NAVAJO NATION; Havasupai Tribe; Rex Tilousi; Dianna Uqualla; Sierra Club; White Mountain Apache Nation; Yavapai-Apache Nation; The Flagstaff Activist Network, Plaintiffs-Appellants, and Hopi Tribe, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; Nora Rasure, in her official capacity as Forest Supervisor, Responsible Officer, Coconino National Forest; Harv Forsgren, appeal deciding office, Regional Forester, in his official capacity, Defendants-Appellees, Arizona Snowbowl Resort Limited Partnership, Defendant-intervenor-Appellee.
Nos. 06-15371, 06-15436, 06-15455
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 11, 2007. Filed Aug. 8, 2008.
535 F.3d 1058
We hold, therefore, that the FCA does not preempt state claims brought pursuant to
IV. CONCLUSION
Having concluded that there is no federal preemption of Appellant‘s state law claims, this court is of the opinion that the matter should be vacated and remanded to the district court for a determination of whether it has subject matter jurisdiction over Appellant‘s claims.
VACATED AND REMANDED.
Catherine E. Stetson (argued), Andrew L. Spielman, Hogan & Hartson LLP, Washington, DC; Janice M. Schneider, Latham & Watkins LLP, Washington, DC; Sue Ellen Wooldridge, Matthew J. McKeown, Andrew C. Mergen, Kathryn E. Kovacs, Lane M. McFadden (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, DC; Philip A. Robbins, Paul G. Johnson, Michael J. O‘Connor, John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix, AZ, for the defendants-appellees.
Geraldine Link, National Ski Areas Association, Lakewood, CO; Ezekiel J. Williams, Jacy T. Rock, Faegre & Benson LLP, Denver, CO; Glenn E. Porzak, P. Fritz Holleman, Eli A. Feldman, Porzak Browning & Bushong LLP, Boulder, CO; for the National Ski Areas Association as Amicus Curiae in Support of the defendants-appellees.
William Perry Pendley, Mountain States Legal Foundation, Lakewood, CO; for the Mountain States Legal Foundation as Amicus Curiae in Support of the defendants-appellees.
Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, DIARMUID F. O‘SCANNLAIN, PAMELA ANN RYMER, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, W. FLETCHER, RAYMOND C. FISHER, RICHARD R. CLIFTON, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.
Opinion by Judge BEA; Dissent by Judge WILLIAM A. FLETCHER.
BEA, Circuit Judge:
In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow.1 The Plaintiffs claim
* * *
Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion.2 They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use.
Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden“—a term of art chosen by Congress to be defined by reference to Supreme Court precedent—on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.
Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of
“[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government—let alone a government that presides over a nation with as many religions as the United States of America—could function were it required to do so. Lyng v. Nw. Indian Cemetery Protective Ass‘n, 485 U.S. 439, 452, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).
I. Factual and Procedural Background3
The Snowbowl ski area (“the Snowbowl“) is located on federally owned public land and operates under a special use permit issued by the United States Forest Service (“the Forest Service“). Navajo Nation v. U.S. Forest Serv., 408 F.Supp.2d 866, 883-84 (D.Ariz.2006). Specifically, the Snowbowl is situated on Humphrey‘s Peak, the highest of the San Francisco Peaks (“the Peaks“), located within the Coconino National Forest in Northern Arizona. Id. at 869, 883. The Peaks cover about 74,000 acres. Id. at 883. The Snowbowl sits on 777 acres, or approximately one percent of the Peaks. Id. at 883-84.
The Forest Service designated the Snowbowl as a public recreation facility after finding the Snowbowl “represented an opportunity for the general public to access and enjoy public lands in a manner that the Forest Service could not otherwise offer in the form of a major facility anywhere in Arizona.” Id. at 884. The Snowbowl has been in operation since the 1930s and is the only downhill ski area within the Coconino National Forest. Id.
The Peaks have long-standing religious and cultural significance to Indian tribes. The tribes believe the Peaks are a living entity. Id. at 887. They conduct religious ceremonies, such as the Navajo Blessingway Ceremony, on the Peaks. Id. The tribes also collect plants, water, and other materials from the Peaks for medicinal bundles and tribal healing ceremonies. Id. According to the tribes, the presence of the Snowbowl desecrates for them the spirituality of the Peaks. Id. Certain Indian religious practitioners believe the desecration of the Peaks has caused many disasters, including the September 11, 2001 terrorist attacks, the Columbia Space Shuttle accident, and increases in natural disasters. Id.
This case is not the first time Indian tribes have challenged the operation of the Snowbowl. In 1981, before the enactment of RFRA, the tribes brought a challenge to the Forest Service‘s approval of a number of
The D.C. Circuit in Wilson rejected the Indian tribes’ challenge to the upgrades. Id. at 739-45. Although the court noted that the proposed upgrades would cause the Indians “spiritual disquiet,” the upgrades did not impose a sufficient burden on the exercise of their religion: “Many government actions may offend religious believers, and may cast doubt upon the veracity of religious beliefs, but unless such actions penalize faith, they do not burden religion.” Id. at 741-42. The Indian tribes have continued to conduct religious activities on the Peaks ever since. Navajo Nation, 408 F.Supp.2d at 884.
With this brief background, we turn to the Plaintiffs’ challenge in this case. In 2002, the Snowbowl submitted a proposal to the Forest Service to upgrade its operations. Id. at 885. The proposal included a request for artificial snowmaking from recycled wastewater for use on the Snowbowl. Id. The Snowbowl had suffered highly variable snowfall for several years; this resulted in operating losses that threatened its ski operation. Id. at 884-85, 907. Indeed, the district court found that artificial snowmaking is “needed to maintain the viability of the Snowbowl as a public recreational resource.” Id. at 907.
The recycled wastewater to be used for snowmaking is classified as “A+” by the Arizona Department of Environmental Quality (“ADEQ“).6 Id. at 887. A+ recycled wastewater is the highest quality of recycled wastewater recognized by Arizona law and may be safely and beneficially used for many purposes, including irrigating school ground landscapes and food crops. See
In addition to being used to make snow, the recycled wastewater also will be used for fire suppression on the Peaks. Navajo Nation, 408 F.Supp.2d at 886. The pipeline that will transport the recycled wastewater to the Snowbowl will be equipped with fire hydrants to provide water for fire suppression in rural residential areas and to fight forest fires. Id. Further, a reservoir of recycled wastewater will be kept on the Snowbowl for forest fire suppression. Id.
The Forest Service conducted an extensive review of the Snowbowl‘s proposal. As part of its review, the Forest Service made more than 500 contacts with Indian
Following the review process, the Forest Supervisor approved the Snowbowl‘s proposal, including the use of recycled wastewater to make artificial snow, and issued a Final Environmental Impact Statement and a Record of Decision in February 2005. Id. at 885-86. The Plaintiffs appealed the Forest Supervisor‘s decision approving the Snowbowl‘s proposal to an administrative appeal board within the Forest Service. Id. In June 2005, the Forest Service issued its final administrative decision and affirmed the Forest Supervisor‘s approval of the proposed upgrades. Id. at 886.
After their unsuccessful administrative appeal, the Plaintiffs filed this action in federal district court. The Plaintiffs alleged that the Forest Service‘s authorization of the use of recycled wastewater on the Snowbowl violates: (1) RFRA; (2) NEPA; (3) NHPA; (4) ESA; (5) the Grand Canyon National Park Enlargement Act (“GCEA“),
After an 11-day bench trial on the RFRA claim, the district court held that the proposed upgrades, including the use of recycled wastewater to make artificial snow on the Peaks, do not violate RFRA. Id. at 883, 907. The district court found that the upgrades did not bar the Plaintiffs’ “access, use, or ritual practice on any part of the Peaks.” Id. at 905. As a
A three-judge panel of this court reversed the district court in part, holding that the use of recycled wastewater on the Snowbowl violates RFRA, and in one respect, that the Forest Service failed to comply with NEPA. See Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1029 (9th Cir.2007). The panel affirmed the grant of summary judgment to the Defendants on four of five NEPA claims and the NHPA claim. Id. We took the case en banc to revisit the panel‘s decision and to clarify our circuit‘s interpretation of “substantial burden” under RFRA.
II. Standard of Review
We review de novo the district court‘s grant of summary judgment. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir.1999). We review the district court‘s conclusions of law following a bench trial de novo and its findings of fact for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir.2004).
III. Religious Freedom Restoration Act of 1993
Plaintiffs contend the use of artificial snow, made from recycled wastewater, on the Snowbowl imposes a substantial burden on the free exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993 (“RFRA“),
RFRA was enacted in response to the Supreme Court‘s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).10 In Smith, the Supreme Court held that the Free Exercise Clause does not bar the government from burdening the free exercise of religion with a “valid and neutral law of general applicability.” Id. at 879, 110 S.Ct. 1595 (citation and internal quotation marks omitted). Applying that standard, the Smith Court rejected the Free Exercise Clause claims of the plaintiffs, who were denied state unemployment compensation after being discharged from their jobs for ingesting peyote for religious purposes. Id. at 890, 110 S.Ct. 1595.
Congress found that in Smith, the “Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.”
(a) In general
Government shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person‘s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
To establish a prima facie RFRA claim, a plaintiff must present evidence sufficient to allow a trier of fact rationally to find the existence of two elements. First, the activities the plaintiff claims are burdened by the government action must be an “exercise of religion.” See
We now turn to the application of these principles to the facts of this case. The first question is whether the activities Plaintiffs claim are burdened by the use of recycled wastewater on the Snowbowl constitute an “exercise of religion.” RFRA defines “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
The crux of this case, then, is whether the use of recycled wastewater on the Snowbowl imposes a “substantial burden” on the exercise of the Plaintiffs’ religion. RFRA does not specifically define “substantial burden.” Fortunately, we are not required to interpret the term by our own lights. Rather, we are guided by the express language of RFRA and decades of Supreme Court precedent.
A.
Our interpretation begins, as it must, with the statutory language. RFRA‘s stated purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”
Of course, the “compelling interest test” cited in the above-quoted RFRA provisions applies only if there is a substantial burden on the free exercise of religion. That is, the government is not required to prove a compelling interest for its action or that its action involves the least restrictive means to achieve its purpose, unless the plaintiff first proves the government action substantially burdens his exercise of religion. The same cases that set forth the compelling interest test also define what kind or level of burden on the exercise of religion is sufficient to invoke the compelling interest test. See Hernandez v. Comm‘r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (noting the “free exercise inquiry asks whether government has placed a substantial burden” on the free exercise of religion (citing Yoder and other pre-Smith decisions)). Therefore, the cases that RFRA expressly adopted and restored—Sherbert, Yoder, and federal court rulings prior to Smith—also control the “substantial burden” inquiry.
It is to those decisions we now turn.
B.
