Apache Stronghold v. United States

• Decision Date: 24 June 2022
• Docket Number: 21-15295
• Citation: 38 F.4th 742
• Parties: APACHE STRONGHOLD, a 501(c)(3) nonprofit organization, Plaintiff-Appellant, v. UNITED STATES of America; Thomas J. Vilsack, Secretary, U.S. 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.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.4th 742

APACHE STRONGHOLD, a 501(c)(3) nonprofit organization, Plaintiff-Appellant,

v.UNITED STATES of America; Thomas J. Vilsack, Secretary, U.S. 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.

No. 21-15295

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 22, 2021 San Francisco, California

Filed June 24, 2022

Luke W. Goodrich (argued), Mark L. Rienzi, Diana M. Verm, Joseph C. Davis, Christopher Pagliarella, Daniel D. Benson, And Kayla A. Toney, The Becket Fund for Religious Liberty, Washington, D.C.; Michael V. Nixon, Portland, Oregon; Clifford Levenson, Phoenix, Arizona; for Plaintiff-Appellant.

Joan M. Pepin (argued), Andrew C. Mergen, Tyler M. Alexander, and Katelin Shugart-Schmidt, Attorneys; Jean E. Williams, Acting Assistant Attorney General; Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.; for Defendants-Appellees.

Gene C. Schaerr and Joshua J. Prince, Schaerr | Jaffe LP, Washington, D.C.; James C. Phillips, Chapman University, Dale E. Fowler School of Law, Orange, California; for Amici Curiae Jewish Coalition for Religious Liberty, The International Society for Krishna Consciousness, The Sikh Coalition, and Protect The 1st.

Miles E. Coleman, Greenville, South Carolina; Thomas Hydrick and Hunter Windham, Columbia, South Carolina; for Amici Curiae Religious Liberty Law Scholars.

Stephanie Hall Barclay, Associate Professor of Law, Director, Religious Liberty Initiative, Notre Dame Law School, Notre Dame, Indiana; Michalyn Steele, Professor of Law, BYU Law School, Provo, Utah; for Amici Curiae National Congress of American Indians, A Tribal Elder, and Other Federal Indian Law Scholars and Organizations.

William E. Trachman, Mountain States Legal Foundation, Lakewood, Colorado; Timothy Sandefur, Goldwater Institute, Phoenix, Arizona; for Amici Curiae the Towns of Superior, and Hayden, Arizona, and Jamie Ramsey, the Mayor of Kearny, Arizona.

David Debold, Thomas G. Hungar, and Matthew S. Rozen, Gibson, Dunn & Crutcher, LLP, Washington, D.C.; for Amici Curiae American Exploration & Mining Association, Women's Mining Coalition, and Arizona Rock Products Association.

Before: Mary H. Murguia, Chief Judge, and Marsha S. Berzon and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea ;

Dissent by Judge Berzon

BEA, Circuit Judge:

A 2014 act of Congress requires the U.S. Secretary of Agriculture to convey Oak Flat, a plot of federal land in Arizona, to a mining company named Resolution Copper

. In exchange, Resolution Copper will convey to the United States a series of other nearby plots of land (the "Land Exchange"). Resolution Copper is considering constructing a copper mine under Oak Flat to access one of the world's largest undeveloped copper deposits. But to the Apache American Indians, Oak Flat—or as the Apache call it, Chi'chil Bildagoteel—is sacred ground. So Apache Stronghold, a non-profit organization formed to preserve and protect American Indian sacred sites, sued the government on the grounds that the Land Exchange violates each of: 1) the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq ; 2) the Free Exercise Clause of the Constitution's First Amendment; and 3) a trust obligation that Apache Stronghold claims was imposed on the United States by the 1852 Treaty of Santa Fe between the Apache the United States. In the district court below, Apache Stronghold moved for a preliminary injunction, seeking to stop the Land Exchange and prevent any copper mining. The district court reviewed Apache Stronghold's evidence and arguments and ruled that the non-profit was unlikely to succeed on any of its claims. The district court thus denied Apache Stronghold's motion. We affirm.

I. Background

A. The At-Issue Land

The Tonto National Forest stretches across nearly 3 million acres (or about 4,500 square miles) across Arizona. See Tonto National Forest , U.S. Dep't of Agriculture, https://www.fs.usda.gov/detail/tonto/home/?cid=fsbdev3_018924 (last visited June 15, 2022). Most of the forest is owned by the United States and is managed by the United States Forest Service, a division of the United States Department of Agriculture. See id. Within the Tonto Forest is Oak Flat, a 6.7-square-mile plot of plains, oak groves, and rocky cliffs that sits about 4,000 feet above sea level. Beneath Tonto Forest and extending under part of Oak Flat lies "one of the largest undeveloped copper

deposits in the world," containing an estimated 1,970 billion tons of copper.

