This week at the Ninth: Sacred land and municipal good faith | Morrison & Foerster LLP – Left Coast Appeals

This week, the Ninth Circuit is addressing a religion-based challenge to a federal land transfer and considering whether public sector employees can get refunds of mandatory union dues since ruled unconstitutional.


The Court finds that plaintiffs challenging the U.S. government’s transfer of lands considered sacred by Native American Apaches to a copper mining company are unlikely to succeed in demonstrating that the transfer significantly impaired the religious practice of plaintiffs’ members , violated the Free Exercise Clause of the First Amendment, or violated the US Government’s obligations of confidence.

Sign: Judges Murguia, Berzon and Bea, Judge Bea writing the opinion and Judge Berzon dissenting.

Climax“We are a ‘cosmopolitan nation made up of people of almost every religious preference imaginable.’ This pluralism is a source of strength, but it places demands on all of us. In some cases, the many must meet the needs of the few. We accept that the government must sometimes “spend extra money to meet the beliefs of citizens”. But in other cases, our need to “maintain an organized society that guarantees religious freedom to a wide variety of denominations requires that certain religious practices yield to the common good”. religious or secular. The “diversity of beliefs in our pluralistic society” demands it. Here, for the reasons given above, this case is the second of these two types. (quotations omitted).

Background: In 2014, Congress passed a law requiring the United States Secretary of Agriculture to cede Oak Flat, a piece of federal land in Arizona, to a mining company named Resolution Copper in exchange for other plots of land nearby (l “land exchange”). Resolution Copper plans to build a copper mine under Oak Flat, which Apache Native Americans call Chi’chil Bildagoteel and consider sacred ground. Apache Stronghold, a nonprofit organization created to protect American Indian sacred sites, sued the government arguing that the land swap violates (1) the Religious Freedom Restoration Act (“RFRA “); (2) The Free Exercise Clause of the First Amendment to the United States Constitution; and (3) a fiduciary obligation imposed on the United States by the 1852 Treaty of Health Fe between the Apaches and the United States. Apache Stronghold sought a preliminary injunction to stop the land swap and prevent any copper mining, but the district court declined to issue a preliminary injunction because it found Apache Stronghold was unlikely to succeed on the land. one of his demands. Apache Stronghold appealed.

Results: The Ninth Circuit confirmed. The Ninth Circuit agreed with the District Court that Apache Stronghold was unlikely to succeed on the merits of its three claims.

(1) Apache Stronghold argued that the land swap violates RFRA – which prohibits the federal government from significantly burdening a person’s sincere exercise of religion under certain circumstances – because it will make it impossible for Apache religious exercise on Oak Flat. The Ninth Circuit concluded that the land exchange would not significantly burden Apache religious exercise. The Court explained that the government imposes a substantial burden on religion only when it forces individuals to choose between following the tenets of their religion and receiving a government benefit or when the government compels individuals to act contrary to their religious beliefs by the threat of civil or civil action. penals sanctions. Here, the transfer of Oak Flat to Resolution Copper would not deprive the Apaches of government benefits or impose government penalties on them and therefore could not constitute a substantial burden. The Court held that the decision en banc in Navajo Nation v. United States Forest Service535 F.3d 1058 (9th Cir. 2008) reviews the definition of substantial burden under RFRA, rejecting the argument that Navajo Nation was clearly irreconcilable with subsequent Supreme Court jurisprudence. Apache Stronghold also argued that the land exchange deprives its members of a government benefit because it deprives its members of the use and enjoyment of government lands for religious exercise and exposes them to penalties for trespassing on land now private. But, the Court explained, terminating a government benefit is not enough; the government must condition the benefit on conduct that would violate sincere religious beliefs, and the government had failed to do so in the land exchange. The Court also explained that Apache Stronghold could not base its RFRA claim on exposure to liability for trespassing because it had not demonstrated a sufficiently realistic fear of future criminal or civil liability for trespassing, and even if it did, RFRA would at most have required an injunction remedying the threat of liability, not an injunction enjoining the entire land exchange.

