PHOENIX – A federal judge in Arizona has sharply criticized the U.S. government for reversing its position on a controversial land transfer that would hand over Oak Flat, a sacred Apache site, to a mining company. During a tense hearing on Monday, U.S. District Judge Dominic Lanza challenged Justice Department attorney Erika Norman over the government’s abrupt shift, which appears to undercut prior commitments to allow time for legal challenges before the land is transferred to Resolution Copper.
The Wild Hunt has been following the complex case since the initial challenge. The case centers on whether the U.S. Forest Service must delay the final transfer until plaintiffs, including the San Carlos Apache Tribe, have a fair opportunity to challenge a newly issued environmental impact statement—a critical decision that could permanently impact one of the Western Apache’s most revered spiritual landscapes.
Norman said in a Phoenix courtroom Monday that the U.S. Forest Service will transfer ownership of Apache holy land known as the Oak Flat to Resolution Copper, which plans to swallow 2,000 acres of the site in a two-mile-wide mine, as soon as it publishes its final environmental impact statement by June 16. Four years earlier, though, it agreed to stay legal proceedings until the publication of the new environmental impact statement and said it would hold off on the land transfer until plaintiffs could file new motions for a preliminary injunction.
“It frankly sounds to me like the government changed its position, and now you’re pretending like you didn’t,” U.S. District Judge Dominic Lanza told Norman. “Please take another run at reconciling your current position.”
Norman said the government never agreed to delay the land exchange, but only to stay the case until the environmental impact statement is published. If plaintiffs wish to enjoin the new impact statement, she said the court must lift the stay now to give the plaintiffs time to file motions for preliminary injunction on a document that hasn’t been published yet.
Lanza laughed and shook his head. “OK, that’s the DOJ’s position,” the Trump appointee said. “Got it.”
The San Carlos Apache Tribe, Arizona Mining Reform Reform Coalition and more than a dozen other groups sued the federal government in 2021, challenging the Forest Service’s environmental impact statement finding no adverse impact from the proposed resolution copper mine, even though the mine will tear through the heart of one of the Western Apache’s most sacred sites.
To stop the land transfer, the plaintiffs must show that the agency’s impact statement fails to identify a significant impact in violation of federal law. Once the land transfer is completed, it cannot be challenged.
The parties filed a joint status report in March 2021, agreeing to work out a schedule for arguments on the new impact statement and allow time for Lanza to rule on any motions before the land is transferred.
“Why did the government agree to work in good faith to develop a manageable schedule for briefing a motion before the anticipated date of conveyance? Why would you need to do that if the conveyance can happen the day after the FEIS comes out?” Lanza demanded.
Norman said the 60-day notice prior to the statement’s release is the time given for parties to make appropriate motions.
“How’s that true if you also agreed that the stay wouldn’t need to be lifted until the FEIS is issued?” the judge rebutted.
“Why do we have these 60 days, your honor? Certainly, it’s to do something about it,” Norman answered.
Emory oak grove at Oak Flat, AZ – Image credit: Copyright © 2020 Elias Butler Photography All Rights Reserved – CC-BY-SA-4.0
The plaintiffs say they planned to challenge the environmental impact statement based on the Religious Freedom Restoration Act, even though the Ninth Circuit has already dismissed that argument twice in a similar case filed by the nonprofit Apache Stronghold. Attorney Marc Fink, representing the Center for Biological Diversity, said he expected the government to give the plaintiffs time to review the new impact statement so it can go forward with a motion for injunction before it’s too late.
“As you have heard today, the government does not intend to adhere to that,” Lanza told him.
Though angry, Lanza agreed with the government that he could not order the delay of the land transfer without a motion for injunction, so he lifted the stay and ordered briefing for a motion for preliminary injunction, setting oral arguments for June 6.
“We’ll do our best to show a lack of compliance based on the old EIS,” Fink said.
In the Apache Stronghold case, plaintiffs will argue before U.S. District Judge Steven Logan on Wednesday to stay the land transfer while the Supreme Court decides whether to take their appeal from the Ninth Circuit. If Logan stays the transfer, plaintiffs in this case would have more time to challenge the new impact statement.
