# Tribal Suits Over Sacred Sites & EPA Weakens Regs

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 16 Sep 2025, 33 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/648ca53d-cd37-402d-9029-b35a00235207/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Jennifer Novak, an environmental attorney in California, discusses the EPA no longer requiring big polluters to report. Heather Whiteman Runs Him, director of the Tribal Justice Clinic at the University of Arizona, discusses how tribal suits over sacred sites, expose unequal treatment. June Grasso hosts See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
[0:08] Speaker 1: When EPA Administrator Lee Zelden launched what he called the
[0:13] Speaker 1: greatest day of deregulation in American history six months ago,
[0:18] Speaker 1: there seemed to be no mention of protecting the environment
[0:21] Speaker 1: or endangered species, but rather of advancing American energy, revitalizing
[0:27] Speaker 1: the auto industry, and getting rid of climate protections put
[0:31] Speaker 1: in place by the Biden administration.
[0:33] Speaker 2: EPA will be reconsidering many suffocating rules that restrict nearly
[0:38] Speaker 2: every sector of our economy and cost Americans trillions of dollars.
[0:45] Speaker 2: Our actions include the Biden Administration's deeply flowed Clean Power Plan,
[0:50] Speaker 2: two point zero mercury and Air Toxic Standards quato BC,
[0:56] Speaker 2: particulate Matter two point five light Medium, and head, the
[1:00] Speaker 2: Car and Truck rules.
[1:01] Speaker 1: And in keeping with those goals, the agency has sought
[1:05] Speaker 1: to roll back dozens of environmental regulations. The latest, the
[1:10] Speaker 1: EPA plans to end the greenhouse Gas Reporting Program, which
[1:15] Speaker 1: for the last sixteen years has tracked pollution from some
[1:18] Speaker 1: eight thousand sites and requires large, mostly industrial polluters to
[1:24] Speaker 1: report their planet warming greenhouse gas emissions to the government.
[1:29] Speaker 1: My guest is environmental attorney Jennifer Novak Jennifer This greenhouse
[1:33] Speaker 1: Gas Reporting program was created by legislation signed by President
[1:39] Speaker 1: George W. Bush in two thousand and seven. Explain what
[1:43] Speaker 1: it does.
[1:44] Speaker 3: The Greenhouse Gas Reporting Program has been the primary way
[1:49] Speaker 3: for the US government to track certain emissions for about
[1:54] Speaker 3: eight thousand of the country's largest facilities since twenty ten.
[1:59] Speaker 3: This is how we've tried emissions of carbon dioxide, methane
[2:03] Speaker 3: and other gases that come from sources like oil refineries
[2:07] Speaker 3: and steel mills and cement plants and coal burning power plants.
[2:13] Speaker 3: And it's how we have been identifying where a lot
[2:16] Speaker 3: of these emissions have been coming from, but also tracking
[2:20] Speaker 3: whether or not we are able to try to reduce
[2:23] Speaker 3: them by addressing those sources. And we've been relying on
[2:27] Speaker 3: this for quite a long time up until now. I
[2:32] Speaker 3: will also note that this is also a way for
[2:35] Speaker 3: places like California and other states that have cap and
[2:39] Speaker 3: trade programs to be able to both design as well
[2:43] Speaker 3: as track the emissions so that they can determine how
[2:48] Speaker 3: to run those programs and using this information from around
[2:52] Speaker 3: the country.
[2:52] Speaker 1: The EPA Administrator Lee Zelden said, the Greenhouse Gas Reporting
[2:57] Speaker 1: program is nothing more than bureaucratic red tape that does
[3:01] Speaker 1: nothing to improve air quality. Would you agree with that?
[3:06] Speaker 3: I do not agree with that. This program provides very
[3:09] Speaker 3: valuable data for us to understand what is going on
[3:13] Speaker 3: in these industries, how it may be contributing to local
[3:16] Speaker 3: communities as well as to a larger, more global problem.
[3:21] Speaker 3: And asking for certain industries known to be large sources
[3:27] Speaker 3: of these emissions is not just red tape, not just costs,
[3:31] Speaker 3: but is part of understanding the science of what the
[3:35] Speaker 3: problem is. And more importantly, science is the foundation for
[3:40] Speaker 3: how we determine what policies to have and how to
[3:43] Speaker 3: implement them, whether or not we even need certain policies.
[3:47] Speaker 3: So by depriving universities, nonprofits, other governments of this data,
[3:53] Speaker 3: we effectively are attacking the very foundation of the policy making,
[3:57] Speaker 3: which is the science. Truthfully, it's the opposite of transparency,
[4:02] Speaker 3: and it would mean a lot of these otherwise climate
[4:06] Speaker 3: based policy makers will be flying blind.
