Key Points
- The Ninth Circuit denied petitions for panel rehearing and rehearing en banc in three consolidated cases challenging the Southeast Arizona Land Exchange, which will allow Resolution Copper Mining to destroy Oak Flat, a sacred site to the Western Apache.
- Eleven judges filed separate writings declaring that the court's 2024 en banc decision in Apache Stronghold v. United States was wrongly decided and calling for Supreme Court review.
- Judge Graber, joined by nine colleagues, wrote that Apache Stronghold indisputably contradicts the plain meaning of the statutory text and grossly misapplied the Williams v. Taylor doctrine.
- Judge Bumatay, joined by four colleagues, argued that Congress's 2000 amendment to RFRA untethered the statute from pre-Smith Free Exercise jurisprudence and expressly included the use of real property for religious exercise.
- Justices Gorsuch and Thomas previously dissented from the Supreme Court's denial of certiorari in Apache Stronghold, calling the case vitally important.
The Ninth Circuit on Tuesday refused to revisit its precedent allowing a massive copper mine to destroy Oak Flat, a site sacred to the Western Apache for more than a thousand years, but eleven judges filed separate writings declaring that the court's prior ruling was wrong and urging the Supreme Court to step in.
The order in San Carlos Apache Tribe v. United States Forest Service denied petitions for panel rehearing and rehearing en banc in three consolidated cases challenging the Southeast Arizona Land Exchange and Conservation Act, which will transfer federal land to Resolution Copper Mining. The mining project will convert Oak Flat, known to the Western Apache as Chi'chil Bildagoteel, into a crater approximately two miles across and 1,000 feet deep.
The panel vote was 2-1, with Judges Milan D. Smith Jr. and Daniel A. Bress voting to deny the petitions and Judge Johnnie B. Rawlinson voting to grant rehearing en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration.
The decision leaves intact the Ninth Circuit's 2024 en banc ruling in Apache Stronghold v. United States, which held that government disposition of federal land generally does not impose a substantial burden on religious exercise under the Religious Freedom Restoration Act. That holding has been the subject of sustained criticism from judges across ideological lines, and Tuesday's order produced three separate writings explaining why the precedent was wrong.
The case turns on RFRA, which prohibits the government from substantially burdening religious exercise unless the burden survives strict scrutiny.
The San Carlos Apache Tribe, the Arizona Mining Reform Coalition, and individual Apache members sought a preliminary injunction to block the land exchange. A three-judge panel affirmed the denial earlier this year, holding that it was bound by Apache Stronghold.
Judge Graber, joined by nine other judges, wrote separately to explain why Apache Stronghold was wrong. Her statement opened with an unequivocal declaration about the en banc decision that allowed the mining project to proceed, which she said will substantially burden the Western Apache's exercise of religion: she and her colleagues wrote simply that the court was wrong.
Judge Graber identified three fundamental errors in the Apache Stronghold decision. First, she wrote that the interpretation in Apache Stronghold indisputably contradicts the plain meaning of the statutory text. The complete destruction of the sacred site here clearly qualifies as a substantial burden on the exercise of religion, under any dictionary or ordinary meaning of the phrase, she wrote. Because the meaning of the text is clear, she added, the analysis should have ended there.
Second, Judge Graber wrote that the majority grossly misapplied the doctrine from Williams v. Taylor by using it not to confirm a statute's plain meaning but to contradict its plain meaning. Third, she wrote that the majority's reliance on Lyng v. Northwest Indian Cemetery Protective Association was misplaced because Lyng predated RFRA, applied only to the Free Exercise Clause, and never used the term substantially burden.
Judge Graber emphasized the stakes by comparing the destruction of Oak Flat to hypothetical burdens on other faiths. So the complete destruction of the Apache's sacred space is the rough equivalent of forever banning communion, for Catholics; or forbidding the study of the Torah, for Jews; or criminalizing all prayer, for Protestants; or outlawing fasting during Ramadan, for Muslims.
No one would question that those hypothetical laws would impose a substantial burden on religious exercise, Judge Graber wrote, and there equally should be no question here. Judge Graber's statement was joined by Chief Judge Murguia and nine other judges.
Judge Bumatay, joined by Chief Judge Murguia and Judges Wardlaw, Christen, and Koh, wrote separately to offer an independent statutory ground for overruling Apache Stronghold. He opened his dissent by framing the central question starkly: would turning a holy site into a giant crater substantially burden the exercise of religion? To ask the question is to answer it, he wrote.
It is not the panel's fault, Judge Bumatay acknowledged. Its hands were bound by the court's badly fractured decision in Apache Stronghold. There, he explained, an en banc majority said that RFRA categorically does not apply to the disposition of government real property absent some minor exceptions.
Judge Bumatay argued that Congress's 2000 amendment to RFRA through the Religious Land Use and Institutionalized Persons Act eliminated any limitations imported from pre-Smith jurisprudence. The 2000 amendment further untethered RFRA from the Supreme Court's First Amendment jurisprudence and expressly included assaults on religious exercise based on the use of real property. Given all this, RFRA cannot be said to subsume Lyng today. A substantial burden on the exercise of religion on federal lands is just that, he concluded, a substantial burden.
Chief Judge Murguia's dissent traced the tortured history of the Oak Flat litigation. She wrote that the answer should have been clear: the complete obliteration of Oak Flat is obviously a substantial burden on the Apaches' religious exercise. For the reasons Judge Graber and Judge Bumatay lay out, and the reasons I stated in my dissent, we were wrong, she wrote.
Those uncertainties and contingencies no longer exist, she wrote. This case presented a truly exceptional circumstance that would have justified revisiting prior precedent. I respectfully but strongly dissent from the denial of rehearing en banc, Chief Judge Murguia concluded.
Judge Graber echoed the point about finality. This is the last chance to prevent the irreversible desecration of a place, of a religion, and of a people, she wrote.
The Ninth Circuit's order granted motions for leave to file amicus briefs in support of the plaintiffs. Justices Gorsuch and Thomas have already expressed their view that the Supreme Court should hear the case, having dissented from the denial of certiorari in Apache Stronghold last year.
Resolution Copper Mining LLC intervened as a defendant-appellee. The government defendants included the United States Forest Service, Secretary of Agriculture Brooke Rollins, and the Department of Agriculture.
The order denying rehearing was filed September 29, 2026.