Apache Stronghold wins late reprieve as federal court halts transfer of sacred Oak Flat land to mining company pending Supreme Court review

The long-running legal dispute over the land known as Chí’chil Biłdagoteel — loosely translated in English as “Oak Flat” — has taken another turn. This federal land in Arizona is sacred to many Native American populations, and it is slated for transfer to a mining company pursuant to an act of Congress. But, last week a federal court halted the move, which was scheduled to take place as soon as June 16 of this year. Judge Steven Logan explained that the U.S. Supreme Court is currently considering a petition for review of the case and issued a temporary injunction pending the U.S. Supreme Court’s decision as to whether to take up the case.

Judge Logan’s district court is the one that initially allowed the transfer to go forward, rejecting the religious liberty claims brought by Apache Stronghold under the First Amendment and the Religious Freedom Restoration Act back in 2021. Since then a 2-1 panel of the 9th U.S. Circuit Court of Appeals and then the entire (en banc) 9th Circuit last year on a 6-5 vote affirmed the district court’s ruling.

What has changed since 2021 when Judge Logan declined to issue an injunction to convince him to issue one now? He explains:

[E]nough has changed to suggest that the Supreme Court, should it grant certiorari—and there is good reason to anticipate that it will grant certiorari, given the fact that the case has been relisted thirteen times for consideration—could change the existing precedent in a way that would necessarily change the outcome of this case.

 

There are numerous reasons to think this. First, every stage of the Apache Stronghold proceedings has been sharply divided….

 

Much of this splintering can be attributed to the fact that “substantial burden” was never statutorily defined under RFRA, nor has the Supreme Court since clarified what, precisely, constitutes a “substantial burden.” … [T]he “ordinary meaning of ‘substantial burden’ suggests that in selling the land, the government is preventing the Apache’s [sic] participation by restricting their access to the land,” and “[p]reventing access to religious exercise generally constitutes a substantial burden on religion. Taken at face value, it is a logically puzzling result that under the coercion-based definition of “substantial burden” affirmed by the en banc majority, the Apaches are not “burdened” within the current meaning of the law—after all, they are not being forced to choose between their religion and a benefit conferred upon other citizens, or between their religion and civil or criminal penalties. They cannot choose to practice their religion at all once their sacred religious site is completely “obliterated.”

The court emphasized that once the transfer is complete, Oak Flat will no longer be federal land and the damage done may be irreparable, writing: 

[I]f the transfer occurs, it “could result in the permanent loss of Apaches’ legal rights to access their ancestral sacred site.”… Yet in the riskiest scenario for [Resolution Copper], where the injunction is granted, the Supreme Court grants cert, and it ultimately affirms [the mining company] on the merits, the only harm will have been a delay of the land transfer for a number of months or (at most) a couple years.

BJC has been a leader in the struggle to protect Chi’chil, Biłdagoteel. As the Rev. Jennifer Hawks, former BJC Associate General Counsel, explained, “Sacred ground isn’t always marked by a steeple.”

Apache Stronghold’s petition is currently listed for the Supreme Court’s next scheduled conference on May 15, 2025. Stay tuned.