Apache Stronghold v. United States

101 F.4th 1036

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 Resolution Copper Mining, LLC, Intervenor.

No. 21-15295

United States Court of Appeals, Ninth Circuit

Argued and Submitted En Banc March 21, 2023 Pasadena, California

Filed March 1, 2024

Amended May 14, 2024

Appeal from the United States District Court for the District of Arizona, Steven Paul Logan, District Judge, Presiding, D.C. No. 2:21-cv-00050-SPL

Luke W. Goodrich (argued), Mark L. Rienzi, Diana M. Verm Thompson, Joseph C. Davis, Christopher Pagliarella, Daniel D. Benson, and Kayla A. Toney, The Becket Fund for Religious Liberty, Washington, D.C.; Michael V. Nixon, Michael V. Nixon JD, Portland, Oregon; Clifford I. Levenson, Law Office of Clifford Levenson, Phoenix, Arizona; for Plaintiffs-Appellants.

Stephanie H. Barclay (argued) and Francesca Matozzo, University of Notre Dame Law School Religious Liberty Clinic, Notre Dame, Indiana; Meredith H. Kessler, Religious Liberty Clinic, Notre Dame, Indiana; Michalyn Steele, Brigham Young University Law School, Provo, Utah; for Amicus Curiae National Congress of American Indians, a Tribal Elder and other Federal Indian Law Scholars, and Organizations.

Miles E. Coleman, Nelson Mullins Riley & Scarborough LLP, Greenville, South Carolina; Thomas Hydrick, Assistant Deputy Solicitor General, South Carolina Attorney General's Office, Columbia, South Carolina; Hunter Windham, Duffy & Young LLC, Charleston, South Carolina; Thomas C. Berg, Religious Liberty Appellate Clinic, University of St. Thomas School of Law, Minneapolis, Minnesota; W. Thomas Wheeler, Fredrikson & Byron PA, Minneapolis, Minnesota; for Amici Curiae Religious Liberty Law Scholars.

James C. Phillips, Chapman University, Dale E. Fowler School of Law, Orange, California; Gene C. Schaerr, Joshua J. Prince, Edward H. Trent, Riddhi Dasgupta, and Megan Shoell, Schaerr Jaffe LLP, Washington, D.C.; for Amici Curiae The Jewish Coalition for Religious Liberty, The International Society for Krishna Consciousness, The Sikh Coalition, and Protect the 1st.

Joshua C. McDaniel, Kelsey Baer Flores, Matthew E. Myatt, and Parker W. Knight III, Harvard Law School Religious Freedom Clinic, Cambridge, Massachusetts, for Amicus Curiae The Sikh Coalition.

James C. Phillips, Chapman University, Dale E. Fowler School of Law, Orange, California; Alexander Dushku, R. Shawn Gunnarson, Justin W. Starr, and Jarom Harrison, Kirton McConke, Salt Lake City, Utah; for Amici Curiae The Church of Jesus Christ of Latter-Day Saints, The General Conference of Seventh-Day Adventists, The Islam and Religious Freedom Action Team of the Religious Freedom Institute, and The Christian Legal Society.

Jason Searle and Beth Wright, Native American Rights Fund, Boulder, Colorado; April Youpee-Roll, Munger Tolls & Olson LLP, Los Angeles, California; for Amici Curiae Tribal Nations and Tribal Organizations.

David T. Raimer, Megan L. Owen, and Anika M. Smith, Jones Day, Washington, D.C., for Amicus Curiae The Mennonite Church USA and the Pacific Southwest Mennonite Conference.

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

David Debold (argued), Thomas G. Hungar, and Matthew S. Rozen, Gibson Dunn & Crutcher LLP, for Amicus Curiae American Exploration & Mining Association, Women's Mining Coalition, and Arizona Rock Products Association.

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

Kathryn M. Barber and Matthew A. Fitzgerald, McGuireWoods LLP, Richmond, Virginia, for Amici Curiae Pinal Partnership, Valley Partnership, PHX East Valley Partnership, The Honorable

Scott J. Davis, The Honorable Myron Lizer, and Joshua Tahsuda, III.

Anthony J. Ferate, Andrew W. Lester, and Courtney D. Powell, Spencer Fane LLP, Oklahoma City, Oklahoma, for Amicus Curiae Arizona Chamber of Commerce and Industry.

Christopher E. Mills, Spero Law LLC, Charleston, South Carolina, for Amici Curiae 38 Religious and Tribal Organizations.

Stephanie H. Barclay, Professor of Law, Religious Liberty Initiative Director; Meredith H. Kessler and Francesca Matozzo; Notre Dame Law School Religious Liberty Clinic, Notre Dame, Indiana; for Amici Curiae International Council of Thirteen Indigenous Grandmothers, Mica Group, and a Tribal Elder.

