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| Oak Flat photo courtesy Apache Stronghold |
Biden's Justice Department Opposing Protection of Oak Flat -- Violating Native American Religious Freedom Rights
By Brenda NorrellCensored News
President Biden's Justice Department is in federal court in San Francisco, fighting the Apache Stronghold's protection of their ceremonial place at Oak Flat in Arizona. The U.S. Justice Department is opposing rehearing of the case. Instead, the Justice Department is promoting the destruction of sacred land for a copper mine for the foreign company Resolution Copper.
Resolution Copper has desecrated sacred land in Australia and violated Indigenous rights around the world. In its own reports, Resolution Copper admits to a high rate of rapes in its mines, with the highest rates of sexual abuse in Australia and South Africa.
In San Francisco at federal court, Dr. Wendsler Nosie, Sr., of Apache Stronghold is struggling to protect Oak Flat.
“Oak Flat is like Mount Sinai to us—our most sacred site where we connect with our Creator, our faith, our families, and our land. It is a place of healing that has been sacred to us since long before Europeans arrived on this continent. My children, grandchildren, and the generations after them deserve to practice our traditions at Oak Flat.”
Below is the U.S. government's opposition to the protection of Oak Flat, opposition to upholding Native American Freedom of Religion Rights, and pressuring the court to give open access to Resolution Copper's mine.
No. 21-15295
___________________________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________
APACHE STRONGHOLD,
Plaintiff/Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Defendants/Appellees.
Appeal from the United States District Court for the District of Arizona
No. CV-21-00050-PHX-SPL (Hon. Steven P. Logan)
___________________________
OPPOSITION TO REHEARING EN BANC
___________________________
TODD KIM
Assistant Attorney General
ANDREW C. MERGEN
KATELIN SHUGART-SCHMIDT
JOAN M. PEPIN
Attorneys
Environment and Natural Resources Div.
U.S. Department of Justice
Post Office Box 7415
Washington, D.C. 20044
(202) 305-4626
joan.pepin@usdoj.gov
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i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
GLOSSARY ............................................................................................................ vii
INTRODUCTION ..................................................................................................... 1
BACKGROUND ....................................................................................................... 2
REASONS FOR DENYING REHEARING ............................................................. 4
I. The panel decision does not conflict with any decision of this
Court, the Supreme Court, or any other court of appeals. ............................... 4
A. This en banc Court correctly held in Navajo Nation that
RFRA did not alter the meaning of “burden” developed
in pre-Smith free exercise jurisprudence. .............................................. 4
B. This case is controlled by Navajo Nation and Lyng .............................. 8
C. Subsequent Supreme Court precedent confirms that a
“burden” is the punishment or other coercion the
government applies to the claimant. .................................................... 10
D. Coercion, not “access to religious resources,”
distinguishes zoning and prisoner cases. ............................................. 12
1. Zoning cases involve coercion. ................................................. 13
2. Prisoner cases involve coercion. ............................................... 14
3. The dissent understates the consequences of its
theory......................................................................................... 15
II. If the Act were irreconcilable with RFRA, the Act would
control. ........................................................................................................... 16
CONCLUSION ........................................................................................................ 20
CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES
Cases
Abdulhaseeb v. Calbone,
600 F.3d 1301 (10th Cir. 2010) ........................................................... 14
Bostock v. Clayton County,
140 S.Ct. 1731 (2020) ......................................................................... 18
Bowen v. Roy,
476 U.S. 693 (1986) .......................................................... 5, 7, 10, 11, 12
Branch v. Smith,
538 U.S. 254 (2003) ............................................................................ 17
Burwell v. Hobby Lobby,
573 U.S. 682, 726 (2014) ............................................................... 11, 18
Carson v. Makin,
142 S.Ct. 1987 (2022) ......................................................................... 12
Center for Investigative Reporting v. U.S. Dep’t of Justice,
14 F.4th 916 (9th Cir. 2021) ............................................................ 17-18
Church of the Foursquare Gospel v. City of San Leandro,
673 F.3d 1059 (9th Cir. 2011) ............................................................. 13
City of Boerne v. Flores,
521 U.S. 507 (1997) ................................................................... 6, 15, 16
Cutter v. Wilkinson,
