The “Disposition-of-Government-Property” Exception:
A New Limitation on RFRA after Apache Stronghold v. United States

1. Introduction

Apache Stronghold v. United States (605 U.S. ___ (2025)) arose from a plan to transfer, and ultimately mine, Oak Flat (Chí’chil Biłdagoteel), a site in Arizona sacred to Western Apaches. Apache Stronghold, a non-profit coalition of tribal members and allies, sued the federal government under the Religious Freedom Restoration Act (RFRA), contending that destruction of Oak Flat would “substantially burden” the Apaches’ religious exercise. After a highly fractured en banc decision, the Ninth Circuit rejected the claim, inventing what may be called the “disposition-of-government-property exception” to RFRA’s substantial-burden test: when the government simply disposes of its own land, RFRA is infringed only if it coerces religious adherents or discriminates among religions.

The Supreme Court denied certiorari, but Justice Gorsuch (joined by Justice Thomas) issued a lengthy dissent criticizing the denial and the Ninth Circuit’s reasoning. Although no merits opinion issued, the denial leaves the Ninth Circuit’s rule intact and, for now, binding within the nation’s largest circuit.

2. Summary of the Judgment

• Certiorari denied: The Supreme Court declined to review the Ninth Circuit’s decision (Justice Alito recused).
• Gorsuch dissent: Argues the Ninth Circuit’s rule contradicts RFRA’s text, other circuits, and common sense; urges the Court to intervene before Oak Flat is irreversibly destroyed.
• Practical result: Unless Congress intervenes or further litigation alters course, the federal government will finalize an Environmental Impact Statement (EIS) on 16 June 2025 and transfer Oak Flat to Resolution Copper 60 days thereafter, permitting the creation of a 1,000-foot-deep, two-mile-wide crater at the heart of a sacred site.

3. Analysis

3.1 Precedents Cited

The decision and dissent weave together multiple strands of First Amendment and statutory jurisprudence:

1. Sherbert v. Verner (1963) & Wisconsin v. Yoder (1972) – Pre-Smith cases applying the strict-scrutiny “substantial-burden/compelling-interest” test to free-exercise claims.
2. Employment Division v. Smith (1990) – Held that neutral, generally applicable laws need not satisfy strict scrutiny under the Free Exercise Clause, prompting Congress to enact RFRA.
3. Lyng v. Northwest Indian Cemetery Protective Association (1988) – Upheld a government road-building plan near sacred sites, emphasizing no coercion/discrimination; the Ninth Circuit re-read Lyng as crafting a special rule for land dispositions.
4. Navajo Nation v. U.S. Forest Service (9th Cir. 2008) – Earlier Ninth Circuit en banc ruling that limited RFRA substantial burdens to two coercion scenarios; expressly overruled in part by the current en banc majority.
5. Burwell v. Hobby Lobby (2014) & Holt v. Hobbs (2015) – Supreme Court cases clarifying that RFRA (and RLUIPA) provide broader protections than the bare constitutional minimum.
6. Circuit precedents on RFRA/RLUIPA substantial burdens (Haight v. Thompson, Yellowbear v. Lampert, etc.) uniformly hold that preventing a religious exercise is itself a substantial burden.

3.2 Legal Reasoning

The Ninth Circuit’s two-step move:

1. Overrule Navajo Nation: Holding that substantial burdens are not limited to coercion/benefit conditions; preventing access to religious exercise can qualify.
2. Create the Land-Disposition Carve-Out: Invoking Lyng, the court held that when the government “disposes” of its own real property, no substantial burden arises unless the government (a) coerces believers to violate tenets or (b) discriminates among faiths.

Justice Gorsuch dissected this reasoning as follows:

• Textual conflict: RFRA’s plain language applies to all federal law and expressly includes “the use of real property for the purpose of religious exercise” (42 U.S.C. § 2000cc-5(7)(B)).
• Misreading of Lyng: Lyng never spoke of “substantial burden,” involved only nearby road construction, and left sites intact.
• Statutory supremacy: Congress may (and has) imposed stringent controls on federal-land use (e.g., Endangered Species Act). Suggesting Congress silently limited RFRA in the land context lacks footing.
• Conflict with broader RFRA/RLUIPA case law: Other circuits treat total prevention of worship as the paradigmatic substantial burden.

3.3 Impact

The Ninth Circuit’s rule, left standing, triggers immediate and long-term consequences.

Short-Term

• Oak Flat’s likely transfer to Resolution Copper in mid-2025.
• Loss of the Sunrise Ceremony site and permanent severance of Apache religious practice tied to Chíʼchil Biłdagoteel.
• Signal to federal agencies that RFRA no longer constrains many land-management decisions within the Ninth Circuit.

Long-Term

• Sacred-Site Litigation: Because 74 % of federal land lies within the Ninth Circuit, most future sacred-site disputes (tribal, Christian, Jewish, Muslim, etc.) may face the same near-impossible hurdle.
• Inter-Circuit Tension: Other circuits (4th, 6th, 7th, 8th, 10th, 11th) adhere to the “prevention = burden” approach, creating a mature split begging for eventual Supreme Court resolution.
• Government Practice: Agencies may test the waters elsewhere, citing the Ninth Circuit as persuasive precedent, gradually shrinking RFRA’s domain.
• Legislative Response: Congress could (a) amend RFRA to repudiate the exception, (b) pass site-specific protections for Oak Flat, or (c) remain silent, allowing divergent jurisprudence.

4. Complex Concepts Simplified

• RFRA: A 1993 statute requiring the federal government to show a “compelling interest” and use the “least restrictive means” whenever its actions substantially burden religious exercise.
• Substantial Burden: A serious pressure on an adherent to modify behavior or abandon a practice central to his/her faith. Most courts say outright prevention of worship is automatically substantial.
• Certiorari (“cert.”): Discretionary review by which the Supreme Court chooses a handful of cases each term. Denial, as here, leaves the lower-court decision intact without endorsing it.
• En Banc: Review by all active judges of a circuit court (rather than the typical three-judge panel), used for questions of exceptional importance or to resolve intra-circuit conflicts.
• Disposition of Government Property: Sale, exchange, or other conveyance of federal land. The Ninth Circuit treats this context as warranting special deference under RFRA.
• Environmental Impact Statement (EIS): Detailed report required by NEPA evaluating environmental consequences of major federal actions.

5. Conclusion

The Supreme Court’s refusal to hear Apache Stronghold allows a novel Ninth Circuit rule to stand: merely transferring federal land—even when that act obliterates a people’s only place of worship—does not “substantially burden” religion unless coercion or discrimination is shown. Justice Gorsuch’s dissent underscores the textual, precedential, and moral tensions this exception creates. Until the Court resolves the split or Congress intervenes, religious adherents—particularly Native Nations—within the Ninth Circuit confront a dramatically narrowed RFRA shield, while those elsewhere enjoy broader protection. The case therefore marks a pivotal moment in American religious-liberty jurisprudence: it signals an emerging fault line over whether property-based governmental actions occupy a privileged exemption from the robust safeguards Congress enacted in RFRA.