[4:09] Speaker 1: Is the only benefit, the only reason for this that
[4:13] Speaker 1: it's going to save businesses according to Zelden, up to
[4:16] Speaker 1: two point four billion in regulatory costs over the next decade.
[4:20] Speaker 1: Is that the benefit.
[4:21] Speaker 3: Here that's really the only thing I see that the
[4:24] Speaker 3: only justification one could bring up. And more importantly, we
[4:27] Speaker 3: don't know where that number comes from, so we don't
[4:30] Speaker 3: know if that's the true cost. I will also note
[4:33] Speaker 3: that this doesn't mean that certain industries won't collect the data.
[4:38] Speaker 3: It just means they won't report it, so that the
[4:41] Speaker 3: public and the government doesn't know how that a problem
[4:44] Speaker 3: might be. So the cost savings from the collection and
[4:48] Speaker 3: reporting may not be as great as the Trump administration is.
[4:52] Speaker 1: Assuming the EPA is terminating dozens of environmental regulations, is
[4:59] Speaker 1: this just one part of that rollback.
[5:01] Speaker 3: It really does go to the issue of the regulations.
[5:05] Speaker 3: One of the reasons why we haven't seen the ability
[5:09] Speaker 3: to eliminate many regulations, especially in the environmental realm, is
[5:14] Speaker 3: because the science just doesn't justify it. If you put
[5:17] Speaker 3: the science out there to show that you do need
[5:19] Speaker 3: certain regulations or certain policies, then it's very hard for
[5:23] Speaker 3: the government to simply wipe them off the books. So
[5:26] Speaker 3: here by attacking the science, or at least depriving the
[5:30] Speaker 3: science from that discussion, then it makes it a lot
[5:34] Speaker 3: easier to try to take things off the books that
[5:37] Speaker 3: might otherwise be needed. I will note that just because
[5:41] Speaker 3: we're not necessarily recording and reporting this information does not
[5:46] Speaker 3: mean that these facilities are not emitting things like the
[5:50] Speaker 3: methane and the carbon dioxide. It just means we won't
[5:52] Speaker 3: know about it.
[5:54] Speaker 1: Is it sort of in line with the Trump administration
[5:57] Speaker 1: trying to erase notes of climate change on websites.
[6:02] Speaker 3: It goes part and parcel with that. If you can't
[6:06] Speaker 3: point to the science and the data to show what's
[6:10] Speaker 3: happening with the climate, then one can argue that it's
[6:13] Speaker 3: all made up. Right. If you have the data, then
[6:16] Speaker 3: it makes it harder for them to say that climate
[6:18] Speaker 3: change doesn't exist.
[6:20] Speaker 1: Before Biden left office, he said that they handled things
[6:25] Speaker 1: in such a way that the Trump administration wouldn't be
[6:28] Speaker 1: able to destroy their environmental achievements. But it seems like
[6:33] Speaker 1: they are doing that.
[6:36] Speaker 3: They certainly are trying. For example, under President Biden, we
[6:40] Speaker 3: had the Inflation Reduction Act of twenty twenty two, which
[6:44] Speaker 3: required certain oil and gas facilities to both collect their
[6:49] Speaker 3: emissions data and report it. The Trump administration is not
[6:53] Speaker 3: getting rid of that particular requirement that they are proposing
[6:56] Speaker 3: that there's a delay in implementation for ten years. In
[7:00] Speaker 3: other circumstances, the priorities of the EPA clearly have been
[7:04] Speaker 3: publicly shifted, where I believe the administrator has been saying
[7:09] Speaker 3: that the mission of EPA is to support the US economy,
[7:13] Speaker 3: whereas I think most people would argue that the mission
[7:16] Speaker 3: of the Environmental Protection Agency is to protect both people
[7:20] Speaker 3: and the environment and to ensure that we are not
[7:24] Speaker 3: either destroying health and the environment, but certainly to try
[7:29] Speaker 3: to maintain it as best we can while balancing the
[7:32] Speaker 3: need for economic development and other things we need in
[7:37] Speaker 3: our lives. But in this situation, what we see is
[7:41] Speaker 3: an attack on the inside as well, what kind of
[7:43] Speaker 3: information is coming out, what kind of opinions people can have,
[7:47] Speaker 3: what kind of studies they are developing. And this is
[7:50] Speaker 3: part of an overall much larger situation with the Trump
[7:54] Speaker 3: administration also attacking things like universities and nonprofits that we're
[7:59] Speaker 3: receiving ants to work on, especially climate issues. So it's
[8:03] Speaker 3: a multifaceted attack on the many places that would already
[8:08] Speaker 3: be working together, collaborating, sharing data in order to make
[8:14] Speaker 3: these larger policy changes that the Trump administration clearly does
[8:17] Speaker 3: not agree with.
