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Native activist found not guilty in border protest after new arguments on religious freedom defense

Federal judge reverses course on Amber Ortega's Religious Freedom Restoration Act defense

Amber Ortega, a Southern Arizona border activist facing two federal charges for protesting the construction of the border wall near Quitobaquito Springs, was found not guilty by a federal judge on Wednesday.

Following a short motions hearing, U.S. Magistrate Judge Leslie A. Bowman ruled that the federal government had imposed a "substantial burden" on Ortega's exercise of her religious faith by closing access to the border road that runs just south of Quitobaquito Springs — an area that remains central to the spiritual practices of the Hia C-ed O’odham.

The on-the-spot change in the verdict felt like "a dream," Ortega said.

Ortega and her friend and mentor Nellie Jo David were arrested on Sept. 9, 2020, by National Park Service officers just beyond Quitobaquito — about 120 miles southwest of Tucson — and charged with two misdemeanors, including interfering with an agency function and violating a closure order, after they attempted to block construction on the border wall by physically putting themselves in the way. Video from the incident shows Ortega yelling at federal officers and contractors to "cease and desist" from continuing with the massive construction project in the fragile desert area.

David accepted a plea deal in June, agreeing to probation and a $200 fine. However, Ortega has pushed forward with her case, arguing that her protest that blocked construction vehicles on West Border Road was guided by sincerely held religious and cultural beliefs, and that her actions should be protected under federal law.

On Nov. 4, Ortega faced a bench trial, and she argued that she acted "without hesitation" to block border wall construction near the spring because she believed she needed to protect the land from being "desecrated." She told the court that the natural spring, and the land surrounding it, remain an important part of the spiritual life of the Hia C-ed O’odham. The land "holds our history," Ortega said, and until border wall construction began in 2019, the land remained "unharmed" since "time immemorial."

Quitobaquito has been a part of the religious and cultural history of the region, and is an important site for the Hia C-ed O’odham, who lived in the area well into the 1950s, and members still use the springs as site for food gathering and sacred ceremonies. As Gary Nabhan, a University of Arizona research scientist, noted, perhaps the first Palm Sunday mass in Arizona was conducted at Quitobaquito by the celebrated Jesuit Padre Eusebio Francisco Kino in 1698 or 1699.

Bowman's decision was a reversal of her earlier decision, made on Nov. 18, when she ruled that she would not consider the testimony of a Tohono O'odham elder presented as part of Ortega's defense during a trial several days earlier, and further, that Ortega was "unable to prove at trial" that the government imposed a substantial burden on her exercise of her religion by blocking access to a nearby corridor of land sealed off for the construction of Trump's border wall.

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Ortega's defense hinged on Religious Freedom Restoration Act, a law passed by Congress in 1993 which states that the federal government may not "substantially burden a person's exercise of religion."

This defense has been used by other activists in Southern Arizona in recent years, arguing that their religious faith to protect migrants in the desert should protect them from prosecution for leaving food, water and other humanitarian supplies along federally-protected land.

Bowman made her decision after Ortega's new lawyer, Amy Knight, attacked the government's case against her client in a motion, and asked Bowman to reconsider her decision, arguing that the judge had misapplied the law and overlooked facts in the case that lead the court to make "manifest errors."

"I feel like I'm here a second time, making the same arguments I did the last time," said Assistant U.S. Attorney Vincent J. Sottosanti. "There aren't any new facts, there's no new law."

Even in November, Bowman had already accepted many of Ortega's claims, writing that "there is no question" that Ortega's "suffering is genuine and is rooted in her sincerely held religious belief."

"However, the defense was unable to prove" that on Sept. 9, "the closure order and the ranger’s lawful order that Ms. Ortega leave the construction zone imposed a substantial burden on her ability to engage in her religious activities," she said.

In video published online after the incident by the O’odham Anti-Border Collective and Defend O’odham Jewed—using the Tohono O'odham word for land — David can be seen sitting in the scoop of bulldozer on a road freshly carved out of the national monument. As she sat, Ortega yelled from off-camera, demanding that Border Patrol agents, construction workers, and Park Service law enforcement officers leave.

"Keep this destruction out of here," Ortega said. "They are going to destroy everything we have."

"We need you to cease and desist, take your machines with you, take your weapons with you, take everything you are with you. Take it back," she said.

After hearing from both Knight and the government, Bowman agreed to grant Knight's motion to reconsider her decision, stating that the court had overlooked or misapprehended the law in Ortega's case. Further, Bowman decided to accept the testimony from Ortega and  Lorraine Eiler — an elder and former member of the Tohono O'odham Legislative Council — who was presented as an expert witness.

