FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APACHE STRONGHOLD, a 501(c)(3) No. 21-15295 nonprofit organization, Plaintiff-Appellant, D.C. No. 2:21-cv-00050- v. SPL UNITED STATES OF AMERICA; THOMAS J. VILSACK, Secretary, U.S. OPINION Department of Agriculture (USDA); RANDY MOORE, Chief, USDA Forest Service; NEIL BOSWORTH, Supervisor, USDA Forest Service, Tonto National Forest; TOM TORRES, Acting Supervisor, USDA Forest Service, Tonto National Forest, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding Argued and Submitted October 22, 2021 San Francisco, California Filed June 24, 2022 2 APACHE STRONGHOLD V. UNITED STATES Before: Mary H. Murguia, Chief Judge, and Marsha S. Berzon and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea; Dissent by Judge Berzon SUMMARY * Religious Freedom Restoration Act / Free Exercise Clause The panel affirmed the district court’s denial of Apache Stronghold’s motion for a preliminary injunction seeking to stop a land exchange and prevent any copper mining on Oak Flat, a plot of land in Arizona. A 2014 act of Congress requires the U.S. Secretary of Agriculture to convey Oak Flat to Resolution Copper, a mining company. In exchange, Resolution Copper will convey to the United States a series of nearby plots of land (the “Land Exchange”). To the Apache American Indians, Oak Flat, known to the Apache as Chi’chil Bildagoteel, is sacred ground. Apache Stronghold, a nonprofit organization, sued the government, alleging that the Land Exchange violated the Religious Freedom Restoration Act (“RFRA”), the Free Exercise Clause of the Constitution’s First Amendment, and a trust obligation imposed on the United States by the 1852 Treaty of Santa Fe between the Apache and the United States. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. APACHE STRONGHOLD V. UNITED STATES 3 Concerning Apache Stronghold’s RFRA claim, the panel began by addressing what constituted a “substantial burden” under RFRA. First, RFRA by its text restored Sherbert v. Verner, 374 U.S. 398 (1963), Wisconsin v. Yoder, 406 U.S. 205 (1972), their “compelling interest” test, and their “substantial burden” inquiry, and defined a “substantial burden” under RFRA as either of the burdens present in those two cases. Second, the Supreme Court has used the phrase “substantial burden” as a Free Exercise Clause term of art that meant only the two burdens within the Sherbert/Yoder framework, and a “substantial burden” under RFRA must hold that same settled meaning. Third, Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), and Bowen v. Roy, 476 U.S. 693 (1986), the cases most factually and legally analogous to Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), and this case, confirmed that even burdensome government action did not constitute a “substantial burden” (and did not trigger the “compelling interest” test) if that action fell outside the Sherbert/Yoder framework. The panel next turned to Apache Stronghold’s main argument that the …
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