[8:19] Speaker 1: You know, you talk about science, etc. But the Trump
[8:21] Speaker 1: administration has asked NASA to decommission and possibly destroyed two
[8:26] Speaker 1: satellites that measure greenhouse gases from space.
[8:30] Speaker 3: Yes, that has been in the news lightly, and it's
[8:33] Speaker 3: consistent with this proposal to eliminate the reporting of greenhouse gases.
[8:40] Speaker 3: One could look at it as a short term long
[8:42] Speaker 3: term issue. Long term, we're going to need this data
[8:46] Speaker 3: from a variety of sources, and shutting down the reporting
[8:50] Speaker 3: or eliminating satellites means you may save money in the
[8:54] Speaker 3: short term, but sooner or later we are going to
[8:57] Speaker 3: need that back, so we will be behind. It may
[9:01] Speaker 3: be harder for us to address these larger problems in
[9:04] Speaker 3: the long term if we haven't been working on them
[9:07] Speaker 3: consistently all along, and you can't just take a break
[9:11] Speaker 3: and then come back to it and pick up where
[9:13] Speaker 3: you left off. The Earth does not care whether or
[9:17] Speaker 3: not we believe in climate change. The Earth is doing
[9:19] Speaker 3: what it's doing, and we can either address it and
[9:22] Speaker 3: understand it now, or we will have far more expenses
[9:27] Speaker 3: and human effects later on down the road.
[9:29] Speaker 1: That was going to be my next question, you anticipated.
[9:31] Speaker 1: I was going to say, if a new administration comes
[9:34] Speaker 1: in that believes in climate change and fighting climate change.
[9:38] Speaker 3: Can we recoup We certainly can go back to the fight,
[9:43] Speaker 3: but you will have lost potentially years of data and
[9:47] Speaker 3: thousands of data points in the process. That being said,
[9:51] Speaker 3: I would anticipate that we will see lawsuits arising from
[9:55] Speaker 3: this proposal. There is also a public comment period, so
[9:59] Speaker 3: it's not a done deal yet this particular proposal, and
[10:04] Speaker 3: I don't know whether or not it will go into
[10:06] Speaker 3: effect right away. I would anticipate there will be requests
[10:10] Speaker 3: to the courts to delay the implementation on the very
[10:13] Speaker 3: grounds that we've been discussing, just the need for it,
[10:17] Speaker 3: the severity of the problem, the fact that we are
[10:19] Speaker 3: at a critical juncture with respect to understanding and addressing
[10:24] Speaker 3: climate change.
[10:25] Speaker 1: Can the states in any way step in and make
[10:28] Speaker 1: requirements of facilities in their state.
[10:31] Speaker 3: The states can step in and put in their requirements,
[10:35] Speaker 3: but part of the problem is by having a federal program,
[10:39] Speaker 3: you have consistent requirements across the board, as opposed to
[10:42] Speaker 3: going state by state with their requirements. You may see
[10:46] Speaker 3: variances in the quality of information that is reported, and
[10:50] Speaker 3: so it is more difficult to attack this on a
[10:53] Speaker 3: state by state or regional government by regional government basis.
[10:57] Speaker 3: As opposed to having a federal program in addition, and
[11:00] Speaker 3: states definitely like to be able to look to having
[11:04] Speaker 3: federal law to turn to and be consistent with and
[11:07] Speaker 3: to enforce, and the Clean Air Act has been a
[11:11] Speaker 3: very powerful tool for decades in terms of addressing these issues.
[11:16] Speaker 3: It's a lot harder for states to step in and
[11:18] Speaker 3: try to supplant that.
[11:20] Speaker 1: How does this affect the tax credits that companies get
[11:24] Speaker 1: that capture and bury their carbon emissions.
[11:28] Speaker 3: It's unclear how it will affect it. That certainly is
[11:32] Speaker 3: one of the unknowns here, which is that there are
[11:35] Speaker 3: other reasons why businesses collect this data and report it.
[11:41] Speaker 3: Sometimes it may be that they have carbon capture requirements,
[11:45] Speaker 3: They may have other sustainability requirements. There may be requirements
[11:50] Speaker 3: from the Department of Energy, for example. And so it's
[11:53] Speaker 3: not that these companies won't necessarily need this information. It
[11:59] Speaker 3: is that, again, that we won't be receiving it through
[12:01] Speaker 3: reporting necessarily, or it will be much more patchwork because
[12:05] Speaker 3: of their other issues. But the extent that companies are
[12:09] Speaker 3: trying to do the right thing, they're going to find
[12:11] Speaker 3: themselves in an interesting situation where some companies may have
[12:15] Speaker 3: ongoing requirements and some may be excused from it and
[12:19] Speaker 3: therefore be getting an economic advantage.