In Sherbert, a Seventh-day Adventist was fired by her South Carolina employer because she refused to work on Saturdays, her faith‘s day of rest. Sherbert, 374 U.S. at 399, 83 S.Ct. 1790. Sherbert filed a claim for unemployment compensation benefits with the South Carolina Employment Security Commission, which denied her claim, finding she had failed to accept work without good cause. Id. at 399-401, 83 S.Ct. 1790. The Supreme Court held South Carolina could not, under the Free Exercise Clause, condition unemployment compensation so as to deny benefits to Sherbert because of the exercise of her faith. Such a condition unconstitutionally forced Sherbert “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404, 83 S.Ct. 1790.11
In Yoder, defendants, who were members of the Amish religion, were convicted of violating a Wisconsin law that required their children to attend school until the children reached the age of sixteen, under the threat of criminal sanctions for the parents. Yoder, 406 U.S. at 207-08, 92 S.Ct. 1526. The defendants sincerely believed their children‘s attendance in high school was “contrary to the Amish religion and way of life.” Id. at 209, 92 S.Ct. 1526. The Supreme Court reversed the defendants’ convictions, holding the application of the compulsory school-attendance law to the defendants “unduly burden[ed]” the exercise of their religion, in violation of the Free Exercise Clause. Id. at 207, 220, 92 S.Ct. 1526. According to the Court, the Wisconsin law “affirmatively compel[led the defendants], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218, 92 S.Ct. 1526.
The Supreme Court‘s decisions in Sherbert and Yoder, relied upon and incorporated by Congress into RFRA, lead to the following conclusion: Under RFRA, a
Applying Sherbert and Yoder, there is no “substantial burden” on the Plaintiffs’ exercise of religion in this case. The use of recycled wastewater on a ski area that covers one percent of the Peaks does not force the Plaintiffs to choose between following the tenets of their religion and receiving a governmental benefit, as in Sherbert. The use of recycled wastewater to make artificial snow also does not coerce the Plaintiffs to act contrary to their religion under the threat of civil or criminal sanctions, as in Yoder. The Plaintiffs are not fined or penalized in any way for practicing their religion on the Peaks or on the Snowbowl. Quite the contrary: the Forest Service “has guaranteed that religious practitioners would still have access to the Snowbowl” and the rest of the Peaks for religious purposes. Navajo Nation, 408 F.Supp.2d at 905.
The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment—serious though it may be—is not a “substantial burden” on the free exercise of religion.12
The Supreme Court‘s decision in Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), is on point. In Lyng, Indian tribes challenged the Forest Service‘s approval of plans to construct a logging road in the Chimney Rock area of the Six Rivers National Forest in California. Id. at 442, 108 S.Ct. 1319. The tribes contended the construction would interfere with their free exercise of religion by disturbing a sacred area. Id. at 442-43, 108 S.Ct. 1319. The area was an “integral and indispensable part” of the tribes’ religious practices, and a Forest Service study concluded the construction “would cause serious and irreparable damage to the sacred areas.” Id. at 442, 108 S.Ct. 1319 (citations and internal quotation marks omitted).
The Supreme Court rejected the Indian tribes’ Free Exercise Clause challenge.13 The Court held the government plan, which would “diminish the sacredness” of the land to Indians and “interfere significantly” with their ability to practice their religion, did not impose a burden “heavy enough” to violate the Free Exercise Clause. Id. at 447-49, 108 S.Ct. 1319.14 The plaintiffs were not “coerced by the Government‘s action into violating their religious beliefs” (as in Yoder) nor did the “governmental action penalize religious activity by denying [the plaintiffs] an equal share of the rights, benefits, and privileges
The Lyng Court, with language equally applicable to this case, further stated:
The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices.
* * *
Even if we assume that ... the [logging] road will “virtually destroy the ... Indians’ ability to practice their religion,” the Constitution simply does not provide a principle that could justify upholding [the plaintiffs‘] legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen‘s religious needs and desires. A broad range of government activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion.
* * *
No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property.
* * *
The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.
Id. at 451-53, 108 S.Ct. 1319 (citation omitted) (last emphasis added).
Like the Indians in Lyng, the Plaintiffs here challenge a government-sanctioned project, conducted on the government‘s own land, on the basis that the project will diminish their spiritual fulfillment. Even were we to assume, as did the Supreme Court in Lyng, that the government action in this case will “virtually destroy the ... Indians’ ability to practice their religion,” there is nothing to distinguish the road-building project in Lyng from the use of recycled wastewater on the Peaks. We simply cannot uphold the Plaintiffs’ claims of interference with their faith and, at the same time, remain faithful to Lyng‘s dictates.
According to the Plaintiffs, Lyng is not controlling in this RFRA case because the Lyng Court refused to apply the Sherbert test that was expressly adopted in RFRA. Hopi Br. at 40. In support, the Plaintiffs cite the Supreme Court‘s statement in Smith that Lyng “declined to apply Sherbert analysis to the Government‘s logging and road construction activities on lands used for religious purposes by several Native American Tribes.” Smith, 494 U.S. at 883, 110 S.Ct. 1595. This contention is unpersuasive.
“The Sherbert analysis” to which the Supreme Court referred in the quoted sentence from Smith is the Sherbert “compelling interest” test. See id. (noting that in recent cases, including Lyng, the Court had upheld the application of a valid and neutral law “regardless of whether it was necessary to effectuate a compelling interest” under Sherbert). But the Sherbert
The Lyng Court held the government‘s road-building project in that case, unlike in Sherbert, did not deny the Plaintiffs “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449, 108 S.Ct. 1319. In Sherbert, the plaintiff could not get unemployment compensation, available to all other South Carolinians. In Lyng, all park users, including the Indians, could use the new road and the lands to which it led. Because the government action did not “burden” the exercise of the Indians’ religion, the Lyng Court had no occasion to require the government to present a compelling interest for its road-building. Thus, Lyng is consistent with the Sherbert standard codified in RFRA and forecloses the Plaintiffs’ RFRA claims in this case.
Finally, the Supreme Court‘s pre-Smith decision in Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), is also on point. In Bowen, the parents of an American Indian child brought a Free Exercise Clause challenge to the statutory requirement to obtain a Social Security Number for their daughter in order to receive certain welfare benefits. Id. at 695-96, 106 S.Ct. 2147. The plaintiffs believed the government‘s use of a Social Security Number would “rob the spirit” of [their] daughter and prevent her from attaining greater spiritual power.” Id. at 696, 106 S.Ct. 2147. The Bowen Court rejected the plaintiffs’ Free Exercise Clause claims and stated:
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the plaintiffs] engage in any set form of religious observance, so [the plaintiffs] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.”
Id. at 699-700, 106 S.Ct. 2147 (quoting Sherbert, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, J., concurring)) (emphasis in original).
The plaintiffs in Bowen could not force the government to alter its internal management procedures to identify their daughter by her name, even though they believed the use of a Social Security Number would prevent her from attaining greater spiritual power. It necessarily follows that the Plaintiffs in this case, despite their sincere belief that the use of recycled wastewater on the Peaks will spiritually desecrate a sacred mountain, cannot dictate the decisions that the government makes in managing “what is, after all, its land.” See Lyng, 485 U.S. at 453, 108 S.Ct. 1319 (emphasis in original).15
C.
For six principal reasons, the Plaintiffs and the dissent would have us depart from the Supreme Court‘s pre-Smith jurisprudence in interpreting RFRA. We decline to do so and will address each of their contentions in turn.
First, the dissent asserts our interpretation of “substantial burden” is inconsistent with the dictionary definition of that term. Dissent at 1086-87. According to the dissent, “[b]ecause Congress did not define ‘substantial burden,’ either directly or by reference to pre-Smith case law, we should define ... that term according to its ordinary meaning.” Id. at 1088.
But here, Congress expressly referred to and restored a body of Supreme Court case law that defines what constitutes a substantial burden on the exercise of religion (i.e., Sherbert, Yoder, and other pre-Smith cases). See
Second, the dissent asserts that our definition of “substantial burden” is “restrictive” and cannot be found in Sherbert, Yoder, or any other pre-Smith case. Dissent at 1088.17 The dissent contends it is “clear that RFRA protects against burdens that, while imposed by a different mechanism than those in Sherbert and Yoder, are also ‘substantial.‘” Id. at 1090. For this purportedly “clear” proposition, the dissent cites no authority. That is, the dissent cannot point to a single Supreme Court case where the Court found a substantial burden on the free exercise of religion outside the Sherbert/Yoder framework. The reason is simple: There is none. In the pre-Smith cases adopted in RFRA, the Supreme Court has found a substantial burden on the exercise of religion only when the burden fell within the Sherbert/Yoder framework. See Sherbert, 374 U.S. at 403-06, 83 S.Ct. 1790; Yoder, 406 U.S. at 207, 220, 92 S.Ct. 1526; Thomas, 450 U.S. at 717-18, 101 S.Ct. 1425 (applying Sherbert); Hobbie v. Unemployment Appeals Comm‘n of Fla., 480 U.S. 136, 140-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (applying Sherbert); Frazee v. Ill. Dep‘t. of Employment Sec., 489 U.S. 829, 832-35, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989) (applying Sherbert). Because Congress expressly restored pre-Smith cases in RFRA, we cannot conclude RFRA‘s “substantial burden” standard expands beyond the pre-Smith cases to cover government actions never recognized by the Supreme Court to constitute a substantial burden on religious exercise.18
Third, the Plaintiffs assert RFRA‘s compelling interest test includes a “least restrictive means” requirement, which “was not used in the pre-Smith jurisprudence
Fourth, the Plaintiffs contend RFRA goes beyond the constitutional language that “forbids the ‘prohibiting’ of the free exercise of religion and uses the broader verb ‘burden‘: a government may burden religion only on the terms set out by the new statute.” Hopi Br. at 31-32 (quoting United States v. Bauer, 84 F.3d 1549, 1558 (9th Cir.1996)); see also Dissent at 1084. This contention ignores the Supreme Court‘s repeated practice of concluding a government action “prohibits” the free exercise of religion by determining whether the action places a “burden” on the exercise of religion.19 Thus, the difference in the language of the Free Exercise Clause (“prohibit“) and the language of RFRA (“burden“) does not affect what constitutes a “burden” on the exercise of religion, under the very cases cited by RFRA as embodying the congressionally desired rule of decision.
Fifth, the Plaintiffs assert Congress expanded RFRA‘s definition of “exercise of religion” with the enactment of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA“),
The Plaintiffs’ assertion conflates two distinct questions under RFRA: (1) what constitutes an “exercise of religion” and (2) what amounts to a “substantial burden” on the exercise of that religion. The first question, that the Plaintiffs’ activities
Finally, the dissent attempts to justify its expansive interpretation of RFRA on the basis that RFRA applies “in all cases” where the free exercise of religion is burdened, whereas pre-Smith jurisprudence excluded entire classes of cases from scrutiny under the compelling interest test, e.g., prison and military regulations. Dissent at 1085. But no one disputes that RFRA applies here; it is not an issue. That RFRA applies to classes of cases in which the First Amendment‘s compelling interest test is inapplicable is irrelevant. This observation does not define what constitutes a “substantial burden” and, therefore, does not speak to the threshold question whether a “substantial burden” exists.
