang as an example of why Smith was wrongly decided in
the context of RFRA); Fulton v. City of Philadelphia, 141 S. Ct. 1868,
1893 & n.26 (2021) (Alito, J., concurring in judgment) (discussing the
import of Yang in the lead up to Congress enacting RFRA and stating
that “Smith’s impact was quickly felt, and Congress was inundated with
reports of the decision’s consequences” (citing 139 Cong. Rec. 9681
(1993))).
210 APACHE STRONGHOLD V. UNITED STATES
government action “burdens the adherent’s practice of his or
her religion by pressuring him or her to commit an act
forbidden by the religion or by preventing him or her from
engaging in conduct or having a religious experience.” 822
F.2d 844, 850–51 (9th Cir. 1987) (emphasis added), aff’d
sub nom. Hernandez v. Comm’r, 490 U.S. 680 (1989).
The same is true in other cases. See, e.g., McElyea v.
Babbitt, 833 F.2d 196, 197–99 (9th Cir. 1987) (citing
O’Lone and recognizing a Free Exercise Clause claim where
a prison had no weekly Jewish services and the plaintiff
alleged that prison officials “prevented him from practicing
his religion”); Allen v. Toombs, 827 F.2d 563, 567 (9th Cir.
1987) (assuming that denial of access to a sweat lodge was a
viable Free Exercise Clause claim, but upholding the prison
policy under the O’Lone, pre-RFRA, reasonableness test);
cf. Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997)
(holding, in a Free Exercise Clause case decided post-City of
Boerne and pre-RLUIPA, that “[i]n order to establish a free
exercise violation, [a plaintiff] must show the defendants
burdened the practice of his religion, by preventing him from
engaging in [religious exercise], without [proper]
justification” (footnote omitted)).
ii. This Circuit’s Precedents Recognize Preventing
Religious Exercise Is a Substantial Burden
Given this legal backdrop, it is unsurprising that in our
first RFRA case in 1995, we relied on pre-Smith Free
Exercise Clause cases to define substantial burden to include
preventing a person from engaging in religious exercise. In
Bryant v. Gomez, we held that to show a “substantial burden”
under RFRA,
APACHE STRONGHOLD V. UNITED STATES 211
the religious adherent has the obligation to
prove that a governmental action burdens the
adherent’s practice of his or her religion by
preventing him or her from engaging in
conduct or having a religious experience . . . .
This interference must be more than an
inconvenience.
46 F.3d 948, 949 (9th Cir. 1995) (per curiam) (cleaned up)
(quoting Graham, 822 F.2d at 850–51). 11
The majority makes no effort to explain why we should
not adhere to Bryant’s formulation of substantial burden.
Nor does it distinguish our subsequent pre-Navajo Nation
RFRA cases in which we consistently invoked the concept
of preventing a person from engaging in religious conduct as
a substantial burden in various contexts, including ones
outside of the two RLUIPA contexts. For example, in a case
considering a university’s mandatory student registration fee
that, in part, covered abortion services, we “look[ed] to our
11
In Bryant, we rejected the plaintiff’s RFRA claim because “full
Pentecostal services” were not “mandated by his faith.” 46 F.3d at 949
(stating that religious exercise must be one that “the faith mandates” or
“a tenet or belief that is central to religious doctrine”). However, as
discussed supra § II(B)(ii), in 2000, Congress expanded the statutory
protection for religious exercise by amending RFRA and RLUIPA’s
definition of “exercise of religion” to include “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.”
42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A). So to the extent that Bryant
and other cases discussed below applied a narrower definition of
“religious exercise” that required it to be central to or mandated by a
person’s faith, Congress has abrogated them. Similarly, RFRA and
RLUIPA’s definition of “exercise of religion” is broader than O’Lone
and Freeman’s definition under the Free Exercise Clause. Otherwise,
Bryant’s discussion of substantial burden remains good law.
212 APACHE STRONGHOLD V. UNITED STATES
decisions prior to Smith,” including a Free Exercise Clause
challenge by a taxpayer, to define substantial burden to
include “preventing [a person] from engaging in conduct or
having a religious experience.” Goehring v. Brophy, 94 F.3d
1294, 1299 (9th Cir. 1996) (quoting Graham, 822 F.2d. at
850–51, and discussing Bryant); see also Worldwide Church
of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1121
(9th Cir. 2000) (citing Bryant’s substantial burden standard
in a copyright case and concluding that the unauthorized use
of intellectual property of religious texts was not a
substantial burden under RFRA); Stefanow v. McFadden,
103 F.3d 1466, 1471 (9th Cir. 1996) (citing Bryant’s
standard and finding no substantial burden because an
incarcerated person was not “prevented” from “engaging in
any [religious] practices” when the prison confiscated a
religious text not central to his practice). 12
Similarly, before and since Navajo Nation, we have
routinely recognized that preventing religious exercise
qualifies as a substantial burden under RLUIPA, which
applies the “same standard” as RFRA, Holt, 574 U.S. at 356–
57. See Johnson v. Baker, 23 F.4th 1209, 1215–16 (9th Cir.
2022) (recognizing that prohibiting plaintiff from possessing
scented prayer oil in his cell substantially burdened his
religious exercise); Foursquare Gospel, 673 F.3d at 1061,
1066–70 (recognizing that preventing the plaintiff from
building a place of worship could constitute a substantial
burden); Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th
12
The Seventh, Eighth, and Tenth Circuits have followed Bryant’s
interpretation of a substantial burden under RFRA. See Mack v.
O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996) (expressly drawing on
Bryant); Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997); Werner v.
McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (citing Bryant).
APACHE STRONGHOLD V. UNITED STATES 213
Cir. 2008) (“We have little difficulty in concluding that an
outright ban on a particular religious exercise”—i.e., a
“policy of prohibiting [a person] from attending group
religious worship services”—“is a substantial burden on that
religious exercise.”); Guru Nanak Sikh Soc’y of Yuba City,
456 F.3d at 981–82 (holding that a county “imposed a
substantial burden” on a Sikh organization’s “religious
exercise” by denying applications from the group for a
conditional use permit to build a temple); cf. United States v.
Antoine, 318 F.3d 919, 923–24 (9th Cir. 2003) (assuming
that “raz[ing]” a “house of worship” to build a freeway
would be a substantial burden). 13
13
Several other circuits also recognize that denying access to or
preventing religious exercise qualifies as a substantial burden under
RLUIPA. See Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014)
(Gorsuch, J.); Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014);
Lovelace v. Lee, 472 F.3d 174, 187–88 (4th Cir. 2006); Murphy v. Mo.
Dep’t of Corrs., 372 F.3d 979, 988 (8th Cir. 2004); cf. C.L. for Urb.
Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). Notably,
the Tenth Circuit referenced this circuit’s definition of a substantial
burden when defining it to include preventing religious exercise. See
Werner, 49 F.3d at 1480 (citing Bryant); Abdulhaseeb v. Calbone, 600
F.3d 1301, 1313 (10th Cir. 2010) (citing Werner).
And in a recent RLUIPA case, the Supreme Court stayed the
execution of an incarcerated person who requested that “his long-time
pastor be allowed to pray with him and lay hands on him while he is
being executed.” Ramirez, 595 U.S. at 416; see id. at 426, 433 (holding
that the state’s refusal to permit audible prayer or religious touch,
denying him access to his religious rites, “substantially burdens his
exercise of religion,” because “he will be unable to engage in protected
religious exercise in the final moments of his life”).
214 APACHE STRONGHOLD V. UNITED STATES
E. The Land Transfer Act Substantially Burdens the
Exercise of Religion
The foregoing firmly establishes that where the
government prevents a person from engaging in religious
exercise, the government has substantially burdened the
exercise of religion. The plain meaning of RFRA clearly
reaches such instances. The Free Exercise Clause cases prior
to Smith so recognized. O’Lone, 482 U.S. at 347–52;
Graham, 822 F.2d at 850–51. We held as much in our first
RFRA case. See Bryant, 46 F.3d at 949. And, as Judge
Bumatay pointed out in his dissent from the order declining
to enjoin the land transfer pending appeal, this understanding
is consistent with RLUIPA. See Injunction Order, 2021 U.S.
App. LEXIS 6562, at *9 (Bumatay, J., dissenting) (“[A]s
then-Judge Gorsuch wrote [in a RLUIPA case], a substantial
burden exists when the government ‘prevents the plaintiff
from participating in an activity motivated by a sincerely
held religious belief.’” (quoting Yellowbear v. Lampert, 741
F.3d 48, 55 (10th Cir. 2014))).
I now turn to whether Apache Stronghold is likely to
succeed in showing that the transfer and eventual destruction
of Oak Flat constitutes a substantial burden on the Western
Apaches’ religious exercise. The district court heard
extensive testimony about the impact of the land transfer and
mine. The district court found:
Because the land embodies the spirit of the
Creator, “without any of that, specifically
those plants, because they have that same
spirit, that same spirit at Oak Flat, that spirit
is no longer there. And so without that spirit
of Chí’chil Biłdagoteel, it is like a dead
carcass.” If the mining activity continues,
APACHE STRONGHOLD V. UNITED STATES 215
Naelyn Pike testified, “then we are dead
inside. We can’t call ourselves Apaches.”
Quite literally, in the eyes of many Western
Apache people, Resolution Copper’s planned
mining activity on the land will close off a
portal to the Creator forever and will
completely devastate the Western Apaches’
spiritual lifeblood. . . . [T]he land in this case
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 604, 606 (citations
omitted).
As discussed supra § I(A), the Forest Service, in its now-
withdrawn EIS, similarly documented the extensive,
irreversible, and devastating impact of the mine’s
construction, and how the mining activity would prevent
Apache worshipers from engaging in religious exercise at
their religious sites. The crater will start to appear within six
years of active mining, and the Forest Service concluded that
the mining activity will cause “immediate” and “permanent”
destruction of “archaeological sites, tribal sacred sites,
cultural landscapes, and plant and mineral resources.” In
addition, once the government publishes its Final EIS,
regardless of its contents, “the Secretary shall convey” the
land to Resolution Copper within sixty days. 16 U.S.C.
§ 539p(c)(10) (emphasis added). So once the land transfer
occurs, Oak Flat will be private property no longer subject
to RFRA and other federal protections.
In other words, the land transfer will result in a crater that
will subsume Oak Flat. The impact of the mining activity on
sacred sites will be immediate and irreversible. All that will
216 APACHE STRONGHOLD V. UNITED STATES
be left is a massive hole and rubble, making the site
unsuitable for religious exercise. Religious worship will be
impossible, and the Apaches will be prevented from ever
again worshipping at Oak Flat. As I have concluded, where
the government prevents a religious adherent from engaging
in religious exercise, the government has restricted the
exercise of religion to a considerable amount. I would
therefore hold that Apache Stronghold is likely to succeed in
establishing that transferring Oak Flat to Resolution Copper
will amount to a substantial burden under RFRA. See 42
U.S.C. § 2000bb-1(a). Because the district court did not
determine whether the government could justify that burden
by demonstrating a compelling interest pursued through the
least restrictive means, I would remand for the district court
to make that determination in the first instance. See id.
§ 2000bb-1(b).
F. Lyng Is Consistent with My Analysis
i. Lyng and Prohibitions on Free Exercise
The majority concludes that the destruction of a sacred
site cannot be a substantial burden but cites no authority
squarely supporting that proposition. Indeed, the majority
fails to cite even one case foreclosing a RFRA claim where
the government completely prevents a person from engaging
in religious exercise. Confusingly, the majority agrees with
me that then-Judge Gorsuch correctly held in Yellowbear
“that ‘prevent[ing] the plaintiff from participating in an
activity motivated by a sincerely held religious belief’
qualifies as prohibiting free exercise.” Collins Op. at 29
(quoting Yellowbear, 741 F.3d at 55). And the majority
concedes that it is undisputed that the Land Transfer Act will
categorically prevent the Apaches from participating in any
worship at Oak Flat because their religious site will be
APACHE STRONGHOLD V. UNITED STATES 217
obliterated. See Collins Op. at 19. If the majority agrees
with Yellowbear’s formulation—which mirrors the one I
have laid out above in § II(D) (explaining that preventing
religious exercise is an example of a substantial burden)—
and agrees that the Apaches will be prevented from
worshiping at Oak Flat, Apache Stronghold’s claim cannot
fail. See Injunction Order, 2021 U.S. App. LEXIS 6562, at
*9–10 (Bumatay, J., dissenting) (relying on Yellowbear to
conclude that the destruction of Oak Flat is a substantial
burden). And yet, the majority says that it does.
Rather than acknowledge this inconsistency, the
majority relies entirely on a pre-RFRA Free Exercise Clause
case: Lyng v. Northwest Indian Cemetery Protective
Association, 485 U.S. 439 (1988). But Lyng cannot bear the
weight the majority places on it.
The Supreme Court in Lyng did not analyze whether
there was a substantial burden under the Free Exercise
Clause. The case is therefore not inconsistent with my
RFRA analysis and cannot foreclose Apache Stronghold’s
statutory claim, which rests on the “substantial burden”
concept.
In its retelling of Lyng, the majority omits crucial facts.