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"In light of that new evidence, the prosecution of Ortega did impose a substantial burden on the exercise of her religion," said Bowman. "The government has no compelling interest," she ruled to arrest and prosecute Ortega for her protest, and the government failed to use "the least restrictive means" to keep Ortega from halting construction. This means that Ortega is not guilty, Bowman said.

After Bowman announced Ortega not guilty, supporter sighed and sobbed, and then filed into the courthouse hallway where their sighs turned to cheers and whoops that echoed through the long hall.

Ortega said that she was surprised by the decision, adding that it felt like a "dream."

"It didn't feel real at all," she said. She said that prosecutors had acted "as if we lost and it's a done deal. And, it was really hard to read the judge's body language, so I did not expect that at all. But, I'm super grateful."

Ortega also claimed not only a personal victory, but a wider one for indigenous people, arguing that Bowman's decision would help shield land and water protectors, and help protect the O'odham Himdag—or the people's way of life.

"This says we can unite in divided circumstances and fight for acknowledgement," she said. "This means so much more than people who are around, it means something for the future," Ortega said. "This means that those who were shut out of the federal court building in history," she said, "are still alive, we're active and fighters. We have a voice, we have a family, we have a tribe."

"It's just the beginning of our people continuing to come together on matters we've been left out from," Ortega said.

"The government got its ass kicked, and they'll remember that for a long time," said David Garcia, a Tohono O'odham elder and supporter.

"Construction of the border wall inflicted permanent damage to Quitobaquito Springs and other sacred sites for the O'odham," said Ned Norris, Jr. the chairman for the Tohono O'odham Nation. "We appreciate that the court corrected its earlier error and recognized that protesting this great harm met the requirements for defense under the Religious Freedom Restoration Act."

"This desecration should not have happened and can never be allowed to happen again," he said. "The nation will continue to advocate for stronger legal protections of sacred places for the O'odham and all tribes."

Knight said that a decision from the bench was always a possibility, but she was still "surprised" by Bowman's ruling on Wednesday.

"I was surprised that she issued her verdict on the spot," she said. "We knew that was a possibility, but I was anticipating that she would keep it under advisement and issue a new ruling," said Knight. "I guess she decided that wasn't necessary."

The judge's shift was welcomed by Southern Arizona's Democratic congressman.

"Amber Ortega's not guilty verdict is welcome news," said U.S. Rep. Raúl Grijalva. "I support her for demonstrating her right to protest the construction of an illegal, wasteful border wall and the Trump administration's abuse of power in order to protect a sacred site integral to the Tohono O'odham Nation."

"We have a responsibility to native tribes and must protect their sacred sites and cultural heritage to preserve the shared history of America," he said.

Shield law becoming 'a sword'

Knight argued in court that it was a "complicated statute" that and applies in different ways and in different contexts. During the previous hearing in November, the government that a previous case involving the Navajo Nation showed that the Religious Freedom act could not keep the government from "improving" its own land, however, Knight said that that was a civil case, and Ortega's case was criminal, which shifted the burden of proof from Ortega to the government.

During the trial in November, Sottosanti argued that the federal government can "improve" public land, "however it sees fit," and that it is limited only by federal laws and policies.

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He referred to a 2007 case decided by the 9th Circuit of Appeals, in which the Navajo Nation sued the U.S. Forest Service over a plan to manufacture and distribute artificial snow using treated sewage water for the Snowbowl ski resort. While the 9th Circuit first accepted the Navajo argument that spraying wastewater on the mountain conflicted with the religious beliefs of the tribes, a full panel overturned this decision ruling that the federal government's plan did not force the tribe members to choose between their individual beliefs or government benefits, or act contract to their religious beliefs under a threat of civil or criminal sanctions.

Sottosanti said that the decision in Navajo Nation v. U.S. Forest Service undermined Ortega's arguments.

"The facts are not great in terms of what was happening," he said, arguing that the Forest Service planned to "spray wastewater all over most sacred mountain in northern Arizona."

"They can do that, they can destroy the spiritual-ness of this mountain," he said, even after the tribes "did the legal thing." As Sottosanti summarized the case, the government didn't interfere with the prayer of the Navajo people, and he said, "it doesn't matter, we can do whatever we want with out own land." The spring was not subject to the closure order, so Ortega could "freely go and pray at the spring," he said, adding that "nothing the government did interfered with that."

"Even if that plan would damage or interfere significantly with that land, or destroyed that land—its the federal government's land," he said.

However, Knight rejected this argument, noting that the Navajo Nation's case was a civil case, while Ortega's case involved her personal actions in a criminal trial.