544 U.S. 709 (2005) ............................................................................ 15
Dorsey v. U.S.,
567 U.S. 260 (2012) ....................................................................... 17, 18
Employment Division v. Smith,
494 U.S. 872, 878-79 (1990) .......................................................... 1, 6, 7
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Fletcher v. Peck,
10 U.S. (6 Cranch) 87, 135 (1810) ....................................................... 17
Fulton v. City of Philadelphia,
141 S.Ct. 1868 (2021) ......................................................................... 12
Great Northern Ry. Co. v. U.S.,
208 U.S. 452 (1908) ............................................................................ 17
Greene v. Solano County Jail,
513 F.3d 982 (9th Cir. 2008) ............................................................... 14
Guru Nanak Sikh Soc’y v. County of Sutter,
456 F.3d 978 (9th Cir. 2006) ............................................................... 13
Haight v. Thompson,
763 F.3d 554 (6th Cir. 2014) ............................................................... 14
Holt v. Hobbs,
574 U.S. 352 (2015) ....................................................................... 11, 14
Johnson v. Baker,
23 F.4th 1209 (9th Cir. 2022) .............................................................. 14
Jones v. Slade,
23 F.4th 1124 (9th Cir. 2022) .............................................................. 14
La Cuna de Aztlan Sacred Sites Prot. Circle v. U.S. Dep’t of the Interior,
9th Cir. 13-56799 ............................................................................... 16
Little Sisters of the Poor v. Pennsylvania,
140 S.Ct. 2367.................................................................................... 11
Lockhart v. U.S.,
546 U.S. 142 (2005) ............................................................................ 17
Lyng v. Northwest Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988) .......................... 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, 16, 19
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Navajo Nation v. U.S. Forest Service,
535 F.3d 1058 (9th Cir. 2008) ........................................... 1, 2, 4, 8, 9, 10
Navajo Nation v. U.S. Forest Service,
556 U.S. 1281 (2009) ............................................................................ 1
Prater v. City of Burnside,
289 F.3d 417 (6th Cir. 2002) ............................................................... 14
Ramirez v. Collier,
142 S.Ct. 1264 (2022) ......................................................................... 14
Shakur v. Schriro,
514 F.3d 878 ...................................................................................... 14
Sherbert v. Verner,
374 U.S. 398 (1963) .......................................................................... 4, 8
Slockish v. Federal Highway Admin.,
9th Cir. 21-35220 ............................................................................... 16
Tilton v. Richardson,
403 U.S. 672 (1971) ............................................................................ 11
Trinity Lutheran Church v. Comer,
137 S.Ct. 2012 (2017) ......................................................................... 12
United States v. Fisher,
109 U.S. 143 (1883) ............................................................................ 17
United States v. Winstar Corp.,
518 U.S. 839 (1996) ............................................................................ 17
Warsoldier v. Woodford,
418 F.3d 989 (9th Cir. 2005) ............................................................... 14
Wisconsin v. Yoder,
406 U.S. 205 (1972) ....................................................................... 4, 6, 8
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Wooden v. U.S.,
142 S.Ct. 1063 (2022) ........................................................................... 6
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) ............................................................ 9, 14
Statutes
Southeast Arizona Land Exchange and Conservation Act of 2014
16 U.S.C. § 539p(c)(10) ............................................................. 4, 16, 19
16 U.S.C. § 539p(g)(1) .......................................................................... 4
16 U.S.C. § 539p(g)(3) .......................................................................... 4
Religious Freedom Restoration Act of 1993
42 U.S.C. § 2000bb-1............................................................................ 6
42 U.S.C. § 2000bb(a)(4) ...................................................................... 6
42 U.S.C. § 2000bb-3(b) ..................................................................... 17
Religious Land Use and Institutionalized Persons Act
42 U.S.C. § 2000cc .......................................................................... 6, 11
42 U.S.C. § 2000cc(a)(1) ..................................................................... 13
42 U.S.C. § 2000cc-1 .......................................................................... 11
42 U.S.C. § 2000cc-5(5) ...................................................................... 13
Federal Regulations
20 Fed. Reg. 7,337 ........................................................................................ 2
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Legislative History