Joshua C. McDaniel, Parker W. Knight, III, and Kathryn F. Mahoney, Harvard Law School Religious Freedom Clinic, Harvard Law School, Cambridge, Massachusetts, for Amici Curiae the Sikh Coalition, the Christian Legal Society, and the Islam and Religious Freedom Action Team of the Religious Freedom Institute.

Gene C. Schaerr, Erika S. Jaffe, Annika B. Barkdull, and Megan Shoell, Schaerr Jaffe LLP. Washington, D.C., for Amicus Curiae Protect the First Foundation.

Beth M. Wright and Jason Searle, Native American Rights Fund, Boulder, Colorado, for Amici Curiae Tohono O'Odham Nation and Tribal Organizations.

Heather D. Whiteman Runs Him, Tribal Justice Clinic, Rogers College of Law, University of Arizona, Tucson, Arizona; Gerald Torres, Yale Law School, New Haven, Connecticut; for Amicus Curiae the National Native American Law Students Association Inc., Yale Native American Law Students Association, and Michigan Native American Law Students Association,

Eric N. &Min, Ethics & Public Policy Center, Washington, D.C., for Amici Curiae the Mennonite Church USA and 19 Additional Mennonite Organizations.

Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Marsha S. Berzon, Carlos T. Bea, Mark J. Bennett, Ryan D. Nelson, Daniel P. Collins, Kenneth K. Lee, Danielle J. Forrest, Lawrence VanDyke and Salvador Mendoza, Jr., Circuit Judges.

Order;

Per Curiam Opinion;

Opinion by Judge Collins;

Partial Concurrence and Partial Dissent by Judge Bea;

Concurrence by Judge R. Nelson;

Concurrence by Judge VanDyke;

Dissent by Chief Judge Murguia;

Dissent by Judge Lee

ORDER

The slip opinion filed on March 1, 2024 is amended as follows:

1) On page 33, after "(quoting Lyng, 485 U.S. at 451, 108 S.Ct. 1319).", delete the remainder of the paragraph through and including "neutral and generally applicable." Immediately after that shortened paragraph, add the following new paragraph:

But the Court has not said, and could not have said, that the holding of Lyng rested on the view that Lyng was itself a case involving a neutral and generally applicable law. As we have set forth, Lyng rested on a holding about the scope of the term "prohibiting" under the Free Exercise Clause and never mentioned or endorsed a Smith-style rule. At most, the Court has suggested in dicta that Lyng fits a pattern of cases in which the Court had upheld laws that were "neutral and generally applicable without regard to religion" in the sense that they did not "'penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.'" Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 460, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017) (quoting Lyng, 485 U.S. at 449, 108 S.Ct. 1319). But Trinity Lutheran did not have before it the more focused question whether, in light of the parcel-specific rigging of the statutory framework in Lyng, the underlying statute at issue in Lyng could be properly deemed to qualify as "neutral and generally applicable" under the details of Smith's framework. As we have explained, Lyng involved a situation in which, after religious objections had been raised to the G-0 road and the road's construction had been enjoined, Congress proceeded to adopt an explicit statutory gerrymander for the precise parcel at issue. See supra at 1049-50. That manifestly would not fit the Court's current understanding of a case involving a neutral and generally applicable law. See, e.g., Church of the Lukumi, 508 U.S. at 542, 113 S.Ct. 2217 (emphasizing that "categories of selection" in legislative drafting "are of paramount concern when a law has the incidental effect of burdening religious practice"). In all events, even if the law in Lyng were deemed, in hindsight, to be neutral and generally applicable within the meaning of Smith, the fact remains that the holding of Lyng did not rest on any such premise, but instead on the view that the challenged actions there lacked the sort of features that would qualify as "prohibiting" the free exercise of religion.

2) On page 43, in the sentence that begins "Consequently," add "pre-Smith" immediately before "framework for applying".

An amended version of the opinion, reflecting these changes, accompanies this order. The per curiam opinion, the concurrences, and the dissents are unchanged. The full court has been advised of the petition for rehearing en bane before the full court filed on April 15, 2024 (Dkt. No. 184), and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35; Ninth Circuit General Order 5.8. Accordingly, the petition for rehearing en bane before the full court is DENIED. No further petitions for rehearing will be entertained.

AMENDED OPINION

PER CURIAM:

A majority of the en banc court (Chief Judge MURGUIA and Judges GOULD, BERZON, R. NELSON, LEE, and MENDOZA) concludes that (1) the ...