Analysis: The Battle for Oak Flat and the Meaning of “Substantial Burden”

A critical legal and spiritual battle is reaching a head over Oak Flat (Chi’chil Bildagoteel), a site held sacred by the San Carlos Apache Tribe. At the heart of the controversy is a proposed land transfer that would hand control of this significant spiritual landscape to a mining company, Resolution Copper, potentially leading to its destruction. The case raises profound questions about religious freedom in the United States, particularly how the law defines and protects the sacred connection between people and place.

Recent developments in a Phoenix courtroom have brought the issue back into sharp focus. U.S. District Judge Dominic Lanza expressed strong disapproval of the U.S. government’s apparent reversal on its commitments regarding the timing of the land transfer. During a hearing, Judge Lanza challenged a Justice Department attorney on why the government now intends to transfer the land as soon as the final environmental impact statement is published, potentially before plaintiffs have adequate time to legally challenge that statement.

This stands in contrast to what the plaintiffs, including the San Carlos Apache Tribe and various reform groups, understood as a prior agreement to allow time for legal motions challenging the environmental assessment before the transfer occurred. The government attorney argued that their previous agreement was only to stay the case proceedings until the environmental statement’s publication, not to delay the land transfer itself. Judge Lanza found this explanation difficult to reconcile with earlier agreements, highlighting the government’s shifting position.

The Legal Landscape: RFRA and “Substantial Burden”

The ongoing legal challenge against the land transfer centers significantly on the Religious Freedom Restoration Act (RFRA) of 1993. RFRA is a landmark piece of legislation designed to prevent the federal government from imposing a “substantial burden” on a person’s exercise of religion unless it can demonstrate a compelling governmental interest pursued through the least restrictive means.

The passage of RFRA was a direct response to the 1990 Supreme Court case *Employment Division v. Smith*. In *Smith*, the Court ruled against members of the Native American Church who were denied unemployment benefits after being fired for using peyote in a religious ceremony. Justice Scalia, writing for the majority, argued that allowing religious exemptions to generally applicable laws could lead to societal chaos. RFRA was Congress’s attempt to restore a higher level of protection for religious practices against government regulation than the Supreme Court’s *Smith* ruling provided.

However, RFRA itself did not precisely define what constitutes a “substantial burden.” This has left courts, including the Supreme Court, to interpret the term over the past three decades, leading to varied outcomes.

Interpreting “Substantial Burden”: A History of Cases

Several key cases illustrate the different ways courts have interpreted RFRA’s “substantial burden” clause:

• Hobby Lobby (2014): The Supreme Court found that the Affordable Care Act’s mandate requiring employers to provide health insurance covering contraception imposed a substantial burden on a closely-held corporation whose owners held religious objections to contraception. The Court reasoned that the government had less restrictive ways to ensure access to contraception. This case is notable for extending religious freedom rights to certain corporations and for finding a financial or regulatory burden (paying for insurance) could be “substantial.”
• Braidwood Management Inc. v. Becerra: Following the logic of *Hobby Lobby*, plaintiffs in this case challenged a mandate to cover PrEP (Pre-Exposure Prophylaxis) drugs, arguing it substantially burdened their religious beliefs by facilitating behaviors they disapproved of. While a judge initially ruled narrowly in their favor, the core argument rested on the idea that being compelled to financially support something contrary to religious belief constituted a substantial burden.
• COVID-era Cases: Interestingly, during the pandemic, numerous court decisions across different levels found that restrictions on public gatherings, including religious services, imposed a substantial burden, often citing the importance of social ritual and ceremony as religious expression.

These cases highlight that courts have sometimes recognized financial, regulatory, or even restrictions on collective ritual as potentially “substantial burdens.” However, the interpretation remains inconsistent, particularly when compared to the Oak Flat situation.

The Ninth Circuit’s Ruling on Oak Flat

In the Apache Stronghold case, which also seeks to protect Oak Flat, the Ninth Circuit Court of Appeals affirmed that Oak Flat holds immense spiritual value for the Western Apache. Yet, in its ruling, the court maintained a very narrow interpretation of “substantial burden.” The Ninth Circuit defined it primarily as government action that coerces an individual into acting *contrary* to their religious beliefs.

Applying this narrow definition, the court concluded that transferring the land to Resolution Copper, while undoubtedly making it impossible for the Apache to access and practice their religion at this sacred site, does not *force* them to violate a religious tenet or commandment. The ruling essentially prioritized the government’s property rights (the right to transfer federal land) over the plaintiffs’ claim that the destruction of a sacred site itself constitutes a substantial burden on their religious exercise, even if no specific doctrine is being violated through forced action.

Broader Implications for Religious Freedom

This narrow interpretation of “substantial burden” carries significant and concerning implications, particularly for Indigenous religions and other minority faiths, such as contemporary Paganism, that have strong place-based spiritualities. Many such traditions view specific landscapes, natural features, or historical sites as intrinsically sacred and essential to their practice. Rituals, ceremonies, and spiritual connection are tied directly to these physical locations.

If destroying or making inaccessible a sacred site is not considered a “substantial burden” under RFRA because it doesn’t force individuals to violate a specific religious rule, then the legal protection for place-based religions is severely limited. Economic interests or other government priorities could more easily override the spiritual needs of these communities.

The Oak Flat case highlights a potential blind spot in religious freedom law when applied to faiths that are not primarily text-based or centered on individual doctrinal compliance, but instead find their core expression in connection to the land and specific geographic locations. As the United States becomes increasingly religiously diverse, the need for a more inclusive understanding of religious freedom, one that acknowledges the significance of sacred places, becomes ever more critical.

Where Things Stand

Currently, the fate of Oak Flat hangs in the balance. Following Judge Lanza’s decision to lift the stay in his case, the plaintiffs are preparing to file a motion for a preliminary injunction, with oral arguments scheduled for June 6. Their challenge will focus on the environmental impact statement itself.

Meanwhile, in the separate Apache Stronghold case, plaintiffs have petitioned the Supreme Court to hear their appeal after the Ninth Circuit’s ruling. The Supreme Court has reportedly discussed whether to take the case multiple times without yet issuing a decision. The timing of the Supreme Court’s decision is crucial; if they agree to hear the case before the scheduled land transfer date (reportedly by June 16 based on the government’s current stance), it could potentially halt the transfer and provide another avenue for challenging the government’s action.

The future of Oak Flat and the interpretation of religious freedom under RFRA remain uncertain, resting on the outcome of these immediate court actions and the Supreme Court’s potential intervention.