21-15295 Appellants Reply BR

Case: 21-15295, 06/24/2021, ID: 12154014, DktEntry: 65, Page 1 of 41
No. 21-15295
___________________________________________________________________________________________________________________
In the United States Court of Appeals for the Ninth Circuit
APACHE STRONGHOLD,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court

for the District of Arizona
Honorable Steven P. Logan
(2:21-cv-00050-PHX-SPL)
__________________________________________________________________
REPLY BRIEF OF PLAINTIFF-APPELLANT

APACHE STRONGHOLD
_________________________________________________________________
MICHAEL V. NIXON LUKE W. GOODRICH
101 SW Madison Street #9325 Counsel of Record
Portland, OR 97207 MARK L. RIENZI
(503) 522-4257 DIANA M. VERM
michaelvnixon@yahoo.com CHRISTOPHER PAGLIARELLA
DANIEL D. BENSON
CLIFFORD LEVENSON KAYLA A. TONEY
5119 North 19th Street, Suite K THE BECKET FUND FOR
Phoenix, AZ 85015 RELIGIOUS LIBERTY
(602) 544-1900 1919 Pennsylvania Ave. NW
cliff449@hotmail.com Suite 400
Washington, DC 20006
(202) 955-0095
lgoodrich@becketlaw.org
Counsel for Plaintiff-Appellant

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................ ii
INTRODUCTION ........................................................................................ 1
ARGUMENT ................................................................................................ 3
I. The Government’s actions violate RFRA. ......................................... 3
II. The Government’s actions violate the Free Exercise Clause. ....... 19
III. The Government’s actions violate the 1852 Treaty. ...................... 23
IV. The other injunction factors are met. ............................................. 27
CONCLUSION ........................................................................................... 30
STATEMENT OF RELATED CASES....................................................... 32
CERTIFICATE OF COMPLIANCE ......................................................... 33
CERTIFICATE OF SERVICE ................................................................... 34
i
TABLE OF AUTHORITIES
Page(s)
Cases
Azar v. Allina Health Servs.,

139 S. Ct. 1804 (2019) ........................................................................... 19
A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.,

611 F.3d 248 (5th Cir. 2010) ................................................................... 9
Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ................................................................. 6, 19, 30
Bowen v. Roy,
476 U.S. 693 (1986) ............................................................................... 13
Buono v. Norton,
371 F.3d 543 (9th Cir. 2004) ................................................................. 16
Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ....................................................................... passim
Choctaw Nation v. Oklahoma,

397 U.S. 620 (1970) ............................................................................... 24
Choctaw Nation v. United States,

119 U.S. 1 (1886) ................................................................................... 24
Comanche Nation v. United States,

No. CIV-08-849, 2008 WL 4426621
(W.D. Okla. Sept. 23, 2008) .................................................................... 9
Confederated Tribes & Bands of Yakama

Nation v. Klickitat County,
No. 19-35807, 2021 WL 2386396 (9th Cir. June 11, 2021) ........... 23-24
Cottonwood Christian Ctr. v. Cypress Redevelopment Agency,

218 F. Supp. 2d 1203 (C.D. Cal. 2002) ............................................. 8, 20
Cutter v. Wilkinson,
544 U.S. 709 (2005) ............................................................................... 15
ii
Emp. Div. v. Smith,

494 U.S. 872 (1990) ............................................................................... 21
Eternal Word Television Network, Inc. v. Sec’y of U.S. Dep’t

of Health & Human Servs.,
818 F.3d 1122 (11th Cir. 2016) ............................................................... 9
Fagaza v. FBI,
916 F.3d 1202 (9th Cir. 2019) ............................................................... 19
Fulton v. City of Philadelphia,

No. 19-123, 2021 WL 2459253 (U.S. June 17, 2021) .................. passim
Gonzales v. O Centro,
546 U.S. 418 (2006) ............................................................................... 15
Green v. Solano County Jail,

513 F.3d 982 (9th Cir. 2008) ................................................................... 7
Gros Ventre Tribe v. United States,

469 F.3d 801 (9th Cir. 2006) ................................................................. 25
Haight v. Thompson,
763 F.3d 554 (6th Cir. 2014) ................................................................... 7
Herrera v. Wyoming,
139 S. Ct. 1686 (2019) ............................................................... 24, 25, 26
Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) ............................................................... 9
Holt v. Hobbs,
574 U.S. 352 (2015) ..................................................................... 9, 15, 16
Int’l Church of Foursquare Gospel v. City of San Leandro,

673 F.3d 1059 (9th Cir. 2011) ......................................................... 12, 20
Jones v. Carter,
915 F.3d 1147 (7th Cir. 2019) ................................................................. 7
Kettle Range Conservation Grp. v. BLM,

150 F.3d 1083 (9th Cir. 1998) ......................................................... 29, 30
iii
Kimball v. Callahan,
590 F.2d 768 (9th Cir. 1979) ................................................................. 27
Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013) ................................................................... 9
Lyng v. Nw. Cemetery Protective Ass’n.,

485 U.S. 439 (1988) ....................................................................... passim
Mack v. Warden Loretto FCI,

839 F.3d 286 (3d Cir. 2016) .................................................................... 9
McAllen Grace Brethren Church v. Salazar,

764 F.3d 465 (5th Cir. 2014) ................................................................ 3-4
McGirt v. Oklahoma,
140 S. Ct. 2452 (2020) ........................................................................... 26
Menominee Tribe of Indians v. United States,

391 U.S. 404 (1968) ......................................................................... 24, 26
Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) .......................................................................... 25-26
Nance v. Miser,
700 F. App’x 629 (9th Cir. 2017) ............................................................ 7
Nat’l Parks Conservation Ass’n v. Semonite,

925 F.3d 500 (D.C. Cir. 2019) ............................................................... 30
Navajo Nation v. U.S. Forest Service,

535 F.3d 1058 (9th Cir. 2008) ....................................................... passim
New Doe Child #1 v. United States,

901 F.3d 1015 (8th Cir. 2018) ............................................................... 15
NLRB v. Sw. Gen. Inc.,

137 S. Ct. 929 (2017) ............................................................................. 19
Parents for Privacy v. Barr,

949 F.3d 1210 (9th. Cir. 2020) .............................................................. 21
iv
Patel v. U.S. Bureau of Prisons,

515 F.3d 807 (8th Cir. 2008) ................................................................... 9
Roman Catholic Bishop v. City of Springfield,

724 F.3d 78 (1st Cir. 2013) ................................................................... 20
San Jose Christian Coll. v. City of Morgan Hill,

360 F.3d 1024 (9th Cir. 2004) ................................................................. 4
Skokomish Indian Tribe v. United States,

410 F.3d 506 (9th Cir. 2005) ................................................................. 27
Slockish v. U.S. Dep’t of Transp.,

No. 21-35220 (9th Cir.) ......................................................................... 28
Snoqualmie Indian Tribe v. FERC,

545 F.3d 1207 (9th Cir. 2008) ............................................................... 11
Tandon v. Newsom,
141 S. Ct. 1294 (2021) ..................................................................... 20, 22
Tanzin v. Tanvir,
141 S. Ct. 486 (2020) ........................................................................... 5, 6
Te-Moak Tribe v. DOI,

