Petitions of the week
By Kalvis Golde
on 21 November 2024
at 12:11 p.m
The petitions of the week column highlights some of them cert applications recently filed with the Supreme Court. A list of all petitions we see is available here.
Federal law limits the government’s ability to impose a substantial burden on the free exercise of religion. But as long as Congress does not knowingly discriminate against a particular faith, the Supreme Court has allowed the legislature to direct internal government operations — for example, by allowing private development on public lands — even when it affects religious worship. This week, we highlight petitions that, among other things, ask the court to consider whether Congress can turn over part of an Arizona national forest sacred to the San Carlos Apache tribe to a private company seeking to mine the land for copper .
Located about 100 miles east of Phoenix, the San Carlos Apache Reservation is home to a number of bands of the Western Apache people. Between Phoenix and the reservation lies the Tonto National Forest, the largest national forest in Arizona. As it does with many federal lands, the US Forest Service has long sold or leased portions of the forest to mining, lumber and other businesses.
About halfway along the drive from Phoenix is Oak Flat Campground, a 760-acre tract of forest that Congress sealed off from private development in the 1950s. For the Western Apache, Oak Flat, called Chi’chil Biłdagoteel, is the corridor to the Creator and the site of sacred ceremonies that cannot be performed anywhere else. The land has been used by various tribes and their ancestors for religious rituals for a thousand years.
In the 1990s, prospectors discovered the third largest underground copper deposit in the world beneath the Tonto National Forest. Resolution Mining, a private mining company, negotiated rights to extract the copper from the Forest Service.
Part of the deposit lies directly below Oak Flat. Beginning in 2005, members of Arizona’s congressional delegation repeatedly introduced legislation to transfer Oak Flat and surrounding land to Resolution Mining. Initial efforts to do so were unsuccessful, but in 2014 Congress attached a provision to a major spending bill — known as an appropriations rider — authorizing a land exchange between the Forest Service and the mining company. Included in the land Resolution Mining is set to receive is the Oak Flat campground.
The Land Transfer Authorization Act required (among other things) an environmental impact statement assessing the effects of the transfer. In 2021, the Forest Service published the impact statement, which triggered a 60-day period for handing over the land.
Apache Stronghold, an advocacy group created by members of the San Carlos Apache tribe, went to federal court in an attempt to stop the transfer. Because a copper mine would collapse the land beneath Oak Flat and destroy it as a sacred site, the group argued that the land exchange would violate the tribe’s First Amendment right to the free exercise of religion. Further, the group argued, the exchange would violate the 1993 Religious Freedom Restoration Act, which requires courts to scrutinize federal actions that “substantially burden” religious free exercise.
A federal district court in Arizona denied the group’s request to stop the land exchange, and the full U.S. Court of Appeals for the 9th Circuit affirmed that decision. The appeals court ruled that the First Amendment challenge was preempted by a 1988 Supreme Court decision that allowed Congress to sell public lands sacred to a native tribe for timber development. As in that case, the appeals court explained, although the transfer here would “substantially interfere” with the tribe’s ability to practice their religion, the government’s actions were not unconstitutional because they did not “compel” members of the tribe “to act contrary to their religious beliefs.”
And RFRA didn’t change the playing field, the 9th Circuit insisted, because Congress enacted the law on the back of that decision — understanding that only restrictions on private places of worship can constitute a “substantial[] burden” on free exercise rights.
IN Apache Stronghold against the United StatesThe group is asking the justices to reverse the entire 9th Circuit decision. It insists that the ordinary meaning of a “substantial[] burden” on religious worship under RFRA includes an act that, like destroying Oak Flat to mine copper, effectively prohibits that worship altogether. In addition, RFRA overrules the Supreme Court’s prior public lands decision, the group says, because that decision applied only to generally applicable laws , which by the way burdens religion – a distinction that Congress intentionally did away with when the 1993 law was passed.
The government and Resolution Mining are urging the judges to let the 9th Circuit’s decision stand. In the government’s view, the text of RFRA and the debates surrounding its enactment are clear evidence that Congress believed the law to respect, rather than supplant, the primacy of federal land-use rights over tribal religious rights, which was affirmed in the Court’s 1988 decision .But in any case, Resolution Mining argues, the 2014 appropriations bill implicitly exempted the Oak Flat exchange from RFRA since future Congresses did not is bound by past actions. And the group’s First Amendment claim rises or falls with the RFRA analysis, the government adds.
A list of this week’s featured petitions is below:
Utah vs. USA
22O160
Question: Whether the federal policy embodied in 43 USC § 1701(a)(1) of perpetual federal retention of unappropriated public lands in Utah is unconstitutional.
Full v. Palestine Liberation Organization
24-20
Question: Whether the Promotion of Safety and Justice for Victims of Terrorism Act Violates Fifth Amendment Due Process.
Pharmaceutical Research and Manufacturers of America v. McClain
24-118
Question: Whether the U.S. Court of Appeals for the 8th Circuit erred in holding that a state may deprive manufacturers of the ability, preserved for them by the federal 340B Drug Pricing Program, to impose conditions on the use of contract pharmacies as part of the offer to supply 340B-priced drugs and penetrate 340B’s centralized enforcement scheme.
United States v. Palestine Liberation Organization
24-151
Question: Whether the Promoting Security and Justice for Victims of Terrorism Act’s means of establishing personal jurisdiction are consistent with the Due Process Clause of the Fifth Amendment.
Apache Stronghold against the United States
24-291
Question: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must meet heightened scrutiny under the Free Exercise Clause of the First Amendment, when it designates a holy site for complete physical destruction, ending specific religious practices forever .