The Lyng plaintiffs challenged the federal government’s
proposal to permit timber harvesting and build a road
through part of a national forest that “ha[d] traditionally been
used for religious purposes by members of three American
Indian tribes.” 485 U.S. at 441–42. The proposed road
“avoided archeological sites and was removed as far as
possible from the sites used by [tribes] for specific spiritual
activities.” Id. at 443. Unlike here—a fact that the majority
entirely disregards—“[n]o sites where specific rituals t[ook]
place were to be disturbed.” Id. at 454. The Lyng plaintiffs
218 APACHE STRONGHOLD V. UNITED STATES
continued to have full access to their sacred sites to engage
in religious exercise, and there were “one-half mile
protective zones around all the religious sites,” insulating
them from any logging activity. See id. at 441–43.
However, because the road and logging activity would
generally disturb the “privacy,” “silence,” “spiritual
development,” and the subjective enjoyment of those sacred
sites, the plaintiffs brought a Free Exercise Clause challenge.
Id. at 442, 444, 454 (citing the record to note that “successful
use of the area is dependent upon and facilitated by certain
qualities of the physical environment, the most important of
which are privacy, silence, and an undisturbed natural
setting” (cleaned up)); see id. at 462 (Brennan, J., dissenting)
(quoting the record to highlight that “silence, the aesthetic
perspective, and the physical attributes, are an extension of
the sacredness of [each] particular site”).
Assuming that the noise and general disturbance from
logging would “have severe adverse effects” on the
individuals’ subjective religious experience, the Supreme
Court held that the government’s actions did not trigger the
compelling interest test under the Free Exercise Clause. Id.
at 447, 450–51. Relying on Bowen v. Roy, 476 U.S. 693
(1986), the Court concluded that the Lyng plaintiffs’
subjective spiritual harm from the loss of silence and privacy
was “incidental” to the government’s “internal” affairs.
Lyng, 485 U.S. at 448, 451. In Roy, the Supreme Court had
rejected a religious objection to the use of Social Security
numbers as a numerical identifier that, according to the
plaintiffs’ religious beliefs, would “‘rob the spirit’ of [their]
daughter and prevent her from attaining greater spiritual
power.” 476 U.S. at 696. The Roy Court held that the “Free
Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that
APACHE STRONGHOLD V. UNITED STATES 219
comport with the religious beliefs of particular citizens.” Id.
at 699.
Applying Roy, the Lyng Court explained that the
plaintiffs’ allegations of spiritual harm “cannot
meaningfully be distinguished from the use of a Social
Security number in Roy”:
Similarly, in this case, it is said that
disruption of the natural environment caused
by the . . . road will diminish the sacredness
of the area in question and create distractions
that will interfere with “training and ongoing
religious experience of individuals using
[sites within] the area for personal medicine
and growth . . . and as integrated parts of a
system of religious belief and practice which
correlates ascending degrees of personal
power with a geographic hierarchy of
power.”
485 U.S. at 448–49 (quoting the record). The Court
construed the harm in both cases as “subjective” and so
refused to decide whether the spiritual harm in Roy was
“significantly greater” than the Lyng plaintiffs’ harm. Id. at
449. 14
14
In rejecting the plaintiffs’ challenge, the Supreme Court did not
minimize the impact that the road building and logging activity would
have on the plaintiffs’ “personal spiritual development.” Lyng, 485 U.S.
at 451. The Court, however, did not wish to weigh the magnitude of the
subjective spiritual harm. Id. at 449, 451. So it explained that the noise
and invasion of privacy caused by roadbuilding and logging had only an
“incidental” constitutional effect under the Free Exercise Clause because
the government was not “outright prohibit[ing]” religious exercise,
220 APACHE STRONGHOLD V. UNITED STATES
Lyng emphasized that the “crucial word in the
constitutional text [of the Free Exercise Clause] is ‘prohibit’:
‘For the Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in terms of what
the individual can exact from the government.’” Id. at 451
(emphasis added) (quoting Sherbert, 374 U.S. at 412
(Douglas, J., concurring)). The Court therefore concluded
its analysis by reiterating that “[t]he Constitution does not
permit [the] 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. at 453 (emphasis added).
The majority argues that, as in Lyng, the land transfer
here is not “a situation in which the Government ha[s]
‘discriminate[d]’ against the plaintiffs, as might be the case
if Congress had passed ‘a law prohibiting the Indian
[plaintiffs] from visiting the [sacred] area.’” Collins Op. at
27 (quoting Lyng, 485 U.S. at 453). The majority is
mistaken on two fronts. First, the Land Transfer Act is
exactly that kind of “prohibitory” law. It is undisputed and
indisputable that once implemented, the Act will prevent the
Western Apaches from visiting Oak Flat for eternity. The
majority concedes this point, but then goes on to argue that
where government action only “frustrates or inhibits”
religious exercise, the government does not violate RFRA.
“indirect[ly] coerc[ing]” an individual to act contrary to their religious
belief, or “penal[izing]” religious practice. Id. at 450–51 (citing U.S.
Const. amend. I; Sherbert, 374 U.S. at 404).
This discussion also highlights that Free Exercise Clause claims are
not limited to the circumstances presented in Sherbert and Yoder but
include the broader concept of “prohibitions.” Id. at 450; U.S. Const.
amend. I.
APACHE STRONGHOLD V. UNITED STATES 221
But Apache Stronghold does not argue that the destruction
of Oak Flat merely “frustrates” their ability to worship there;
they argue—and the district court found—that worship there
will be “impossible,” and their spiritual practice will be
eviscerated. See Apache Stronghold, 519 F. Supp. 3d at 604
(“Quite literally, in the eyes of many Western Apache
people, Resolution Copper’s planned mining activity on the
land will close off a portal to the Creator forever and will
completely devastate the Western Apaches’ spiritual
lifeblood.”); id. at 606 (“[T]he land in this case will be all
but destroyed to install a large underground mine, and Oak
Flat will no longer be accessible as a place of worship.”).
So, contrary to the majority, this case does not ask us to
determine at what point “frustrating” religious exercise
qualifies as a substantial burden; 15 instead, we are
confronted only with the utter erasure of a religious practice.
In other words, the burden here is categorical and thus
undisputedly “synonymous with ‘prohibit.’” Collins Op. at
29.