565 F. App’x 665 (9th Cir. 2014) ............................................................ 7
Trinity Lutheran Church v. Comer,

137 S. Ct. 2012 (2017) ........................................................................... 14
Warsoldier v. Woodford,
418 F.3d 989 (9th Cir. 2005) ................................................................. 28
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) ............................................................... 4, 7
Statutes
16 U.S.C. § 539p ......................................................................................... 29
42 U.S.C. § 2000bb ............................................................................... 14, 16
v
42 U.S.C. § 2000bb-1...................................................................... 11, 14, 15
42 U.S.C. § 2000bb-3.................................................................................... 5
54 U.S.C. § 302706 ....................................................................................... 7
Other Authorities
36 C.F.R. 800.2 ............................................................................................. 7
Bob Ekey, The New World Agreement,

18 Pub. Land & Resources L. Rev. 151 (1997) ............................... 22-23
Executive Order 13007 ............................................................................. 6-7
H.R. Rep. No. 103-88 (1993) ...................................................................... 18
Remarks on Signing the New World Mine Property Agreement,

2 Pub. Papers (Aug. 12, 1996) .............................................................. 23
Steve Lipsher, Arizona’s Star Wars, Empire Magazine,

Denver Post (May 18, 1997) ................................................................. 13
vi
INTRODUCTION
Plaintiffs’ position on RFRA is simple: Government “substantially bur-
dens” religious exercise when it makes religious exercise significantly
more costly or difficult. Here, the Government isn’t just making Plaintiffs’
religious exercise more difficult; it’s making it impossible—forever.
To evade this logic, the Government focuses on a stilted theory of Nav-
ajo Nation, claiming that only two types of governmental action can ever
result in a substantial burden: “impos[ition] [of] punishment” or “denial

of an otherwise-available benefit.” Resp.26. But its brief eventually aban-
dons that theory. It admits that Navajo Nation says any burden “short
of” these doesn’t count—suggesting that burdens greater than these do.
And it admits that this theory can’t account for a host of cases—from the
denial of religious accommodations in prison, to the confiscation of reli-
gious objects, to the performance of an unwanted autopsy. Instead, the

Government says, these cases are governed by various exceptions to its
theory—for “coercive control” in prison, violation of “personal and real
property” rights, or even “a ‘quasi-property’ right in the body of the de-
ceased.” Resp.34, 38, 40-41. But these ad hoc exceptions explode the Gov-
ernment’s two-category theory of Navajo Nation.
So the Government offers a second, even more sweeping theory: RFRA

simply doesn’t apply to “the management of [Government’s] own prop-
erty.” Resp.1. But the Government backs off this theory even more
quickly than the first—admitting that RFRA applies to “all Federal law,”
1
including “federal land-management statutes and their implementation”
(Resp.16-17), and admitting that it would be a substantial burden if the
Government simply “fenced off Oak Flat and threatened ‘sanctions’ for
trespassing” (Resp.26). Conspicuously absent from the Government’s

brief is any principled explanation of why fencing off Oak Flat is a sub-
stantial burden, but blasting it to oblivion is not. The only discernable
“principle” appears to be that Native Americans must lose. But that

simply confirms that the only principled theory on offer is Plaintiffs’—
which also coheres with RFRA’s text, longstanding precedent, and com-
mon sense.
The Government fares no better under the Free Exercise Clause. It
doesn’t dispute that it made an individualized, value-laden decision to
prefer a copper mine over religion; it says only that it harbored no “dis-
criminatory purpose.” Resp.50. But the Supreme Court’s recent decisions
in Fulton and Tandon reject any requirement of discriminatory purpose.
Instead, they imposed strict scrutiny simply because the government re-
tained discretion to make individualized decisions (Fulton), or prioritized
secular over religious interests (Tandon)—both of which the Government
did here.
The destruction of Oak Flat also violates the 1852 Treaty, in which the
Government promised to protect Apache territory and the normal inci-
dents of Indian life thereon, including religious exercise. In response, the
2
Government claims the Treaty was too vague to mean anything, was ab-
rogated by Congress, or doesn’t protect individual Apaches. But the Su-
preme Court has repeatedly found language like the 1852 Treaty to cre-
ate specific treaty obligations; it has rejected abrogation when Congress

never mentioned the treaty; and it has routinely allowed individual tribal
members to enforce treaty rights. The Government cannot account for
these cases.
Finally, there is no question that Plaintiffs face irreparable harm war-
ranting a preliminary injunction. Courts have repeatedly held that a col-
orable violation of RFRA, which protects First Amendment rights, con-
stitutes irreparable harm. And the Government’s own FEIS admits the
destruction of Oak Flat will be “immediate,” large-scale, and “perma-
nent.” Accordingly, Plaintiffs are entitled at minimum to have their

claims fully heard before their sacred site is forever destroyed.
ARGUMENT
I. The Government’s actions violate RFRA.
The substantial-burden analysis is not complicated. Government “sub-
stantially burdens” religious exercise when it makes religious exercise
significantly more costly or difficult. It can do this by threatening sanc-
tions or loss of benefits—e.g., if you possess eagle feathers, we will fine
you. Or it can do this by making the exercise impossible—e.g., we are
confiscating your feathers. Cf. McAllen Grace Brethren Church v. Salazar,
3
764 F.3d 465, 472 (5th Cir. 2014). When government makes religious ex-
ercise impossible, its actions “easily” qualify as a substantial burden. Yel-
lowbear v. Lampert, 741 F.3d 48, 55-56 (10th Cir. 2014) (Gorsuch, J.). The
Government’s efforts to evade this rule contradict RFRA’s text, control-

ling precedent, and common sense.
1. Text. Looking to “ordinary, contemporary, common meaning,” this
Court defined “substantial burden” as “a ‘significantly great’ restriction

or onus on ‘any exercise of religion.’” San Jose Christian Coll. v. City of
Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004). Destroying Oak Flat
obviously qualifies, because it makes Plaintiffs’ religious practices impos-
sible—which the Government doesn’t dispute.
Instead, the Government redefines “substantial burden” to mean only
the use of “the coercive power of the state against the plaintiff to deter or
punish” religious conduct. Resp.18 (emphasis added). But this definition
alters RFRA in several ways. It narrows RFRA to one specific type of
government action: the use of “coercive power.” It changes the object of
the burden from “a person’s exercise of religion” to the person himself
(“against the plaintiff”). And it adds a further restriction that the coercive
power must be used “to deter or punish” religious conduct. None of this
is required by RFRA’s text—which asks simply whether “Government”
(by whatever means) has “substantially burdened” (by punishment, de-
terrence, or otherwise) a person’s “exercise of religion” (not the person

himself). Indeed, far from limiting its application to “coercive” laws that
4
“deter or punish,” RFRA “applies to all Federal law, and the implementa-
tion of that law, whether statutory or otherwise.” 42 U.S.C. § 2000bb-3(a)
(emphasis added).
Admitting its lack of textual support, the Government asks this Court
to reject RFRA’s “ordinary meaning” and instead construe “substantial
burden” as a term of art codifying “pre-Smith case law.” Resp.19 (quoting
Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1074 (9th Cir.
2008)). But the Supreme Court has rejected this same argument. In
Hobby Lobby, the Government claimed that “RFRA did no more than cod-
ify this Court’s pre-Smith Free Exercise Clause precedents”—and there-
fore couldn’t extend to for-profit corporations. Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 713 (2014). But the Supreme Court disagreed,
stating that “[w]hen Congress wants to link the meaning of a statutory

provision to a body of this Court’s case law, it knows how to do so”—and
it didn’t do so in RFRA. Id. at 714. Indeed, the Court said it would be
“absurd if RFRA merely restored this Court’s pre-Smith decisions in os-
sified form,” allowing only RFRA claims that were “entertained in the
years before Smith.” Id. at 715-16. So too here. See also Tanzin v. Tanvir,
141 S. Ct. 486, 491 (2020) (undefined terms in RFRA must be interpreted
according to their “plain meaning”). 1
1The Government suggests the land-exchange rider exempted itself from