In sum, Congress‘s statutory command in RFRA to restore the Supreme Court‘s pre-Smith jurisprudence is crystal clear, and neither the dissent nor the Plaintiffs have offered any valid reason for departing from that jurisprudence in interpreting RFRA.
D.
In support of their RFRA claims, the Plaintiffs rely on two of our RLUIPA decisions. For two reasons, RLUIPA is inapplicable to this case. First, RLUIPA, by its terms, prohibits only state and local governments from applying regulations that govern land use or institutionalized persons to impose a “substantial burden” on the exercise of religion. See
First, in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.2005), an American Indian inmate brought a RLUIPA challenge against a prison policy requiring all male inmates to maintain their hair no longer than three inches. Id. at 991-92. Warsoldier refused to comply with the policy because of his “sincere religious belief that he may cut his hair only upon the death of a loved one,” and was punished by confinement to his cell, the imposition of additional duty hours, and revocation of certain privileges. Id. at 991-92. We held the prison policy imposed a substantial burden on Warsoldier‘s exercise of his religion because it coerced him to violate his religious beliefs under the threat of punishment. Id. at 995-96.
Second, the Plaintiffs rely on our statement in San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004), that, under
San Jose Christian College‘s statement of the “substantial burden” test does not support the Plaintiffs’
IV. National Environmental Policy Act of 1969
[REDACTED] Plaintiffs contend the district court erred in granting summary judgment to the Defendants on five claims under the
The remaining
Further, on this appeal, the Navajo Plaintiffs do not explain why their complaint is otherwise sufficient to state this
Accordingly, we affirm the district court‘s grant of summary judgment to the Defendants on all
V. National Historic Preservation Act
[REDACTED] Finally, the Plaintiffs contend the district court erred in granting summary judgment to the Defendants on their claim under the
VI. Conclusion
We affirm the district court‘s entry of judgment in favor of the Defendants on the
AFFIRMED.
WILLIAM A. FLETCHER, Circuit Judge, dissenting, joined by Judge PREGERSON and Judge FISHER:
The en banc majority today holds that using treated sewage effluent to make artificial snow on the most sacred mountain of southwestern Indian tribes does not violate the
I. Religious Freedom Restoration Act
[D]ivers great learned men have been heretical, whilst they have sought to fly up to the secrets of the Deity by the waxen wings of the senses.
—Sir Francis Bacon, Of the Proficience and Advancement of Learning, Divine and Human (Book I, 1605).
The majority holds that spraying 1.5 million gallons per day of treated sewage effluent on the most sacred mountain of southwestern Indian tribes does not “substantially burden” their “exercise of religion” in violation of
[T]he presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ mental and emotional feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” ... on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.
Id. In so holding, the majority misstates the evidence below, misstates the law under
A. Background
The San Francisco Peaks in northern Arizona have long-standing religious significance to numerous Indian tribes of the American Southwest. Humphrey‘s Peak, Agassiz Peak, Doyle Peak, and Fremont Peak form a single large mountain commonly known as the San Francisco Peaks, or simply the Peaks. Humphrey‘s Peak is the highest point in Arizona.
The Peaks lie within the 1.8 million acres of the Coconino National Forest. In 1984, Congress designated 18,960 acres of the Peaks as the Kachina Peaks Wilderness. The Forest Service has identified the Peaks as eligible for inclusion in the National Register of Historic Places and as a “traditional cultural property.” The Service has described the Peaks as “a landmark upon the horizon, as viewed from the traditional or ancestral lands of the Hopi, Zuni, Acoma, Navajo, Apache, Yavapai, Hualapai, Havasupai, and Paiute.”
The Forest Service has acknowledged that the Peaks are sacred to at least thirteen formally recognized Indian tribes, and that this religious significance is of centuries’ duration. There are differences among these tribes’ religious beliefs and practices associated with the Peaks, but there are important commonalities. As the Service has noted, many of the tribes share beliefs that water, soil, plants, and animals from the Peaks have spiritual and medicinal properties; that the Peaks and everything on them form an indivisible living entity; that the Peaks are home to deities and other spirit beings; that tribal members can communicate with higher powers through prayers and songs focused
The Arizona Snowbowl is a ski area on Humphrey‘s Peak, the most sacred of the San Francisco Peaks. Organized skiing has existed at the Arizona Snowbowl since 1938. In 1977, the then-owner of the Snowbowl requested authorization to clear 120 acres of new ski runs and to do other development. In 1979, after preparing an Environmental Impact Statement, the Forest Service authorized the clearing of 50 of the 120 requested acres, the construction of a new lodge, and some additional development. An association of Navajo medicine men, the Hopi tribe, and two nearby ranch owners brought suit under, inter alia, the Free Exercise Clause of the
Until now, the Snowbowl has always depended on natural snowfall. In dry years, the operating season is short, with few skiable days and few skiers. The driest year in recent memory was 2001-02, when there were 87 inches of snow, 4 skiable days, and 2,857 skiers. Another dry year was 1995-96, when there were 113 inches of snow, 25 skiable days, and 20,312 skiers. By contrast, in wet years, there are many skiable days and many skiers. For example, in 1991-92, there were 360 inches of snow, 134 skiable days, and 173,000 skiers; in 1992-93, there were 460 inches of snow, 130 skiable days, and 180,062 skiers; in 1997-98, there were 330 inches of snow, 115 skiable days, and 173,862 skiers; and in 2004-05, there were 460 inches of snow, 139 skiable days, and 191,317 skiers.
ASR, the current owner, purchased the Snowbowl in 1992 for $4 million, with full knowledge of weather conditions in northern Arizona. In September 2002, ASR submitted a development proposal to the Forest Service. In February 2005, the Forest Service issued a Final Environmental Impact Statement (“FEIS“) and Record of Decision (“ROD“). The ROD approved the development alternative preferred by ASR, which included a proposal to make artificial snow using treated sewage effluent.
Under the alternative approved in the ROD, the City of Flagstaff would provide the Snowbowl with up to 1.5 million gallons per day of its treated sewage effluent—euphemistically called “reclaimed water“—from November through February. A 14.8-mile pipeline would be built between Flagstaff and the Snowbowl to carry the treated effluent. The Snowbowl would be the first ski resort in the nation to make artificial snow entirely from undiluted treated sewage effluent.
Before treatment, raw sewage consists of waste discharged into Flagstaff‘s sewers by households, businesses, hospitals, and industries. The FEIS describes the treatment performed by Flagstaff:
In the primary treatment stage, solids settle out as sludge. ... Scum and odors are also removed. ... Wastewater is then gravity-fed for secondary treatment through the aeration/denitrification process, where biological digestion of waste occurs ... in which a two-stage anoxic/aerobic process removes nitrogen, suspended solids, and [digestible organic matter] from the wastewater. The secondary clarifiers remove the by-products generated by this biological process, recycle microorganisms back into the process from return activated sludge, and separate the solids from the waste system. The waste sludge is sent to [a different plant] for treatment. The water for reuse then passes through the
final sand and anthracite filters prior to disinfection by ultraviolet light radiation. ... Water supplied for reuse is further treated with a hypochlorite solution to assure that residual disinfection is maintained. ...
The effluent that emerges after treatment by Flagstaff satisfies the requirements of Arizona law for “reclaimed water.” However, as the FEIS explains, the treatment does not produce pure water:
Fecal coliform bacteria, which are used as an indicator of microbial pathogens, are typically found at concentrations ranging from 105 to 107 colony-forming units per 100 milliliters (CFU/100 ml) in untreated wastewater. Advanced wastewater treatment may remove as much as 99.9999+ percent of the fecal coliform bacteria; however, the resulting effluent has detectable levels of enteric bacteria, viruses, and protazoa, including Cryptosporidium and Giardia.
Under Arizona law, the treated sewage effluent must be free of “detectable fecal coliform organisms” in only “four of the last seven daily reclaimed water samples.”
Under the alternative approved in the ROD, treated sewage effluent would be sprayed on 205.3 acres of Humphrey‘s Peak during the ski season. In November and December, the Snowbowl would use the effluent to build a base layer of artificial snow. The Snowbowl would then make more snow from the effluent depending on the amount of natural snowfall. The Snowbowl would also construct a reservoir on the mountain with a surface area of 1.9 acres to hold treated sewage effluent. The stored effluent would allow snowmaking to continue after Flagstaff cuts off the supply at the end of February.
B. Religious Freedom Restoration Act
Under the
These provisions of
In
In 1997, in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held
In several ways,
Second, as the Supreme Court noted in City of Boerne,
Third, in passing
Finally, and perhaps most important,
C. The Majority‘s Misstatements of the Law under RFRA
The majority misstates the law under
1. Definition of “Substantial Burden”
Neither
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious freedom is substantially burdened by government.
For six reasons, the majority is wrong in looking to Sherbert and Yoder for an exhaustive definition of what constitutes a “substantial burden.” First, the majority‘s approach is inconsistent with the plain meaning of the phrase “substantial burden.” Second,
a. Substantial Burden on the Exercise of Religion
The majority contends that the phrase “substantial burden” refers only to burdens that are created by two mechanisms—the imposition of a penalty, or the denial of a government benefit. But the phrase “substantial burden” has a plain and ordinary meaning that does not depend on the presence of a penalty or deprivation of benefit. A “burden” is “[s]ome-thing that hinders or oppresses.” Black‘s Law Dictionary (8th ed.2004). A burden is “substantial” if it is “[c]onsiderable in importance, value, degree, amount, or extent.” American Heritage Dictionary (4th ed.2000). In
The text of
b. “Restoring” Sherbert and Yoder
The text of
In the years after Sherbert and Yoder, the Supreme Court applied the “compelling interest test” to fewer and fewer Free Exercise claims under the
In other cases, the Court purported to apply the compelling interest test, but in fact applied a watered-down version of the scrutiny employed in Sherbert and Yoder. Rather than demanding, as it had in Sherbert and Yoder, that the particular governmental interest at stake be compelling, the Court accepted extremely general definitions of the government‘s interest. For example, in United States v. Lee, 455 U.S. 252, 260 (1982), the Court balanced an individual‘s interest in a religious exemption from social security taxes against the “broad public interest in maintaining a sound tax system.” Likewise, the plurality in Roy balanced an individual‘s objection to the provision of a social security number against the government‘s general interest in “preventing fraud in [government] benefits programs.” 476 U.S. at 709; see also David B. Tillotson, Free Exercise in the 1980s: A Rollback of Protections, 24 U.S.F. L.Rev. 505, 520 (1990) (“The Court has either defined the Government‘s interest so broadly that no individual‘s interest could possibly outweigh it or, more recently, has simply refused to weigh individual challenges to uniformly applicable and neutral statutes against any government interest, notwithstanding Sherbert.“).
c. “Substantial Burden” Test Not Used in Sherbert, Yoder, and Other Pre-RFRA Cases To Rule Out Certain Burdens
According to the majority, pre-
In Sherbert, 374 U.S. at 404, the Court held that a Seventh-day Adventist could not be denied unemployment benefits based on her refusal to work on Saturdays. Without using the phrase “substantial burden,” the Court concluded that a requirement that the plaintiff work on Saturdays, on pain of being fired if she refused, “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. The Court compared such an imposition to a governmental fine: “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” Id. The Court therefore mandated that the requirement be justified by a “compelling state interest.”