15
See, e.g., Braunfeld v. Brown, 366 U.S. 599, 605 (1961) (plurality
opinion) (no infringement where a law merely “operates so as to make
the practice of [the individual’s] religious beliefs more expensive”);
Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of
Lakewood, 699 F.2d 303, 306 (6th Cir. 1983) (similar); Goehring, 94
F.3d at 1299; Worldwide Church of God, 227 F.3d at 1121; United States
v. Friday, 525 F.3d 938, 947 (10th Cir. 2008) (“We are skeptical that the
bare requirement of obtaining a permit can be regarded as a ‘substantial
burden’ under RFRA.”); see also Adkins v. Kaspar, 393 F.3d 559, 570
(5th Cir. 2004) (no infringement where government action “merely
prevents the adherent from either enjoying some benefit that is not
otherwise generally available or acting in a way that is not otherwise
generally allowed”); Abdulhaseeb, 600 F.3d at 1316 (“[W]e do not
intend to imply that every infringement on a religious exercise will
constitute a substantial burden.”).
222 APACHE STRONGHOLD V. UNITED STATES
Second, that the Land Transfer Act does not specially
“discriminate” against the Western Apaches by name—i.e.,
that the Act is neutral and generally applicable to all who
would visit Oak Flat—is irrelevant because, when enacting
RFRA, Congress eliminated Smith’s neutrality test. See 42
U.S.C. § 2000bb(a)(2) (“Congress finds that . . . laws
‘neutral’ toward religion may burden religious exercise as
surely as laws intended to interfere with religious
exercise.”). All that matters under RFRA, as opposed to the
Free Exercise Clause, is whether the government has
“substantially burden[ed]” sincere religious exercise. Id.
§ 2000bb-1(a). The majority thus misunderstands
Congress’s purpose in enshrining a broad right to religious
liberty by eliminating Smith’s neutrality requirement.
The majority argues that such a reading of RFRA is too
“broad.” But a clear-cut conclusion that making religious
exercise impossible is a “substantial burden” can hardly be
called broad, especially when it adheres closely to both
RFRA’s text and the Supreme Court’s precedent. The
majority also contends that claims like Apache Stronghold’s
would subject the government to “religious servitude.” Yet
the majority proceeds as if, once a religious adherent has
satisfied the substantial burden test, the outcome is a
foregone conclusion. However, Congress explicitly
identified the compelling interest test as “a workable test for
striking sensible balances between religious liberty and
competing prior governmental interests.” 42 U.S.C.
§ 2000bb(a)(5).
At this stage, Apache Stronghold has only proven that
there is a substantial burden. On remand, the government
could demonstrate that transferring Oak Flat is justified by a
compelling interest pursued through the least restrictive
APACHE STRONGHOLD V. UNITED STATES 223
means. 16 See Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450
U.S. 707, 718 (1981) (“The mere fact that the petitioner’s
religious practice is burdened by a governmental program
does not mean that an exemption accommodating his
practice must be granted. The state may justify an inroad on
religious liberty by showing that it is the least restrictive
means of achieving some compelling state interest.”); see
also Gonzales, 546 U.S. at 430, 436 (rejecting the
government’s “slippery slope” argument under RFRA, and
noting that Sherbert did so under the Free Exercise Clause);
cf. Cutter, 544 U.S. at 722 (stating that the Supreme Court
had “no cause to believe” that the compelling interest test
“would not be applied in an appropriately balanced way”).
So although Lyng did not specifically address government
action that prevented religious exercise, contrary to the
16
The compelling interest test has not proven fatal to the government.
See Douglas Laycock & Thomas C. Berg, Protecting Free Exercise
Under Smith and After Smith, Cato Sup. Ct. Rev. at 44–45 & n.66
(2020–21) (noting that “the compelling-interest standard has not come
close to producing the ‘anarchy’ of which Smith warned” and finding
that “free-exercise claims, including RFRA claims, were the least likely
to invalidate the government action” (citing Adam Winkler, Fatal in
Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the
Federal Courts, 59 Vand. L. Rev. 793, 857–58, 861 (2006))).
And if the majority were correct that my reading of RFRA would
subject the government to “religious servitude,” then we would
necessarily have seen that concern play out in circuits that have long
employed a broader reading of “substantial burden.” Neither the
government nor the majority provide evidence that other circuits are
inundated with such claims, and I have found no evidence hinting at that
possibility. Cf. Yellowbear, 741 F.3d at 62 (Gorsuch, J.) (rejecting
slippery slope argument). In addition, before Smith, the government was
not yoked to religious deference—as the majority and the government
fears it would be—even though the Supreme Court had read the Free
Exercise Clause to cover claims about preventing religious exercise.
224 APACHE STRONGHOLD V. UNITED STATES
majority’s assertions, Lyng’s discussion of “discrimination”
by “prohibiting” access to a sacred site confirms that the
Land Transfer Act creates a substantial burden.
ii. Lyng’s Post-RFRA Limits
Moreover, to the degree Lyng’s Free Exercise ruling is
in any tension with my understanding of RFRA, those
aspects of Lyng were not carried forward into RFRA. Smith
makes that much evident, as it treats Lyng as declining to
apply the compelling interest test to a neutral law of general
applicability, and RFRA displaced that standard for
governmental decisions governed by RFRA.
Smith held that Lyng “declined to apply Sherbert analysis
to the Government’s logging and road construction activities
on lands used for religious purposes by several Native
American Tribes, even though it was undisputed that the
activities ‘could have devastating effects on traditional
Indian religious practices.’” Smith, 494 U.S. at 883 (quoting
Lyng, 485 U.S. at 451). Per Smith, Lyng stood for the
proposition that the compelling interest test is “inapplicable”
to “across-the-board” neutral laws. Smith, 494 U.S. at 884–
85. In declining to apply the compelling interest test, Smith
relied on Lyng for the point that “[t]he government’s ability
to enforce generally applicable prohibitions of socially
harmful conduct, like its ability to carry out other aspects of
public policy, ‘cannot depend on measuring the effects of a
governmental action on a religious objector’s spiritual
development.’” Smith, 494 U.S. at 885 (quoting Lyng, 485
U.S. at 451). Smith then concluded that “generally
applicable, religion-neutral laws that have the effect of
burdening a particular religious practice need not be justified
by a compelling governmental interest.” Id. at 886 n.3.
APACHE STRONGHOLD V. UNITED STATES 225
In so holding, Smith emphatically rejected Justice
O’Connor’s concurrence suggesting that Lyng created an
exception for Free Exercise challenges to the government’s
conduct of its internal affairs. 494 U.S. at 885 n.2. 17
The Smith majority first acknowledged that “Justice
O’Connor seeks to distinguish Lyng and Roy on the ground
that those cases involved the government’s conduct of ‘its
own internal affairs.’” Id. (citations omitted). Smith then
considered Justice O’Connor’s position that challenges to
the government’s conduct of its internal affairs are “different
because, as Justice Douglas said in Sherbert, ‘the Free
Exercise Clause is written in terms of what the government
cannot do to the individual, not in terms of what the
individual can exact from the government.’” Id. (internal
quotation marks and citation omitted). “But,” said the Smith
majority in refuting the internal affairs proposition, “that
quote obviously envisioned that what ‘the government
cannot do to the individual’ includes not just the prohibition
of an individual’s freedom of action through criminal laws
but also the running of its programs . . . in such fashion as to
harm the individual’s religious interests.” Id. “Moreover,”
Smith continued, “it is hard to see any reason in principle or
practicality why the government should have to tailor its
health and safety laws to conform to the diversity of religious
belief, but should not have to tailor its management of public
lands, Lyng, supra.” Id. (emphasis added). 18
17
Judge Nelson’s concurring opinion so recognizes.
