Mining an exception

For most people, Oak Flat’s cactuses, rock formations, and pine and old-growth oak trees may look like any other stretch of Southwest desert. But for Apache and other Native American groups, the federal land near Superior, Ariz., is a place where “god touched the world,” where “a deity resides,” as one Apache member has said.

Attorneys for Apache Stronghold, the umbrella organization for the groups, continue to evaluate legal options after the Supreme Court on May 27 declined to review a sharply divided ruling by the 9th U.S. Circuit Court of Appeals. In the 6-5 circuit court opinion issued in March 2024, the majority concluded that the government’s lease of the land to a copper company would not substantially burden the Apaches’ religious practice, even though the nearly 2-mile crater created by the copper mine would destroy the sacred site.

Resolution Copper is a joint venture of global mining companies BHP and Rio Tinto. Oak Flat was protected by the federal government until 2014, when a provision tucked away in a must-pass defense spending bill authorized its transfer to Resolution Copper.

At the center of the 9th Circuit’s ruling is the Religious Freedom Restoration Act (RFRA), a 1993 federal law that prohibits governmental action that substantially burdens religious practice unless it is the “least restrictive means of furthering [a] compelling governmental interest.”

At the Supreme Court in May, Justice Neil Gorsuch penned a dissent criticizing his colleagues in the majority for allowing a ruling to stand that creates an exception to RFRA’s protection in cases involving transfers of government property—a conclusion he called “a grievous mistake.” (Justice Clarence Thomas joined Gorsuch in his dissent. Justice Samuel Alito, who owns stock in BHP, did not participate in the court’s consideration of the case.)

“Exactly nothing in the phrase ‘substantial burden’—or anything else in RFRA’s text—hints that a different and more demanding standard applies when (and only when) the ‘disposition’ of the government’s property is at issue,” Gorsuch wrote. He cited a 1978 Supreme Court ruling, Tennessee Valley Authority v. Hill, that barred the government from proceeding with a virtually completed federal dam over an endangered species of perch. “If Congress went to such lengths to accommodate the snail darter, why should we suppose it offered less protection to people practicing an ancient faith?” he asked.

Joe Davis, an attorney with the Becket Fund for Religious Liberty who represented Apache Stronghold, noted that RFRA applies to all religions, so weakening it by excluding federal lands from its provisions will also threaten the practices of other religions.

“The Knights of Columbus, a Catholic group, have had a traditional Mass at Virginia’s Poplar Grove National Cemetery on Memorial Day for many years,” Davis said. “As soon as the Apache Stronghold decision came out in the 9th Circuit, the government turned around and said, ‘No more Catholic Mass on federal land.’” (The government reversed course in that case after a lawsuit.)

In his dissent, Gorsuch also pointed to worship services at Ebenezer Baptist Church, where Martin Luther King Jr. preached, or at other historic churches located on federal land.

While a Trump administration has thus far been more accommodating of religious liberty concerns, Davis said that the ruling unwisely gives federal officials near carte blanche to end religious practices on federal land without any compelling reason. He added Becket would continue to pursue any available legal options in the Oak Flat case.