RFRA “by implication.” Resp.16 n.3. But RFRA requires any exemption
to be “explicit[].” 42 U.S.C. § 2000bb-3(b). And the Supreme Court has
5
2. Precedent. The Government also has no good response to the over-
whelming body of precedent interpreting RFRA according to its plain
meaning.
First, in Tanzin, the Supreme Court said “RFRA violations” can in-
clude “destruction of religious property” or the performance of an un-
wanted “autopsy.” 141 S. Ct. at 492. The Government doesn’t dispute
these are substantial burdens. Instead, it says they involved “personal

property owned by the plaintiff,” or “a ‘quasi-property’ right in the body
of the deceased.” Resp.26, 40-41. But this response blows a hole in the
Government’s two-category theory of Navajo Nation—which posits that
a substantial burden exists only when the government threatens sanc-
tions or denies benefits. Resp.20-23. Yet the Tanzin examples involved
neither.
In any event, if Government imposes a substantial burden when it vi-
olates a “quasi-property right,” Plaintiffs more than qualify here. Oak
Flat was undisputedly Apache land before the Government took it by
force. Plaintiffs still have enforceable rights under the 1852 Treaty. Br.
47-50; infra Part III. And even apart from the Treaty, they currently have
usufructuary rights in Oak Flat guaranteed by multiple federal laws—
including the right to use, access, and be consulted about Oak Flat. See,
applied this express-reference provision to later-enacted laws. Hobby

Lobby, 573 U.S. at 719 n.30; see also Bostock v. Clayton County, 140 S.
Ct. 1731, 1754 (2020) (“super statute” that “displac[es]” other laws).
6
e.g., Executive Order 13007 (Government must “accommodate … ceremo-
nial use of Indian sacred sites” on federal land and “avoid adversely af-
fecting the[ir] physical integrity”); Te-Moak Tribe v. DOI, 565 F. App’x
665, 667-68 (9th Cir. 2014); National Historic Preservation Act; 54 U.S.C.
§ 302706(b); 36 C.F.R. 800.2(c)(2)(ii). All of these rights will be extin-
guished by the transfer and destruction of Oak Flat. 3-ER-349. Thus,
even under the Government’s “quasi-property right” addendum to its

two-category theory, Plaintiffs qualify.
The Government likewise fails to distinguish the many prisoner cases
finding a substantial burden when the government makes a religious ex-
ercise impossible. The Government first claims these cases involved
“punishment” of religious practices. Resp.34. Not so. Each involved not
punishment but refusal to accommodate religious exercise on govern-

ment property:
• Yellowbear, 741 F.3d at 53 (declining escort to sweat lodge);
• Greene, 513 F.3d at 989 (declining escort to group worship);
• Nance, 700 F. App’x at 632 (declining purchase of prayer oils);
• Jones, 915 F.3d at 1149 (declining kosher food trays);
• Haight, 763 F.3d at 565 (declining ceremonial foods).
Yet each court found a substantial burden, because “[t]he greater re-
striction” of making a practice impossible “includes the lesser one” of

threatening punishment—even when the practice takes place on the gov-
ernment’s own property. Id.
7
Alternatively, the Government says the prisoner cases involved “coer-
cive control.” Resp.34. But that’s no distinction at all. Whether managing
a prison or managing federal land, the Government has “coercive control”
over the location needed for religious exercise. See NCAI Br. 19. And
when it manages the location in a way that renders religious exercise
impossible, it imposes a substantial burden. Indeed, the Government’s
position bizarrely gives more protection to prisoners wanting to use a

sweat lodge in the prison yard (Yellowbear) than to Apaches wanting to
use a sweat lodge at Oak Flat.
For similar reasons, the Government cannot distinguish the many
RLUIPA land-use cases holding that interference with the use of reli-
gious property is a substantial burden. Br. 33-34. Repeating its “prop-
erty-rights” addendum, the Government says these cases involve the

plaintiffs’ “own property.” Resp.35. But RFRA doesn’t ask who owns the
property; it asks whether the Government has substantially burdened
plaintiffs’ “exercise of religion.” Whether the government takes religious
property by eminent domain and turns it into a Costco, Cottonwood
Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203
(C.D. Cal. 2002) (finding substantial burden), or takes it by military force
and turns it into a copper mine, the effect on religious exercise on the
property is the same—termination.
Alternatively, the Government says the meaning of substantial bur-
8
den “has evolved differently” under RLUIPA and RFRA. But the Su-
preme Court said they “impose … the same standard,” Holt v. Hobbs, 574
U.S. 352, 357-58 (2015), and every circuit considering the question
agrees. 2 That the Government even makes this argument only demon-
strates that its position cannot be squared with RFRA’s text.
Finally, the Government admits it cannot distinguish Comanche Na-
tion v. United States, which held that construction of a warehouse on a

Native American worship site “amply demonstrate[d]” a substantial bur-
den. 2008 WL 4426621, at *17 (W.D. Okla. Sept. 23, 2008). It merely says
Comanche Nation “conflict[s]” with Navajo Nation. Resp.32-33 But the
cases don’t conflict. In Navajo Nation, the “sole effect” of the govern-
ment’s action was on plaintiffs’ “subjective spiritual experience,” 535 F.3d
2 See:
• Mack v. Warden Loretto FCI, 839 F.3d 286, 304 n.103 (3d Cir. 2016)
(“analogous” “substantial burden test”);
• A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248,
264 n.64 (5th Cir. 2010) (“same ‘substantial burden’ question”);
• Korte v. Sebelius, 735 F.3d 654, 682-83 (7th Cir. 2013) (“same under-
standing”);
• Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008)
(“same definition”);
• Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 n.13 (10th
Cir. 2013) (“interpreted uniformly”);
• Eternal Word Television Network, Inc. v. Sec’y of U.S. Dep’t of Health
& Human Servs., 818 F.3d 1122, 1181 n.23 (11th Cir. 2016) (“same
standard”).
9
at 1063, while in Comanche Nation, the government’s action made plain-
tiffs’ religious practices objectively, physically impossible. Br. 35-37.
3. Navajo Nation and Lyng. Lacking any response to these cases,
the Government relies principally on overreading Navajo Nation and

