EPPC Amicus Brief Argues that Destroying Religious Site Substantially Burdens Religious Liberty

Published April 26, 2024


On Friday, April 26, 2024, EPPC fellow Eric Kniffin filed an amicus brief in the Ninth Circuit Court of Appeals in Apache Stronghold v. United States (link to Becket case page). This case started when Congress passed a law giving Resolution Copper the right to mine the area under Oak Flat, a sacred site for the Western Apache. The parties agree that the mining operation will turn Oak Flat into 1,100-foot-deep crater nearly two miles wide. 

Apache Stronghold brought suit claiming that the government’s actions violate its rights under the Religious Freedom Restoration Act (RFRA). But the Ninth Circuit denied that destroying Oak Flat would “substantial burden” the Apache’s religious liberty under RFRA.

The amicus brief urges the entire Ninth Circuit to rehear this case to right this wrong:

For “at least a millennium,” the Western Apache have been gathering at Oak Flat to worship and conduct ceremonies. As the en banc court recognized, the Western Apache “believe that Oak Flat is a ‘sacred place’” that “provides them ‘a unique way . . . to communicate’ with their Creator.” . . . 

The key question in this case is simple: Would the United States’ plans for Oak Flat, if allowed to proceed, “substantially burden” the Western Apache’s religious exercise? Given the undisputed facts [], it seems clear that the answer is yes . . . But [the court] held that the “plain meaning” of “substantial burden” is not what matters under the Religious Freedom Restoration Act (“RFRA”) . . .

[This brief] argues that the en banc court got it wrong and that this error warrants full court review. But amici’s broader concern is that the court’s results-oriented substantial burden analysis undermines RFRA, which has been a critical lifeline for minority religious groups, including Native Americans . . .

[T]he court was wrong to let its substantial burden analysis be driven by its fears about speculative harms that future RFRA cases might bring. It also . . . took inadequate account of the powerful facts of this case, which will make it easier for future courts to distinguish other RFRA claims over federal land.

Click here to read the full brief (PDF).

Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s HHS Accountability Project.

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