139 Cong. Rec. 26,193 (1993) ........................................................................ 7
146 Cong. Rec. 16,645 (2000) ...................................................................... 11
H. Rep. 103-88 .............................................................................................. 7
Hearing on H.R. 3301, H. Comm. on Natural Resources, Subcommittee
on National Parks, Forest and Public Lands, 110th Cong. 18
(2007) .................................................................................................. 3
Legislative Hearing on 112 H.R. 1904, H. Comm. on Natural Resources,
Subcommittee on National Parks, Forests and Public Lands, 112th
Congress 68 (2011) ............................................................................... 3
S. Rep. 103-111 ............................................................................................. 7
Other Authorities
Douglas Laycock & Oliver S. Thomas, Interpreting the Religious
Freedom Restoration Act, 73 Texas L. Rev. 209, 227 (1994) .................. 7, 8
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GLOSSARY
Act Southeast Arizona Land Exchange and Conservation Act of
2014
RFRA Religious Freedom Restoration Act of 1993
RLUIPA Religious Land Use and Institutionalized Persons Act
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INTRODUCTION
This case fails to meet the standards for rehearing en banc. The panel’s
decision does not conflict with any decision of the Supreme Court or this Court;
it is compelled by controlling decisions from both. Indeed, this Court has already
granted en banc review and resolved the key issue: in Navajo Nation v. U.S. Forest
Service, this Court held that the term “substantial burden” in the Religious
Freedom Restoration Act (RFRA) is synonymous with that term as used in free
exercise jurisprudence prior to Employment Division v. Smith, the case that
prompted RFRA’s enactment—and further held that, as a result, the
government’s use and disposition of federal land cannot substantially burden the
exercise of religion. 535 F.3d 1058, 1073 (9th Cir. 2008) (en banc). The Supreme
Court denied certiorari in Navajo Nation, 556 U.S. 1281 (2009), and no
intervening decision of the Supreme Court or any court of appeals conflicts with
it. The Supreme Court’s subsequent opinions have instead confirmed that, under
RFRA as under the Free Exercise Clause, a “burden” is the coercion or sanction
the government applies to the plaintiff, not the effect of the government’s action
on the plaintiff’s religious exercise. Neither plaintiff nor the dissent cite any
decision by the Supreme Court or any court of appeals finding a substantial
burden based on the government’s use or disposition of federal land.
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Moreover, this case is an unsuitable vehicle for reconsidering Navajo
Nation’s interpretation of RFRA because the challenged government action is
specifically mandated by a later Act of Congress. Congress legislated with full
knowledge of plaintiff’s religious and cultural uses of the relevant federal land,
and of the need for jobs and copper. It balanced those competing interests by
protecting Apache Leap but directing the transfer of Oak Flat. If, as plaintiff
urges, RFRA were reinterpreted to forbid what the Act requires, the disposition
of this case wouldn’t change. Under bedrock principles of law, when two statutes
irreconcilably conflict, the later-enacted statute controls.
BACKGROUND
In 1995, the world’s third-largest copper orebody was discovered beneath
lands in the Tonto National Forest. Resolution Copper, a mining company,
holds unpatented mining claims on much of the deposit, but part of it extends
beneath lands withdrawn from mineral entry in 1955. 3-ER-268; 20 Fed. Reg.
7337. Believing the mine would bring jobs and economic development to an
economically-depressed part of the state, members of Arizona’s Congressional
delegation introduced bills over successive Congresses to convey the withdrawn
lands to Resolution in exchange for conservation lands of equal value.
Wendsler Nosie, leader of plaintiff Apache Stronghold and former
Chairman of the San Carlos Apache Tribe, opposed the legislation because the
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“lands to be acquired and mined,” known in English as Apache Leap and Oak
Flat, “are sacred and holy places.” Hearing on H.R. 3301, H. Comm. on Natural
Resources, Subcommittee on National Parks, Forest and Public Lands, 110th Cong. 18
(2007). He 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 Devil’s Canyon are
also holy, sacred, and consecrated grounds” that should not be transferred. Id.
at 21-22.
But Congress heard from supporters of the legislation, too. Another
former Tribal Chairman, Harrison Talgo, testified that “[s]even of ten eligible
workers in the tribe are unemployed . . . Without jobs our children are forced to
move to neighboring communities, or into cities to find work. Not many of them
return, and with each passing generation a piece of Apache identity and culture
is lost.” Hearing on H.R. 1904, H. Comm. on Natural Resources, Subcommittee on
National Parks, Forests and Public Lands, 112th Cong. 68 (2011). In his view, “it is
possible for our traditional values to co-exist with economic progress. In fact, I
don’t believe one can survive without the other.” Id.
