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The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Federal law limits the government’s ability to place a substantial burden on the free exercise of religion. Yet as long as Congress does not intentionally discriminate against a particular faith, the Supreme Court has permitted the legislative branch to manage internal government operations — for example, by allowing private development on public lands — even when it affects religious worship. This week, we highlight petitions that ask the court to consider, among other things, whether Congress can hand over part of a national forest in Arizona that is sacred to the San Carlos Apache Tribe to a private company seeking to mine the land for copper.

Located about 100 miles east of Phoenix, the San Carlos Apache Reservation is home to a number of bands of the Western Apache people. Between Phoenix and the reservation is the Tonto National Forest, the largest national forest in Arizona. As it does with many federal lands, the U.S. Forest Service has long sold or leased portions of the forest to mining, timber, and other companies.

Roughly halfway along the drive from Phoenix sits the Oak Flat campground, a 760-acre section of the forest that Congress cordoned off from private development in the 1950s. To the Western Apache, Oak Flat, called Chi’chil Biłdagoteel, is the corridor to the Creator and the site of sacred ceremonies that cannot be conducted elsewhere. The land has been used by various tribes and their ancestors for religious rituals for a thousand years.

In the 1990s, prospectors discovered the third-largest underground copper deposit in the world below the Tonto National Forest. Resolution Mining, a private mining company, negotiated for rights to mine that copper from the Forest Service.

Part of the deposit sits directly under Oak Flat. Starting in 2005, members of Arizona’s congressional delegation repeatedly introduced legislation to transfer Oak Flat and the surrounding land to Resolution Mining. Initial efforts to do so were unsuccessful, but in 2014, Congress attached a provision to a major spending bill — known as an appropriations rider — authorizing a land exchange between the Forest Service and the mining company. Included in the land Resolution Mining is set to receive is the Oak Flat campground.

The law authorizing the land exchange required (among other things) an environmental impact statement assessing the effects of the transfer. In 2021, the Forest Service published the impact statement, triggering a 60-day window for the transfer of the land.

Apache Stronghold, an advocacy group created by members of the San Carlos Apache Tribe, went to federal court in an effort to stop the transfer. Because a copper mine would collapse the land under Oak Flat and destroy it as a sacred site, the group argued that the land exchange would infringe upon the tribe’s First Amendment right to the free exercise of religion. Further, the group contended, the exchange would violate the 1993 Religious Freedom Restoration Act, which requires courts to closely scrutinize federal actions that “substantially burden” religious free exercise.

A federal district court in Arizona rejected the group’s request to stop the land exchange, and the full U.S. Court of Appeals for the 9th Circuit affirmed that ruling. The court of appeals held that the First Amendment challenge was foreclosed by a 1988 Supreme Court decision permitting Congress to sell off public lands that were sacred to an indigenous tribe for timber development. As in that case, the court of appeals explained, although the transfer here would “significantly interfere with” the tribe’s ability to practice their religion, the government’s actions did not violate the Constitution because they did not “coerce” members of the tribe “into acting contrary to their religious beliefs.”

And RFRA did not change the playing field, the 9th Circuit insisted, because Congress enacted the law against the backdrop of that decision — with an understanding that only restrictions on private places of worship can constitute a “substantial[] burden” on free exercise rights.

In Apache Stronghold v. United States, the group asks the justices to reverse the full 9th Circuit’s ruling. It insists that the plain meaning of a “substantial[] burden” on religious worship under RFRA includes an action that would, like destroying Oak Flat to mine for copper, effectively prohibit that worship altogether. In addition, RFRA overrides the Supreme Court’s prior decision on public lands, the group says, because that decision only applied to generally applicable laws that incidentally burden religion — a distinction Congress intentionally did away with when enacting the 1993 law.

The government and Resolution Mining urge the justices to leave the 9th Circuit’s ruling in place. In the government’s view, the text of RFRA and debates surrounding its enactment are clear evidence that Congress believed the law to respect, rather than displace, the primacy of federal land-use rights over tribal religious rights affirmed in the court’s 1988 ruling. But in any event, Resolution Mining argues, the 2014 appropriations bill impliedly exempted the Oak Flat exchange from RFRA, as future Congresses are not bound by the actions of those past. And the group’s First Amendment claim rises or falls with the RFRA analysis, the government adds.

A list of this week’s featured petitions is below:

Utah v. United States
22O160
Issue: Whether the federal policy embodied in 43 U.S.C. § 1701(a)(1) of perpetual federal retention of unappropriated public lands in Utah is unconstitutional.

Fuld v. Palestine Liberation Organization
24-20
Issue: Whether the Promoting Security and Justice for Victims of Terrorism Act violates the due process clause of the Fifth Amendment.

Pharmaceutical Research and Manufacturers of America v. McClain
24-118
Issue: Whether the U.S. Court of Appeals for the 8th Circuit erred in holding that a state may strip manufacturers of the ability preserved to them by the federal 340B Drug Pricing Program to impose conditions on the use of contract pharmacies as part of the offer to provide 340B-priced drugs and intrude on 340B’s centralized enforcement scheme.

United States v. Palestine Liberation Organization
24-151
Issue: Whether the  Promoting Security and Justice for Victims of Terrorism Act’s means of establishing personal jurisdiction complies with the due process clause of the Fifth Amendment.

Apache Stronghold v. United States
24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.

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