18
As the Smith majority alluded to, it is hard to see how an exception
permitting the government to substantially burden religious exercise
when “manag[ing] its internal affairs,” Nelson Op. at 144, would not
encompass most government action and indeed swallow RFRA whole.
226 APACHE STRONGHOLD V. UNITED STATES
Smith treated Lyng as reflecting not any special
exception for challenges to the government’s internal affairs,
but as concerning the type of neutral and generally
applicable laws not subject to the compelling interest test
under Smith. Id. at 884–85 (citing Lyng, 485 U.S. at 451).
Smith’s understanding of Lyng remains controlling. See
Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1878 (2021)
(“Smith . . . drew support for the neutral and generally
applicable standard from cases involving internal
government affairs.” (citing Lyng, 485 U.S. at 439)).
Accordingly, Lyng was not about measuring the extent
of burdens sufficient to trigger the compelling interest test.
Nor was Lyng, as the majority and concurring opinions posit,
a case concerning the borders of the Free Exercise Clause or
a special carve-out category of government actions that were
not covered by Smith. Instead, Lyng reflected the principle,
further developed in Smith and rejected in RFRA, that the
compelling interest test was categorically inapplicable to
neutral and generally applicable laws. See Smith, 494 U.S.
at 884–85; Fulton, 141 S. Ct. at 1878.
Smith’s controlling interpretation of Lyng thus makes
clear that (1) Lyng turned on the categorical inapplicability
of the compelling interest test to the Free Exercise challenge
in that case; and (2) the reason the compelling interest test
was inapplicable in Lyng was that “the test [is] inapplicable
to such challenges” to generally applicable laws. Smith, 494
U.S. at 885. RFRA’s rejection of Smith’s rule—that the
compelling interest test is inapplicable to neutral and
generally applicable laws—means that Lyng likewise does
not control in RFRA cases.
The majority’s flawed response to this point is that Lyng
did not involve a neutral or generally applicable law. Collins
APACHE STRONGHOLD V. UNITED STATES 227
Op. at 31–32. But that proposition is wrong. Indeed,
elsewhere in its opinion, the majority asserts, accurately, that
Lyng did not involve “a situation in which the Government
had ‘discriminate[d]’ against the plaintiffs, as might be the
case if Congress had passed ‘a law prohibiting the Indian
[plaintiffs] from visiting the [sacred] area.’” Collins Op. at
27 (quoting Lyng, 485 U.S. at 453). A law that “does not
‘discriminate’ against religious adherents,” like the policy in
Lyng, is a neutral one for purposes of Free Exercise doctrine.
See Church of the Lukumi Babalu Aye, 508 U.S. at 533
(explaining that a “law is not neutral” if “the object of a law
is to infringe upon or restrict practices because of their
religious motivation” (citing Smith, 494 U.S. at 878–89)).
The plan to build the road at issue in Lyng was indisputably
neutral in this sense, as it would affect equally all who
preferred leaving the wilderness untouched—
environmentalists, for example, or ranchers.
Nor is the majority correct that the policy challenged in
Lyng was not generally applicable. In Lyng, the Forest
Service proposed building a road connecting two towns and
permitting timber harvesting in the same area; the road
would be open to all, and there was no suggestion that the
purpose of the Forest Service’s plan was to discriminate
against Native American tribes. Indeed, the Forest Service
took steps to mitigate the impact on tribes by “select[ing] a
route that avoided archeological sites and was removed as
far as possible from the sites used by [tribes] for specific
spiritual activities.” Lyng, 485 U.S. at 443. While the
litigation in Lyng was pending in the court of appeals,
Congress enacted the California Wilderness Act, which
designated portions of the forest as a protected wilderness
area but excluded the proposed route. Id. at 444. While the
choice of the route in the Act was made with knowledge of
228 APACHE STRONGHOLD V. UNITED STATES
the tribes’ religious interest in it, there was no indication that
it was made because of, rather than in disregard of, that
interest, and the impact of the choice remained generally
applicable and neutral. 19
In short, the plan to construct a road and harvest timber
in Lyng was generally applicable and “‘neutral’ toward
religion” in the sense that its purpose was not to “interfere
with religious exercise.” 42 U.S.C. § 2000bb(a)(2).
Therefore Lyng, a Free Exercise Clause case that rejected the
compelling interest test for neutral laws of general
applicability, does not answer the question of whether, under
RFRA, preventing a person from engaging in religious
exercise by denying them access to a sacred site is a
substantial burden.
iii. Terry Williams Is Inapplicable Here
There is another, related problem with the majority’s
treatment of Lyng. Relying on Williams v. Taylor, 529 U.S.
362, 411 (2000) (“Terry Williams”), the majority
erroneously proceeds as if Congress must be understood to
have adopted the term “substantial burden” as interpreted in
Justice O’Connor’s concurrence in Smith, and so excepted
cases similar to Lyng from that concept.
Terry Williams explained that “Congress need not
mention a prior decision of this Court by name in a statute’s
text in order to adopt either a rule or a meaning given a
19
Moreover, even if the majority were correct as to the impact of the
California Wilderness Act, that would be beside the point. Lyng
involved a challenge to the Forest Service’s plan to construct the road
and harvest timber, not to the California Wilderness Act. See Lyng, 485
U.S. at 448; Collins Op. at 24 (acknowledging that the California
Wilderness Act was not enacted until the litigation in Lyng “was pending
on appeal in this court”).
APACHE STRONGHOLD V. UNITED STATES 229
certain term in that decision.” 529 U.S. at 411. Where “[t]he
separate opinions” in a prior Supreme Court case “concerned
the very issue addressed” in a subsequently enacted statute,
the prior case can “confirm what [the statutory] language
already makes clear.” Id. at 411–12. But the majority
opinion’s premises for applying Terry Williams here are
flawed.
First, the majority here is wrong that Smith “concerned
the very issue” of what constitutes a cognizable substantial
burden. The majority opinion asserts that “in superseding
Smith, RFRA uses the phrase ‘substantially burden,’ id.