In Yoder, 406 U.S. at 219, the Court held that Amish children could not be required to attend school up to the age of sixteen, on penalty of criminal sanctions against their parents if they did not attend. Without using the phrase “substantial burden,” the Court concluded that a requirement that children attend school, on pain of criminal punishment of their parents if they did not, “would gravely endanger if not destroy the free exercise of respondents’ religious beliefs.” Id. at 219. The Court therefore required, as it had in Sherbert, that the requirement be justified by a “compelling state interest.” Id. at 221-29.
Neither Sherbert nor Yoder used the majority‘s substantial burden test as the trigger for the application of the compelling interest test. The Court in Sherbert and Yoder used the word “burden,” but nowhere defined, or even used, the phrase “substantial burden.” After holding that the exercise of religion was burdened in each case, the Court simply did not opine on what other impositions on free exercise would, or would not, constitute a burden. That is, Sherbert and Yoder held that certain interferences with religious exercise trigger the compelling interest test. But neither case suggested that religious exercise can be “burdened,” or “substantially burdened,” only by the two types of interference considered in those cases. The phrase “substantial burden” is a creation of later cases which sometimes use Sherbert or Yoder as part of a string citation. See, e.g., Hernandez v. Commissioner, 490 U.S. 680, 699 (1989). Neither Sherbert nor Yoder, nor any of the later cases, uses the restrictive definition of “substantial burden” invented by the majority today.
Nor do other pre-
In both [Lyng and Roy], the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government‘s action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.
Id. at 449 (emphases added). The Court concluded that only “coercion” of the sort found in Sherbert and Yoder would trigger strict scrutiny because, “[t]he crucial word in the constitutional text is ‘prohibit.’ ” Id. at 451.
Justice Brennan dissented from the majority‘s refusal to apply heightened scrutiny, emphasizing that the
Lyng did not hold that the road at issue would cause no “substantial burden” on religious exercise. The Court in Lyng never used the phrase “substantial bur-
The majority‘s attempt to read Lyng into
In sum, it is clear that the interferences with the free exercise of religion that existed in Sherbert and Yoder qualify, to use the terminology of
d. Purpose of RFRA
The express purpose of
As should be clear,
Such interests in religious exercise can be severely burdened by government actions that do not deny a benefit or impose a penalty. For example, a court would surely hold that the government had imposed a “substantial burden” on the “exercise of religion” if it purchased by eminent domain every Catholic church in the country. Similarly, a court would surely hold that the Forest Service had imposed a “substantial burden” on the Indians’ “exercise of religion” if it paved over the entirety of the San Francisco Peaks. We have already held that prison officials substantially burden religious exercise if they record the confessions of Catholic inmates, or refuse to provide Halal meat meals to a Muslim prisoner. See Mockaitis v. Harcleroad, 104 F.3d 1522, 1531 (9th Cir.1997) (“A substantial burden is imposed on ... free exercise of religion ... by the intrusion into the Sacrament of Penance by officials of the state.“); Shakur v. Schriro, 514 F.3d 878, 888-89 (9th Cir.2008) (holding that failure of prison officials to provide Muslim prisoner with Halal or Kosher
However, the majority‘s restrictive definition of “substantial burden” places such injuries entirely outside the coverage of
This proposition was explicitly rejected by
e. This Circuit‘s RFRA Precedents
As I have described above, the majority‘s narrow definition of “substantial burden” conflicts with
We first addressed the definition of “substantial burden” under
[A] governmental [action] burdens the adherent‘s practice of his or her religion ... by preventing him or her from engaging in [religious] conduct or having a religious experience. ... This interference must be more than an inconvenience; the burden must be substantial.
Id. at 949 (quoting Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir.1987)) (second, third, and fifth alterations in Bryant) (emphasis added). Since Bryant, we have repeatedly refused to adopt the conclusion of the majority that “a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit ... or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” Maj. op. at 1053-54. See, e.g., Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1121 (9th Cir.2000) (substantial burden where government “prevent[s] [plaintiff] from engaging in [religious] conduct or having a religious experience” and is “more than an inconvenience“) (quoting Goehring v. Brophy, 94 F.3d 1294, 1299 (9th Cir.1996); and Bryant, 46 F.3d at 949); Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th Cir.1996) (same). We have noted that “[a] statute burdens the free exercise of religion if it ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ including when, if enforced, it ‘results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.’ ” Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir.2002) (emphasis added) (quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); and Braunfeld v. Brown, 366 U.S. 599, 605 (1961)). However, nothing in our opinions suggests that the government can substantially burden religion only by applying a penalty or withholding a benefit based on religion.
In fact, we have held precisely the opposite. In Mockaitis, a district attorney for Lane County, Oregon, with the assistance of officials at the Lane County Jail, recorded the confession of a detained murder suspect to a Catholic priest. 104 F.3d at 1524-26. The prisoner and the priest learned of the taping only after it occurred. Id. at 1526. Although the prisoner did not seek suppression of the tape, the priest, together with the Archbishop of Portland, sought an injunction under
A substantial burden is imposed on [the Archbishop‘s] free exercise of religion as the responsible head of the archdiocese of Portland by the intrusion into the Sacrament of Penance by officials of the state, an intrusion defended in this case by an assistant attorney-general of the state as not contrary to any law. Archbishop George has justifiable grounds for fearing that without a declaratory judgment and an injunction in this case the administration of the Sacrament of Penance for which he is responsible in his archdiocese will be made odious in jails by the intrusion of law enforcement officers.
Id. at 1531 (emphasis added). Mockaitis was not only correctly decided. It is also flatly inconsistent with the majority opinion.
The majority does not dispute that Mockaitis is inconsistent with its approach today, but instead argues that Mockaitis “cannot serve as precedent” for two reasons. Maj. op. at 1073-74 n.15. First, the Majority notes that City of Boerne, 521 U.S. at 532, overruled our application of
Second, the majority finds Mockaitis “unhelpful” because it “did not define substantial burden, let alone analyze the substantial burden standard under the Sherbert/Yoder framework restored in
Notably absent from the majority‘s opinion is any explanation of why the result reached in Mockaitis is incorrect. Under the majority‘s approach, it is clear that governmental eavesdropping on a prisoner‘s confession to his priest would not impose a substantial burden on the prisoner or priest under
f. This Circuit‘s RLUIPA Precedents
Our cases interpreting the definition of “substantial burden” under
Moreover, we recently held that a substantial burden could exist under
In attempting to distinguish Shakur, the majority again refuses to accept the implications of its own rule. The majority claims that Shakur is a “straightforward application of the Sherbert test” because “the policy conditioned a governmental benefit to which Shakur was otherwise entitled—a meal in prison—upon conduct that would violate Shakur‘s religious beliefs.” Maj. op. at 1078 n. 24. However, like Mockaitis, Shakur applied the ordinary meaning of the phrase “substantial burden,” which is inconsistent with the majority‘s newly minted ”Sherbert test.” In Sherbert, a Seventh-day Adventist was denied unemployment benefits after she was fired for refusing to work on Saturdays because, according to the state, she had “fail[ed], without good cause, to accept suitable work when offered.” 374 U.S. at 399-400 (internal quotation marks omitted). In other words, the plaintiff in Sherbert was denied a govern-
Contrary to the majority‘s assertions, the inmate in Shakur was not denied any government benefit to which he was otherwise entitled because of his religious observance. Shakur had a legal interest in some meal in prison, but he was never denied this interest as a consequence of his religious observance. Eating the vegetarian meals provided by the prison was permitted by Shakur‘s religion. Shakur had no legal interest in Halal meat meals, except to the extent the government‘s failure to provide them interfered with his subjective religious experience. Nonetheless, we held that the failure of the prison to provide Halal meat meals could constitute a substantial burden on Shakur‘s religious exercise because the vegetarian meals allegedly “exacerbate[d] [Shakur‘s] hiatal hernia and cause[d] excessive gas that interfere[d] with the ritual purity required for [Shakur‘s] Islamic worship.” Id. at 889. That is, although the government had in no way penalized Shakur‘s exercise of his religion by denying a benefit to which he was otherwise entitled, we held that
The provision of special meals is a government action that benefits an inmate. But this is true of virtually any religious accommodation. Thus, Shakur can only be explained as consistent with the majority‘s rule if the mere accommodation of religion is a governmental benefit. But such a broad rule cannot support the majority‘s conclusion in this case. Under such a definition, the Forest Service offers the Indians in this case a “government benefit” in the form of access to their sacred land and ritual materials. The Forest Service‘s failure to offer spiritually pure sites and materials is the equivalent of prison officials failing to offer religiously pure meals. In short, in denying the Indians’ claims, the majority contends that the phrase “substantial burden” applies only where the government imposes sanctions or “condition[s] a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs.” The majority then abandons this definition in its attempts to distinguish Shakur, which did not involve the conditioning of government benefits on conduct that would violate religious beliefs. The need for such semantic contortions only highlights the degree to which the majority‘s rule is inconsistent with our prior case law and fails to capture the meaning of the term “substantial burden.”
2. The Applicability of RLUIPA
The majority‘s second misstatement is that
For two reasons,
RLUIPA is inapplicable to this case. First,RLUIPA , by its terms, prohibits only state and local governments from applying regulations that govern land use or institutionalized persons to impose a “substantial burden” on the exercise of religion. ... Subject to two exceptions not relevant here,RLUIPA does not apply to a federal government action, which is not at issue in this case. ... Second, even for state and local governments,RLUIPA applies only to government land-use regulations of private land, not to the government‘s management of its own land.
Maj. op. at 1077. From this, the majority concludes that
It is true that much of
Prior to the passage of
3. Applicability of RFRA to Federal Land
Finally, the majority misstates the law when it treats as an open question whether
The Defendants do not contend that
RFRA is inapplicable to the government‘s use and management of its own land, which is at issue in this case. Because this issue was not raised or briefed by the parties, we have no occasion to consider it. Therefore, we assume, without deciding, thatRFRA applies to the government‘s use and management of its land[.]
Maj. op. at 1067 n. 9.
