Background
Oak Flat, known to the Western Apache as Chí’chil Biłdagoteel, is a sacred site in Arizona’s Tonto National Forest that the Western Apache have used for religious worship and ceremonies for centuries. The site also lies above a large copper deposit. Congress enacted the Southeast Arizona Land Exchange and Conservation Act, which mandates an exchange transferring the federal land to Resolution Copper Mining, LLC. The proposed mine is expected to create a crater approximately two miles across and 1,000 feet deep, destroying Oak Flat.
After the federal government issued a new environmental impact statement in 2025, plaintiffs sought a preliminary injunction blocking the exchange. A Ninth Circuit panel affirmed the district court’s denial of preliminary relief, concluding that it was bound by the en banc court’s decision in Apache Stronghold v. United States, which held that a disposition of federal real property generally does not substantially burden religious exercise under the Religious Freedom Restoration Act. Plaintiffs then petitioned for panel rehearing and rehearing en banc.
The Court’s Holding
The Ninth Circuit denied the petitions for panel rehearing and rehearing en banc. Judges Smith and Bress voted to deny rehearing, while Judge Rawlinson voted to grant rehearing en banc. After a judge requested a vote of the active, non-recused judges, the case failed to receive the majority required for en banc consideration. The court also granted several motions for leave to file amicus briefs.
The order did not reconsider the panel’s merits analysis or issue a new ruling on whether the land exchange violates RFRA. Its effect was to leave intact the panel decision affirming denial of a preliminary injunction. Chief Judge Murguia and Judge Bumatay separately dissented from the denial of rehearing en banc, while Judge Graber, joined by nine other judges, issued a statement arguing that Apache Stronghold was wrongly decided and that destruction of Oak Flat plainly substantially burdens the Western Apache’s religious exercise.
Key Takeaways
- The Ninth Circuit declined both panel rehearing and rehearing en banc, leaving the denial of a preliminary injunction in place.
- The panel’s three judges divided on en banc rehearing: Judges Smith and Bress voted to deny it, and Judge Rawlinson voted to grant it.
- The separate writings argued that the circuit’s controlling Apache Stronghold precedent misinterprets RFRA, but those views did not obtain the votes needed to rehear the case en banc.
Why It Matters
The denial preserves circuit precedent under which the federal government’s disposition of its own real property generally does not constitute a substantial burden under RFRA absent circumstances such as coercion, discrimination, penalties, or unequal denial of religious rights and benefits. That precedent foreclosed the plaintiffs’ effort to obtain preliminary relief based on the anticipated destruction of Oak Flat.
The multiple separate writings underscore deep disagreement within the Ninth Circuit over RFRA’s protection of religious practices tied to federal land, particularly after Congress amended the statute’s definition of religious exercise in 2000. Because the court declined rehearing, any further relief would require intervention by the Supreme Court or another development capable of stopping the exchange.