As previously reported, last month the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to members of the Western Apache tribes. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages which created separate majority alignments on different aspects of the interpretation of the Religious Freedom Restoration Act. Yesterday, plaintiffs filed a petition (full text) seeking review by a panel of all 29 judges on the 9th Circuit. The petition states in part:
If any case warrants full-court review, it is this one—where one en banc panel has overruled another, this Court’s judges are split 6-6, and a fractured decision has contradicted Supreme Court precedent on a question of existential importance to Native Americans. That question is whether the government “substantially burdens” religious exercise when it physically destroys a Native American sacred site, ending religious exercise forever. And the answer is plain: yes.
Becket Fund for Religious Liberty issued a press release announcing the filing.