[12:21] Speaker 1: Thanks so much, Jennifer. That's environmental attorney Jennifer Novak coming
[12:26] Speaker 1: up next. Apache tribes try to stop development on a
[12:30] Speaker 1: sacred site. This is Bloomberg John him On, a diva.
[12:38] Speaker 4: God him.
[12:41] Speaker 1: For centuries, Western Apaches have worshiped at Oak Flat, a
[12:45] Speaker 1: nearly seven square mile site in Arizona, where tribal members
[12:50] Speaker 1: conduct religious ceremonies that can take place anywhere else. One
[12:55] Speaker 1: is the Sunrise Ceremony, a three day coming of age
[12:58] Speaker 1: ceremony for a patche girls that requires gathering certain plants
[13:03] Speaker 1: at Oak Flat and being painted with white clay from
[13:06] Speaker 1: the ground. For years, the tribal members have tried to
[13:09] Speaker 1: stop the federal government's transfer of the sacred tribal land
[13:14] Speaker 1: to a compromising company, which will end in the sacred
[13:17] Speaker 1: site being destroyed. Indigenous and environmental groups have filed multiple
[13:22] Speaker 1: lawsuits against the US Forest Service, but the legal paths
[13:27] Speaker 1: for tribal groups to protect Oak Flatt on religious grounds
[13:31] Speaker 1: have been narrowed by several decisions. They bring up the
[13:34] Speaker 1: question of whether tribal religious freedom claims are getting equal treatment.
[13:39] Speaker 1: A descent by Justice, Neil Gorsuch suggests they're not. My
[13:44] Speaker 1: guest is Heather white Man, runs him director of the
[13:47] Speaker 1: Tribal Justice Clinic at the University of Arizona. Heather, can
[13:51] Speaker 1: you give us the background of this legal fight.
[13:55] Speaker 4: Yeah. In twenty fourteen, Congress passed the Southern Arizona Land
[14:01] Speaker 4: Exchange and Conservation Act as part of a much larger
[14:06] Speaker 4: Defense authorization bill that was really so voluminous that it
[14:11] Speaker 4: didn't have a whole lot of review and people weren't
[14:14] Speaker 4: paying super close attention to some of the smaller parts
[14:17] Speaker 4: of that much larger piece of legislation. And because of that,
[14:22] Speaker 4: this particular bill, the Southern Arizona Land Exchange and Conservation Act,
[14:27] Speaker 4: was able to make its way through congressional ratification and
[14:31] Speaker 4: was signed into law by President Obama. This particular initiative
[14:36] Speaker 4: had been a standalone bill numerous times before and had
[14:40] Speaker 4: never moved forward, never been able to get through Congress.
[14:44] Speaker 4: What the bill does is it mandates the transfer of
[14:48] Speaker 4: forgest service lands to a private company resolution copper for
[14:52] Speaker 4: the purpose of mining a substantial deposit of copper that
[14:56] Speaker 4: underlies the surface of that land. The reason why that's
[15:01] Speaker 4: difficult or why it's been opposed for so many years
[15:06] Speaker 4: is because the land on the surface is the site
[15:09] Speaker 4: of very significant, longstanding religious practices by the Western Apache people,
[15:16] Speaker 4: and so the mining of the copper will result in
[15:20] Speaker 4: the complete destruction of a substantial area of the surface land.
[15:24] Speaker 4: It will subside, it will create a very large crater,
[15:27] Speaker 4: it won't be usable any longer for the purposes that
[15:31] Speaker 4: the Apache people have maintained on that land for hundreds
[15:35] Speaker 4: and hundreds of years, if not longer. And so that,
[15:40] Speaker 4: according to the Apache people, is a substantial burden on
[15:44] Speaker 4: their religious practice. And common sense would I think lead
[15:47] Speaker 4: anybody to a similar result that if you destroy the
[15:49] Speaker 4: land that is absolutely necessary for the practice of a religion,
[15:54] Speaker 4: that's the burden. So that's the conflict in essence.
[15:58] Speaker 1: Are the legal challenges based on the First Amendment or
[16:01] Speaker 1: the Religious Freedom Restoration Act.
[16:04] Speaker 4: The challenges are based on both of those. There are
[16:07] Speaker 4: also claims that have been raised related to the treaties
[16:11] Speaker 4: between the Western Apache people in the United States, and
[16:14] Speaker 4: also some claims that are based in NIPA, the National
[16:18] Speaker 4: Environmental Policy Act and consultation claims as well. That you know,
[16:23] Speaker 4: the consultation process between the federal government and the tribes
[16:27] Speaker 4: in question here, the tribal members and the tribal government
[16:30] Speaker 4: was not sufficient or it wasn't meaningful.
[16:33] Speaker 1: The procedural history here is so complicated. It's been up
[16:37] Speaker 1: to the Ninth Circuit more than once, right, So.