§ 2000b-1(a), (b),” so “[t]he inference is overwhelming that
Congress thereby ‘adopt[ed]’ the ‘meaning given [that]
certain term in that decision.’” Collins Op. at 43 (quoting
Terry Williams, 529 U.S. at 411). From that premise, the
majority concludes that “[w]hen Congress copied the
‘substantial burden’ phrase into RFRA, it must be
understood as having similarly adopted the limits that Lyng
places on what counts as a governmental imposition of a
substantial burden on religious exercise.”
But as Judge Nelson’s concurring opinion appears to
acknowledge, neither Lyng nor the Smith majority
interpreted the term “substantial burden.” Nelson Op. at
135. Lyng simply refused to apply the compelling interest
test. See 485 U.S. at 450–51 (explaining that Sherbert and
Yoder “cannot imply that incidental effects of government
programs,” without outright prohibition, coercion, or
penalty, “require government to bring forward a compelling
justification”); see also Smith, 494 U.S. at 883. Thus, Judge
Nelson writes that Lyng is not
part of any “old soil” that was used to define
“substantial burden,” Bea Dissent at 75.
230 APACHE STRONGHOLD V. UNITED STATES
Indeed, Lyng does not even use “substantial
burden” or any analogous framing of the
phrase. Lyng therefore cannot be read as
establishing a precise definition of
“substantial burden” “carried over into the
soil” of RFRA.
Nelson Op. at 136 (citation omitted).
Likewise, Smith was about categorically excepting
neutral and generally applicable laws from the compelling
interest test, rather than about defining the term “substantial
burden.” See 494 U.S. at 884–85; see also supra § II(F)(ii)
(discussing Justice O’Connor’s Smith concurrence and
explaining that the Smith majority did not apply the
compelling interest test). Although Justice O’Connor’s
concurring opinion took the position that the denial of
unemployment benefits based on religious drug use
constituted a substantial burden, she did not rely on Lyng in
her discussion of that term. See Smith, 494 U.S. at 897–98
(O’Connor, J., concurring in the judgment). Moreover, the
Smith majority never reached the question of what types of
burdens would be required to satisfy the first step of the
Sherbert test. Instead, it concluded that the test was entirely
“inapplicable” in cases challenging neutral, generally
applicable laws. See Smith, 494 U.S. at 884–85. So there
was no “vigorous debate” in Smith on the meaning of the
term substantial burden, contrary to the majority’s
representation.
Furthermore, Terry Williams involved a situation in
which Congress did “not mention a prior decision of this
Court by name in a statute’s text.” 529 U.S. at 411. That is
not the circumstance here. Instead, RFRA explicitly
identified which portion of Smith Congress sought to
APACHE STRONGHOLD V. UNITED STATES 231
address. Congress declared that “in Employment Division v.
Smith, the Supreme Court virtually eliminated the
requirement that the government justify burdens on religious
exercise imposed by laws neutral toward religion.” 42
U.S.C. § 2000bb(a)(4) (citation omitted). Congress’s view,
by contrast, was that “laws ‘neutral’ toward religion may
burden religious exercise as surely as laws intended to
interfere with religious exercise.” Id. § 2000bb(a)(2).
Consequently, although the majority opinion points to
RFRA’s citation to Smith as reinforcing its holding, the
appropriate conclusion is the opposite: Congress was
specific about the aspect of Smith that it intended to
address—the rule that neutral and generally applicable laws
are not subject to the compelling interest test. Congress
could not have, by expressly citing Smith in the course of
negating its exception for neutral and generally applicable
laws, intended to incorporate the “meaning given a certain
term,” Terry Williams, 529 U.S. at 411, when that term
simply was not at issue in Smith.
The upshot is that RFRA’s text does not support the
majority’s conclusion that Congress intended a special
exception for certain types of government actions. Rather,
RFRA is explicit that:
• Religious exercise includes the use of real property
for the purpose of religious exercise. 42 U.S.C.
§ 2000bb-2(4); Id. § 2000cc-5(7)(B).
• Under RFRA, the “[g]overnment shall not
substantially burden a person’s exercise of religion”
except when the compelling interest test is satisfied.
232 APACHE STRONGHOLD V. UNITED STATES
Id. § 2000bb-1(a), (b). No other exceptions are
provided.
• Government “includes a branch, department, agency,
instrumentality, and official (or other person acting
under color of law) of the United States, or of a
covered entity.” Id. § 2000bb-2(1).
• RFRA “applies to all Federal law, and the
implementation of that law, whether statutory or
otherwise.” Id. § 2000bb-3(a) (emphasis added)
• “Nothing in” RFRA “shall be construed to authorize
any government to burden any religious belief.” Id.
§ 2000bb-3(c). Here, Congress used the term
“burden” rather than “substantial burden.”
• “[T]he 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.” Id.
§ 2000bb(a)(5).
Given these congressional directives, unlike in Terry
Williams, this is not a case in which reference to Smith can
“confirm what” RFRA’s statutory “language already makes
clear.” Terry Williams, 529 U.S. at 411–12. Rather, for the
reasons I have surveyed, what RFRA’s language makes clear
is that there is a “substantial burden” when individuals are
prevented from practicing their religion by governmental
action; if Lyng indicates otherwise (which I do not believe),
that implication of Lyng does not survive RFRA.
G. This En Banc Panel Fails to Clarify Our Law
“As an en banc court, we have a responsibility to bring
clarity to our law.” Garfias-Rodriguez v. Holder, 702 F.3d
APACHE STRONGHOLD V. UNITED STATES 233
504, 532 (9th Cir. 2012) (en banc) (Kozinski, C.J.,
concurring in part). Notably, although the divided three-
judge panel rejected Apache Stronghold’s RFRA claim
largely under Navajo Nation, the majority makes no mention
of that case. Instead, litigants are forced to piece together
from a composite of opinions that a majority of judges on
this en banc panel rejects Navajo Nation’s reasoning.
Furthermore, the majority opinion creates confusion as
to how to define “substantial burden.” Although RFRA’s
text simply provides that the federal government may not
“substantially burden a person’s exercise of religion,” 42
U.S.C. § 2000bb-1(a), the majority skips the test entirely and
asks only whether litigants bring a “cognizable” claim. As I
have discussed, see supra § II(E), preventing religious
adherents from worshipping at a sacred site is inherently
prohibitory. For the majority, only once a litigant has shown
that the government action is cognizably “prohibitory” can a
court ask whether there is a “substantial burden.” At that
point, the majority finds it “adequate[]” to apply a dictionary
definition of “substantial burden” in the context of zoning
and confinement under both RFRA and RLUIPA, but not in
other RFRA contexts. Collins Op. at 47. But this answer is
not helpful. Under the majority’s approach, dictionaries can
supply the meaning of substantial burden in RFRA cases
about zoning and confinement, but dictionaries appear to be
irrelevant when a person challenges a different type of
government action—as Apache Stronghold does here.