"This is a criminal case where they government is prosecuting an individual for something they were doing, it's just a very different context," Knight said, adding that the government was seeking to add a "substantial burden" on Ortega for practicing her religious faith. "Prosecution is inherently a writ of sanction, and that's a substantial burden," Knight said.

She argued that the government needed to prove that it had a compelling interest to remove Ortega, and argued that simply stating there were safety concerns because of construction weren't enough, rather the federal government needed to identify an interest where "applying this burden to this person in this situation also furthers that interest."

Sottosanti argued that safety concerns drove the government's decision to close the border road, and further, he argued that RFRA shouldn't put the government in the position to further a person's religious faith. Further, he worried that RFRA shouldn't be used to stop the government to do something that's legal under federal law.

"Generally, RFRA cases in general show RFRA as a shield against government action," he said. "But, the defendant is using RFRA as a sword to stop the government to do something."

Quitobaquito a spiritual site for O'odham

Ortega, who is O'odham, testified in November Quitobaquito Springs is the spiritual heart of her people, a place that "holds healing and strength for our people," and that she has visited the site since she was child. The spring is not just a natural cathedral, but once supported a village where her ancestors lived, and also includes grave-sites. Before border wall construction, Quitobaquito was a site of religious ceremonies and a place of prayer, she said.

Construction around Quitobaquito became a lightning rod for criticism over the border wall project, as the Trump administration attempted to build as much of the ex-president's promised border wall as fast as possible, ignoring congressional wishes and the financial, environmental and cultural costs of the effort.

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Beginning in August 2019, contractors working for the U.S. Army Corps of Engineers and Customs and Border Protection worked west from the Lukeville Port of Entry to build a 43-mile span of border wall along the southern boundary of 330,000-acre national monument. Workers dismantled old barriers, including an 18-foot high wall made of steel screens, as well as low-bollard and X-shaped Normandy barriers intended to keep vehicles from simply driving into the U.S. from Mexico's Highway 2, which runs parallel to the international border there. Contractors replaced the old "outdated" barriers with a new 30-foot-high "bollard wall," part of a massive construction effort to build nearly 700 miles of "primary" border wall under the Trump administration.

As part of the construction, contractors slashed through saguaro cacti and shattered the rocky mantle of the nearby Monument Hill with explosives to install the new wall.

In Arizona, border wall projects affected six different areas of federally reserved land, including the monument, as well as the Cabeza Prieta Wildlife Refuge just to the west. Organ Pipe has been hailed as a "pristine example of an intact Sonoran Desert ecoystem," and was designated as a UNESCO International Biosphere Reserve in 1976.

In November of that year, hundreds of people journeyed to Organ Pipe to protest the construction, after contractors carved up the desert with bulldozers and earth-movers, carving a pathway for construction along the 60-foot-wide Roosevelt Reservation—an easement of land that is controlled by the federal government along the borders of California, Arizona, and New Mexico. Some saguaros were purposely destroyed, while others were marked for removal, while contractors dug up or tore through mesquite trees and other desert flora to continue the project.

During the construction, the park superintendent closed the road, including about 12 miles of the West Border Road along the Roosevelt Reservation from Monument Hill to Quitobaquito Springs. This included "crossover roads" connecting South Puerto Blanco Drive to the border road. The government argued the closure "was in response to public safety concerns associated with border infrastructure construction activity."

Federal religious freedom law

The Religious Freedom Restoration Act may have been crafted as legislation for religious conservatives, but in recent years the law, which states that the government may not "substantially burden a person's exercise of religion," has been used as a defense for liberal and left-wing activists in Arizona's southwestern deserts.

In 2020, U.S. District Judge Rosemary Marquez reversed the conviction of four members of No More Deaths, ruling that the members of the humanitarian aid group successfully established they were exercising "sincere religious beliefs" when they placed water and food for migrants in Arizona's protected Cabeza Prieta National Wildlife Refuge in the summer of 2017.

Similarly, U.S. District Judge Raner C. Collins—the senior judge for the District of Arizona— ruled that Scott Warren, an activist facing federal misdemeanor charges for leaving food, water, clothing and other humanitarian supplies in the desert was protected from prosecution because of RFRA. During trial, Warren argued that leaving water and food to help mitigate the deaths of people who attempt to cross the remote and hostile wilderness, was a "sacred act."

Collins wrote that while "it was clear that the government had presented sufficient evidence beyond a reasonable doubt to prove the two charges," Warren's religious belief "functions as a successful affirmative defense."

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Paul Ingram/TucsonSentinel.com

Amber Ortega outside the federal courthouse in Tucson on Wednesday afternoon

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