(2) The Court then ruled that Apache Stronghold’s free exercise claim was also unlikely to succeed. The Court explained that under Division of Employment, Oregon Department of Human Resources v. Smith, 494 US 872 (1990), a valid and neutral law of general application does not violate the free exercise clause, even if that law weighs on religion. The land exchange, the Court explained, is neutral in that its purpose is not to infringe Apache religious practices and it is generally enforceable because it does not selectively impose charges solely on motivated conduct. by religious belief.

(3) Finally, the Court found that Apache Stronghold was unlikely to succeed on its trust claims. Apache Stronghold argued that the Health Fe Treaty of 1852 created an enforceable fiduciary duty on the part of the US government. The Court disagreed. The Court explained that the US government assumes a fiduciary duty to a Native American tribe when the US government assumes or exercises control or supervision over tribal funds or property. But here, the government does not control or oversee the tribal properties in Oak Flat; Rather, Oak Flat is owned by the government, and the wording of the treaty explicitly tied any obligations it created to the Apache land title.

Judge Berzon dissented. She concluded that the majority applied an overly restrictive test to identify a substantial burden on religious exercise under the RFRA. Judge Berzon reportedly felt that the land swap significantly burdened the religious exercise of Apache Stronghold members, as it would block access to and eventually destroy a sacred site where they have performed religious ceremonies for centuries. Judge Berzon would therefore have concluded that Apache Stronghold had demonstrated a likelihood of success on the merits and would have referred the remaining elements of the preliminary injunction test to the district court.


The Court held that municipalities are entitled to a good faith defense in actions under 42 USC § 1983 when acting on the basis of Supreme Court precedent since overturned.

Sign: Judges Baden, Bumatay, Sessions III (D. Vt.), the three judges joining in an opinion by curiam and Judge Bumatay drafting an agreement.

Climax“Private parties can rely on judicial pronouncements of what the law is, without exposing themselves to potential liability for doing so. And the precedent recognizes that municipalities are generally liable in the same way as private corporations in the actions of § 1983. It follows therefore that the rule announced in Danielson for trade unions also applies to municipalities. (Quotes and quotes omitted).

Background: In Janus v. Am. State Fed’n, Cnty., & Mun. Emp., Council 31, 138 S.Ct. 2448 (2018), the Supreme Court reversed its previous precedent in Abood vs. Detroit Board of Education, 431 U.S. 209 (1977) and held that the mandatory collection of union dues from public sector employees by their government employers violated the First Amendment. In response, several plaintiffs filed a class action lawsuit under 42 USC § 1983, seeking to recover agency fees that had been deducted from their wages beforejanus by their union – the Santa Clara County Correctional Peace Officers Association – and by Santa Clara County. The district court dismissed the action, finding that the union and the county acted in good faith in relying on the pre-janus law and were therefore not required to reimburse union dues.

Results: The Ninth Circuit confirmed. In Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019) – which was issued after the district court judgment – ​​the Court held that the unions were entitled to a good faith defense for acting on the precedent then applicable of the Supreme Court in collecting agency dues. The plaintiffs therefore conceded that Danielson forfeited their claims against their union.

The Ninth Circuit concluded that Danielson “to order[ed]” the result regarding the county as well. As the Court explained, municipalities are generally liable under section 1983 to the same extent as private parties. Although the Supreme Court ruled that municipalities cannot raise the qualified immunity defence, “they are still otherwise treated ‘in the same manner and to the same extent’ as a private corporation in matters of liability.” tort. Moreover, the Court continued, the considerations of “equality and fairness” which Danielson apply with equal force to municipalities as to unions: the county, like the union, had the right “to rely on binding court decisions and state law without fear that they will be held retroactively responsible for the development of precedents”.

Judge Bumatay agreed. He wrote that during Danielson control, he wondered if the decision had been made correctly. He observed that “historically, there may be reason to doubt that private parties are entitled to a bona fide affirmative defence” and that “Danielson shouldn’t have so easily ignored the landmark survey in favor of its new “equality and fairness” test.

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