Either the meaning of “substantial burden” is the same under
RFRA and RLUIPA, or the definition under RFRA is case-
dependent. It cannot be both.
And the majority provides no authority for this sort of
distinction. Nor could it. If the meaning of “substantial
burden” turned on the type of case, several Supreme Court
234 APACHE STRONGHOLD V. UNITED STATES
Free Exercise Clause cases would have lacked any
discussion of substantial burden or compelling interest. See,
e.g., Hernandez, 490 U.S. at 684–85, 699 (discussing
substantial burden and concluding the government had a
compelling justification in a Free Exercise Clause challenge
to the Internal Revenue Service’s refusal to recognize
payments made by Scientologists to churches as tax-
deductible charitable contributions).
The majority’s shapeshifting definition of substantial
burden also finds no support in RFRA’s and RLUIPA’s text.
RLUIPA’s land-use provision states 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.” 42 U.S.C. § 2000cc(a)(1) (emphasis added). And
the institutionalized persons provision likewise states that
“[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an
institution.” Id. § 2000cc-1(a) (emphasis added). The
majority argues that RLUIPA incorporates or “bake[s] in”
the Free Exercise Clause’s “prohibition” requirement. But
RLUIPA’s text does not use the word “prohibit,” so it is hard
to see how RLUIPA incorporates the Free Exercise Clause
in a way that RFRA does not. Compare id., with § 2000bb-
1(a) (“Government shall not substantially burden a person’s
exercise of religion.”).
Nor does the majority meaningfully distinguish the
coercion inherent in land-use cases from the coercion here.
For instance, the majority contends that in the land-use
context, the Free Exercise Clause’s “prohibition”
requirement is inherent. Collins Op. at 47. But if a city
precludes the building of a church on a parcel zoned for
single-family dwellings, the city is not conditioning a benefit
on forgoing religious exercise nor is it penalizing religious
APACHE STRONGHOLD V. UNITED STATES 235
exercise. So how is the city’s zoning law “inherently . . .
coercive” in a way that the Land Transfer Act and the
destruction of Oak Flat is not? The majority offers little
guidance to litigants wondering what governmental actions
are sufficiently “coercive” to allow for a substantial burden
analysis.
Indeed, contrary to what the majority says, Apache
Stronghold’s RFRA claim “inherently involve[s] coercive
restrictions.” Collins Op. at 47. As Judge Berzon noted in
her panel dissent, Native American sacred sites—like the
contexts of land-use and confinement—are unique in that
“the government controls access to religious locations and
resources.” Apache Stronghold, 38 F.4th at 776 (Berzon, J.,
dissenting) (citing Stephanie Hall Barclay and Michalyn
Steele, Rethinking Protections for Indigenous Sacred Sites,
134 Harv. L. Rev. 1294, 1301 (2021)). In each of these
contexts the government has control over religious sites and
resources, and religious adherents must “practice their
religion in contexts in which voluntary choice is not the
baseline.” Id. As with the Western Apaches here, Native
American religions are typically land-based, so many
traditional Native American religious sites are located
exclusively on federal land. Therefore, unlike most non-
incarcerated Americans, Native Americans are “at the mercy
of government permission to access sacred sites.” Id.
(quoting Barclay & Steele, supra, at 1301); see also Douglas
Laycock & Thomas C. Berg, Protecting Free Exercise
Under Smith and After Smith, Cato Sup. Ct. Rev. at 33, 58
(2020–21) (arguing that the government “took control over
the tribes’ ability to practice their traditions fully—in
somewhat the same way that prisons control [incarcerated
persons’] ability to practice their faith”). The Land Transfer
Act thus prevents the Apaches from practicing their religion
236 APACHE STRONGHOLD V. UNITED STATES
at Oak Flat, substantially burdening their religious exercise,
just as would an outright ban of religious worship, meetings,
or diet in prison, or a zoning law precluding a religious group
from building a mosque, church, or synagogue. In other
words, the government’s control over access to Oak Flat is
coercive, and few other religious adherents are situated
similarly to the Apache such that they need the government’s
permission to worship.
H. RFRA Applies to the Land Transfer Act
For the first time in its Brief in Opposition to Rehearing
En Banc, the government urges this court to affirm on the
alternative ground that, under the legislative anti-
entrenchment principle, RFRA cannot apply to the Land
Transfer Act. Because the government did not raise that
argument before the district court, and did not develop it on
appeal, I would normally consider such eleventh-hour
arguments waived. See Partenweederei, MS Belgrano v.
Weigel, 313 F.2d 423, 425 (9th Cir. 1962). However, the
issue is purely legal, and the government could and likely
would raise the argument to the district court on remand. See
Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 888 n.4 (9th
Cir. 2002). So for the sake of judicial efficiency, I address
it now.
RFRA applies to “all Federal” statutes enacted after
RFRA’s adoption “unless such [later-enacted] law explicitly
excludes such application by reference.” 42 U.S.C.
§ 2000bb-3(b). The government argues that § 2000bb-3(b)
holds no force whatsoever and instead maintains the Land
Transfer Act supersedes RFRA because “one legislature
cannot abridge the powers of a succeeding legislature.”
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810)
(Marshall, C.J.). Generally, under the legislative anti-
APACHE STRONGHOLD V. UNITED STATES 237
entrenchment doctrine, a prior Congressional enactment
“may be repealed, amended, or disregarded by the legislature
which enacted it, and is not binding upon any subsequent
legislature.” United States v. Winstar Corp., 518 U.S. 839,
873 (1996) (cleaned up).
The Supreme Court has held, however, that “RFRA
operates as a kind of super statute” because it applies to all
federal statutes and thus “displac[es] the normal operation of
other federal laws.” Bostock, 140 S. Ct. at 1754. In two
RFRA cases, the Supreme Court accordingly determined
that RFRA was controlling even though it conflicted with
later-enacted federal law. See Little Sisters of the Poor v.
