In Arizona Mining Reform Coalition v. U.S. Forest Service, (9th Cir., March 13, 2026), the U.S. 9th Circuit Court of Appeals once again upheld the transfer of 2500 acres of National Forest land that includes Apache ceremonial religious ground to Resolution Copper Mining LLC. The land, for which Resolution Copper will transfer 5000 acres of land located elsewhere, contains nearly 2 billion metric tons of copper. The San Carlos Apache Tribe claimed that the transfer violates their free exercise rights protected by the 1st Amendment and the Religious Freedom Restoration Act. The 9th Circuit, sitting en banc, had previously rejected similar claims brought by Apache Stronghold, a non-profit organization representing the interests of certain members of the Tribe. (See prior posting.) Plaintiffs in the current litigation unsuccessfully attempted to discredit the continuing viability of that prior decision. The court said in part:
... [T]he Lopez Plaintiffs ... argue that the Supreme Court’s decision in Mahmoud v. Taylor ... abrogated Apache Stronghold by clarifying the meaning of a “religious burden.” In their view, Mahmoud stands for the proposition that the court must determine if “looking to ‘the specific religious beliefs and practices asserted,’ the challenged government actions pose an ‘objective danger,’ or ‘very real threat’ to the claimant’s religious exercise, thus ‘substantially interfer[ing]’ with it.”... By contrast, the Lopez Plaintiffs argue, the Apache Stronghold majority rejected an inquiry into the relative objective or subjective nature of an asserted interference with religious practice in favor of an inquiry focused on coercion.
But this view of Mahmoud does not survive scrutiny. As an initial matter, the Supreme Court itself declined to rehear its denial of certiorari in Apache Stronghold... Regardless, the Lopez Plaintiffs misrepresent the thrust of Mahmoud by selectively quoting from it. Their focus on the “objective danger” language ignores that Mahmoud centers on (1) the education context and (2) policies that directly coerce or indirectly compel behavior at odds with individual religious beliefs or practices, not involving the disposition of government property....
... We nonetheless recognize that this land transfer will fundamentally alter the nature of the land, including destruction of those sites sacred to the Tribe, the Lopez Plaintiffs, and similarly situated Native individuals. Despite those grave harms to Native religious practice, Congress has chosen to transfer this land, and Plaintiffs have not raised any viable challenges to that decision....
