Supreme Court declines to hear Native American fight to save sacred site threatened by copper mine

By John Fritze, CNN

(CNN) — The Supreme Court on Monday declined to step into a fight over a land transfer in Arizona that the Western Apache people say will destroy a sacred site in order to build a massive copper mine.

Conservative Justice Samuel Alito dissented from the decision to deny the case.

The federal government had been prepared to transfer the site earlier this year but a federal appeals court in August halted the transaction and scheduled arguments in a separate lawsuit.

Congress approved the transfer of the federal property in the Tonto National Forest in 2014, and President Donald Trump initiated the land exchange in the final days of his first term. The land includes a site known as Oak Flat, where native tribes have practiced religious ceremonies for centuries.

A non-profit sued the federal government, asserting that the transfer violated the First Amendment’s free exercise clause and a law that requires courts to apply the highest level of scrutiny to any law that burdens religious freedom.

The Supreme Court declined to hear the appeal without explanation in May. Two conservative justices – Neil Gorsuch and Clarence Thomas – dissented from the decision at that time. Justice Samuel Alito, another conservative, recused himself from the case without explanation.

“Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning,” Gorsuch wrote in dissent. “I have no doubt that we would find that case worth our time.”

“Faced with the government’s plan to destroy an ancient site of tribal worship, we owe the Apaches no less,” he wrote. “They may live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference.”

The Western Apache, represented by the Becket Fund for Religious Liberty, argued the questions at the heart of the case were “vitally important for people of all faiths.” An adverse decision, they said, would provide “a roadmap for eviscerating” federal religious protections in other contexts.

The group asked the Supreme Court to reconsider its May decision to deny the appeal in light of a ruling that came weeks later in which the court’s conservatives sided with a group of religious parents who want to opt their elementary school children out of engaging with LGBTQ books in the classroom. That decision dealt in part with how courts review the burden that a government can impose on religious rights under the First Amendment.

Lower courts, including the San Francisco-based 9th US Circuit Court of Appeals, had ruled that the land transfer did not impose a substantial burden on religious exercise since it doesn’t coerce or discriminate on the basis of religion.

But the appeals court also put the land transfer on hold in August in a separate case that raises questions about the government’s environmental review of the project.

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