Background
The consolidated cases concern a land exchange mandated by the Southeast Arizona Land Exchange and Conservation Act. The exchange would transfer Oak Flat, a site in Arizona’s Tonto National Forest that is sacred to the Western Apache, to Resolution Copper Mining, LLC. The proposed copper mine eventually would create a crater approximately two miles wide and 1,000 feet deep at the site.
The plaintiffs sought a preliminary injunction blocking the exchange. A Ninth Circuit panel affirmed the district court’s denial of that relief, concluding that it was bound by the court’s en banc decision in Apache Stronghold v. United States, which generally held that disposing of government real property does not substantially burden religious exercise under the Religious Freedom Restoration Act absent specified forms of coercion, discrimination, penalty, or denial of equal religious rights. The 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 Milan D. Smith, Jr. and Daniel A. Bress voted to deny rehearing, while Judge Johnnie B. Rawlinson voted to grant rehearing en banc. After a judge requested a vote by the full court, the petitions failed to receive support from a majority of the non-recused active judges. The court also granted five motions for leave to file amicus briefs.
The order did not revisit the panel’s merits ruling or independently decide whether destroying Oak Flat substantially burdens the Western Apache’s religious exercise. Instead, it left the panel decision—and the controlling rule from Apache Stronghold—in place.
Key Takeaways
- The Ninth Circuit declined both panel rehearing and rehearing en banc, leaving intact the panel’s affirmance of the denial of a preliminary injunction.
- The consolidated disposition covers docket numbers 25-5185, 25-5189, and 25-5197.
- Chief Judge Mary H. Murguia and Judge Patrick J. Bumatay dissented from the denial of rehearing en banc, arguing that Apache Stronghold was wrongly decided; Judge Susan P. Graber, joined by nine other judges, likewise stated that the precedent was erroneous.
Why It Matters
The denial leaves no further opportunity for the Ninth Circuit, in these proceedings, to reconsider its precedent governing RFRA challenges to the federal government’s disposition of its land. Unless further judicial intervention occurs, the panel ruling permits the congressionally mandated Oak Flat land exchange to proceed despite the plaintiffs’ request for preliminary relief.
The separate writings expose substantial disagreement within the court over whether RFRA’s text—particularly after Congress’s 2000 amendment defining religious exercise to include the religious use of real property—protects worship on federal land from government action that would permanently destroy a sacred site.