UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APACHE STRONGHOLD, a No. 21-15295 501(c)(3) nonprofit organization, D.C. No. Plaintiff-Appellant, 2:21-cv-00050- SPL v. UNITED STATES OF AMERICA; OPINION THOMAS J. VILSACK, Secretary, U.S. Department of Agriculture (USDA); RANDY MOORE, Chief, USDA Forest Service; NEIL BOSWORTH, Supervisor, USDA Forest Service, Tonto National Forest; TOM TORRES, Acting Supervisor, USDA Forest Service, Tonto National Forest,

Defendants-Appellees, ______________________________ RESOLUTION COPPER MINING, LLC,

Intervenor. 2 APACHE STRONGHOLD V. UNITED STATES

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted En Banc March 21, 2023 Pasadena, California

Filed March 1, 2024

Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Marsha S. Berzon, Carlos T. Bea, Mark J. Bennett, Ryan D. Nelson, Daniel P. Collins, Kenneth K. Lee, Danielle J. Forrest, Lawrence VanDyke and Salvador Mendoza, Jr., Circuit Judges.

Per Curiam Opinion; Opinion by Judge Collins; Partial Concurrence and Partial Dissent by Judge Bea; Concurrence by Judge R. Nelson; Concurrence by Judge VanDyke; Dissent by Chief Judge Murguia; Dissent by Judge Lee APACHE STRONGHOLD V. UNITED STATES 3

SUMMARY*

Religious Freedom Restoration Act / Free Exercise Clause

The en banc court affirmed the district court’s order denying Apache Stronghold’s motion for a preliminary injunction against the federal government’s transfer of Oak Flat—federally owned land within the Tonto National Forest—to a private company, Resolution Copper. Oak Flat is a site of great spiritual value to the Western Apache Indians and also sits atop the world’s third-largest deposit of copper ore. To take advantage of that deposit, Congress by statute—the Land Transfer Act—directed the federal government to transfer the land to Resolution Copper, which would then mine the ore. Apache Stronghold, an organization that represents the interests of certain members of the San Carlos Apache Tribe, sued the government, seeking an injunction against the land transfer on the ground that the transfer would violate its members’ rights under the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act (“RFRA”), and an 1852 treaty between the United States and the Apaches.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 APACHE STRONGHOLD V. UNITED STATES

The per curiam opinion provides an overview of the votes of the en banc court:

• A majority of the en banc court (Chief Judge Murguia, and Judges Gould, Berzon, R. Nelson, Lee and Mendoza) concluded that (1) the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), and RFRA are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden. A majority of the en banc court therefore overruled the narrow definition of substantial burden under RFRA in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). • A different majority of the en banc court (Judges Bea, Bennett, R. Nelson, Collins, Forrest, and VanDyke) concluded that (1) RFRA subsumed, rather than overrode, the outer limits that Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 43