[16:40] Speaker 4: There are several different causes of action. Right back up
[16:44] Speaker 4: a little bit further. As part of the land exchange,
[16:48] Speaker 4: environmental impact statement is to be prepared and then within
[16:53] Speaker 4: sixty days of the finalization of the EIF or the
[16:56] Speaker 4: environmental impact statement, the land transfer is undated to take place.
[17:01] Speaker 4: That's what the Act provides for. And so the EIS
[17:06] Speaker 4: was underway, was being prepared, preliminarily announced to be about
[17:12] Speaker 4: to be released back in twenty twenty one, and that
[17:16] Speaker 4: was when Apache Stronghold filed its lawsuits in the District
[17:20] Speaker 4: of Arizona. Apache Stronghold is a coalition of tribal members.
[17:25] Speaker 4: It's not the tribal government, but it's you know, some
[17:27] Speaker 4: of the folks who were really involved in so devoted
[17:31] Speaker 4: to the practice of their religious beliefs at Oak Flat,
[17:34] Speaker 4: and you know, really sincere adherence to those cultural practices
[17:38] Speaker 4: and beliefs from within the Apache tribe. And so there
[17:42] Speaker 4: are a couple of different claims that were raised in
[17:45] Speaker 4: that particular lawsuit, the riffra claim, the First Amendment claim,
[17:50] Speaker 4: as well as treaty claims and some of the other
[17:54] Speaker 4: issues with you know, NIPA and the APA. The District
[17:57] Speaker 4: court initially dismissed most of those claims, but what did
[18:00] Speaker 4: go forward was the difference First Amendment issues, and those
[18:04] Speaker 4: went up to the Ninth Circuit. The Ninth Circuit ruled
[18:07] Speaker 4: against Apache Stronghold and moved on to review on Bank
[18:12] Speaker 4: before an on bunk panel also ruled against Apache Stronghold
[18:16] Speaker 4: in a very very complicated opinion or a series of opinions,
[18:22] Speaker 4: about two hundred and forty pages, seven different written opinions
[18:26] Speaker 4: with sort of two different majorities holding in two different ways.
[18:31] Speaker 4: And then from there there was a petition for a
[18:33] Speaker 4: review through the full unbunk Ninth Circuit Court of Appeals,
[18:38] Speaker 4: which was denied, after which point Apache Stronghold petition for
[18:42] Speaker 4: circerari to the US Supreme Court.
[18:45] Speaker 1: Will you explain why the Ninth Circuit found that the
[18:50] Speaker 1: transfer couldn't be considered a substantial burden on religious exercise.
[18:57] Speaker 4: So the Ninth Circuit opinion, it's a tough one and
[19:00] Speaker 4: to parse out right, and so there are a couple
[19:02] Speaker 4: of different things that happen there. First, the court ruled
[19:07] Speaker 4: that there was no substantial burden right because there's not
[19:11] Speaker 4: coercion under some previous case laws. The Ninth Circuit has
[19:15] Speaker 4: a very narrow definition of substantial burden and of coercion.
[19:21] Speaker 4: So they have ruled that in the absence of withholding
[19:26] Speaker 4: of a benefit because of a religious practice or a
[19:30] Speaker 4: punative or punishment type of provision in a generally applicable
[19:35] Speaker 4: federal law that is triggered by what would otherwise be,
[19:39] Speaker 4: you know, a basic exercise of a religious practice, that
[19:43] Speaker 4: there's no coercion that results in no substantial burden.
[19:47] Speaker 1: Will you tell us more about how Native American religious
[19:50] Speaker 1: practices require relationships with specific locations and natural features and
[19:58] Speaker 1: how that played into the arguments.
[20:02] Speaker 4: And that's the second part of the Ninth Circuits on
[20:05] Speaker 4: bonk holding. So the first is applying this really narrow standard,
[20:10] Speaker 4: really restrictive standard for finding a substantial burden. And also
[20:15] Speaker 4: a different majority of the Ninth Circuit then held that
[20:18] Speaker 4: where there's a federal property management initiative, that cannot burden
[20:24] Speaker 4: religious freedom right, which is really wrong when you think
[20:27] Speaker 4: about it that, you know, under the Ninth Circuit ruling,
[20:31] Speaker 4: we're limited from ever bringing any kind of claim then
[20:34] Speaker 4: saying that a federal land management decision substantially burdens our
[20:38] Speaker 4: free exercise right because it's federal property. The federal government
[20:42] Speaker 4: has a right to do what it wants with its
[20:44] Speaker 4: own land. And that just doesn't seem right to me.
[20:46] Speaker 4: That we can't limit the federal government from violating the
[20:50] Speaker 4: First Amendment because the federal government is the landowner. So
[20:54] Speaker 4: the analysis under the Ninth Circuit approach is really that
[20:58] Speaker 4: we're looking at the relief thought to limit our ability
[21:03] Speaker 4: to ever find an injury to people's First Amendment rights.
