This week, the Ninth Circuit addresses a religion-based challenge to a federal-government land transfer and considers whether public-sector employees can obtain refunds of mandatory union fees since deemed unconstitutional.
APACHE STRONGHOLD v. UNITED STATES OF AMERICA
The Court holds that plaintiffs challenging the U.S. government’s transfer of land considered sacred by the Apache American Indians to a copper mining company are unlikely to succeed in showing that transfer substantially burdened the plaintiffs’ members’ religious exercise, violated the Free Exercise Clause of the First Amendment, or violated the U.S. government’s trust obligations.
Panel: Judges Murguia, Berzon, and Bea, with Judge Bea writing the opinion, and Judge Berzon dissenting.
Key Highlight: “We are a ‘cosmopolitan nation made up of people of almost every conceivable religious preference.’ This pluralism is a source of strength, but it places demands on us all. In some cases, the many must accommodate the needs of the few—we accept that the government must sometimes ‘expend additional funds to accommodate citizens’ religious beliefs.’ But in other cases, our need to ‘maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good.’ This give-and-take suits perfectly neither the religious nor the secular. The ‘diversity of beliefs in our pluralistic society’ demands as much. Here, for the reasons given above, this case is the second of those two types.” (Citations omitted).
Background: In 2014, Congress enacted legislation requiring the U.S. Secretary of Agriculture to convey Oak Flat, a plot of federal land in Arizona, to a mining company named Resolution Copper in exchange for other nearby plots of land (the “Land Exchange”). Resolution Copper is considering building a copper mine under Oak Flat, which Apache American Indians call Chi’chil Bildagoteel and consider sacred ground. Apache Stronghold, a non-profit organization formed to protect American Indian sacred sites, sued the government arguing that the Land Exchange violates (1) the Religious Freedom Restoration Act (“RFRA”); (2) The Free Exercise Clause of the First Amendment of the U.S. Constitution; and (3) a trust obligation imposed on the United States by the 1852 Treaty of Sante Fe between the Apache the United States. Apache Stronghold sought a preliminary injunction to stop the Land Exchange and prevent any copper mining, but the district court declined to enter a preliminary injunction because it found that Apache Stronghold was unlikely to succeed on any of its claims. Apache Stronghold appealed.
Result: The Ninth Circuit affirmed. 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 Exchange violates RFRA—which prohibits the federal government from substantially burdening a person’s sincere exercise of religion in certain circumstances—because it will render Apache religious exercise on Oak Flat impossible. The Ninth Circuit concluded that the Land Exchange would not substantially 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 governmental benefit or when the government coerces individuals to act contrary to their religious beliefs by the threat of civil or criminal sanctions. Here the transfer of the Oak Flat to Resolution Copper would not deprive the Apache of government benefits or impose governmental penalties on them and thus could not constitute a substantial burden. The Court reasoned that the en banc decision in Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) controls the definition of substantial burden under RFRA, rejecting the argument that Navajo Nation was clearly irreconcilable with subsequent Supreme Court precedent. Apache Stronghold also argued that the Land Exchange does deprive its members of a government benefit because it deprives its members of the use and enjoyment of government land for religious exercise and exposes them to penalties for trespassing on now private land. But, the Court explained, ending a government benefit is not enough; the government must condition the benefit on conduct that would violate sincerely held religious beliefs, and the government had not done so in the Land Exchange. The Court also explained that Apache Stronghold could not base its RFRA claim on exposure to liability for trespass because it had not shown a sufficiently realistic fear of future criminal or civil liability for trespass, and even if it had, RFRA would at most have required an injunction remedying the threat of liability, not an injunction enjoining the entire Land Exchange.
(2) The Court next held that Apache Stronghold’s Free Exercise Claim was also unlikely to succeed. The Court explained that under Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), a valid and neutral law of general applicability does not violate the Free Exercise Clause, even if that law burdens religion. The Land Exchange, the Court explained, is neutral in that its object is not to infringe upon the Apache’s religious practices and it is generally applicable because it does not selectively impose burdens only on conduct motivated by religious belief.
(3) Finally, the Court held that Apache Stronghold was unlikely to succeed on its trust claims. Apache Stronghold argued that the Treaty of Sante Fe of 1852 created an enforceable trust obligation on the U.S. government’s part. The Court disagreed. The Court explained that the U.S. government shoulders a trust obligation with respect to an American Indian tribe when the U.S. government takes on or has control or supervision over tribal monies or properties. But here, the government does not control of supervise tribal properties at Oak Flat; rather Oak Flat belongs to the government, and the Treaty’s language explicitly tied any obligations that it created to the Apache’s title to land.
Judge Berzon dissented. She concluded that the majority applied an overly restrictive test for identifying a substantial burden on religious exercise under RFRA. Judge Berzon would have held that the Land Exchange does substantially burden Apache Stronghold’s members’ religious exercise because it would block access to and eventually destroy a sacred site where they have performed religious ceremonies for centuries. Judge Berzon thus would have concluded that Apache Stronghold had shown a likelihood of success on the merits and would have remanded for the district court to address the remaining elements of the preliminary injunction test.
SEAN ALLEN v. SANTA CLARA COUNTY CORRECTIONAL PEACE OFFICERS ASSOCIATION
The Court holds that municipalities are entitled to a good-faith defense in actions under 42 U.S.C. § 1983 when acting in reliance on since-overruled Supreme Court precedent.
Panel: Judges Bade, Bumatay, Sessions III (D. Vt.), with all three judges joining a per curiam opinion and Judge Bumatay authoring a concurrence.
Key Highlight: “Private parties may rely on judicial pronouncements of what the law is, without exposing themselves to potential liability for doing so. And precedent recognizes that municipalities are generally liable in the same way as private corporations in § 1983 actions. It therefore follows that the rule announced in Danielson for unions also applies to municipalities.” (Quotation marks and citations omitted).
Background: In Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018), the Supreme Court overruled its prior precedent in Abood v. 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 under 42 U.S.C. § 1983, seeking to recover the agency fees that had been taken from their salaries pre-Janus by their union—the Santa Clara County Correctional Peace Officers Association—and by Santa Clara County. The district court dismissed the action, holding that both the union and the county had acted in good faith reliance on pre-Janus law and accordingly were not required to return the union dues.
Result: The Ninth Circuit affirmed. In Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019)—which had been issued after the district court’s judgment—the Court had held that unions were entitled to a good-faith defense for acting in reliance on then-applicable Supreme Court precedent in collecting agency dues. The plaintiffs therefore conceded that Danielson foreclosed their claims against their union.
The Ninth Circuit concluded that Danielson “preordain[ed]” the result with respect to the county as well. As the Court explained, municipalities are generally liable under § 1983 to the same extent as private parties. While the Supreme Court had held that municipalities may not invoke the defense of qualified immunity, “it is still otherwise treated ‘in the same manner and to the same extent’ as a private corporation for tort liability.” Moreover, the Court continued, the considerations of “equality and fairness” that drove Danielson apply with equal force to municipalities as they do to unions: the county, just like the union, was entitled “‘to rely on binding judicial pronouncements and state law without concern that they will be held retroactively liable for changing precedents.’”
Judge Bumatay concurred. He wrote that while Danielson is controlling, he questioned whether it was correctly decided. He observed that as “a historical matter, there may be reason to doubt that private parties were entitled to a good faith affirmative defense,” and that “Danielson shouldn’t have so easily disregarded the historical inquiry in favor of its newfangled ‘equality and fairness’ test.”