It is hardly an open question whether
The majority opinion uses silence of the briefs in this case as an excuse to treat the applicability of
Question [by a member of the en banc panel]: Is it your position that the substantial burden test is simply never triggered when the government is using its own land? That it‘s simply outside the coverage of
RFRA if the government is using its own land?Answer [by the government‘s attorney]: No, your honor, that is not our position. ...
Question: So, the use of government land has the potential under
RFRA to impose a substantial burden?Answer: It is possible that certain activities on certain government land can still substantially burden religious activities.
Question: And would then violate
RFRA if there were no compelling state interest?Answer: Correct. Yes.
[En banc argument at 35:06.]
D. Misunderstanding of Religious Belief and Practice
In addition to misstating the law under
The majority‘s emphasis on physical harm ignores the nature of religious belief and exercise, as well as the nature of the inquiry mandated by
Religious belief concerns the human spirit and religious faith, not physical harm and scientific fact. Religious exercise sometimes involves physical things, but the physical or scientific character of these things is secondary to their spiritual and religious meaning. The centerpiece of religious belief and exercise is the “subjective” and the “spiritual.” As William James wrote, religion may be defined as “the feelings, acts, and experiences of individual men [and women] in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.”
The majority‘s misunderstanding of the nature of religious belief and exercise is an excuse for refusing to accept the Indians’ religion as worthy of protection under
E. Proper Application of RFRA
Applying our precedents, which properly reject the majority‘s restrictive approach, I would hold that the Indians have shown a substantial burden on the exercise of their religion under
1. “Substantial Burden” on the “Exercise of Religion”
a. The Indians’ “Sacred” Land and their “Exercise of Religion”
The Appellees do not dispute the sincerity of the Indians’ testimony concerning their religious beliefs and practices, and the district court wrote that it was not “challenging the honest religious beliefs of any witness.” The majority concedes that the Indians are sincere. It writes, “The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding.” Maj. op. at 1063.
The majority seeks to undermine the importance of the district court‘s finding, and its own concession, by contending that the Indians consider virtually everything sacred. It writes:
In the Coconino National Forest alone, there are approximately a dozen mountains recognized as sacred by American Indian tribes. The district court found the tribes hold other landscapes to be sacred as well, such as canyons and canyon systems, rivers and river drainages, lakes, discrete mesas and buttes, rock formations, shrines, gathering areas, pilgrimage routes, and prehistoric sites. Within the Southwestern Region forest lands alone, there are between 40,000 and 50,000 prehistoric sites. The district court also found the Navajo and the Hualapai Plaintiffs consider the entire Colorado River to be sacred. New sacred areas are continuously being recognized by the Plaintiffs.
Maj. op. at 1066 n. 7 (citations omitted).
The majority implies that if we hold, based on the sincerity of the Indians‘s religious belief, that there has been a substantial burden in this case, there is no stopping place. That is, since virtually everything is sacred, virtually any governmental action affecting the Indians’ “sacred” land will be a substantial burden under
The majority‘s implication rests upon an inadequate review of the record. The district court conducted a two-week trial devoted solely to the Indians’
That‘s your term “sacred.” That‘s not my term. I talked about holy mountains this morning. I talked about God‘s mountains.... Sacred to you is not the other terms. There are other places of honor and respect. You‘re looking at everything as being sacred. There is not—there is honor and respect, just as much as the Twin Towers is a place of honor and respect. Gettysburg. Yes, there are places like that in Apache land, but there are four holy mountains. Holy mountains.
Trial tr. 722-23 (emphasis added). Dianna Uqualla, subchief of the Havasupai, again explained that there are different degrees of “sacred“: The whole reservation is sacred to us, but the mountains are more sacred. They are like our—if you go to a church there would be like our tabernacle, that would be our altars. That‘s the—that‘s the difference like being in Fort Defiance or Window Rock versus going to each of the sacred mountains. The San Francisco Peaks would be like our tabernacle, our altar to the west.
SER 1253 (emphasis added).
Many White Mountain Apache, Navajo, and Havasupai members refer to all land that is owned, or was ever owned, by their tribe as sacred. For example, Ramon Riley, Cultural Resource Director for the White Mountain Apache, testified that the entire Apache reservation is “sacred.” Trial tr. at 625, 647-51. Uqualla testified to the same effect with respect to Havasupai land. SER 1253.
But while there are many mountains within White Mountain Apache, Navajo, and Havasupai historic territory, only a few of these mountains are “holy” or particularly “sacred.” For the White Mountain Apache, there are four holy mountains. They are the San Francisco Peaks, Mt. Graham, Mt. Baldy, and Red Mountain/Four Peaks. Trial tr. at 639-43. For the Navajo, there are also four holy mountains. They are the San Francisco Peaks, the Blanca Peak, Mt. Taylor, and the Hesperous Mountains. Trial tr. at 739.
The Indians allow different uses on sacred land depending on the degree of sacredness. For example, Mount Baldy is one of the White Mountain Apache‘s holy mountains. Though they consider all of their reservation land “sacred” in the sense in which that term is used by the majority, Mount Baldy is not merely sacred. It is holy. The record is clear that the Apache do not permit camping, fishing, or hunting on the portion of Mount Baldy under their control, even though they permit such activities elsewhere on their reservation.
b. Substantial Burden on the Indians’ Exercise of Religion
The record in this case makes clear that the San Francisco Peaks are particularly sacred to the surrounding Indian tribes. Humphrey‘s Peak is the most sacred, or holy, of the Peaks. I accept as sincere the Indians’ testimony about their religious beliefs and practices, and I accept as sincere their testimony that the Peaks, and in particular Humphrey‘s Peak, are not merely sacred but holy mountains.
In the discussion that follows, I focus on the evidence presented by the Hopi and Navajo, and to a lesser extent on the Hualapai and Havasupai. I first describe the Indians’ religious practices, and then discuss the effect the Snowbowl expansion would have on these practices.
(1) The Hopi
Hopi religious beliefs and practices center on the San Francisco Peaks. As stated by the district court, “The Peaks are where the Hopi direct their prayers and thoughts, a point in the physical world that defines the Hopi universe and serves as the home of the Kachinas, who bring water, snow and life to the Hopi people.” 408 F.Supp.2d at 894. The Hopi have been making pilgrimages to the Peaks since at least 1540, when they first encountered Europeans, and probably long before that.
The Hopi believe that when they emerged into this world, the clans journeyed to the Peaks (or Nuvatukyaovi, the “high place of snow“) to receive instructions from a spiritual presence, Ma‘saw. At the Peaks, they entered a spiritual covenant with Ma‘saw to take care of the land, and then migrated down to the Hopi villages. The Hopi re-enact their emergence from the Peaks annually, and Hopi practitioners look to the Peaks in their daily songs and prayers as a place of tranquility, sanctity, and purity.
The Peaks are also the primary home of the powerful spiritual beings called Katsinam (Hopi plural of Katsina, or Kachina in English). Hundreds of specific Katsinam personify the spirits of plants, animals, people, tribes, and forces of nature. The Katsinam are the spirits of Hopi ancestors, and the Hopi believe that when they die, their spirits will join the Katsinam on the Peaks. As spiritual teachers of “the Hopi way,” the Katsinam teach children and remind adults of the moral principles by which they must live. These principles are embodied in traditional songs given by the Katsinam to the Hopi and sung by the Hopi in their everyday lives. One Hopi practitioner compared these songs to sermons, which children understand simplistically but which adults come to understand more profoundly. Many of these songs focus on the Peaks.
Katsinam serve as intermediaries between the Hopi and the higher powers, carrying prayers from the Hopi villages to the Peaks on an annual cycle. From July through January, the Katsinam live on the Peaks. In sixteen days of ceremonies and prayers at the winter solstice, the Hopi pray and prepare for the Katsinam‘s visits to the villages. In February or March, the Katsinam begin to arrive, and the Hopi celebrate with nightly dances at which the Katsinam appear in costume and perform. The Katsinam stay while the Hopi plant their corn and it germinates. Then, in July, the Hopi mark the Katsinam‘s departure for the Peaks.
The Hopi believe that pleasing the Katsinam on the Peaks is crucial to their livelihood. Appearing in the form of clouds, the Katsinam are responsible for bringing rain to the Hopi villages from the Peaks. The Katsinam must be treated with respect, lest they refuse to bring the rains from the Peaks to nourish the corn crop. In preparation for the Katsinam‘s arrival, prayer sticks and feathers are delivered to every member of the village, which they then deposit in traditional locations, praying for the spiritual purity necessary to receive the Katsinam. The Katsinam will not arrive until the peoples’ hearts are in the right place, a state they attempt to reach through prayers directed at the spirits on the Peaks.
The Hopi have at least fourteen shrines on the Peaks. Every year, religious leaders select members of each of the approximately forty congregations, or kiva, among the twelve Hopi villages to make a pilgrimage to the Peaks. They gather from the Peaks both water for their ceremonies and boughs of Douglas fir worn by the Katsinam in their visits to the villages.
The Peaks are also of fundamental importance to the religious beliefs and practices of the Navajo. The district court found, “[T]he Peaks are considered ... to be the ‘Mother of the Navajo People,’ their essence and their home. The whole of the Peaks is the holiest of shrines in the Navajo way of life.” 408 F.Supp.2d at 889. Considering the mountain “like family,” the Navajo greet the Peaks daily with prayer songs, of which there are more than one hundred relating to the four mountains sacred to the Navajo. Witnesses described the Peaks as “our leader” and “very much an integral part of our life, our daily lives.”
The Navajo creation story revolves around the Peaks. The mother of humanity, called the Changing Woman and compared by one witness to the Virgin Mary, resided on the Peaks and went through puberty there, an event which the people celebrated as a gift of new life. Following this celebration, called the kinaalda, the Changing Woman gave birth to twins, from whom the Navajo are descended. The Navajo believe that the Changing Woman‘s kinaalda gave them life, generation after generation. Young women today still celebrate their own kinaalda with a ceremony one witness compared to a Christian confirmation or a Jewish bat mitzvah. The ceremony sometimes involves water especially collected from the Peaks because of the Peaks’ religious significance.
The Peaks are represented in the Navajo medicine bundles found in nearly every Navajo household. The medicine bundles are composed of stones, shells, herbs, and soil from each of four sacred mountains. One Navajo practitioner called the medicine bundles “our Bible,” because they have “embedded” within them “the unwritten way of life for us, our songs, our ceremonies.” The practitioner traced their origin to the Changing Woman: When her twins wanted to find their father, the Changing Woman instructed them to offer prayers to the Peaks and conduct ceremonies with medicine bundles. The Navajo believe that the medicine bundles are conduits for prayers; by praying to the Peaks with a medicine bundle containing soil from the Peaks, the prayer will be communicated to the mountain.