Also within the Tonto National Forest are several areas sacred to the Apache American Indians. Oak Flat is one of these areas, as are Devil's Canyon (called Ga'an Bikoh by the Apache), a depression just east of Oak Flat, and Apache Leap (called Dibecho Nadil by the Apache), a steep slope just to Oak Flat's west. These three adjacent areas are places where the Apache's Ga'an—beings that the Apache describe as their "creators, [their] saints, [their] saviors, [their] holy spirits"—live and where the Apache can communicate with them. Currently, the federal government owns Oak Flat.¹ Devil's Canyon is owned partially by Arizona state government trusts² and partially by the federal government. And Apache Leap is owned partially by Resolution Copper

and partially by the federal government. See 16 U.S.C. § 539p(d)(1)(A)(v).

In recent years, Oak Flat has been used for a variety of purposes, both religious and secular. After decades of holding religious rituals on their reservations, the Apache have recently returned to worship in Tonto Forest. In 2014, the Apache held a "Sunrise Dance" on Oak Flat for just the second time in "more than a hundred years." That 2014 ceremony closely followed another Sunrise Dance held the previous year at Mt. Graham, another sacred site elsewhere in Arizona. Separately, recreational users often camp, hike, or rock-climb throughout Tonto National Forest, including on Oak Flat.

B. The Land Exchange Provision

After nearly a decade of debate, Congress included in the 2014 National Defense Authorization Act a provision (the "Land Exchange Provision") that requires the Secretary of Agriculture to complete a land swap arrangement with Resolution Copper. See National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 3003, 128 Stat. 3732 –41 (2014) (codified at 16 U.S.C. § 539p ). Under the Provision's terms, the Department of Agriculture must convey 2,422 acres of federal land, including Oak Flat, to Resolution Copper

in exchange for 5,344 acres of Arizona land currently owned by Resolution Copper (again, the "Land Exchange"). See 16 U.S.C. § 539p(b), (c).³

Once the Forest Service and Resolution Copper exchange the land specified in the Land Exchange Provision, Resolution Copper

expects to take "several years" to conduct a "detailed feasibility study" regarding whether to proceed with a mine on the land it receives. Under Resolution Copper's current proposal, it would use a mining technique called "panel caving"; while Resolution Copper would not need to dig a mine on the surface, the land over the mine would eventually subside, "profoundly and permanently alter[ing]" the landscape.

The Land Exchange Provision also requires a series of consultation and mitigation measures. The Secretary of Agriculture must conduct "government-to-government consultation" with all "affected Indian tribes," 16 U.S.C. § 539p(c)(3)(A), and must also agree with Resolution Copper

on "mutually acceptable measures" to "address the concerns of the affected Indian tribes" and "minimize the adverse effects on the affected Indian tribes resulting from mining and related activities," id. § 539p(c)(3)(B), (B)(i), (B)(ii).

The Secretary of Agriculture must also prepare an environmental impact statement under the National Environmental Policy Act of 1969. See id. § 539p(c)(9)(B). This impact statement will guide any further federal government decisions on permitting and other approvals necessary for any development of the transferred land. See id. To that end, the impact statement must "assess the effects of the mining and related activities on the Federal land conveyed to Resolution Copper under [the Land Exchange Provision] on the cultural and archeological resources that may be located on [that] land" and "identify measures that may be taken, to the extent practicable, to minimize potential adverse impacts on those resources." Id. § 539p(c)(9)(C)(i), (ii).

Last, after the Department of Agriculture and Resolution Copper complete the Land Exchange, the Land Exchange Provision prohibits Resolution Copper

from mining on Apache Leap and obligates Resolution Copper to surrender all rights to mine on or extract minerals from that land. See

id. § 539p(g)(3). Apache Leap will be designated the "Apache Leap Special Management Area" with the goal of preserving the area's "natural character" and "cultural and archeological resources" and protecting the "traditional uses of the area by Native American people." Id. § 539p(g)(1), (2).

C. Administrative and Procedural History

In the years since Congress passed the Land Exchange Provision, the Forest Service has engaged in a consultation process with the public and with American Indian tribes. The Forest Service held eleven public meetings and accepted public comments for 120 days. Over that period, the Forest Service received nearly 30,000 comments. Government officials also met with American Indian tribes on dozens of occasions between 2003 and 2020.

Separately, Resolution Copper

has also collaborated with Apache tribe members to conduct a series of surveys that identified 6,906 "salvage locations" in Oak Flat, including 6,871 plant salvage locations, 9 animal salvage locations, and 26 mineral salvage locations. Resolution Copper has committed to removing and...