Ultimately, Congress struck a compromise. The 2014 Southeast Arizona
Land Exchange and Conservation Act (Act) directed the Forest Service to
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transfer the Oak Flat parcel to Resolution, 16 U.S.C. § 539p(c)(10), but also
required Resolution to surrender all rights it held to mine under Apache Leap,
id. § 539p(g)(3). The Act directs the Forest Service to preserve Apache Leap “for
traditional uses of the area by Native American people.” Id. § 539p(g)(1).
Apache Stronghold, an advocacy organization, sued under RFRA and
sought a preliminary injunction. The district court denied the injunction, finding
plaintiff unlikely to succeed because its RFRA claims were foreclosed by Navajo
Nation and Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
A divided panel of this Court affirmed for the same reason.
REASONS FOR DENYING REHEARING
I. The panel decision does not conflict with any decision of this
Court, the Supreme Court, or any other court of appeals.
A. This en banc Court correctly held in Navajo Nation that
RFRA did not alter the meaning of “burden” developed in
pre-Smith free exercise jurisprudence.
In every RFRA and Free Exercise Clause precedent in which government
action has been held to burden religious exercise, the government has coerced
the plaintiff either directly, by threatening or imposing civil or criminal sanction,
see, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); or indirectly, by conditioning an
otherwise-available benefit on religiously-motivated conduct, see, e.g., Sherbert v.
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Verner, 374 U.S. 398 (1963). That is not a coincidence but a rule established in
two Supreme Court decisions: Bowen v. Roy, 476 U.S. 693 (1986), and Lyng.
In Bowen, the Court held that the government’s use of a Social Security
number to identify the petitioner’s daughter did not impose a cognizable burden,
despite his belief that it would rob her of spiritual power, because the “Free
Exercise Clause affords an individual protection from certain forms of
governmental compulsion,” but doesn’t “require the Government to conduct its
own internal affairs in ways that comport with the religious beliefs of particular
citizens.” 476 U.S. at 699-700.
In Lyng, as here, the plaintiffs claimed the government’s proposed use of
federal land would make their traditional religious practices “impossible.” 485
U.S. at 451. The Court accepted that claim as true, id., but found no free exercise
violation, explaining that the “building of a road or the harvesting of timber on
publicly owned land cannot meaningfully be distinguished from the use of a
Social Security number in Roy.” Id. at 449. Both “would interfere significantly
with private persons’ ability to pursue spiritual fulfillment according to their own
religious beliefs,” but “[i]n neither case . . . would the affected individuals be
coerced by the Government’s action into violating their religious beliefs; nor
would either governmental action penalize religious activity by denying any
person an equal share of the rights, benefits, and privileges enjoyed by other
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citizens.” Id. (emphasis added). Lyng pointedly rejected the argument that an
impact on religious exercise, unaccompanied by coercion, is sufficient to
establish a burden, observing that “there is nothing whatsoever in the Yoder
opinion to support the proposition that the ‘impact’ on the Amish religion would
have been constitutionally problematic if the statute at issue had not been
coercive in nature.” Id. at 456-57.
Two years later, the Court held in Employment Division v. Smith that the
Free Exercise Clause doesn’t require religious exemptions from a “valid and
neutral law of general applicability.” 494 U.S. 872, 878-79 (1990). Congress
responded by enacting RFRA, which provides that government “shall not
substantially burden a person’s exercise of religion even if the burden results
from a rule of general applicability” unless “application of the burden to the
person” is “the least restrictive means of furthering [a] compelling governmental
interest.” 42 U.S.C. § 2000bb-1.
RFRA was a legislative response to Smith, not Lyng. 42 U.S.C.
§ 2000bb(a)(4); City of Boerne v. Flores, 521 U.S. 507, 512 (1997). “RFRA was
meant to restore the legal framework in place prior to Smith.” Wooden v. U.S.,
142 S.Ct. 1063, 1077 (2022) (Barrett, J., concurring). The House and Senate
Reports agreed that RFRA “does not expand, contract or alter the ability of a
claimant to obtain relief in a manner consistent with the Supreme Court’s free
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exercise jurisprudence under the compelling governmental interest test prior to
Smith.” S. Rep. 103-111 at 12; H. Rep. 103-88 at 8 (substantially identical). And,
as particularly relevant here, Congress recognized that, in light of Roy and Lyng,
“pre-Smith case law makes it clear that strict scrutiny does not apply to
government actions involving only management of internal Government affairs
or the use of the Government's own property or resources.” S. Rep. at 9; see also
139 Cong. Rec. 26,193 (1993) (Sen. Hatch) (observing that Lyng held that “the
way in which Government manages its affairs and uses its own property does
not constitute a burden on religious exercise” and reaffirming that RFRA “does
not [a]ffect [Lyng], a case concerning the use and management of Government
resources”).