That’s where things are at the moment. The continued existence of the Apache sacred land, known in English as Oak Flat, now depends on the US Supreme Court. If the Court decides to hear their appeal before June 16, that land has a chance.
After that date, Trump’s fast-track process takes effect. At issue is the transfer of Oak Flat from the U.S. Forest Service to the Resolution Copper Company. The latter intends to destroy Oak Flat to build a copper mine. More specifically, it depends on the Court’s interpretation of the legal concept “substantial burden” in the increasingly complex and diverse US religious landscape.
The Supreme Court is having trouble reaching a consensus. On April 30, The New Republic reported that the US Supreme Court has debated whether it should hear this case for an unusually long time. Lawyers for Apache Stronghold had filed the petition to hear the case in September 2024. Resolution Copper and the government filed their briefs the following month. The New Republic examined its docket. It showed that the Court has discussed this case on 15 consecutive sessions.
The Court has not released reasons for this delay. Historically, the Supreme Court has been silent on its internal deliberations.
This article will focus on the legal issues involved. The law in question is the Religious Freedom Restoration Act (RFRA) of 1993. RFRA prohibits the government from imposing a “substantial burden” on religious expression.
Preamble of the U.S. Constitution – We the People.
What is RFRA?
The First Amendment guarantees Freedom of Religion. Over the years, that concept has evolved through new laws and judicial rulings. RFRA forms one piece in that chain of legal development.
Over the lifetimes of Wild Hunt readers, the US has become more religiously diverse. As the US has begun to recognize this increasing religious diversity, the legal issues involved have become more complex.
One example of that diversity, the Native American Church developed in the late 19th Century. A pan-Indian syncretic religion, it blends Christianity with Native American spirituality. Peyote use forms a key part of that church’s ceremonies.
The Employment Division v Smith case of 1990 reflects that complexity and diversity. That case concerned two members of the Native American Church. The two Native Americans worked as counselors at a private drug rehabilitation clinic. When the clinic found out about their peyote use, it fired them. Their claim for unemployment benefits was denied on the grounds of misconduct. That ruling defined their Native American religious practice as “misconduct.” As a result, the two Native Americans sued. The case ended up before the US Supreme Court.
The Supreme Court denied their case. Anthony Scalia wrote the majority opinion. He rejected religious belief as a valid reason for disobeying a law. He feared it would lead to a widespread avoidance of civic obligations. Scalia cited the military draft, payment of taxes, and requirements for vaccinations as examples of problems that could result from allowing religious exemptions to the norm of legal compliance.
In response, advocates for religious freedom mobilized. Within three years, Congress passed the Religious Freedom Reauthorization Act (RFRA). That bill had bipartisan support.
The US Department of Labor explained RFRA. In RFRA, Congress intended to restore religious exemptions to government regulation. The federal government would have to justify any “substantial burden” on religious exercise that it had imposed. To succeed, the government would have to meet two criteria. First, the government would have to demonstrate a compelling interest in imposing that burden. Second, the government would have to use the least restrictive way to achieve that interest. Congress made RFRA applicable to all prior and later federal laws.
Congress, however, failed to specify exactly what constitutes a substantial burden. Courts have been interpreting that ever since.
Interpretations of substantial burden
Supreme Court decisions since 1993 have interpreted RFRA.
In 2014, the Supreme Court relied on RFRA in The Hobby Lobby case. The BBC reported on that decision. In that case, a company objected to the contraceptive mandate in health insurance. The company’s conservative Christian owners had religious objections to contraception. The Court ruled that a closely held private corporation subsumed the religious rights of its owners. The BBC reported that analysts said it was “the first time the Supreme Court has found a profit-seeking business can hold religious views under federal law.”
Justice Samuel Alito wrote the majority opinion in that 5-4 case. Alito argued that the contraceptive mandate constituted a substantial burden. He found that the government had other available methods to ensure access to contraception.
Judges have used the Hobby Lobby decision in one other case. The Kaiser Family Foundation reported on the case of Braidwood Management Inc. v. Becerra. Braidwood’s plaintiffs argued that as a closely held private company, Braidwood assumed the religious rights of its owners. They had religious objections to paying for insurance that covered Pre-Exposure Prophylaxis (PrEP). PrEP prevents the acquisition of HIV. Their attorneys argued that PrEP drugs ‘facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.’” Their clients considered this to be a substantial burden to their conservative Christian beliefs.