Lyng. It says the two types of burdens identified in Navajo Nation—
threat of penalties or denial of benefits—are the full universe of substan-
tial burdens, not an “illustrative list.” Resp.23-24. And it says this case
is factually indistinguishable from Navajo Nation and Lyng. Id. at 24-32.
It is wrong on both counts.
First, Navajo Nation didn’t purport to identify the full universe of sub-
stantial burdens. Immediately after listing the threat of penalties and
denial of benefits, the Court said “[a]ny burden … short of ” these can’t
be substantial. 535 F.3d at 1069-70 (emphasis added). But that indicates

that a burden greater than these can be. Tellingly, the Government offers
no alternative understanding of this language.
Second, neither Navajo Nation nor Lyng involved physical destruction
of a site, rendering the plaintiff’s religious practices objectively impossi-
ble. In Navajo Nation, the government didn’t destroy the sacred site; it
allowed recycled wastewater to be sprayed on it, which plaintiffs claimed
would “spiritually contaminate” the mountain and “devalue their reli-
gious exercises.” 535 F.3d at 1063; see also id. at 1070 (“The only effect of
the proposed upgrades is on the Plaintiffs’ subjective, emotional religious

experience.”). Likewise, in Lyng, the construction “was removed as far as
10
possible from the sites used by contemporary Indians for specific spiritual
activities”; the plaintiffs’ claim was that the construction would “dimin-
ish the sacredness of the area” and “create distractions” while they wor-
shiped. 485 U.S. 439, 443, 448 (1988); see also id. at 454 (“No sites where
specific rituals take place were to be disturbed.”).
Thus, as Navajo Nation put it, “the sole question” in those cases was
“whether a government action that affects only subjective spiritual ful-

fillment ‘substantially burdens’ the exercise of religion.” 535 F.3d at 1070
n.12 (emphasis added). Here, by contrast, the mine wouldn’t merely di-
minish Plaintiffs’ subjective spiritual fulfillment from worshiping at Oak
Flat; it would swallow Oak Flat in a crater, rendering Plaintiffs’ practices
physically impossible. So both Navajo Nation and Lyng are “of little help
here, where the religious burden in controversy is not mere interference

with ‘subjective’ experience, but the undisputed, complete destruction of
the entire religious site.” Bumatay Op. 11. 3
3 The same is true of Snoqualmie. The Government says the “hydroelec-

tric facility” there “had a profound physical impact on the” sacred water-
fall. Resp.28. But the question isn’t whether the government burdened
the site, but plaintiffs’ “exercise of religion.” 42 U.S.C. § 2000bb-1(a). The
facility in Snoqualmie didn’t “prevent the Snoqualmies’ access to” the
falls “or the performance of religious ceremonies”; rather, the objective
effect was to “produce a greater amount of” the mist used in the plaintiffs’
religious exercise. Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207,
1213, 1215, 1219 (9th Cir. 2008) (emphasis added).
11
Acknowledging as much, the Government inserts a qualifier, saying
there is no “meaningful distinction” between the cases. Resp.24 (empha-
sis added). But the meaningfulness of the distinction between spiritual
effects and physical impossibility is straightforward. A secular court

“cannot weigh” spiritual effects for itself, Lyng, 485 U.S. at 449-50, so if
spiritual effects alone counted, the Court would simply have to take
plaintiffs at their word that the spiritual effects were “substantial.” But
whether the Government’s actions have rendered a particular religious
exercise physically impossible is an objective, ascertainable fact, inde-
pendent of plaintiffs’ beliefs, and as easily evaluated as any other sort of
substantial burden. Indeed, it is even easier than evaluating, e.g.,
whether a zoning restriction substantially burdens a church when the
availability and suitability of alternative sites is factually complex. Cf.

Int’l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,
1067-69 (9th Cir. 2011).
Resisting, the Government next says “[t]he law does not allow” a dis-
tinction between “subjective” and objective burdens, because administer-
ing it would require the Court to weigh the “credibil[ity]” of plaintiffs’
religious beliefs. Resp.30-31. But the distinction the Government now
says the “law does not allow” is the one expressly drawn in Navajo Nation
itself: “the distinction [we are] drawing today” is “between objective and
subjective effect on religious exercise.” 535 F.3d at 1070 n.12.
12
Nor does this distinction require courts to decide whether any given
religious belief is more “weighty” or “credible” than another. Resp.30.
Here, for example, the Court need not determine whether it’s true as a
religious matter that Sunrise Ceremonies must be performed at Oak

Flat. Cf. Resp.31. It merely has to decide whether—given that Plaintiffs
undisputedly do exercise their religion by performing Sunrise Ceremo-
nies there—the objective effect of the Government’s actions will make

that exercise more difficult. That is undisputed here. 4
Nor is the Government correct that Lyng rejected a subjective/objec-
tive distinction in discussing Bowen v. Roy, 476 U.S. 693 (1986). Resp.28-
29. Rather, Lyng held that this distinction didn’t help the plaintiffs before
it, because they (like the Roy plaintiffs) were on the wrong (subjective)
side of the line. Both cases centered on claims about the spiritual “efficacy
4 Ironically, the Government itself goes outside the record to impugn the
weight and credibility of Plaintiffs’ religious beliefs—saying Harrison
Talgo “disagree[s]” with the significance of Oak Flat, that Sunrise Cere-
monies were “reviv[ed]” in 2012, and that other Indians perform Sunrise
Ceremonies elsewhere. Resp.7-8, 30. But it is no surprise that other In-
dians worship elsewhere. Sunrise Ceremonies were “revived” only be-
cause they were driven underground—held secretly or on reservations—
due to the Government’s history of punishing public ceremonies. 2-ER-
83-84, 94-95, 123 ¶8, 146 ¶17. And Talgo has a history of securing per-
sonal gain by disparaging traditional religious practices—part of the un-
fortunate history of government and industry using financial incentives
to divide and conquer native communities. See, e.g., Steve Lipsher, Ari-
zona’s Star Wars, Empire Magazine, Denver Post (May 18, 1997),
https://perma.cc/3TSZ-AKFZ.
13
of” plaintiffs’ practices, and courts cannot engage in “a factual inquiry
into the degree to which … spiritual practices would become ineffectual.”
485 U.S. at 450-51. That reasoning is inapposite here, where Plaintiffs
aren’t claiming the Government’s actions render their practices spiritu-

ally ineffectual, but objectively, physically impossible.
Finally, the Government fails to rebut the argument that even under
a two-category reading of Navajo Nation, Plaintiffs are denied the benefit

of using Oak Flat and do face penalties for trespassing. Br. 42. As for the
benefit of using Oak Flat, the Government says only a discriminatory
denial of an “‘otherwise available benefit’” counts, citing post-Smith con-
stitutional cases. Resp.26-27 (quoting Trinity Lutheran Church v. Comer,
137 S. Ct. 2012, 2021-22 (2017)). But RFRA doesn’t require discrimina-
tion; it applies “even if the burden results” from “neutral” or “general[ly]

applicab[le]” laws. 42 U.S.C. §§ 2000bb(a), 2000bb-1(a).
As for trespassing penalties, the Government says Plaintiffs must wait
until they “face trespassing charges,” and then assert RFRA as “a de-
fense.” Resp.27. But elsewhere, the Government admits that the mere
“threat” of penalties suffices under Navajo Nation. Resp.38-39. Plaintiffs
here face just such a threat, as it’s undisputed that immediately upon
transfer, Oak Flat will “become private property and no longer be subject
to [laws] or Forest Service management that provides for tribal access.”
3-ER-349. When Plaintiffs try to continue their religious practices at Oak
14
Flat after Resolution Copper closes it, ECF 18-2 at 18, they will face pen-
alties for trespassing.
4. Parade of Horribles. Lacking a coherent theory of RFRA, the Gov-
ernment posits a parade of horribles, claiming “no government … could