Thus, the “rule” established in Bowen and Lyng “that government does not
prohibit the free exercise of religion unless it regulates or penalizes a religious
practice” is “generally unaffected by RFRA.” Douglas Laycock & Oliver S.
Thomas, Interpreting the Religious Freedom Restoration Act, 73 Texas L. Rev. 209,
227 (1994). “The level of scrutiny under RFRA is strict, but that scrutiny applies
only to government action that ‘substantially burdens’ the exercise of
religion. . . . Some government actions, though devastating to religions in which
believers may suffer for the acts of others, may not ‘burden’ religious exercise.
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For example, both Bowen [ ] and Lyng [ ] suggest that RFRA would have little
effect on cases that involve the use of government property.” Id. at 228.
Thus, this en banc Court rightly held that under RFRA as under the Free
Exercise Clause, a “burden” exists only when government coerces the plaintiff
through civil or criminal sanctions or by conditioning a benefit on religiously-
motivated conduct. Navajo Nation, 535 F.3d at 1070. Plaintiff contends that
future courts will be compelled by that holding to approve government actions
such as “forcibly rounding up Amish children and sending them to boarding
school,” “padlocking the doors of a church to prevent worship,” “forcibly
removing religious clothing,” or performing an autopsy against the religious
beliefs of next-of-kin. Opening Brief 39, 41. But unlike this case, all of those
hypotheticals involve government coercion. See Answering Brief 38, 40-41. The
panel’s decision does not remotely authorize such results; instead, it is a
straightforward application of existing precedents, including Navajo Nation and
Lyng. It is plaintiff who seeks a dramatic departure from settled precedent by
attempting to use RFRA to “divest the Government of its right” to control the
use and disposition of federal land. Lyng, 485 U.S. at 453.
B. This case is controlled by Navajo Nation and Lyng
The dissent contends that Navajo Nation is distinguishable because it held
that any burden “short of that described by Sherbert and Yoder is not a ‘substantial
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burden,’” and the Act imposes a “greater” burden by making future religious
exercise at Oak Flat impossible. Dissent at 71, quoting 535 F.3d at 1070. That
reasoning misconstrues Navajo Nation’s statement, which clearly refers to how
coercive the government’s action is, not how severely it conflicts with a
claimant’s religious exercise. Of necessity, the latter is for the claimant to decide;
as then-Judge Gorsuch stated in Yellowbear v. Lampert, “we can’t interpret his
religion for him. Instead, the inquiry focuses only on the coercive impact of the
government’s actions.” 741 F.3d 48, 55 (10th Cir. 2014).
The dissent’s argument is irreconcilable with Navajo Nation and Lyng. In
Navajo Nation, this Court explained that “even were we to assume, as did the
Supreme Court in Lyng, that the government action in this case will ‘virtually
destroy the Indians’ ability to practice their religion,’ ” there would still be no
substantial burden because there was no coercion. 535 F.3d at 1072. And Lyng
acknowledged that the planned road would render the plaintiffs’ traditional
religious practices “impossible,” but found no burden because there was no
coercion. 485 U.S. at 451. Plaintiff’s contention that the land transfer will make
their religious exercise impossible cannot distinguish this case from Navajo
Nation and Lyng.
The dissent also attempts to distinguish Lyng and Navajo Nation on the
ground that, in those cases, the government did not “objectively” interfere with
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the plaintiffs’ religious exercise by “deny[ing] access to or directly damag[ing]
the sites.” Dissent at 72-73. The plaintiffs in Lyng raised the same argument,
claiming that Bowen v. Roy was distinguishable because “the Social Security
number in Roy could be characterized as interfering with Roy’s religious tenets
from a subjective point of view,” while in Lyng, “the proposed road will
physically destroy the environmental conditions and the privacy without which
the religious practices cannot be conducted.” Lyng, 485 U.S. at 449 (cleaned up).
