The Western Apache have long worshipped at a sacred site called Oak Flat, which is situated on federal land in Arizona. Despite the sacredness of the site and centrality of Oak Flat to the Apache religion, Congress authorized the transfer of Oak Flat to a copper mining company. Because the copper mine would destroy Oak Flat, the Apache sued the government for violating their religious exercise. Their primary claim is brought under a federal statute called the Religious Freedom Restoration Act (“RFRA”), which prohibits the government from imposing a “substantial burden” on religious exercise unless it has a compelling governmental interest.
The case hinges on how the term “substantial burden” is to be interpreted. While RFRA does not define the term, courts have interpreted it in various ways depending on the context. Last year, a three-judge panel of the Ninth Circuit Court of Appeals interpreted the term narrowly and rejected the Apache’s claim. Two of the three judges held that “substantial burden” is a term of art limited to two scenarios. The first is where the government denies benefits on account of religion, and the second is where the government imposes a penalty on account of religion. Because the conversion of Oak Flat into a copper mine is neither a denial of a government benefit nor the imposition of a government penalty, the court rejected the Apache’s claim. The dissenting judge called this narrow interpretation “absurd,” “disingenuous,” “flawed,” “illogical,” and “incoherent.” In her opinion, “preventing access to religious locations and resources” imposes an even “greater burden” on religious exercise than the denial of a benefit or imposition of a penalty.
Undeterred, the Apache asked the entire Ninth Circuit to take up the issue. The Apache maintain that preventing a religious exercise altogether is certainly a “substantial burden” on that exercise and that the government must therefore prove that destroying the site furthers a compelling governmental interest and is the least restrictive means of furthering that interest.
On March 1, 2024, a divided Ninth Circuit (6-5) rejected the Apache’s claim. On one hand, a majority of the judges agreed with the Apache that the prior panel’s interpretation of “substantial burden” was too narrow. But on the other hand, a different majority of the judges held that RFRA, which was enacted in 1993, did not abrogate the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) but subsumed it. In Lyng, a divided Supreme Court held that the federal government did not need to prove a compelling governmental interest to build a road on its own land even if it disrupted a sacred Native American site. The Court held that there was no First Amendment violation because the government was not “prohibit[ing” religious exercise but simply deciding what do with its own land in a non-discriminatory way.
So even though RFRA does not reference Lyng and expressly provides that the compelling interest test is to be applied “in all cases where free exercise of religion is substantially burdened,” 42 U.S.C.A. § 2000bb, the majority of the Ninth Circuit panel held that RFRA incorporates the Lyng exception. Though this exception narrowly applies to cases involving the government’s use of its own property, many Native American tribes will now worry that their own sacred sites are without any protection at law.
The Apache, represented by the Becket Fund, immediately indicated they will ask the Supreme Court to review the Ninth Circuit’s decision. If the Supreme Court decides to take the case, the Court could use the opportunity to establish a uniform “substantial burden” standard for religious land use cases filed under RFRA or its sister statute, the Religious Land Use & Institutionalized Persons Act.
Until the Supreme Court weighs in on this issue, religious land use claimants will have to navigate the different standards that are applied by the various circuit courts of appeal. At Dalton & Tomich, we have experience with those different standards and have helped religious groups across country win on their “substantial burden” claims. If your religious exercise is being burdened by zoning and land use regulations, please contact us.
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