As their name suggests, medicine bundles are also used in Navajo healing ceremonies, as is medicine made with plants collected from the Peaks. Appellant Norris Nez, a Navajo medicine man, testified that “like the western doctor has his black bag with needles and other medicine, this bundle has in there the things to apply medicine to a patient.” Explaining why he loves the mountain as his mother, he testified, “She is holding medicine and things to make us well and healthy. We suckle from her and get well when we consider her our Mother.” Nez testified that he collects many different plants from the Peaks to make medicine.
The Peaks play a role in every Navajo religious ceremony. The medicine bundle is placed to the west, facing the Peaks. In the Blessingway ceremony, called by one witness “the backbone of our ceremony” because it is performed at the conclusion of all ceremonies, the Navajo pray to the Peaks by name.
The purity of nature, including the Peaks, plays an important part in Navajo beliefs. Among other things, it affects how a medicine bundle—described by one witness as “a living basket“—is made. The making of a medicine bundle is preceded by a four-day purification process for the medicine man and the keeper of the bundle. By Navajo tradition, the medicine bundle should be made with leather from a buck that is ritually suffocated; the skin cannot be pierced by a weapon. Med-
The Navajo believe their role on earth is to take care of the land. They refer to themselves as nochoka dine, which one witness translated as “people of the earth” or “people put on the surface of the earth to take care of the lands.” They believe that the Creator put them between four sacred mountains of which the westernmost is the Peaks, or Do‘ok‘oos-liid (“shining on top,” referring to its snow), and that the Creator instructed them never to leave this homeland. Although the whole reservation is sacred to the Navajo, the mountains are the most sacred part. As noted previously, one witness drew an analogy to a church, with the area within the mountains as the part of the church where the people sit, and the Peaks as “our altar to the west.”
As in Hopi religious practice, the Peaks are so sacred in Navajo beliefs that, according to Joe Shirley, Jr., President of the Navajo Nation, a person “cannot just voluntarily go up on this mountain at any time. It‘s—it‘s the holiest of shrines in our way of life. You have to sacrifice. You have to sing certain songs before you even dwell for a little bit to gather herbs, to do offerings.” After the requisite preparation, the Navajo go on pilgrimages to the Peaks to collect plants for ceremonial and medicinal use.
(3) The Hualapai
The Peaks figure centrally in the beliefs of the Hualapai. The Hualapai creation story takes place on the Peaks. The Hualapai believe that at one time the world was deluged by water, and the Hualapai put a young girl on a log so that she could survive. She landed on the Peaks, alone, and washed in the water. In the water, she conceived a son, who was a man born of water. She washed again, and conceived another son. These were the twin warriors, or war gods, from whom the Hualapai are today descended. Later, one of the twins became ill, and the other collected plants and water from the Peaks, thereby healing his brother. From this story comes the Hualapai belief that the mountain and its water and plants are sacred and have medicinal properties. One witness called the story of the deluge, the twins, and their mother “our Bible story” and drew a comparison to Noah‘s Ark. As in Biblical parables and stories, Hualapai songs and stories about the twins are infused with moral principles.
Hualapai spiritual leaders travel to the Peaks to deliver prayers. Like the Hopi and the Navajo, the Hualapai believe that the Peaks are so sacred that one has to prepare oneself spiritually to visit. A spiritual leader testified that he prays to the Peaks every day and fasts before visiting to perform the prayer feather ceremony. In the prayer feather ceremony, a troubled family prays into an eagle feather for days, and the spiritual leader delivers it to the Peaks; the spirit of the eagle then carries the prayer up the mountain and to the Creator.
The Hualapai collect water from the Peaks. Hualapai religious ceremonies revolve around water, and they believe water from the Peaks is sacred. In their sweat lodge purification ceremony, the Hualapai add sacred water from the Peaks to other water, and pour it onto heated rocks to make steam. In a healing ceremony, people seeking treatment drink from the water used to produce the steam and are cleansed by brushing the water on their bodies with feathers. At the conclusion of the healing ceremony, the other people present also drink the water. A Hualapai tribal member who conducts healing ceremonies testified that water from the Peaks
In another Hualapai religious ceremony, when a baby has a difficult birth, a Hualapai spiritual leader brings a portion of the placenta to the Peaks so that the child will be strong like the twins and their mother in the Hualapai creation story. The Hualapai also grind up ponderosa pine needles from the Peaks in sacred water from the Peaks to aid women in childbirth.
A Hualapai religious law forbids mixing the living and the dead. In testimony in the district court, a spiritual leader gave the example of washing a baby or planting corn immediately after taking part in a death ceremony. Mixing the two will cause a condition that was translated into English as “the ghost sickness.” The leader testified that purification after “touching death” depends on the intensity of the encounter. If he had just touched the dead person‘s clothes or belongings, he might be purified in four days, but if he touched a body, it would require a month.
(4) The Havasupai
The Peaks are similarly central to the beliefs of the Havasupai, as the Forest Service acknowledged in the FEIS:
The Hualapai and the Havasupai perceive the world as flat, marked in the center by the San Francisco Peaks, which were visible from all parts of the Havasupai territory except inside the Grand Canyon. The commanding presence of the Peaks probably accounts for the Peaks being central to the Havasupai beliefs and traditions, even though the Peaks themselves are on the edge of their territory.
The Chairman of the Havasupai testified that the Peaks are the most sacred religious site of the Havasupai: “That is where life began.” The Havasupai believe that when the earth was submerged in water, the tribe‘s “grandmother” floated on a log and landed and lived on the Peaks, where she survived on water from the Peaks’ springs and founded the tribe.
Water is central to the religious practices of the Havasupai. Although they do not travel to the Peaks to collect water, Havasupai tribal members testified that they believe the water in the Havasu creek that they use in their sweat lodges comes ultimately from the Peaks, to which they pray daily. They believe that spring water is a living, life-giving, pure substance, and they do not use tap water in their religious practices. They perform sweat lodge ceremonies, praying and singing as they use the spring water to make steam; they believe that the steam is the breath of their ancestors, and that by taking it into themselves they are purified, cleansed, and healed. They give water to the dead to take with them on their journey, and they use it to make medicines. The Havasupai also gather rocks from the Peaks to use for making steam.
ii. The Burden Imposed by the Proposed Snowbowl Expansion
Under the proposed expansion of the Snowbowl, up to 1.5 million gallons per day of treated sewage effluent would be sprayed on Humphrey‘s Peak from November through February. Depending on weather conditions, substantially more than 100 million gallons of effluent could
The Indians claim that the use of treated sewage effluent to make artificial snow on the Peaks would substantially burden their exercise of religion. Because the Indians’ religious beliefs and practices are not uniform, the precise burdens on religious exercise vary among the Appellants. Nevertheless, the burdens fall roughly into two categories: (1) the inability to perform a particular religious ceremony, because the ceremony requires collecting natural resources from the Peaks that would be too contaminated—physically, spiritually, or both—for sacramental use; and (2) the inability to maintain daily and annual religious practices comprising an entire way of life, because the practices require belief in the mountain‘s purity or a spiritual connection to the mountain that would be undermined by the contamination.
The first burden—the inability to perform religious ceremonies because of contaminated resources—has been acknowledged and described at length by the Forest Service. The FEIS summarizes: “Snowmaking and expansion of facilities, especially the use of reclaimed water, would contaminate the natural resources needed to perform the required ceremonies that have been, and continue to be, the basis for the cultural identity for many of these tribes.” Further, “the use of reclaimed water is believed by the tribes to be impure and would have an irretrievable impact on the use of the soil, plants, and animals for medicinal and ceremonial purposes throughout the entire Peaks, as the whole mountain is regarded as a single, living entity.”
Three Navajo practitioners’ testimony at trial echoed the Forest Service‘s assessment in describing how the proposed action would prevent them from performing various ceremonies. Larry Foster, a Navajo practitioner who is training to become a medicine man, testified that “once water is tainted and if water comes from mortuaries or hospitals, for Navajo there‘s no words to say that that water can be reclaimed.” He further testified that he objected to the current use of the Peaks as a ski area, but that using treated sewage effluent to make artificial snow on the Peaks would be “far more serious.” He explained, “I can live with a scar as a human being. But if something is injected into my body that is foreign, a foreign object—and reclaimed water, in my opinion, could be water that‘s reclaimed through sewage, wastewater, comes from mortuaries, hospitals, there could be disease in the waters—and that would be like injecting me and my mother, my grandmother, the Peaks, with impurities, foreign matter that‘s not natural.”
Foster testified that if treated sewage effluent were used on the Peaks he would no longer be able to go on the pilgrimages to the Peaks that are necessary to rejuvenate the medicine bundles, which are, in turn, a part of every Navajo healing ceremony. He explained:
Your Honor, our way of life, our culture we live in—we live in the blessingway, in harmony. We try to walk in harmony, be in harmony with all of nature. And we go to all of the sacred mountains for protection. We go on a pilgrimage similar to Muslims going to Mecca. And we do this with so much love, commitment and respect. And if one mountain—and more in particularly with the San Francisco Peaks—which is our bundle mountain, or sacred, bundle mountain, were to be poisoned or given foreign materials that were not pure, it would create an imbalance—there would not be a place among the sacred mountains. We would not be able to go there to obtain herbs or medicines to do our ceremonies, because that mountain would then become impure. It would not be pure anymore.
Appellant Navajo medicine man Norris Nez testified that the proposed action would prevent him from practicing as a medicine man. He told the district court that the presence of treated sewage effluent would “ruin” his medicine, which he makes from plants collected from the Peaks. He also testified that he would be unable to perform the fundamental Blessingway ceremony, because “all [medicine] bundles will be affected and we will have nothing to use eventually.”
Foster, Nez, and Navajo practitioner Steven Begay testified that because they believe the mountain is an indivisible living entity, the entire mountain would be contaminated even if the millions of gallons of treated sewage effluent are put onto only one area of the Peaks. According to Foster, Nez, and Begay, there would be contamination even on those parts of the Peaks where the effluent would not come into physical contact with particular plants or ceremonial areas. To them, the contamination is not literal in the sense that a scientist would use the term. Rather, the contamination represents the poisoning of a living being. In Foster‘s words, “[I]f someone were to get a prick or whatever from a contaminated needle, it doesn‘t matter what the percentage is, your whole body would then become contaminated. And that‘s what would happen to the mountain.” In Nez‘s words, “All of it is holy. It is like a body. It is like our body. Every part of it is holy and sacred.” In Begay‘s words, “All things that occur on the mountain are a part of the mountain, and so they will have connection to it. We don‘t separate the mountain.”