Pennsylvania, 140 S. Ct. 2367, 2383 (2020) (applying RFRA
to the Affordable Care Act (“ACA”), a later-enacted statute,
because the “ACA does not explicitly exempt RFRA”);
Hobby Lobby, 573 U.S. at 719 n.30 (rejecting an implied
repeal argument for the same reason). And as the Seventh
and Eleventh Circuits have recognized, RFRA is consistent
with the anti-entrenchment principle because “the statute
does not apply to a subsequently enacted law if it ‘explicitly
excludes such application by reference to’” RFRA. Korte,
735 F.3d at 672–73 (cleaned up) (quoting 42 U.S.C.
§ 2000bb-3(b)); accord Cheffer v. Reno, 55 F.3d 1517, 1522
n.10 (11th Cir. 1995). In other words, because a majority of
Congress can preclude the application of RFRA to any
subsequently-enacted statute, Congress “remains free to
repeal the earlier statute, to exempt the current statute from
the earlier statute, to modify the earlier statute, or to apply
the earlier statute but as modified.” Dorsey v. United States,
567 U.S. 260, 274 (2012). 20 RFRA does not therefore limit
20
Neither Judge Bea’s concurrence nor the government explain why we
should depart from Korte and Cheffer and create a circuit split. See
238 APACHE STRONGHOLD V. UNITED STATES
the authority of future Congresses and so does not violate the
anti-entrenchment principle. See Little Sisters of the Poor,
140 S. Ct. at 2383 (RFRA “permits Congress to exclude
statutes from RFRA’s protections.” (citing 42 U.S.C.
§ 2000bb-3(b))).
I note that RFRA’s express exemption provision is no
different from the one contained in the Administrative
Procedure Act (“APA”), which the Supreme Court
considered in Marcello v. Bonds, 349 U.S. 302, 310 (1955).
The question in Marcello was whether the Immigration and
Nationality Act (“INA”) satisfied the APA’s requirement
that any exemptions from its procedures be “express[],” such
that the APA was inapplicable to deportation proceedings.
349 U.S. at 305–10. The INA section at issue provided that
“[t]he procedure (herein prescribed) shall be the sole and
exclusive procedure for determining the deportability of an
alien under this section.” Marcello, 349 U.S. at 309
(emphasis added) (quotation marks omitted). The Supreme
Court explained that this textual provision was a “clear and
categorical direction” that the INA “was meant to exclude
the application of the” APA. Id.
In other words, the Supreme Court held that the INA did
not need to explicitly mention the APA or use a “magical
password[]” to supersede the APA’s express repeal
provision. Id. at 309–10. The INA’s express inclusion of a
“notwithstanding” clause—i.e., “notwithstanding the
provisions of any other law”—was sufficient. Id. Consistent
with Marcello, we have recognized the inclusion of a
“notwithstanding” clause as “a method—akin to an express
Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d
1190, 1192 (9th Cir. 2003) (“[W]e decline to create a circuit split unless
there is a compelling reason to do so.”).
APACHE STRONGHOLD V. UNITED STATES 239
reference to the superseded statute—by which Congress can
demonstrate that it intended to partially repeal an [earlier]
Act.” United States v. Novak, 476 F.3d 1041, 1052 (9th Cir.
2007) (en banc) (cleaned up).
In short, for a statute to exempt itself from RFRA, a
simple majority of Congress need only exempt that later-
enacted statute from RFRA under 42 U.S.C. § 2000bb-3(b),
either by referencing RFRA specifically or by including
some variation of a “notwithstanding any other law”
provision under Marcello. See Lujan-Armendariz v. I.N.S.,
222 F.3d 728, 747 (9th Cir. 2000), overruled on other
grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.
2011) (en banc). Such a requirement does not require a
“magical password” to supersede RFRA, nor does it violate
the legislative anti-entrenchment principle. Marcello, 349
U.S. at 309–10; see Korte, 735 F.3d at 672–73.
Here, the Land Transfer Act cannot escape RFRA’s
reach. It neither explicitly exempts itself from RFRA, nor
does it contain a “notwithstanding any other law” provision
of any kind. See 16 U.S.C. § 539p. At the same time, had
Congress wanted to exempt the Land Transfer Act from
RFRA, it knew how to do so. The Land Transfer Act
includes a specific exemption from another statute—the
Federal Land Policy and Management Act of 1976—
reinforcing that Congress could have, but did not, enact a
similar exemption from RFRA. See 16 U.S.C.
§ 539p(c)(5)(B)(ii) (“The Secretary may accept a payment in
excess of 25 percent of the total value of the land or interests
conveyed, notwithstanding section 206(b) of the Federal
Land Policy and Management Act of 1976 (43 U.S.C.
1716(b)).” (emphasis added)). If Congress meant to exempt
the Land Transfer Act from RFRA, Congress could and
240 APACHE STRONGHOLD V. UNITED STATES
would have done so explicitly. Accordingly, RFRA applies
to the Land Transfer Act.
III. Conclusion
The majority tragically errs in rejecting Apache
Stronghold’s RFRA claim solely under Lyng. Lyng does not
answer the question here, where we are faced with
government action that will result in a massive hole
obliterating Oak Flat and categorically preventing the
Western Apaches from ever again communing with Usen
and the Ga’an, the very foundation of the Apache religion.
The effect will be immediate and irreversible. Under RFRA,
preventing religious adherents from engaging in sincere
religious exercise undeniably constitutes a “substantial[]
burden.” 42 U.S.C. § 2000bb-1(a). RFRA’s plain text
encompasses such claims, and the Supreme Court’s and our
jurisprudence have long so recognized.
I would therefore hold that, at this stage, Apache
Stronghold has shown that it is likely to succeed on the
merits of its RFRA claim, and I would remand for the district
court to determine whether the Land Transfer Act is justified
by a compelling interest pursued through the least restrictive
means. 42 U.S.C. § 2000bb-1(b). Because the majority
holds the opposite, I respectfully dissent.
LEE, Circuit Judge, dissenting:
Chief Judge Murguia’s excellent dissent lays out why
Navajo Nation v. United States Forest Service, 535 F.3d
1058 (9th Cir. 2008) (en banc), incorrectly defined
“substantial burden” as a narrow term of art. Simply put, the
complete obliteration of the land—which the Western
APACHE STRONGHOLD V. UNITED STATES 241
Apache consider sacred and where they have worshipped
and conducted ceremonies for at least a millennium—
obviously imposes a substantial burden on the Apache’s
religious exercise.
I join Chief Judge Murguia’s dissent except for Section
II.H. I do not believe we should address the merits of the
government’s last-minute argument that the Religious
Freedom Restoration Act cannot apply to the Land Transfer
Act. The government did not bother raising this difficult
question before the district court or on appeal. Rather, the
government advanced this argument for the first time in its
brief opposing rehearing en banc, and now asks the en banc
panel to rule in its favor on this newly developed argument.
The government infrequently shows any grace when people
miss deadlines or do not follow its rules. Cf. Niz-Chavez v.
Garland, 141 S. Ct. 1474, 1486 (2021) (“If men must turn
square corners when they deal with the government, it
cannot be too much to expect the government to turn square
corners when it deals with them.”). I would not show any
leniency to the government and would consider this
argument waived.