Snow made from reclaimed water interferes with tribes’ religious practices
April, 2007
Relying on the Religious Freedom Restoration Act (the "RFRA"), the Ninth Circuit Court of Appeals halted expansion of an Arizona ski resort that would have used artificial snow made from reclaimed water on a mountain that is sacred to a number of Indian tribes. In Navajo Nation v. United States Forest Service,[i] the court struck down the proposed expansion of the resort's facilities, finding that the expansion would substantially burden tribal exercise of religion. The decision, which held that the RFRA provides greater protection for a broader range of religious practices than under the First Amendment's Free Exercise Clause and imposes a higher standard on the government to justify its conduct,[ii] may lead to an increased use of the RFRA by tribes seeking to protect or prevent development of off-reservation lands that are sacred to them.[iii]
Religious Freedom Restoration Act
Under the RFRA, the federal government[iv] may not "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless the application of the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.[v] The "exercise of religion" is defined to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief,"[vi] and specifically includes the "use, building, or conversion of real property."[vii]
The RFRA provides greater protection for religious practices than the Free Exercise Clause in several ways. First, the RFRA prohibits "burdening" the exercise of religion, where the First Amendment forbids "prohibiting" the free exercise of religion.[viii] Second, the RFRA imposes in every case a least restrictive means requirement which is absent from Free Exercise jurisprudence.[ix] Third, the RFRA applies a compelling interest test in every case, where Free Exercise cases do not impose such heightened scrutiny on the enforcement of laws that are facially neutral and uniformly applied.[x] Finally, and perhaps most importantly, the RFRA expands the definition of the "exercise of religion" and protects a broader range of religious conduct than is protected under the Supreme Court's interpretation of the exercise of religion protected under the First Amendment.[xi]
In summary, to state a claim under the RFRA, a claimant must show that the government's proposed action imposes a substantial burden on the ability to freely practice his or her religion.[xii] The burden must be more than an inconvenience to be actionable; it must prevent the claimant from engaging in religious conduct or having a religious experience. [xiii] But, the religious practice alleged to be burdened need not be compelled by, or central to, a system of religious belief.[xiv] To rebut a claim, the government must establish that the proposed action is in furtherance of a compelling government interest and constitutes the least restrictive means of furthering that interest. The standard is "the most demanding test known to constitutional law"[xv] and "[o]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."[xvi]
The San Francisco Peaks
The San Francisco Peaks (the "Peaks") is a large mountain made up of Humphrey's Peak, Agassiz Peak, Doyle Peak, and Fremont Peak, located within the 1.8 million acres of the Coconino National Forest in northern Arizona. In 1984, Congress designated 18,960 acres of the Peaks as the Kachina Peaks Wilderness.[xvii] The Forest Service has identified the Peaks as eligible for inclusion in the National Register of Historic Places and as a "traditional cultural property," which is defined as one "associat[ed] with cultural practices or beliefs of a living community that (a) are rooted in that community's history, and (b) are important in maintaining the continuing cultural identity of the community."[xviii] As the Forest Service described in detail in its Final Environmental Impact Statement ("FEIS"), the Peaks are the most sacred place of both the Navajo and the Hopi and the tribes' religions have revolved around the Peaks for centuries.[xix] The tribes' religious practices require pure natural resources from the Peaks, including, in particular, spring water.[xx]
Proposed Snowbowl Expansion
The Arizona Snowbowl ("Snowbowl") is a privately-owned ski area situated in the Coconino National Forest, on the Peaks, and is operated under a 777-acre Forest Service Special Use Permit.[xxi] Snowbowl has been used as a ski area since 1938. In 1979, the Forest Service approved a series of upgrades, including new lifts, trails, and facilities. The 1979 approval was challenged, unsuccessfully, by an association of Navajo men, the Hopi tribe, and two nearby ranchers under the Free Exercise Clause of the First Amendment, and NEPA.[xxii]