But the Court rejected that argument on the sound basis that courts have no
business deciding whether sincerely-claimed impacts on religious exercise are
real or weighty. Id. at 449-50, 456-458; accord Opinion at 46 (“Questions like this
raise issues on which judges must not pass.”).
The dissent’s attempts to distinguish Lyng and Navajo Nation fail for the
same reasons. That is especially true given the strikingly similar allegations of
harm in this case and in Navajo Nation. Opening Brief 29-31.
C. Subsequent Supreme Court precedent confirms that a
“burden” is the punishment or other coercion the
government applies to the claimant.
“Finally, and alternatively,” the dissent suggests that even if Navajo Nation
is not distinguishable, it has been “undercut” by subsequent Supreme Court
decisions. Dissent at 74. But the opposite is true; the Court’s recent decisions
under RFRA, the Free Exercise Clause, and the Religious Land Use and
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Institutionalized Persons Act (RLUIPA),1
confirm that a “burden” exists only
when coercion or punishment is applied to the plaintiff.
In Burwell v. Hobby Lobby, the Court found that the contraceptive mandate
imposed a substantial burden on the plaintiffs because it “forces them to pay an
enormous sum of money” if they did not comply. 573 U.S. 682, 726 (2014). That
fine distinguished Hobby Lobby from cases in which claimants “were ‘unable to
identify any coercion directed at the practice or exercise of their religious
beliefs.’” Id., quoting Tilton v. Richardson, 403 U.S. 672, 689 (1971). In Holt v.
Hobbs, 574 U.S. 352, 361 (2015), the burden was the “serious disciplinary
action” the prisoner would face if he grew a beard according to the dictates of
his faith. See also Little Sisters of the Poor v. Pennsylvania, 140 S.Ct. 2367, 2390 n.5
(Alito, J., concurring) (distinguishing Bowen because “[i]n Bowen, the objecting
individuals were not faced with penalties or coerced by the Government into
violating their religious beliefs”).
1
RLUIPA, 42 U.S.C. § 2000cc et seq., requires States and local governments to
satisfy strict scrutiny for substantial burdens on religious exercise imposed in two
settings: zoning, id. § 2000cc, and institutionalized persons, id. § 2000cc-1. Like
RFRA, RLUIPA “does not include a definition of the term ‘substantial burden’
because it is not the intent of this Act to create a new standard for the definition
of ‘substantial burden’ on religious exercise. Instead, that term as used in the Act
should be interpreted by reference to Supreme Court jurisprudence.” 146 Cong.
Rec. 16,645 (2000) (Statement of Sens. Hatch and Kennedy).
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In Free Exercise Clause cases, the Supreme Court has reaffirmed the
vitality of Lyng and its holding that a burden is the coercive punishment or forced
choice that government imposes on the plaintiff. See Carson v. Makin, 142 S.Ct.
1987, 1996-97 (2022) (citing Lyng; finding violation because State “effectively
penalize[d] the free exercise of religion” by “conditioning the availability of
benefits” on religious character of schools); Fulton v. City of Philadelphia, 141
S.Ct. 1868, 1876 (2021) (City “burdened CSS’s religious exercise by putting it to
the choice” of violating its beliefs or being excluded from government program);
id. at 1891 (Alito, J., concurring) (distinguishing Bowen and Lyng because, in
those cases, “the challenged law[s] did not implicate the conduct of the
individual seeking an exemption”); Trinity Lutheran Church v. Comer, 137 S.Ct.
2012, 2020 (2017) (favorably discussing Lyng); id. at 2022 (burden was forced
choice between benefit and being a church).
D. Coercion, not “access to religious resources,”
distinguishes zoning and prisoner cases.
The dissent maintains that “government may substantially burden religion
simply by controlling access to religious resources” in three contexts—zoning,
prisons, and Native American sacred sites on federal land. Dissent at 62-63.
Zoning and incarceration involve coercion and thus can burden religious
exercise, but no Supreme Court or court of appeals decision supports the
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dissent’s view that government use of federal land may do so as well, and Lyng
is directly to the contrary.