function” if RFRA is applied according to its text—which lacks any re-
quirement that religious exercise be “compelled,” “central,” “widely
shared,” or limited to one place or faith. Resp.43, 45-46. But these are the
same slippery-slope arguments made by prison officials in Cutter v. Wil-
kinson, 544 U.S. 709, 725-26 (2005) and Holt, 574 U.S. at 361, 369, drug-
enforcement officers in Gonzales v. O Centro, 546 U.S. 418, 430 (2006),
and public health officials in Hobby Lobby, 573 U.S. at 735—and rejected
by the Supreme Court each time. Indeed, Congress rejected these very
concerns in passing RFRA. Id. That the Government fears increased lia-
bility from application of RFRA’s text is no reason to invent extra-textual
limitations.
Alternatively, the Government claims a plain-language reading of
RFRA would unleash strict scrutiny on its use of “schoolbooks” or “the
motto on U.S. coinage,” “even if nothing was being required of the claim-
ant.” Resp.44-45. But courts can (and have) rejected these challenges on
the ground that the burden imposed was a “mere inconvenience,” New
Doe Child #1 v. United States, 901 F.3d 1015, 1026-27 (8th Cir. 2018)
(collecting cases), or that the Government’s actions had no effect on the

plaintiff’s own “exercise of religion,” 42 U.S.C. § 2000bb-1(a).
15
By contrast, it is the Government’s position that creates bizarre re-
sults. Under the Government’s theory, an atheist who rarely visits Oak
Flat has a cognizable burden under the Establishment Clause if the Gov-
ernment erects a cross there. Cf. Buono v. Norton, 371 F.3d 543 (9th Cir.
2004); Resp.22-23 (citing Valley Forge). But Apaches who have wor-
shipped at Oak Flat for millennia have no cognizable burden under RFRA
if the Government destroys it. And this despite the fact that “Congress
enacted RFRA in order to provide greater protection for religious exercise
than is available under the First Amendment.” Holt, 574 U.S. at 357.
RFRA’s text provides the proper limits on the substantial-burden
analysis. The burden must be imposed by the Government, affect sincere
religious exercise, and be objectively substantial. Even then, the Govern-
ment still wins if it satisfies strict scrutiny. This is a crucial limit on

RFRA that the Government simply ignores. Indeed, it is “the compelling
interest test”—not the substantial burden test—that Congress chose as
the “workable test for striking sensible balances between religious liberty
and competing prior governmental interests.” Hobby Lobby, 573 U.S. at
735-36 (quoting 42 U.S.C. § 2000bb(a)(5)) (cleaned up).
The real untoward consequences come not from “enforc[ing] RFRA as
written,” id., but from the Government’s stilted, two-category revision of
RFRA—which would immunize the Government not only when it de-
stroys sacred sites, but also when it padlocks church doors (McCurry),
16
confiscates religious relics (DeMarco), or forcibly removes religious cloth-
ing (Powell). Br. 38-39. The Government says “[s]uch deprivations, if le-
gal, would involve the application of a civil or criminal sanction.” Resp.38.
But the actions in McCurry, DeMarco, and Powell weren’t legal and didn’t
involve sanctions; they simply made a religious practice impossible. See
also Jewish Coalition Br. 3-7 (collecting examples).
Lacking any defense of its two-category test, the Government proposes

another one: “that a substantial burden is not imposed” if the government
is “merely conducting its own affairs.” Resp.44. But this “test” is hope-
lessly indeterminate. Whenever the Government acts, it can claim it is
“conducting its own affairs.” Indeed, that is what the Government
claimed in Hobby Lobby, Zubik v. Burwell, and Fulton—and the Supreme
Court rejected it each time. See, e.g., Fulton v. City of Philadelphia, No.
19-123, 2021 WL 2459253, at *6 (U.S. June 17, 2021). And, of course, the
Government concedes that if its “own affairs” involved fencing off Oak
Flat and punishing Plaintiffs for trespassing, that would be a substantial
burden. Resp.26.
Ultimately, the Government’s shape-shifting only demonstrates how
unprincipled its position is. It says a burden on religious exercise doesn’t
count as substantial if it results from Government’s “internal affairs, in-
cluding the management of its own property.” Resp.1. But when con-
fronted with the scenario where the Government fences off its property
17
and imposes penalties for trespassing, it retreats and admits that impo-
sition of penalties or denial of benefits counts. When confronted with pris-
oner cases with no imposition of penalties or denial of benefits, it retreats
and says “coercive control” counts. When confronted with confiscation of

property or an unwanted autopsy with no coercive control, it retreats and
says invasion of “property” or “quasi-property rights” counts. And when
confronted with the fact that Plaintiffs are asserting an invasion of prop-
erty rights, it returns to where it began—asserting that RFRA can’t apply
to the Government’s “internal affairs.” The result is an unprincipled, ger-
rymandered rule under which just about any government action making
religious exercise more costly or difficult is a substantial burden—except
physical destruction of Native American sacred sites. The Government
might like such a rule, but it doesn’t come from RFRA.

5. Legislative Appeals. Lacking a principled theory, the Government
cherry-picks legislative history. But as we explained (Br. 40-41), the
House report rejects the Government’s rule—stating that “in order to vi-
olate [RFRA], government activity need not coerce individuals into vio-
lating their religious beliefs nor penalize religious activity by deny-
ing … benefits”; rather, “[a]ll governmental actions which have a sub-
stantial external impact on the practice of religion” trigger strict scru-
tiny. H.R. Rep. No. 103-88 (1993) (emphasis added); see also Scholars Br.
4-5. In response, the Government cites two snippets of legislative history

that supposedly cut the other way, including a “floor statement[] by [an]
18
individual legislator[],” which “rank[s] among the least illuminating
forms.” NLRB v. Sw. Gen. Inc., 137 S. Ct. 929, 943 (2017). Resp.39-40.
But these snippets simply say RFRA doesn’t affect pre-Smith cases like
Lyng or Bowen—which are distinguishable. And to the extent the legis-

lative history is “murky,” that simply means the Court should apply the
“statute’s clear text,” Azar v. Allina Health Servs., 139 S. Ct. 1804, 1815
(2019), which supports Plaintiffs.