[21:08] Speaker 4: So we can't find a burden because the relief that
[21:10] Speaker 4: we're seeking, which will limit what the federal government is
[21:12] Speaker 4: a landowner can do with its own property. You know,
[21:15] Speaker 4: it certainly presents a real challenge to any Native American
[21:19] Speaker 4: person whose religious beliefs depend on a relationship with a
[21:23] Speaker 4: specific land base, and many of ours do. Many of
[21:26] Speaker 4: us have religions and religious practices and beliefs that require
[21:31] Speaker 4: specific things to happen in specific places, often at specific times,
[21:36] Speaker 4: and that is our sincerely held religious belief and how
[21:39] Speaker 4: we practice it, so it renders Native American religious belief
[21:43] Speaker 4: virtually unprotectable in many in many instances under the way
[21:46] Speaker 4: that the case law has developed. And I just think
[21:49] Speaker 4: that can't be right. And I hope most Americans would
[21:51] Speaker 4: consider that situation and feel similarly that that simply cannot
[21:56] Speaker 4: be correct, and that cannot be consistent with our constitution
[21:59] Speaker 4: or what our founds intended.
[22:01] Speaker 1: And tell us about the religious significance of Oak Flat
[22:06] Speaker 1: with regard to the three day coming of age ceremony
[22:10] Speaker 1: for Apache girls that tribe members say can't take place
[22:14] Speaker 1: anywhere else.
[22:16] Speaker 4: From my understanding, and I'm not an Apache person, Oak
[22:19] Speaker 4: Flatt is the site where female members of the San
[22:23] Speaker 4: Carlos Apache tribe have their coming of age ceremonies. So
[22:26] Speaker 4: it's where a girl becomes a woman. And there's a
[22:28] Speaker 4: specific ceremony that takes place when a girl becomes a woman,
[22:32] Speaker 4: and it's a very intensive, multi date ceremony. It's incredibly
[22:39] Speaker 4: onerous physically, there's a lot of prayer, a whole community
[22:42] Speaker 4: comes together to help bring a girl into womanhood. It's
[22:46] Speaker 4: a necessity for a woman to go through that ceremony
[22:48] Speaker 4: to fully realize her identity as an attache woman. So
[22:53] Speaker 4: it's incredibly significant. It's one of the most important things
[22:56] Speaker 4: that happens in any woman's life in that culture.
[22:59] Speaker 1: As we've discussed, there are several cases here, which is
[23:02] Speaker 1: the case that went to the Supreme Court and.
[23:06] Speaker 4: The litigation that's been most developed and has gone the
[23:10] Speaker 4: furthest up that was brought by a coalition of tribal
[23:13] Speaker 4: members who organized as a nonprofit corporation as Apache Stronghold
[23:18] Speaker 4: and so you know, Pache Stronghold petition for Circherai to
[23:21] Speaker 4: the US Supreme Court. The US Supreme Court, upon completion
[23:25] Speaker 4: of the cert petition briefing, brought the case in for
[23:29] Speaker 4: conference I think something like sixteen times. So it went
[23:33] Speaker 4: up for review to consider whether it would be whether
[23:36] Speaker 4: it would be granted, many many times over the course
[23:39] Speaker 4: of last spring. Ultimately, on May twenty seventh, the Supreme
[23:44] Speaker 4: Court denied Sircherai. Unfortunately, however, soon after the denial of
[23:50] Speaker 4: cert Apache Strongholds, the attorneys filed a petition for basically
[23:56] Speaker 4: a reconsideration of the cert petition asking the Supreme Court
[24:00] Speaker 4: to grant Scerai remand the case back to the Ninth
[24:04] Speaker 4: Circuit and provide a clear direction to the Ninth Circuit
[24:08] Speaker 4: on how to review the legal arguments going forward in
[24:13] Speaker 4: a new Ninth Circuit review. Part of the reason for
[24:16] Speaker 4: that is because intervening President was decided after the denial
[24:21] Speaker 4: of Scherai.
[24:23] Speaker 1: Coming up next. The Supreme Court denied cert but Justice
[24:27] Speaker 1: Neil Gorsuch said it was a grave mistake for the
[24:30] Speaker 1: Court not to hear the case. I'm June Grosso and
[24:33] Speaker 1: you're listening to Bloomberg. Indigenous and environmental groups have filed
[24:38] Speaker 1: multiple lawsuits against the government seeking to preserve Oak Flat,
[24:43] Speaker 1: a six point seven square mile site for Western Apache's
[24:47] Speaker 1: religious ceremonies that plaintiffs say can't take place anywhere else.