The Hualapai also presented evidence that the proposed action would prevent them from performing particular religious ceremonies. Frank Mapatis, a Hualapai practitioner and spiritual leader who visits the Peaks approximately once a month to collect water for ceremonies and plants for medicine, testified that the use of treated sewage effluent would prevent him from performing Hualapai sweat lodge and healing ceremonies with the sacred water from the Peaks. Mapatis testified that he believes that the treated sewage effluent would seep into the ground and into the spring below the Snowbowl where he collects his sacred water, so that the spring water would be “contaminated” by having been “touched with death.” Because contact between the living and the dead induces “ghost sickness,” which involves hallucinations, using water touched with death in healing ceremonies “would be like malpractice.” Further, Mapatis would become powerless to perform the healing ceremony for ghost sickness itself, because that ceremony requires water from the Peaks, the only medicine for illnesses of the upper body and head, like hallucinations.
The second burden the proposed action would impose—undermining the Indians’ religious faith, practices, and way of life by desecrating the Peaks’ purity—is also shown in the record. The Hopi presented evidence that the presence of treated sewage effluent on the Peaks would fundamentally undermine all of their religious practices because their way of life, or “beliefway,” is largely based on the idea that the Peaks are a pure source of their rains and the home of the Katsinam.
Leigh Kuwanwisiwma, a Hopi religious practitioner and the director of the tribe‘s Cultural Preservation Office, explained the connection between contaminating the Peaks and undermining the Hopi religion:
The spiritual covenant that the Hopi clans entered into with the Caretaker I refer to as Ma‘saw, the spiritual person and the other d[ei]ties that reside—and the Katsina that reside in the Peaks
started out with the mountains being in their purest form. They didn‘t have any real intrusion by humanity. The purity of the spirits, as best we can acknowledge the spiritual domain, we feel were content in receiving the Hopi clans. So when you begin to intrude on that in a manner that is really disrespectful to the Peaks and to the spiritual home of the Katsina, it affects the Hopi people. It affects the Hopi people, because as clans left and embarked on their migrations and later coming to the Hopi villages, we experienced still a mountain and peaks that were in their purest form as a place of worship to go to, to visit, to place our offerings, the tranquility, the sanctity that we left a long time ago was still there.
Antone Honanie, a Hopi practitioner, testified that he would have difficulty preparing for religious ceremonies, because treated sewage effluent is “something you can‘t get out of your mind when you‘re sitting there praying” to the mountain, “a place where everything is supposed to be pure.” Emory Sekaquaptewa, a Hopi tribal member and research anthropologist, testified that the desecration of the mountain would cause Katsinam dance ceremonies to lose their religious value. They would “simply be a performance for performance[‘s] sake” rather than “a religious effort“: “Hopi people are raised in this belief that the mountains are a revered place. And even though they begin with kind of a fantasy notion, this continues to grow into a more deeper spiritual sense of the mountain. So that any thing that interrupts this perception, as they hold it, would tend to undermine the—the integrity in which they hold the mountain.”
Summarizing the Hopi‘s testimony, the district court wrote:
The individual Hopi‘s practice of the Hopi way permeates every part and every day of the individual‘s life from birth to death.... The Hopi Plaintiffs testified that the proposed upgrades to the Snowbowl have affected and will continue to negatively affect the way they think about the Peaks, the Kachina and themselves when preparing for any religious activity involving the Peaks and the Kachina—from daily morning prayers to the regular calendar of religious dances that occur throughout the year.... The Hopi Plaintiffs also testified that this negative effect on the practitioners’ frames of mind due to the continued and increased desecration of the home of the Kachinas will undermine the Hopi faith and the Hopi way. According to the Hopi, the Snowbowl upgrades will undermine the Hopi faith in daily ceremonies and undermine the Hopi faith in their Kachina ceremonies as well as their faith in the blessings of life that they depend on the Kachina to bring.
The Havasupai presented evidence that the presence of treated sewage effluent on the Peaks would, by contaminating the Peaks, undermine their sweat lodge purification ceremonies and could lead to the end of the ceremonies. Rex Tilousi, Chairman of the Havasupai, testified that Havasupai religious stories teach that the water in Havasu Creek, which they use for their sweat ceremonies, flows from the Peaks, where the Havasupai believe life began. Although none of the three Havasupai witnesses stated that they would be completely unable to perform the sweat lodge ceremonies as a consequence of the impurity introduced by the treated sewage effluent, Roland Manakaja, a traditional practitioner, testified that the impurity would disrupt the ceremony:
If I was to take the water to sprinkle the rocks to bring the breath of our
ancestors—we believe the steam is the breath of our ancestors. And the rocks placed in the west signify where our ancestors go, the deceased.... Once the steam rises, like it does on the Peaks, the fog or the steam that comes off is creation. And once the steam comes off and it comes into our being, it purifies and cleanses us and we go to the level of trance.... It‘s going to impact mentally my spirituality. Every time I think about sprinkling that water on the rocks, I‘m going to always think about this sewer that they‘re using to recharge the aquifer.
He further testified that he was “concerned” that the water‘s perceived impurity might cause the sweat lodge ceremony to die out altogether, if tribal members fear “breathing the organisms or the chemicals that may come off the steam.”
The record supports the conclusion that the proposed use of treated sewage effluent on the San Francisco Peaks would impose a burden on the religious exercise of all four tribes discussed above—the Navajo, the Hopi, the Hualapai, and the Havasupai. However, on the record before us, that burden falls most heavily on the Navajo and the Hopi. The Forest Service itself wrote in the FEIS that the Peaks are the most sacred place of both the Navajo and the Hopi; that those tribes’ religions have revolved around the Peaks for centuries; that their religious practices require pure natural resources from the Peaks; and that, because their religious beliefs dictate that the mountain be viewed as a whole living being, the treated sewage effluent would in their view contaminate the natural resources throughout the Peaks. Navajo Appellants presented evidence in the district court that, were the proposed action to go forward, contamination by the treated sewage effluent would prevent practitioners from making or rejuvenating medicine bundles, from making medicine, and from performing the Blessingway and healing ceremonies. Hopi Appellants presented evidence that, were the proposed action to go forward, contamination by the effluent would fundamentally undermine their entire system of belief and the associated practices of song, worship, and prayer, that depend on the purity of the Peaks, which is the source of rain and their livelihoods and the home of the Katsinam spirits.
In light of this showing, it is self-evident that the Snowbowl expansion prevents the Navajo and Hopi “from engaging in [religious] conduct or having a religious experience” and that this interference is “more than an inconvenience.” Bryant, 46 F.3d at 949. The burden imposed on the religious practices of the Navajo and Hopi is certainly as substantial as the intrusion on confession deemed a “substantial burden” in Mockaitis, 104 F.3d at 1531, and the denial of a Halal or Kosher meat diet deemed a “substantial burden” in Shakur, 514 F.3d at 888-89. Thus, under
c. “Compelling Governmental Interest” and “Least Restrictive Means”
The majority refuses to hold that spraying treated sewage effluent on Humphrey‘s Peak imposes a “substantial burden” on the Indians’ “exercise of religion.” It therefore does not reach the question whether the burden can be justified by a compelling interest and is the least restrictive means of furthering that purpose. Because I would hold that the Snowbowl expansion does constitute a substantial burden on the Indians’ religious exercise, I also address this second step of the
“Requiring a State to demonstrate a compelling interest and show that it has
The Forest Service and the Snowbowl have argued that approving the use of treated sewage effluent to make artificial snow serves several compelling governmental interests. The district court characterized those interests as: (1) “selecting the alternative that best achieves [the Forest Service‘s] multiple-use mandate under the National Forest Management Act,” which includes “managing the public land for recreational uses such as skiing“; (2) protecting public safety by “authorizing upgrades at Snowbowl to ensure that users of the National Forest ski area have a safe experience“; and (3) complying with the Establishment Clause. 408 F.Supp.2d at 906. I would hold that none of these interests is compelling.
First, the Forest Service‘s interests in managing the forest for multiple uses, including recreational skiing, are, in the words of the Court in O Centro, “broadly formulated interests justifying the general applicability of government mandates” and are therefore insufficient on their own to meet
Second, while the Forest Service undoubtedly has a general interest in ensuring public safety on federal lands, there has been no showing that approving the proposed action advances that interest by the least restrictive means. Appellees have provided no specific evidence that skiing at the Snowbowl in its current state is unsafe.
Third, approving the proposed action does not serve a compelling governmental interest in avoiding conflict with the Establishment Clause. The Forest Service has not suggested that avoiding a conflict with the Establishment Clause is a compelling interest served by the proposed action. Only the Snowbowl has made that argument. The argument is not convincing. The Supreme Court has repeatedly held that the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). “Anything less would require the ‘callous indifference’ we have said was never intended by the Establishment Clause.” Id. (citations omitted); see also Hobbie v. Unemp. Comm‘n of Fla., 480 U.S. 136, 144-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.“). Refusing to allow a commercial ski resort in a national forest to spray treated sewage effluent on the Indians’ most sacred mountain is an accommodation that falls far
F. Conclusion
I would therefore hold that the proposed expansion of the Arizona Snowbowl, which would entail spraying up to 1.5 million gallons per day of treated sewage effluent on the holiest of the San Francisco Peaks, violates
II. National Environmental Policy Act
A. Pleading under Rule 8(a)
The majority concludes that Appellants failed properly to plead a violation of
Under
Appellants’ complaint in the district court, while general, was sufficient to provide notice that they were asserting
In another context, generalized allegations such as these might be insufficient to alert defendants that a specific health risk, such as the ingestion of artificial snow, was included in general statements referring to “the impacts of introducing reclaimed waste water to the ecosystem” and “persistent pollutants in reclaimed water.” In the context of this case, however, Appellants’ allegations were sufficient to put defendants on notice of the nature of their
First, even before the complaint was filed, the Forest Service was well aware of the dispute about whether the FEIS adequately addressed the risk of children and others ingesting artificial snow made from treated sewage effluent. For example, in October 2002, before the draft EIS was published, the Service wrote what it called a “strategic talking point” addressing the risk posed by the ingestion of the artificial snow. The “talking point” began with the question: “Will my kids get sick if they eat artificial snow made from treated wastewater?” It continued with a scripted answer:
Second, Appellants raised the issue of ingestion of artificial snow in their motion for summary judgment, specifically addressing several pages to the following argument: “The FEIS Does Not Contain a ‘Reasonably Thorough Discussion of the Significant Aspects of the Probable Environmental Consequences’ of the Project—The FEIS Ignores (In Part) the Possibility of Children Eating Snow Made from Reclaimed Water.” [Plaintiffs’ Motion for Summary Judgment at 20-23]. The Forest Service and the Snowbowl both objected that this argument was not adequately alleged in the complaint. But they showed no prejudice arising out of the alleged lack of notice, and they addressed the merits of the issue in their opposition to the motion. [Defendant‘s Response In Opposition to All Plaintiffs’ Motions for Summary Judgment at 16-17; Arizona Snowbowl Resort LP‘s Opposition to Plaintiffs’ Motions for Summary Judgment at 5-6].