Lastly, the Government suggests the Court should decline to act on
Plaintiffs’ claims now because Congress theoretically might in the future.
Resp.48. But Congress already has acted to protect Plaintiffs’ religious
exercise—by enacting RFRA. This Court cannot merely “refer the subject
back to Congress, and decline to enforce the plain terms of the law in the
meantime.” Bostock, 140 S. Ct. at 1750. Its “responsibility is to enforce

RFRA as written.” Hobby Lobby, 573 U.S. at 735-36.
II. The Government’s actions violate the Free Exercise Clause.
The Government’s actions also trigger strict scrutiny under the Free
Exercise Clause—as underscored by the Supreme Court’s recent deci-
sions in Fulton and Tandon. 5
5 The Government says the Supreme Court still imposes a “substantial-

burden requirement in Free Exercise cases.” Resp.48 n.11. Not so. Laws
that are not “neutral and generally applicable” may be challenged
“[r]egardless of the magnitude of the burden imposed,” Fagaza v. FBI,
916 F.3d 1202, 1244 (9th Cir. 2019)—as the Court’s recent cases confirm.
19
First, the transfer and destruction of Oak Flat is not the result of a
“generally applicable” law; it is the result of a one-off, individualized
land-exchange rider addressing a single piece of land. Br. 44-45. In re-
sponse, the Government says the “logic” of this argument would trigger
strict scrutiny for “all government land-use decisions.” Resp.48. Not so.
Land-use laws are “neutral and generally applicable” when their “stric-
tures” “apply automatically by statute to the general population.” Roman

Catholic Bishop v. City of Springfield, 724 F.3d 78, 92, 98 (1st Cir. 2013)
(Lynch, J.). But when the government is “vested with discretion” to ad-
dress one “particular property”—as it did here—its action is “not ‘gener-
ally applicable.’” Id. at 98; see also San Leandro, 673 F.3d at 1066 (“indi-
vidualized” zoning decision not “generally applicable”); Cottonwood, 218
F. Supp. 2d at 1222 (collecting cases). 6
Fulton only underscores the point. There, a city stopped referring chil-
dren to a Catholic foster-care agency when it learned that the agency
would not certify same-sex couples to be foster parents. 2021 WL
2459253, at *3. Although the city’s “standard foster care contract” barred
Tandon v. Newsom, 141 S. Ct. 1294 (2021) (no substantial burden analy-
sis); Fulton, 2021 WL 2459253, at *4, *8 (six mentions of “burden,” zero
of “substantial”).
6The Government also says this argument is inconsistent with Lyng. But
Lyng was decided before Smith and says nothing about neutrality or gen-
eral applicability. And the road in Lyng was carried out pursuant to the
California Wilderness Act of 1984 and a broader multiple-use manage-
ment plan. 485 U.S. at 444.
20
discrimination based on “sexual orientation,” it also gave city officials
“discretion” to make exceptions. Id. at *5. The Supreme Court unani-
mously held that the mere existence of this discretion—even without ev-
idence of hostility or “any exceptions [ever] given”—“renders a policy not

generally applicable.” Id. at *7. Thus, under Fulton, even broadly appli-
cable laws are subject to strict scrutiny if the government has discretion
within those laws to make individualized decisions.

Here, the Government’s actions are even worse. There is no broadly
applicable law to begin with. The land-exchange itself is a one-time, dis-
cretionary, individualized decision to favor a copper mine over Apache
religious practices. Thus, this is an a fortiori case. 7
The Government’s actions are also subject to strict scrutiny because
the destruction of Oak Flat is not the unanticipated, “incidental” effect of
a religion-blind law. Emp. Div. v. Smith, 494 U.S. 872, 878-79 (1990).
Rather, it is the known, calculated effect of the Government’s decision to
value copper production over Apache religious practices. Such a calcu-

lated decision to prefer mining over religion bears no relation to the “in-
cidental” effect of the neutral law in Smith. Id.
In response, the Government doesn’t dispute that the decision to au-
thorize destruction of Oak Flat was calculated, individualized, and value-
7 Parents for Privacy v. Barr, 949 F.3d 1210 (9th. Cir. 2020), Resp.49, is
inapposite. The policy there didn’t “pertain[]” to religion, and it didn’t
apply to a single student but to “all transgender students.” Id. at 1234.
21
laden. It claims only that the Government harbored no “discriminatory
purpose.” Resp.50. But in the last three months, the Supreme Court has
twice subjected government actions to strict scrutiny under the Free Ex-
ercise Clause without any finding of discriminatory purpose. In Fulton,

the Court expressly declined to rely on evidence that the city was “intol-
erant” of religion or acted “because of” plaintiffs’ religious beliefs. 2021
WL 2459253, at *5. And in Tandon, the Court enjoined California’s

COVID regulations not because of any evidence of discriminatory pur-
pose, but simply because they treated “some comparable secular activi-
ties more favorably than at-home religious exercise.” 141 S. Ct. at 1297.
Thus, “discriminatory purpose” is not required; all that is required is a
value judgment preferring secular interests over religious—exactly what
we have here.
Indeed, the Government’s actions here contrast sharply with its ac-
tions in the 1990s, when a Canadian company submitted plans to mine a
large gold deposit 4.5 miles from Yellowstone National Park. After public
outcry, the Forest Service entered a land exchange, agreeing to give the
mining company “$65 million worth of federal property” elsewhere in ex-
change for abandoning the proposed mine. Bob Ekey, The New World
22
Agreement, 18 Pub. Land & Resources L. Rev. 151, 159 (1997). Why? Cit-
ing tourism and the environment, President Clinton explained that “eve-
ryone can agree that Yellowstone is more precious than gold.” 8
Today’s Government may have decided that Apache religious exercise
is less precious than copper, but the First Amendment requires that
value judgment to face strict scrutiny.

III. The Government’s actions violate the 1852 Treaty.
The transfer and destruction of Oak Flat also violates the Govern-
ment’s treaty obligations. The 1852 Treaty protects the normal incidents
of Indian life—including religious exercise—on treaty lands. The Treaty
has never been abrogated. And tribal members who suffer from a Treaty
violation have standing to sue. The Government’s response misappre-
hends Plaintiffs’ claim and misstates the law governing treaty interpre-
tation and abrogation.
1. Enforceable Rights. The 1852 Treaty obligated the United States

to “designate, settle and adjust [the Apaches’] territorial boundaries, and
pass and execute” laws “conducive to the prosperity and happiness of said
Indians.” 2-ER-207. Conveying Oak Flat for destruction and rendering
historical religious exercise impossible violates the Government’s duty.
Treaties with Indians are interpreted by how the terms “would natu-
rally [have been] understood by the Indians” when signed. Confederated
8Remarks on Signing the New World Mine Property Agreement, 2 Pub.

Papers 1290-92 (Aug. 12, 1996) https://perma.cc/JQ4Y-JKLP.
23
Tribes & Bands of Yakama Nation v. Klickitat County, No. 19-35807,
2021 WL 2386396, at *4 (9th Cir. June 11, 2021) (quoting Herrera v. Wy-
oming, 139 S. Ct. 1686, 1701 (2019)). And general assurances like this
would have been understood to protect “normal incidents of Indian life”—

including religious exercise. Menominee Tribe of Indians v. United States,
391 U.S. 404, 406 & n.2 (1968) (interpreting general assurance). This
reading is supported by the Treaty’s written rule of “liberal construc-

tion … to secure the permanent prosperity and happiness” of the
Apaches, 2-ER-207, and by black-letter Indian law that “any doubtful ex-
pressions … [are] resolved in the Indians’ favor.” Choctaw Nation v. Ok-
lahoma, 397 U.S. 620, 631 (1970); see id. at 642 (Douglas, J., concurring)
(discussing “classic rule that treaties or agreements with Indians are to
be construed in their favor, not in favor of commercial interests that re-

