In Apache Stronghold v. United States, (9th Cir., June 24, 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, held that a proposed federal government land exchange in Arizona with a mining company will not substantially burden Apache religious exercise in violation of RFRA. Nor will it violate the 1st Amendment because the Land Exchange Provision is a neutral and generally applicable law. The majority said in part:
Under RFRA, the government imposes a substantial burden on religion in two—and only two—circumstances: when the government “force[s individuals] to choose between following the tenets of their religion and receiving a governmental benefit” and when the government “coerce[s individuals] to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” … Here, the government will do neither by transferring Oak Flat to Resolution Copper…. The Department of Agriculture will simply transfer ownership of a plot of government land to Resolution Copper. The Land Exchange’s “incidental effects” on the religious exercise of Apache Stronghold’s members, as significant as they may be to the Apache, “may make it more difficult [for them] to practice [their religion] but [will] have no tendency to coerce [the Apache] into acting contrary to their religious beliefs.” … Hence, under RFRA the Land Exchange imposes no substantial burden and RFRA thus does not limit the government’s ability to complete the Land Exchange.
This is true even if the Land Exchange makes worship on Oak Flat “impossible.”
Judge Berzon dissented, saying in part:
The majority applies an overly restrictive test for identifying a “substantial burden” on religious exercise under the Religious Freedom Restoration Act…. The majority’s flawed test leads to an absurd result: blocking Apaches’ access to and eventually destroying a sacred site where they have performed religious ceremonies for centuries does not substantially burden their religious exercise. The majority offers both a doctrinal and a practical basis for its unduly narrow definition of “substantial burden.” Both are incorrect.
The majority opinion includes a lengthy response to the dissent. Reuters reports on the decision.