[24:53] Speaker 1: Years long court challenges have attempted to stop the federal
[24:56] Speaker 1: government's transfer of the land to a copper mining company,
[25:00] Speaker 1: but the legal paths for tribal groups to protect Oak
[25:03] Speaker 1: Flat on religious grounds have been narrowed by several decisions,
[25:07] Speaker 1: especially in the US Court of Appeals for the Ninth Circuit.
[25:11] Speaker 1: I've been talking to Heather white Man runs him director
[25:14] Speaker 1: of the Tribal Justice Clinic at the University of Arizona.
[25:18] Speaker 1: Let's talk about Justice Gorsuch's Descent, joined by Justice Clarence Thomas,
[25:24] Speaker 1: and he said it was a grave mistake for the
[25:27] Speaker 1: Court not to hear the case. Quote, just imagine if
[25:30] Speaker 1: the government sought to demolish a historic cathedral on so
[25:33] Speaker 1: questionable a chain of legal reasoning. I have no doubt
[25:37] Speaker 1: that we would find that case worth our time. Face
[25:40] Speaker 1: with the government's plan to destroy an ancient side of
[25:43] Speaker 1: tribal worship. We owe the apaches no less. And this
[25:47] Speaker 1: is a Supreme Court that has expanded religious rights. Is
[25:52] Speaker 1: there a difference with the way they treat tribal religion?
[25:56] Speaker 4: I see a difference. A lot of people see a difference,
[25:59] Speaker 4: you know. Such is The Descent is a really great read.
[26:02] Speaker 4: I'd encourage anybody interested in these issues to read it.
[26:06] Speaker 4: And I think it recognizes that, like I was saying earlier,
[26:10] Speaker 4: the way that these cases are evaluated and the outcomes
[26:13] Speaker 4: that we keep seeing should be a concern to every American.
[26:17] Speaker 4: Every American citizen should worry about the viability of their
[26:21] Speaker 4: free exercise right. If the Court can condone the complete
[26:25] Speaker 4: annihilation of a place of worship that is absolutely central
[26:29] Speaker 4: to the perpetuation of that religion, they can limit anybody's
[26:33] Speaker 4: religious exercise right. So this is a threat to every
[26:36] Speaker 4: American religious liberty, and it is something that I think
[26:39] Speaker 4: we should all be concerned about and we should all
[26:41] Speaker 4: be advocating to our lawmakers, to our legal scholars that
[26:48] Speaker 4: you know, we need to work through these issues and
[26:50] Speaker 4: we need to find solutions that will bring us different results.
[26:53] Speaker 1: Ultimately, the Supreme Court had a decision in June where
[26:58] Speaker 1: it favored parents who want want their children to be
[27:01] Speaker 1: exempt from lessons involving books that mention sexuality and gender.
[27:06] Speaker 1: So how is that case playing in here?
[27:10] Speaker 4: So a couple of things. The Apache strongholds petition for
[27:14] Speaker 4: reconsideration relies heavily on the intervening decision in Mahmood because
[27:21] Speaker 4: there are similar impacts of the government policy that's challenged there.
[27:27] Speaker 4: In Mahmood, we had the Supreme Court recognize very, very
[27:31] Speaker 4: vehemently that when we limit parents' abilities to bring up
[27:37] Speaker 4: their children, to raise their children in ways that are
[27:40] Speaker 4: consistent with their religious beliefs, we are violating their First
[27:43] Speaker 4: Amendment rights. That is a substantial burden, and it has
[27:46] Speaker 4: to go through the relevant analysis for when and how
[27:50] Speaker 4: such burdens are limited and when they're allowed to go forward.
[27:53] Speaker 4: That type of test has not been applied yet to
[27:56] Speaker 4: the challenged law to the Land Exchange Act in a
[27:59] Speaker 4: Patchie stronghold. What we've been through so far is the
[28:02] Speaker 4: preliminary injunction analysis, So we haven't had the full the
[28:06] Speaker 4: full review of an application of the relevant legal standards
[28:10] Speaker 4: for what's permissible when.
[28:12] Speaker 1: And how So, what's happening right now? What stage are
[28:17] Speaker 1: you at.
[28:18] Speaker 4: The Apache stronghold motions to reconsider and grant curtari and
[28:23] Speaker 4: remand the case back to night Circuit is not decided yet.
[28:26] Speaker 4: But we also have a new case that has been
[28:28] Speaker 4: filed by a group of Apache women, mothers and daughters
[28:33] Speaker 4: that really found it claims in similar issues and similar
[28:38] Speaker 4: analysis to what the Supreme Court decided in Mahmoud. The
[28:42] Speaker 4: Land Exchange app will burden through free exercise rights of
[28:47] Speaker 4: especially APACHE women right because it's limiting APACHE women from
[28:52] Speaker 4: having the ability to become women in ways that are
[28:55] Speaker 4: consistent with their religious beliefs. It's limiting APACHE mothers from
[29:00] Speaker 4: bringing their daughters into womanhood as required by their religious beliefs.