1. Zoning cases involve coercion.
RLUIPA prohibits states and municipalities from imposing “a land use
regulation in a manner that imposes a substantial burden” on a person or
religious group. 42 U.S.C. § 2000cc(a)(1). “Land use regulation” is defined as a
law “that limits or restricts a claimant’s use or development of land” in which
“the claimant has an ownership, leasehold, easement, servitude, or other
property interest.” 42 U.S.C. § 2000cc-5(5). Thus, the element of government
coercion is built-in to RLUIPA’s land-use cause of action: a claim exists only
when the government exercises regulatory power to prohibit the plaintiff from
making religiously-motivated use of the plaintiff’s own property. Because the
existence of a burden is a given, RLUIPA land-use cases construing “substantial
burden” focus on the meaning of “substantial.” See Guru Nanak Sikh Soc’y v.
County of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (land-use regulation must be
“oppressive to a significantly great extent”).
Thus, while RLUIPA precedents have recognized that “a place of worship
is at the very core of the free exercise of religion,” Church of the Foursquare Gospel
v. City of San Leandro, 673 F.3d 1059, 1069 (9th Cir. 2011), they provide no
support for the dissent’s view that government burdens religious exercise when
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it fails to manage public property for that purpose. See Prater v. City of Burnside, 289
F.3d 417, 427-28 (6th Cir. 2002) (city’s refusal to abandon roadway to church
asserting religious calling to expand its facilities onto it did not “burden the
Church’s rights under the Free Exercise Clause”).
2. Prisoner cases involve coercion.
Courts have found burdens on prisoners’ religious exercise when, inter
alia, prison officials prohibit prisoners from participating in worship services,2
forbid them from grooming consistently with their religious beliefs,3
prohibit
them from possessing religious literature or articles,4
refuse to provide or make
available kosher or halal food,5
or execute them without permitting the rites
consistent with their faith.6
But the burden in those cases arises not from the
2 Yellowbear, 741 F.3d at 55-56; Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014);
Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008).
3 Holt v. Hobbs, 574 U.S. at 361; Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.
2005).
4 Jones v. Slade, 23 F.4th 1124 (9th Cir. 2022); Johnson v. Baker, 23 F.4th 1209 (9th
Cir. 2022).
5 Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008); Abdulhaseeb v. Calbone, 600 F.3d
1301, 1320 (10th Cir. 2010); id. at 1325 (Gorsuch, J., concurring) (plaintiff “has
been forced to choose between violating his religious beliefs and starving to
death”).
6 Ramirez v. Collier, 142 S.Ct. 1264 (2022).
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government’s control over “access to religious resources,” Dissent at 63, but
from its control over the prisoner.
Prison officials exercise “a degree of control unparalleled in civilian
society” over prisoners. Cutter v. Wilkinson, 544 U.S. 709, 720-21 (2005). When
the conditions of incarceration or execution coercively imposed on the prisoner
prohibit his religious exercise, that can create a burden. But no court has ever
held that government must supply halal food, or a sweat lodge, or a chaplain, or
any other “religious resources” it possesses to persons not in government
custody. As the Supreme Court observed in Lyng, “government simply could
not operate if it were required to satisfy every citizen’s religious needs and
desires. A broad range of government activities—from social welfare programs
to foreign aid to conservation projects—will always be considered essential to
the spiritual well-being of some citizens, often on the basis of sincerely held
religious beliefs.” 485 U.S. at 452.
3. The dissent understates the consequences of its
theory.
The dissent assumes without explanation that claims for access to
government-owned religious resources would extend only to Native American
plaintiffs and sacred sites, rather than to “any individual” who wishes to make
religiously-motivated use of any government-owned “resources.” See Boerne, 521
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U.S. at 532. Even if such limitation were possible, the dissent’s theory could still
impose a restrictive servitude on vast areas of federal land. Lyng, 485 U.S. at
452-53. In a recent RFRA case, a plaintiff testified that the “entire state of
Washington and Oregon” were sacred to him. Slockish v. Federal Highway Admin.,
9th Cir. 21-35220, 4-ER-716. Another RFRA plaintiff sought the removal of a
renewable energy project, claiming religious objections to development within a
40,000-square-mile area. La Cuna de Aztlan Sacred Sites Prot. Circle v. U.S. Dep’t of
the Interior, 9th Cir. 13-56799, 1-ER-27.
