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Native activist gets new hearing over 'religious freedom' defense in Az border wall protest case

A federal judge agreed to reconsider ruling over how a law intended to protect religious freedom may shield a Southern Arizona border activist from prosecution after she was arrested last year while protesting the construction of the border wall near Quitobaquito Springs.

In November, Amber Ortega faced trial on two federal charges stemming from her her arrest on the Organ Pipe Cactus National Monument in September 2020, when she attempted to block border wall construction near the sacred water-source. During her court hearing, Ortega testified that she acted without hesitation" to block border wall construction near Quitobaquito Springs because she believed she needed to protect the land from being "desecrated."

However, Ortega argued that her actions are protected because she was acting out of sincere religious belief, and that she should be protected by the Religious Freedom Restoration Act, a 1993 law passed by Congress intended to keep the federal government from adding to a "substantially burden" a person's exercise of religion." 

Ortega and Nellie Jo David were arrested on September 9, 2020, by National Park Service officers just beyond Quitobaquito — about 120 miles southwest of Tucson — and charged with two misdemeanors, including interfering with federal function and violation of a closure order.

Ortega said that the two women went to Quitobaquito Springs to pray, but they heard construction along the wall within a mile of the protected water-source, and so they attempted to block construction on the border wall by physically putting themselves in the way. During the incident, Ortega yelled at federal officers and contractors to "cease and desist" from continuing with a 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 blocking construction vehicles on West Border Road was guided by sincerely held religious and cultural beliefs, and that her actions should be protected under RFRA.

During the trial, Ortega said she was acting out a sincerely held religious belief that the natural spring, and the land surrounding it, remains 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."

Ortega, who is O'odham, said that Quitobaquito Springs is 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 gravesites. Before border wall construction, Quitobaquito was a site of religious ceremonies and a place of prayer, she said.

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However, she argued that her actions should be protected by the Religious Freedom Restoration Act, a 1993 law passed by Congress which states that the federal government may not "substantially burden a person's exercise of religion." 

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 president's promised border wall as fast as possible, ignoring congressional wishes and the financial, environmental and cultural costs of the effort.

The prosecutions have continued under the Biden administration, and despite a public campaign by activists that—like many previous efforts—failed to push the U.S. Attorney's Office to halt the case against the two women.

Two weeks after the trial, U.S. Magistrate Judge Leslie A. Bowman ruled against Ortega, rejecting her defense claim, as well as the testimony of Tohono O'odham elder, who highlighted the sacredness of Quitobaquito Springs. In her ruling, Bowman accepted the government's arguments that the Religious Freedom Restoration Act did not protect Ortega from prosecution, however, she said she "may consider it for purposes of motive and mitigation."

During the trial, Lorraine M. Eiler, an elder and former member of the Tohono O'odham's Legislative Council, who described the importance of Quitobaquito to the Hia C-ed O'odham. While Eiler's testimony will not be considered in her decision about Ortega's guilt or innocence, the judge wrote that the court "may consider it for purposes of motive and mitigation."

Bowman ruled that the defense had failed to established the case that following the orders of the two National Park Service rangers would impose a substantial burden on Ortega's ability to act in accordance with her sincerely held beliefs. Further, Ortega needed to show how "her presence in the closed area and her disruption of the construction project was an exercise of her sincerely held religious beliefs."

Ortega had access to Quitobaquito Springs, Bowman wrote, even during the closure period and that there was "no evidence presented that proved that the government interfered" with her prayers or ceremony at Quitobaquito that day, "other than the distant sound of the heavy machinery." She said that Ortega "left the springs where she was praying and entered the closed construction area." There park rangers "advised Ms. Ortega that the area under construction was closed to the public and she was instructed to leave, or she would be arrested," Bowman wrote.

Bowman's decision made it likely that she will find Ortega guilty in the case. However, Ortega's new lawyer—Amy Knight—filed a new motion on Dec. 8, arguing that Bowman misapplied RFRA when making her decision. 