peatedly in our history have sought to exploit them”); Choctaw Nation v.
United States, 119 U.S. 1, 27-28 (1886) (same).
Without addressing these rules of construction, the Government says
the treaty creates no “specific duty” related to Oak Flat beyond a “future
plan” to “establish trust lands” that never “occurred”—citing the district-
court decisions in Robinson and Uintah Ute. Resp.53. But these cases ad-
dressed title—not, as here, usufructuary rights to use land for traditional
purposes regardless of who holds title. Br. 51 n.22. Neither supports the
Government’s theory that the “prosperity and happiness” obligation is
24
merely hortatory, nor that the Apaches would have understood it that
way. Herrera, 139 S. Ct. at 1701.
Likewise, the Government does not rebut the fact—grounded in its
own FEIS, Br. 51, that Oak Flat is within the land to which the 1852
Treaty applies. For this reason alone, the Government’s passing citation
to cases dealing with complained-of acts outside treaty lands are inappo-
site. And the Government also fails to connect the treaty texts in those
cases to the 1852 Treaty’s language. See, e.g., Gros Ventre Tribe v. United
States, 469 F.3d 801, 812-13 (9th Cir. 2006) (treaty related only to “Res-
ervation lands”).
2. Abrogation. Nor has the Treaty been abrogated. Congress cannot
abrogate treaty rights unless it “‘clearly express[es] its intent to do so.’”
Herrera, 139 S. Ct. at 1698. The Government agrees that “the United
States cannot terminate a treaty right by implication”; but then it back-
tracks—claiming Congress abrogated the 1852 Treaty by passing a law
whose “purpose” is in “conflict[]” with its obligations. Resp.55. The Gov-
ernment was right the first time: a likely practical conflict is insufficient;
express abrogation is required.
The Government ignores Mille Lacs, where the Chippewa retained
rights to hunt, fish, and gather on aboriginal lands despite a treaty com-
pelling cessation of “all right, title, and interest” in those lands—because
that language did not “expressly mention[]—much less abrogat[e]—usu-

fructuary rights.” Minnesota v. Mille Lacs Band of Chippewa Indians,
25
526 U.S. 172, 184, 195 (1999); Br. 52. By that rule, a law that is express
regarding title is not necessarily express regarding other rights. And the
Supreme Court has repeatedly rejected claims of abrogation based on lan-
guage far “clearer” than Section 3003. See Menominee, 391 U.S. at 410
(statute dissolving tribe and applying state laws “to the tribe and its
members”); McGirt v. Oklahoma, 140 S. Ct. 2452, 2465 (2020) (statutes
fragmenting reservation, abolishing tribal courts, and seizing tribal prop-

erty).
3. Individual harm. The Supreme Court has repeatedly and recently
recognized that individuals may assert, on their own behalf, harm from
the violation of treaty rights. Br. 54 (citing Herrera, McGirt, and Cougar
Den). The Government responds that “neither [Herrera nor McGirt] ad-
dressed a circumstance at all like here, in which a non-Tribe sought to

assert the purported rights of an absent Tribe.” Resp.52. Yet in both
cases, the tribes were not a party, and individual tribal members asserted
tribal rights—like the “right to hunt off-reservation,” Herrera, 139 S. Ct.
at 1693. So too here, where individual tribal members have gathered in
a plaintiff organization (Apache Stronghold). And the Government does
not even acknowledge, let alone distinguish, Cougar Den. The Govern-
ment also does not deny that the injuries here are individually experi-
enced; nor could it, since—as with restrictions on treaty rights to hunt or
fish or travel—it is individual religious practices that are being curtailed.
26
None of the cases in the Government’s string-cite—all of which pre-
date Herrera, Cougar Den, and McGirt—support its claim that individual
tribal members cannot raise treaty rights to protect their religious life.
In fact, the Government’s lead authority, Skokomish, expressly recog-

nizes that “some treaty-based rights might be cognizable” in Section 1983
lawsuits. Skokomish Indian Tribe v. United States, 410 F.3d 506, 515-16
& nn.7-8 (9th Cir. 2005) (distinguishing multiple cases brought by indi-
vidual tribal members). 9
“[I]t is clear that an individual Indian enjoys a right of user in tribal
property derived from the legal or equitable property right of the Tribe of
which he is a member.” Kimball v. Callahan, 590 F.2d 768, 773 (9th Cir.
1979). Thus, where individual religious exercise is being limited or bur-
dened—here, by the disposal and destruction of land used for worship—

individual members can vindicate their rights, just as in Herrera, McGirt,
and Cougar Den.

IV. The other injunction factors are met.
1. Irreparable harm. The Government does not challenge our asser-
tion that the existence of “‘a colorable claim’ under RFRA” establishes
9 The Government’s theory also conflicts with the rule that treaties must
be interpreted as understood by the Native community. The Treaty was
signed long before the birth of modern standing doctrine or the modern
conception of tribes. So there is no reason to believe that Western
Apaches or Mangas Coloradas, who signed it, would have understood it
to exclude protection for individual Apaches—just as there was no reason
to infer such a limit in Herrera, Cougar Den, and McGirt.
27
irreparable harm as a matter of law. Br. 56 (citing Warsoldier v. Wood-
ford, 418 F.3d 989, 1002 (9th Cir. 2005)). That is enough to resolve the
issue of irreparable harm.
Nevertheless, the Government’s own FEIS states that the destruction

of Oak Flat will be “immediate, permanent, and large in scale.” 3-ER-374
(emphasis added). In response, the Government says this “immediate”
destruction will occur only after construction of the mine, which could be
years after the land transfer. Resp.57 n.13. But this argument fails for
three reasons.
First, the Government does not commit to preventing irreparable
harm to Oak Flat before the end of this litigation, because it cannot do
so. The Government has offered no timeline on the release of a new FEIS.
More importantly, it lacks control over what happens after the transfer.
That is up to Resolution Copper. This litigation could easily last longer
than it will take to make the mine operational. See, e.g., Slockish v. U.S.
Dep’t of Transp., No. 21-35220 (9th Cir. Opening Brief filed May 3, 2021)
(Complaint filed Oct. 6, 2008). Thus, only a preliminary injunction can
ensure that Oak Flat won’t be transferred during litigation and irrepara-
bly harmed.
Second, the Government admits “the exchange would cause an ‘imme-
diate’ change of applicable law,” Resp.57, removing Oak Flat from federal
laws guaranteeing Plaintiffs’ rights to “access” the land, 3-ER-349. The

transfer thus immediately subjects Plaintiffs to the whim of Resolution
28
Copper. Even the conditional promise of continued access applies only to
the “campground,” which comprises only 1% of the Apaches’ central sa-
cred area, and only as long as Resolution Copper allows. 16 U.S.C. § 539p,
Br. 57, Bumatay Op. 14-15. The Government’s hope that Resolution Cop-
per will maintain access is just that—hope. Resolution Copper’s unen-
forceable statements don’t ensure that Plaintiffs’ religious exercise may
continue, and they don’t replace the legal protection Plaintiffs have while
the property is federally controlled.
Third, as Plaintiffs have explained, Br. 58, nothing stops Resolution
Copper from commencing destructive actions on Oak Flat as soon trans-
fer occurs, leaving this Court unable to “unscramble the eggs.” Kettle
Range Conservation Grp. v. BLM, 150 F.3d 1083, 1087 (9th Cir. 1998). In
a parenthetical, the Government attempts to distinguish Kettle Range by