[29:05] Speaker 4: And so there's you know, a real consistency with the
[29:08] Speaker 4: impact in the burden on a religious freedom interest there
[29:13] Speaker 4: as what we saw the Supreme Court limit in Mahmoud.
[29:16] Speaker 4: So that's a new case that was brought. First, it
[29:19] Speaker 4: was filed in the District of BC, it was transferred
[29:22] Speaker 4: into the District of Arizona. The District of Arizona court
[29:26] Speaker 4: ruled on preliminary injunction motions from both the plaintiffs in
[29:30] Speaker 4: this new case, Lopez versus the United States. The judge
[29:34] Speaker 4: subsequently ruled against those three motions that were pending for
[29:39] Speaker 4: injunctive relief. Plaintiffs immediately appealed to the Ninth Circuit Court
[29:44] Speaker 4: of Appeals. The Ninth Circuit Court of Appeals issued an
[29:49] Speaker 4: emergency injunction basically preventing the land transfer. The land transfer
[29:54] Speaker 4: was about to take place, put the cases on an
[29:56] Speaker 4: expedited briefing schedule, and so we're now in the middle
[30:00] Speaker 4: of that briefing to the Ninth Circuit or a argument
[30:03] Speaker 4: will probably take place early this fall and we'll see
[30:07] Speaker 4: how the Ninth Circuit resolves this issue going forward. So, yeah,
[30:10] Speaker 4: there's still a lot going on. There's still a lot
[30:13] Speaker 4: of activity surrounding various parties claims in relation to the
[30:18] Speaker 4: final disposition of Oak Flat. There are still cases pending
[30:22] Speaker 4: in the Ninth Circuit, and the Supreme Court itself has
[30:25] Speaker 4: not rolled on the motions filed by Apache Stronghold. After
[30:29] Speaker 4: the certain denial.
[30:30] Speaker 1: The tribal groups have not fared well at the Ninth Circuit.
[30:33] Speaker 4: Sort of the bigger picture things that are going on
[30:38] Speaker 4: here in the American West, Right, we're in the Ninth Circuit.
[30:41] Speaker 4: As Justice Gorsich pointed out in his dissent, the Ninth
[30:45] Speaker 4: Circuit encompasses more Native American people, more Indigenous religious practitioners
[30:51] Speaker 4: than any other federal district. Right, and we have more
[30:54] Speaker 4: federal land in the Ninth Circuit than in any other
[30:58] Speaker 4: federal circuit. This means that we have a lot of
[31:00] Speaker 4: conflicts right in federal land management decisions, which you know,
[31:05] Speaker 4: are all landscapes that were indigenous not very long ago,
[31:09] Speaker 4: and where practitioners maintained relationships with places and events that
[31:14] Speaker 4: take place on the land. So these conflicts are frequent.
[31:18] Speaker 4: And the other thing that I think people aren't fully
[31:22] Speaker 4: cognizant of is the fact that you know, the party
[31:26] Speaker 4: with the most to gain here if the status quo
[31:30] Speaker 4: is perpetuated is Resolution Copper. Resolution Copper is not a
[31:35] Speaker 4: domestic company. This isn't a project that is going to
[31:38] Speaker 4: immediately enrich the United States of America or its citizens.
[31:43] Speaker 4: It's a foreign held mining company. It's what a British
[31:45] Speaker 4: and Australian corporation. The largest shareholder of Resolution Copper is Chinalco,
[31:51] Speaker 4: which is owned by the Chinese government. So when we
[31:54] Speaker 4: talk about these mining projects being so essential to national
[31:58] Speaker 4: security and the interests of energy security in the United States,
[32:04] Speaker 4: if you dig a little bit deeper, you see that
[32:06] Speaker 4: the things that we're compromising fundamental rights of Americans or
[32:12] Speaker 4: aren't really that compelling to the federal government's interests or
[32:15] Speaker 4: the interests of mainstream society in America. When it comes
[32:18] Speaker 4: down to it, we'll.
[32:19] Speaker 1: See what happens at the Supreme Court the second time around.
[32:23] Speaker 1: Thanks Heather. That's Heather white Man runs him director of
[32:26] Speaker 1: the Tribal Justice Clinic at the University of Arizona. And
[32:30] Speaker 1: that's it for this edition of the Bloomberg Law Show.
[32:33] Speaker 1: Remember you can always get the latest legal news on
[32:35] Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[32:40] Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,
[32:45] Speaker 1: and remember to tune into the Bloomberg Law Show every
[32:48] Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso
[32:52] Speaker 1: and you're listening to Bloomberg

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