"The act of defending sacred ancestral lands (in addition to spiritual activities that occur on those lands) is very much a part of the religious practice of many O'odham people," Knight wrote, and she warned the court against applying a Euro-centric vision of sacredness because RFRA "encompasses not only acts of explicit worship, prayer, or ceremony, but actions that form a part of a religion's teachings."

Bowman agreed without a motion, but ordered a new hearing on Jan. 19, 2022, giving Ortega another shot to prove that her protest at Quitobaquito Springs is protected. 

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Knight rides in

Knight was one of two lawyers involved in the successful defense of Scott Warren, an Arizona State University geography professor, who faced federal misdemeanor charges after he and eight other members of No More Deaths entered the Cabeza Prieta National Wildlife Refuge in Southern Arizona and left food and water. 

Warren was cited with operating a motor vehicle in a wilderness area because he drove a white Dodge Ram pickup along an administrative road closed to the public, and for abandonment of property because he and the other members of his group left one-gallon plastic water bottles, cans of beans, blankets, and other supplies near Charlie Bell Well, a remote water station established by ranchers that is now resupplied periodically for animals in the 800,000-acre refuge. 

During his trial, Warren argued that he was leaving food, water, clothing and other humanitarian supplies in the desert to mitigate the deaths of people who attempt to cross the remote and hostile wilderness, and argued that he was compelled to act because leaving water and food is a "sacred act."

In 2020, U.S. District Judge Raner Collins agreed, and ruled that Warren was protected from prosecution because of the Religious Freedom Restoration Act. 

A similar decision was reached that same month by U.S. District Judge Rosemary Marquez, who ruled that four other members of No More Deaths had successfully established that they were exercising "sincere religious beliefs" when they placed water and food for migrants in Cabeza Prieta.

Knight filed a motion with the court, asking Bowman to reconsider her ruling that testimony regarding RFRA will not be admitted and considered on the question of guilt or innocence.

Knight wrote that the application of RFRA is "complex, and often fact-specific," adding that there was a "significant body of law interpreting each of its requirements" and that Bowman was "provided with very little briefing on the subject, and did not identify and correctly apply the governing law."

Knight added that Bowman's decision contained "three significant errors." 

"First, it applies the RFRA analysis to the wrong government action," Knight wrote. "Second, it badly misapprehends the nature and scope of the exercise of religion being asserted. Third, it misunderstands RFRA's 'substantial burden' requirement," Knight wrote.

Navajo Nation case misapplied

As part of her decision, Bowman referred to a court case involving the Navajo Nation, which sued the U.S. Forest Service over a plan to manufacture and distribute artificial snow using treated sewage water for the Snowbowl ski resort. 

During Ortega's trial, assistant U.S. Attorney Vincent J. Sottosanti argued that Ortega's personal beliefs were "irrelevant," and that an individual should not block the federal government from "improving" its own land. Rather, she should have pursued legal avenues to stop the government, including filing an injunction in court, he argued, and he highlighted the case involving the Navajo Nation. 

"We can do whatever we want with our own land," Sottosanti said, referring to the federal government.

While the 9th Circuit first accepted the Navajo argument that spraying wastewater on the mountain conflicted with the religious beliefs of the tribes, in 2007, a full panel at the 9th Circuit of Appeals ruled against the tribe, ruling that that the federal government's plan did not force the tribe's 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.

And, he referred to the Jan. 6 insurrection at the U.S. Capitol, arguing that protestors who didn't like the election results could enter a "closed federal area" to seek prayer. Ortega, he said, "entered a closed area to get the result she wants to get the border wall to stop. She's not allowed to do that."

However, Knight argued that Bowman had misapplied the 9th Circuit's ruling. 

"There, the question was whether the government could use artificial snow made in small part from recycled wastewater on federal land over the objection of a tribe for whom that action desecrated religiously significant land," Knight wrote. "The equivalent here would be if Ms. Ortega had sued to enjoin the construction of the wall, because it offended her religious beliefs." 

"She has done no such thing. She asks only that she not be imprisoned, restricted in her liberty, or fined by the government for vocally and physically objecting to that construction—actions very much encompassed in her religion," Knight wrote. 