claiming that the only possible irreparable damage is the “ground-dis-
turbing activities” that will happen only after administrative hurdles.
Resp.60. But it is not just “underground infrastructure,” that irreparably
damages Oak Flat: Resolution Copper can immediately begin drilling
“new shafts,” constructing “new roads,” 3-ER-284, and building “electri-
cal installations” that permanently damage Oak Flat and make ongoing
religious practices impossible, ECF 18-2 at 46. Resolution Copper’s own
estimate, which the Government cites, labels the first nine years after
the transfer as the “construction” phase, which means that religion-dis-
29
rupting activities can begin immediately. 3-ER-269. And Resolution Cop-
per has every incentive to take immediate action rendering recission “im-
practical.” Kettle Range, 150 F.3d at 1087; see also Nat’l Parks Conserva-
tion Ass’n v. Semonite, 925 F.3d 500, 501-02 (D.C. Cir. 2019) (Government
claimed “that an injunction was unnecessary,” then later claimed that
vacatur and an injunction were impossible because the Government and
private parties had “invested $400 million” and already completed the
project). Indeed, Resolution Copper’s owner has a tragic record of inten-
tionally destroying sacred sites—including 46,000-year-old Aboriginal
caves of “the highest archaeological significance in Australia.” ECF 19-2
at 14 (citing report).
2. Balance of equities and public interest. The other factors like-
wise favor Plaintiffs. Protecting the constitutional and treaty rights of

Native Americans is always in the public interest. Br. 59-61. The Gov-
ernment is right that the Court “cannot ignore the judgment of Con-
gress.” Resp.61. Here, that means considering not just the midnight rider
added to a National Defense Authorization Act, but also the treaty prom-
ises made to Native Americans, and RFRA, a “super statute” that has
been applied by courts for decades. Bostock, 140 S. Ct. at 1754. The Gov-
ernment simply ignores those interests.

CONCLUSION
The Court should reverse and remand for entry of a preliminary in-
junction preventing transfer and destruction of Oak Flat.
30
Respectfully submitted,
/s/ Luke W. Goodrich

MICHAEL V. NIXON LUKE W. GOODRICH
101 SW Madison Street #9325 Counsel of Record
Portland, OR 97207 MARK L. RIENZI
(503) 522-4257 DIANA M. VERM
michaelvnixon@yahoo.com CHRISTOPHER PAGLIARELLA
DANIEL D. BENSON
CLIFFORD LEVENSON KAYLA A. TONEY
5119 North 19th Street, Suite K THE BECKET FUND FOR
Phoenix, AZ 85015 RELIGIOUS LIBERTY
(602) 544-1900 1919 Pennsylvania Ave. NW
cliff449@hotmail.com Suite 400
Washington, DC 20006
(202) 955-0095
31
STATEMENT OF RELATED CASES

This appeal is related to Slockish v. U.S. Federal Highway Admin-
istration, No. 21-35220 (9th Cir.). Both cases raise the same issues under
the Religious Freedom Restoration Act and Free Exercise Clause. Both
cases also involve the same counsel, and the district courts in both cases
rejected the plaintiffs’ claims on nearly identical grounds. See 9th Cir. R.
28-2.6 (cases are related if they “raise the same or closely related issues”).
In granting the Slockish Appellants’ motion to expedite briefing in part,

this Court also noted that the two appeals may be calendared together
for oral argument. Slockish, No. 21-35220, Dkt. 11.

Luke W. Goodrich
32
CERTIFICATE OF COMPLIANCE PURSUANT TO

9TH CIRCUIT RULE 32-1 FOR CASE NUMBER 21-15295
I certify that this brief complies with the length limits permitted by
Ninth Circuit Rule 32-1. The brief is 6,995 words, excluding the portions
exempted by Fed. R. App. P. 32(f). The brief’s type size and type face com-
ply with Fed. R. App. P. 32(a)(5) and (6).

Luke W. Goodrich
33
CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system on June 24, 2021. All participants
in the case are registered CM/ECF users, and service will be accom-
plished by the appellate CM/ECF system.

Luke W. Goodrich
34

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Case: 21-15295, 06/24/2021, ID: 12154014, DktEntry: 65, Page 1 of 41

In the United States Court of Appeals for the Ninth Circuit

Appeal from the United States District Court

REPLY BRIEF OF PLAINTIFF-APPELLANT

Counsel for Plaintiff-Appellant

TABLE OF AUTHORITIES ........................................................................ ii

I. The Government’s actions violate RFRA. ......................................... 3

III. The Government’s actions violate the 1852 Treaty. ...................... 23

IV. The other injunction factors are met. ............................................. 27

STATEMENT OF RELATED CASES....................................................... 32

CERTIFICATE OF COMPLIANCE ......................................................... 33

CERTIFICATE OF SERVICE ................................................................... 34

Azar v. Allina Health Servs.,

A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist.,

Bostock v. Clayton County,

Burwell v. Hobby Lobby Stores, Inc.,

Choctaw Nation v. Oklahoma,

Choctaw Nation v. United States,

Comanche Nation v. United States,

Confederated Tribes & Bands of Yakama

Cottonwood Christian Ctr. v. Cypress Redevelopment Agency,

Emp. Div. v. Smith,

Eternal Word Television Network, Inc. v. Sec’y of U.S. Dep’t

Fulton v. City of Philadelphia,

Green v. Solano County Jail,

Gros Ventre Tribe v. United States,

Hobby Lobby Stores, Inc. v. Sebelius,

Int’l Church of Foursquare Gospel v. City of San Leandro,

Kettle Range Conservation Grp. v. BLM,

Lyng v. Nw. Cemetery Protective Ass’n.,

Mack v. Warden Loretto FCI,

McAllen Grace Brethren Church v. Salazar,

Menominee Tribe of Indians v. United States,

Minnesota v. Mille Lacs Band of Chippewa Indians,

Nat’l Parks Conservation Ass’n v. Semonite,

Navajo Nation v. U.S. Forest Service,

New Doe Child #1 v. United States,

NLRB v. Sw. Gen. Inc.,

Parents for Privacy v. Barr,

Patel v. U.S. Bureau of Prisons,

Roman Catholic Bishop v. City of Springfield,

San Jose Christian Coll. v. City of Morgan Hill,

Skokomish Indian Tribe v. United States,

Slockish v. U.S. Dep’t of Transp.,

Snoqualmie Indian Tribe v. FERC,

Te-Moak Tribe v. DOI,

Trinity Lutheran Church v. Comer,

16 U.S.C. § 539p ......................................................................................... 29

42 U.S.C. § 2000bb ............................................................................... 14, 16

42 U.S.C. § 2000bb-1...................................................................... 11, 14, 15

54 U.S.C. § 302706 ....................................................................................... 7

36 C.F.R. 800.2 ............................................................................................. 7

Bob Ekey, The New World Agreement,

Executive Order 13007 ............................................................................. 6-7

H.R. Rep. No. 103-88 (1993) ...................................................................... 18

Remarks on Signing the New World Mine Property Agreement,

Steve Lipsher, Arizona’s Star Wars, Empire Magazine,

religious exercise more difficult; it’s making it impossible—forever.