ELR Citation: 54 ELR 20036
No(s). 21-15295 (9th Cir. Mar 1, 2024)

In an en banc decision, the Ninth Circuit, 6-5, affirmed a district court order denying a tribal group's motion for preliminary injunction against the U.S. government's transfer of federal land within Tonto National Forest to a mining company. The land is a site of spiritual value to the Western Apache and also contains the world's third-largest deposit of copper ore. The tribe sued, seeking an injunction 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 court found the group's claim under the Free Exercise Clause failed under Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988), because as in Lyng, the government’s actions with respect to “publicly owned land” would have no “tendency to coerce” tribal members “into acting contrary to their religious beliefs,” and the transfer did not discriminate against the members, penalize them, or deny them an “equal share of the rights, benefits, and privileges enjoyed by other citizens.” It further found the RFRA claim failed for the same reasons because what counted as “substantially burden[ing] a person’s exercise of religion” must be understood as subsuming, rather than abrogating, the holding of Lyng. The claims based on the 1852 treaty also failed because the government’s statutory obligation to transfer the land abrogated any contrary treaty obligation. The court affirmed the district court's order denying the motion for preliminary injunction.