She went further, arguing that whether Ortega was "able to engage in prayer at a particular sacred site with the construction ongoing nearby addresses the effect of the construction on her exercise of religion. This Court should instead assess whether criminal prosecution for the particular actions she is accused of taking—entering the area and refusing to leave—substantially burdens her religious exercise." 

"And if those particular actions were a part of her religious exercise, then it obviously does," Knight wrote. 

She said that the government was able to remove her from the area, and continue with construction, but that the government's attempt to prosecute Ortega for her "religiously motivated action accomplishes nothing, let alone a compelling government interest that can be accomplished no other way," Knight wrote. "And it is the validity of the prosecution, not the legality of the construction project, that this Court must decide."

Spiritual site for O'odham at heart of case

Beginning in August 2019, contractors working for the U.S. Army Corps of Engineers and Customs and Border Protection worked west from the Lukeville border crossing 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."

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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," Ortega said.

Judge: Ortega 'spiritually wounded' but closure order did not substantially burden her beliefs

While Bowman's ruling tossed out Ortega's defense that she faced a substantial burden to the practice of her religion, she accepted that Ortega was "disturbed by the destruction and desecration of the land near the springs."

Bowman did not ignore Ortega's testimony, writing in her ruling Ortega was "spiritually wounded by the knowledge that the border wall was going to interrupt access of tribal members to their ancestral lands and that important medicinal plants would be destroyed."

"Construction of the border wall raised painful memories of the harms suffered by native people at the hands of the government throughout history," she said, adding that her testimony was "emotional and heartfelt."

"There is no question that her suffering is genuine and is rooted in her sincerely held religious beliefs," Bowman wrote. "However, the defense was unable to prove" that on September 9, 2020 "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."

Knight challenged Bowman's ruling based on access to Quitobaquito Springs. "That is far too narrow an understanding of the religious access at issue here and limiting consideration to only physical access to a very specific site fails to afford Ms. Ortega the protection Congress intended to afford her when it enacted RFRA." 

"The court should not contribute to the development of a body of RFRA law biased toward activities easily recognizable to European-descended Americans as prayer," Knight wrote. "RFRA quite plainly encompasses not only acts of explicit worship, prayer, or ceremony, but actions that form a part of a religion's teachings."

The court simply cannot assume that religious practices at a ceremonial site can occur without substantial burden simply because there is physical access," Knight wrote. "The physical desecration of the surrounding area, the presence of heavy machinery, and the erection of an enormous wall on sacred lands fundamentally disrupt the spiritual experiences Ms. Ortega has in those places, even if she is physically able to access a particular sacred site." 

Knight said that the religious practices of the Hia C-ed O'odham places "great importance on the natural world and the relationship between people and the land on which they exist. Visibly and audibly disrupting that land has a devastating impact on the ability to engage in that sacred communion whether or not Ms. Ortega could physically put her feet at one particular sacred site." 

"But perhaps more to the point, the court's analysis ignores entirely the inescapable fact that the act of defending the land is itself an exercise of religion," Knight said. "The act of defending sacred ancestral lands (in addition to spiritual activities that occur on those lands) is very much a part of the religious practice of many O'odham people," she wrote. 

"Regardless of whether she has any legal entitlement to actually stop the construction, she absolutely has a legal entitlement to engage in her religious practice of expressing her resistance to the desecration of her sacred ancestral lands and seeking to protect them—even if those efforts must ultimately prove unsuccessful," Knight wrote. "The fact that those acts were against the law does not change their fundamentally religious nature; indeed, it is that very fact that necessitates a statute like RFRA to begin with." 

"In this case, before this court, Ms. Ortega is not asking the government to cease its construction activities," Knight wrote. "RFRA protect not only the religions white settlers brought with them across the oceans; it protects the religious and spiritual practices of the people who were already here, among them, defending the land. Let us not be the country that runs roughshod over the lives, lands, and spiritual practices of any people who happen to be in our way and then punishes them for resisting." 

While Ortega waits for a new hearing, Bowman ruled that she remains released on her own recognizance and will no longer have to report to pretrial services.

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Paul Ingram/TucsonSentinel.com

Amber Ortega, just outside the federal courthouse in Tucson on Nov. 4, 2021.

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