As this Court knows, environmental plaintiffs challenging proposed
timber sales, mineral leases, grazing permits, pipelines, transmission lines, etc.,
routinely aver that they use the affected federal land for “recreational, aesthetic,
and spiritual purposes.” Under the dissent’s theory, a small change in pleading
would replace the arbitrary-and-capricious review currently applied in such
challenges with “the most demanding test known to constitutional law.” Boerne,
521 U.S. at 534.
II. If the Act were irreconcilable with RFRA, the Act would
control.
The Act states that the Forest Service “shall convey all right, title, and
interest of the United States in and to” the defined parcel “to Resolution
Copper.” 16 U.S.C. § 539p(c)(10). If, as plaintiff contends, that legislatively-
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mandated land transfer imposes a substantial burden unsupported by a
narrowly-tailored compelling interest, then the 2014 Act would be irreconcilable
with 1993’s RFRA. And “where two acts are in irreconcilable conflict,” the
“later” act controls. United States v. Fisher, 109 U.S. 143, 145 (1883); Branch v.
Smith, 538 U.S. 254, 273 (2003).
That is 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.).
A prior 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).
That remains true when the earlier statute, like RFRA, contains language
purporting to take priority over later-enacted laws “unless such law explicitly
excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb-3(b).
Such “express-reference provisions are ineffective,” Lockhart v. U.S., 546 U.S.
142, 147-50 (2005) (Scalia, J., concurring), because “statutes enacted by one
Congress cannot bind a later Congress, which remains free to repeal the earlier
statute [or] to exempt the current statute from the earlier statute . . . [and] to
express any such intention either expressly or by implication as it chooses.” Dorsey v.
U.S., 567 U.S. 260, 274 (2012) (emphasis added); accord Great Northern Ry. Co. v.
U.S., 208 U.S. 452, 465 (1908); Ctr. for Investigative Reporting v. U.S. Dep’t of
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Justice, 14 F.4th 916, 940-42 (9th Cir. 2021) (Bumatay, J., dissenting) (“[T]he
weight of constitutional history and precedent show that where two statutes
conflict, the later statute controls, regardless of attempts by past Congresses to
hobble the current legislature[.]”).7
Contrary to plaintiff’s argument, Reply Brief 5-6 n.1, neither Hobby Lobby
nor Bostock v. Clayton County recognized RFRA’s express-reference provision as
an exception to that rule. In Hobby Lobby, the Court explained that “meager
legislative history” about an unenacted amendment to the Affordable Care Act
couldn’t affect the application of RFRA. 573 U.S. at 719 n.30. Bostock stated in
dicta that RFRA “might supersede Title VII’s commands in appropriate cases.”
140 S.Ct. 1731, 1754 (2020). But that is an application of the rule that later
statutes control earlier ones when they irreconcilably conflict, not an exception
from it; Title VII was enacted in 1964. Id. at 1738.
If “the plain import of a later statute directly conflicts with an earlier
statute,” then “the later enactment governs, regardless of its compliance with any
earlier-enacted requirement of an express reference or other ‘magical
password.’” Dorsey, 567 U.S. at 274 (cleaned up; emphasis in original). The
Act’s “plain import” is that the Forest Service “shall” transfer the Oak Flat
7
The majority did not disagree, but found the issue waived. Id. at 932, 943.
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parcel to Resolution. 16 U.S.C. § 539p(c)(10). If RFRA were reinterpreted to
conflict with that legislative command, the 2014 Act would control. Because
plaintiff cannot prevail even on its own revisionist interpretation of RFRA, en
banc reconsideration is unwarranted.
* * * * *
The “task” of “reconcil[ing] the various competing demands on
government” resources “is for the legislatures and other institutions,” not the
courts. Lyng, 485 U.S. at 452. Here, Congress has balanced competing demands
on the Tonto National Forest by preserving Apache Leap, while directing the
transfer of Oak Flat. RFRA, like the Free Exercise Clause, “simply does not
provide a principle that could justify upholding [plaintiff’s] legal claims” against
Congress’s judgment. Id.
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CONCLUSION
For the foregoing reasons, rehearing en banc should be denied.
Respectfully submitted,
s/ Joan M. Pepin
TODD KIM
Assistant Attorney General
ANDREW C. MERGEN
KATELIN SHUGART-SCHMIDT
JOAN M. PEPIN
Attorneys
Environment and Natural Resources Div.
U.S. Department of Justice
Post Office Box 7415
Washington, D.C. 20044
(202) 305-4626
joan.pepin@usdoj.gov
SEPTEMBER 2022
90-1-0-16230
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