Latest / Bloomberg Law / Tribal Suits Over Sacred Sites & EPA Weakens Regs

Transcript

Tribal Suits Over Sacred Sites & EPA Weakens Regs · Bloomberg Law

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