The judge in that case issued a limited ruling that only applied to Braidwood Management Inc. The judge’s ruling has no impact outside of Braidwood Management Inc.
Health Affairs reported that the Fifth Circuit Court of Appeals upheld that narrow ruling.
The Decision of the Ninth Circuit Court of Appeals
Apache Stronghold argued that destroying the sacred site of Oak Flat would be a substantial burden. The Ninth Circuit Court rejected that argument.
The full Ninth Circuit Court of Appeals affirmed two facts. First, it acknowledged that “Oak Flat is a site of great spiritual value to the Western Apache.” It also acknowledged that Oak Flat “sits atop the world’s third-largest deposit of copper ore.”
The Ninth Circuit continued to rely on that very narrow understanding of “substantial burden.” It defined it as coercion of individual behavior contrary to religious beliefs. (“to coerce individuals into acting contrary to their religious beliefs”). The Ninth Circuit ruling tried to balance the religious freedom of the Apache with the property rights of the U.S. Forest Service. It found in favor of its property rights to transfer real property.
Analysis
These RFRA rulings have interpreted “substantial burden” in a very narrow, legalistic manner. They only involve a government action requiring an individual to act in violation of a religious regulation. These rulings do not involve collective worship as a religious expression. In addition, they fail to address the conflicting religious freedoms of employers and employees in employer provided health insurance.
The Ninth Circuit’s interpretation of “substantial burden” under the Religious Freedom Restoration Act (RFRA) plays a critical role in the Apache Stronghold case, as it defines the threshold for when government actions infringe on religious freedom. Historically, the term has been interpreted narrowly, requiring a direct and coercive impact on an individual’s ability to practice their faith.
In the Oak Flat case, the Ninth Circuit ruled that the land transfer does not constitute a substantial burden because it does not explicitly force the Western Apache to violate their religious beliefs, but rather makes it physically impossible to access their sacred site. This distinction is significant because it frames religious freedom primarily in terms of individual, prohibitive actions rather than collective, place-based practices, creating a legal blind spot for religions that center on sacred landscapes rather than doctrinal codes. This narrow interpretation, while consistent with the court’s prior rulings, sharply limits the protections available to Indigenous religious practitioners and raises broader questions about the scope of RFRA in a religiously diverse society.
While the social ritual aspect of religious expression did not prevail in the Oak Flat case, it did prevail in cases related to challenges to COVID era restrictions on public gatherings including religious services. Health Affairs reported that majority opinions in 42 such cases involved social ritual/ceremony as religious expression. These rulings occurred in courts at different levels.“ It is not clear why judges consider social/ritual as religious expression in some cases and not others.
The outcome of the Oak Flat case carries profound implications not just for the Western Apache but for all minority religions in the United States, including contemporary Pagan and Indigenous spiritual traditions. At its core, this case challenges how the government defines and protects religious freedom, particularly for communities whose practices are deeply rooted in place-based spirituality. If the courts continue to interpret “substantial burden” narrowly—restricting it to direct government compulsion rather than the destruction of sacred landscapes—the legal protections for religious minorities will be significantly weakened. This approach risks prioritizing economic and political interests over the spiritual rights of marginalized communities, effectively erasing centuries-old traditions that view the land itself as sacred.
For modern Pagans, who often share a deep connection to nature and sacred places, the stakes are clear. A ruling against the Apache could set a precedent that endangers the sacred landscapes and ritual sites essential to their own spiritual practices. As the U.S. becomes more religiously diverse, the need for a broader, more inclusive understanding of religious freedom becomes increasingly urgent. This case serves as a critical test of whether the law will protect the full spectrum of spiritual expression or narrowly constrain it to the forms most familiar to the majority.
The Wild Hunt is not responsible for links to external content.
To join a conversation on this post:
Visit our The Wild Hunt subreddit! Point your favorite browser to https://www.reddit.com/r/The_Wild_Hunt_News/, then click “JOIN”. Make sure to click the bell, too, to be notified of new articles posted to our subreddit.