Third, Appellants had raised the issue of ingestion of artificial snow in their administrative appeal, and the Forest Service had no need to develop additional evidence, through discovery or otherwise, in order to address the issue in the district court.
The majority objects to this analysis on two grounds. First, it contends that because Appellants have not appealed the district court‘s denial of their motion to amend their complaint, they cannot now contend that their complaint was adequate. Maj. op. at 1079-80 & n. 26. That is not the law. If a complaint is adequate under
Second, the majority contends that the Navajo Appellants “do not explain why their complaint is otherwise sufficient to state this NEPA claim—despite the Defendants’ assertion that the Navajo Plaintiffs failed to plead this NEPA claim.” Maj. op. at 1079. The majority is wrong. The Navajo Appellants clearly “explain” why their complaint was sufficient. Part III.B of their brief in this court is headed: “The FEIS Ignores the Possibility of Children Eating Snow Made from Reclaimed Water.” Part III.B.3 of their brief is headed: “This Issue Was Properly Raised and Considered by the Lower Court.” [Reply brief, at 19] The first paragraph of Part III.B.3 reads:
Defendants assert that Plaintiffs did not raise this issue in their comments on the DEIS, in their administrative appeal, or in their Complaint. As a result, according to defendants, Plaintiffs are precluded from raising this argument on appeal.
This misstates the facts of the case and applicable law.
[Id.] (Emphasis added).
The Navajo Appellants explain in their brief that the issue of children eating snow made from effluent was raised during the preparation of the FEIS. They explain that defendants were therefore already well aware of this issue when it was raised in the district court. They explain, further, in their brief in this court: “Plaintiffs properly pled violations of NEPA in their Complaint, even though the specific allegations at issue were not included therein. The issue [of the FEIS‘s failure to analyze the risk of children ingesting snow made from treated effluent] was briefed at summary judgment by all parties and presented at oral argument. The lower court heard the argument ... and issued a decision on this claim resulting in this appeal.” Id. at 23-4.
Under notice pleading, a plaintiff need not make specific allegations in the complaint, so long as the complaint is sufficient to put defendant on notice of the nature of plaintiff‘s claim. As the Navajo Appellants make clear, the defendants in the district court were well aware of the nature of plaintiffs’ claim that the FEIS failed to analyze the risk of children eating snow made from the effluent. This is sufficient to satisfy the notice pleading requirement of
I would therefore reach the merits of Appellants’ claim that the Forest Service failed to study adequately the risks posed by human ingestion of artificial snow made with treated sewage effluent.
B. Merits
“NEPA ‘does not mandate particular results,’ but ‘simply provides the necessary process’ to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Regulations require that an EIS discuss environmental impacts “in proportion to their significance.”
We employ a “rule of reason [standard] to determine whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (first alteration in original) (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002)). In reviewing an EIS, a court must not substitute its judgment for that of the agency, but rather must uphold the agency decision as long as the agency has “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-54 (9th Cir. 2003) (quoting Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir. 1990)).
The treated sewage effluent proposed for use in making artificial snow at the Snowbowl meets the standards of the ADEQ for what Arizona calls “A+ reclaimed water.” The ADEQ permits use of A+ reclaimed water for snowmaking, but it has specifically disapproved human ingestion of such water. Arizona law requires users of reclaimed water to “place and maintain signage at locations [where the water is used] so the public is informed that reclaimed water is in use and that no one should drink from the system.”
The FEIS does not contain a reasonably thorough discussion of the risks posed by possible human ingestion of artificial snow made from treated sewage effluent, and it does not articulate why such discussion is unnecessary.
The main body of the FEIS addresses the health implications of using treated sewage effluent in subchapter 3H, “Watershed Resources.” Much of the subchapter‘s analysis focuses on the “hydrogeologic setting” and on the effect of the artificial snow once it has melted. The part of the subchapter describing the treated sewage effluent acknowledges that its risks to human health are not well known because it contains unregulated contaminants in amounts not ordinarily found in drinking water, including prescription drugs and chemicals from personal care products. The subchapter contains tables listing the amounts of various organic and inorganic chemical constituents that have been measured in the treated sewage effluent. One table compares the level of contaminants in Flagstaff‘s treated sewage effluent to the level permitted under national drinking water standards. The table shows that Flagstaff simply does not test for the presence of the following contaminants regulated by the national standards: Acrylamide, Dalapon, Di(2-ethylhexyl) adipate, Dinoseb, Diquat, Endothall, Epichlorohydrin, Ethylene dibromide, Lindane, Oxamyl (Vydate), Picloram, Simazine, and Aluminum. The table also shows that Flagstaff does not measure the following contaminants with sufficient precision to determine whether they are present at levels that exceed the national standards: Nitrate, Benzo (a) pyrene (PAHs), Pentachlorophenol, and Polychlorinated biphenyls (PCBs). However, the FEIS does not go on to discuss either the health risks resulting from ingestion of the treated sewage effluent or the likelihood that humans—either adults or children—will in fact ingest the artificial snow.
Instead, the environmental impact analysis in subchapter 3H, the only part of the FEIS to discuss the characteristics of treated sewage effluent, addresses only the impact on the watersheds and aquifers. That analysis assesses the treated sewage effluent‘s impact after it has filtered through the ground, a process the FEIS estimates may result in “an order of magnitude decrease in concentration of solutes.” Thus, although the subchapter reasonably discusses the human health risks to downgradient users, it does not address the risks entailed in humans’ direct exposure to, and possible ingestion of, undiluted treated sewage effluent that has not yet filtered through the ground.
Only two statements in the FEIS could possibly be mistaken for an analysis of the risk that children would ingest the artificial snow. The first follows three combined questions by a commenter: (1) whether signs would be posted to warn that “reclaimed water” has been used to make the artificial snow; (2) how much exposure to the snow would be sufficient to make a person ill; and (3) how long it would take to see adverse effects on plants and animals downstream. The response to these questions is four sentences long. It states that signs would be posted, but it does not say how numerous or how large the signs would be. It then summarizes the treatment the sewage would undergo. The final sentence asserts: “In terms of
This response does not answer the specific and highly relevant question: How much direct exposure to the artificial snow is safe? Nor does the response provide any analysis of the extent of the likely “exposure,” including the likelihood that children or adults would accidentally or intentionally ingest the snow made from non-potable treated sewage effluent.
Another statement appears on the last page of responses to comments in the FEIS. The questions and response are:
[Question:] In areas where reclaimed water is presently used, there are signs posted to warn against consumption of the water. Will these signs be posted at the Snowbowl? If so, how will that keep children from putting snow in there [sic] mouths or accidentally consuming the snow in the case of a wreck?
[Answer:] There will be signs posted at Snowbowl informing visitors of the use of reclaimed water as a snowmaking water source. Much like areas of Flagstaff where reclaimed water is used, it is the responsibility of the visitor or the minor‘s guardian to avoid consuming snow made with reclaimed water. It is important to note that machine-produced snow would be mixed and therefore diluted with natural snow decreasing the percentage of machine-produced snow within the snowpack. Because ADEQ approved the use of reclaimed water, it is assumed different types of incidental contact that could potentially occur from use of class A reclaimed water for snowmaking were fully considered.
There are several problems with this response. First, the response does not assess the risk that children will eat the artificial snow. Stating that it is the parents’ responsibility to prevent their children from doing so neither responds to the question whether signs would prevent children from eating snow nor addresses whether ingesting artificial snow would be harmful. Second, the Forest Service‘s assumption that the ADEQ‘s approval means the snow must be safe for ingestion is inconsistent with that same agency‘s regulations, which are designed to prevent human ingestion. Third, the assumption that the ADEQ actually analyzed the risk of skiers ingesting the treated sewage effluent snow is not supported by any evidence in the FEIS (or elsewhere in the administrative record). Finally, the Forest Service‘s answer is misleading in stating that the treated sewage effluent will be “diluted.” The artificial snow would itself be made entirely from treated sewage effluent and would only be “mixed and therefore diluted” with natural snow insofar as the artificial snow intermingles with a layer of natural snow. During a dry winter, there may be little or no natural snow with which to “dilute” the treated sewage effluent.
Appellees have also contended that the FEIS “sets forth relevant mitigation measures” to “the possibility that someone may ingest snow.” Although Appellees have not specified the “relevant mitigation measures” to which they refer, the only mitigation measure mentioned in the FEIS is the requirement under Arizona law that the Snowbowl post signs “so the public is informed that reclaimed water is in use and that no one should drink from the system.”
Our role in reviewing the FEIS under the
I do not believe that the Forest Service has provided a “reasonably thorough discussion” of any risks posed by human ingestion of artificial snow made from treated sewage effluent or articulated why such a discussion is unnecessary, has provided a “candid acknowledgment” of any such risks, and has provided an analysis that will “foster both informed decisionmaking and informed public participation.” I would therefore hold that the FEIS does not satisfy
III. Conclusion
I would hold that Appellants have proved violations of both the
The San Francisco Peaks have been at the center of religious beliefs and practices of Indian tribes of the Southwest since time out of mind. Humphrey‘s Peak, the holiest of the San Francisco Peaks, will from this time forward be desecrated and spiritually impure. In part, the majority justifies its holding on the ground that what it calls “public park land” is land that “belongs to everyone.” Maj. op. at 1063-64. There is a tragic irony in this justification. The United States government took this land from the Indians by force. The majority now uses that forcible deprivation as a justification for spraying treated sewage effluent on the holiest of the Indians’ holy mountains, and for refusing to recognize that this action constitutes a substantial burden on the Indians’ exercise of their religion.
KT & G CORP., Xcaliber International Limited, LLC, Plaintiffs-Appellants,
v.
ATTORNEY GENERAL OF the STATE OF OKLAHOMA, W.A. Drew Edmondson, in his official capacity as Attorney General, Defendant-Appellee.
Xcaliber International Limited, LLC, Plaintiff-Appellant,
v.
Stephen Six, Attorney General, in his official capacity as Attorney General, State of Kansas, Defendant-Appellee.
Nos. 05-5175, 05-5178.
United States Court of Appeals, Tenth Circuit.
July 23, 2008.
Notes
Putting aside the Equal Protection Clause violation that may arise from a law targeting only Christians or only Jews, the dissent‘s examples are clearly distinguishable. When a law “permits only” recycled wastewater to carry out baptisms or “permits only” non-Kosher food for Orthodox Jews, the government compels religious adherents to engage in activities repugnant to their religious beliefs under the penalty of sanctions. Such government compulsion is specifically prohibited by the Supreme Court‘s decision in Yoder. A law permitting Indians to use only recycled wastewater in their religious or healing ceremonies would likewise constitute a substantial burden on their religious exercise. But there is no such law in this case. When the government allows the use of recycled wastewater on a ski area, it does not compel the Plaintiffs to act contrary to their religious tenets. The Plaintiffs remain free to use natural water in their religious or healing ceremonies and otherwise practice their religion using whatever resources they may choose.