lvgaldieriGorsuch’s Snail Darter Argument
The Supreme Court this morning denied certiorari in Apache Stronghold v. US. This looks like the end of the road, at least the legal road, for this case. It also signals the start of something else: in short order, the Final Environmental Impact Statement for Resolution’s mine will be published, and that will trigger the transfer of Oak Flat to two foreign mining companies, Rio Tinto and BHP, joint owners of Resolution Copper.
(For more background, see this post, this, this, and this.)
Only Gorsuch and Thomas dissented; Alito did not participate. Gorsuch’s dissent is worth reading in its entirety. Here, I want to call out just one of his arguments. He’s pushing hard against the Ninth Circuit’s reasoning that the “disposition” of federal land does not substantially burden the free exercise of religion (even if the land in question happens to be essential to the exercise of that religion, as Oak Flat is to the Western Apache).
The truth is, Congress has adopted all sorts of laws restricting the government’s power to dispose of its real property. Take just one example, the Endangered Species Act. That law, this Court once held, required the government to halt “operation of a virtually completed federal dam” to protect the endangered “snail darter,” a “previously unknown species of perch.” TVA v. Hill, 437 U. S. 153, 156, 158 (1978). The Court read the Act to require that result even though Congress had spent more than $100 million on the dam—nearly half a billion in today’s dollars—and our holding effectively “‘divest[ed] the Government of its right to use what is, after all, its land.’” 101 F. 4th, at 1051 (quoting Lyng, 485 U. S., at 453). If Congress went to such lengths to accommodate the snail darter, why should we suppose it offered less protection to people practicing an ancient faith?
I get it, but the argument makes me uneasy. It comes close to holding the Endangered Species Act up to ridicule, and at a moment when the Act itself is under serious threat. Just last month, the Trump administration proposed a new rule that would change the definition of “harm” under the Act, such that habitat destruction would not constitute harm.
The federal government’s disposition of its real property often threatens the habitats of endangered species, as it did in Tennessee Valley Authority v. Hill, the case to which Gorsuch refers here. Were the Trump administration’s new rule in effect, the case would have gone the other way, or never have been brought at all. I imagine Gorsuch will revisit this argument, and say more about whether he considers the accommodations of the Endangered Species Act reasonable or ridiculous, should this new interpretation of the Act come before the Court.
Type your email…
Subscribe
#RIO #ApacheStrongholdVUS #EndangeredSpeciesAct #extractiveIndustry #habitat #NeilGorsuch #SupremeCourt
Emeritus Prof Christopher May
anna_lillith 🇺🇦🌱🐖
Gladwyn d’Souza
Christian Testa
Viola von Cramon 🇺🇦🇪🇺
JD
Brian Small
Claude Rioux
Anthropology Article AI Art🖼️