Snowbowl is located in a desert, and therefore suffers from inconsistent annual snowfall which has led to a sporadic operating seasons and corresponding fluctuations in annual visitation.[xxiii] The expansion approved by the Forest Service in 2005 included a proposal to make artificial snow using treated sewage effluent from the City of Flagstaff. Depending on the volume of natural snowfall in a given season, substantially more than 100 million gallons of effluent could be deposited on the Peaks over the course of the ski season.[xxiv] The proposed expansion also included construction of a 10 million gallon reservoir on the mountain to store effluent to allow snowmaking to continue after the scheduled annual cutoff of the supply from Flagstaff.[xxv]
Treated sewage effluent may be safely and beneficially used for many purposes, and is an important strategy for conserving and augmenting Arizona's drinking water supply through the reuse of reclaimed water to replace potable (drinkable) water being used for nonpotable purposes such as irrigation and fire protection.[xxvi] However, Arizona law prohibits human ingestion of reclaimed water, and requires reclaimed water users to take precautions to prevent human ingestion, and post and maintain signs informing the public that reclaimed water is in use and should not be ingested.[xxvii] The reclaimed water contains levels of fecal coliform bacteria and other microbial pathogens and residual organic contaminants, even after treatment.[xxviii]
The Tribes' RFRA Claim
The tribes alleged that the use of reclaimed water for snowmaking would substantially burden their exercise of religion in two ways: (1) it would prevent them from performing particular ceremonies, because the ceremonies require collection of resources from the Peaks that would be too contaminated for sacramental use; and (2) it would prevent them from maintaining daily and annual religious practices comprising their entire way of life because the practices require a connection to the mountain and/or a belief in the mountain's purity, both of which would be undermined by the contamination.[xxix]
The Ninth Circuit's Decision
The Ninth Circuit rejected the three arguments made by the Forest Service and Snowbowl[xxx] and held that, even if artificial snow was essential for the resort to survive as a commercial operation, there is no compelling governmental interest in ensuring that survival or in providing public recreation.[xxxi] Nor did the Ninth Circuit find any evidence that there was a current risk to public safety that would be remedied by the expansion.[xxxii] Finally, the Ninth Circuit rejected the contention that accommodating the tribes' religious practices by declining to allow a commercial operator in a national forest "to put treated sewage effluent on a sacred mountain" ran afoul of the Establishment Clause.[xxxiii]
The Ninth Circuit also rejected the defendants' reliance on Lyng v. Northwest Indian Cemetery Protection Association ("Lyng").[xxxiv] Lyng involved an unsuccessful challenge to a Forest Service road in an area that had historically been used by several Indian tribes for religious purposes. The Ninth Circuit concluded that Lyng was not controlling because, in addition to being factually distinct, it was brought under the Free Exercise Clause of the First Amendment, which poses a substantially higher burden to a claimant and more narrowly defines "exercise of religion."[xxxv]
Reaction
The plaintiff tribes, environmental groups, and Save the Peaks Coalition called the decision a "landmark ruling" and a "victory for religious freedom, environmental justice, & cultural survival."[xxxvi] An attorney for the tribes noted the significance of the decision as a basis for other tribes, across the country, to help protect religious and culturally significant sites.[xxxvii] Snowbowl called the decision an abuse of the NEPA process and a threat to long-standing law governing the use of public lands, and indicated it would pursue further judicial review.[xxxviii]
Conclusion
The tribes' use of the RFRA to protect sacred areas located on public lands may prove to be a significant tool if the Arizona Snowbowl decision stands. Tribes that are willing to describe sacred practices and places in a court - which some tribes may not be willing to do – may find the RFRA to be more effective than other laws designed to protect historic and cultural resources in limiting or preventing development.[xxxix] Federal agencies, and the private parties seeking permits from those agencies, should take heed of this decision, and use it to inform the process at the environmental review phase, to better identify compelling government interests and least restrictive means.
For more information, contact Connie Sue Martin.
[iv] As originally enacted in 1993, RFRA applied to local, state and federal actors. In 1997, the U.S. Supreme Court held RFRA unconstitutional as applied to state and local governments. City of Boerne v. Flores, 521 U.S. 507 (1997). Three years later, in response to Boerne, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA"), codified at 42 U.S.C. 2000cc et seq. RLUIPA prohibits state and local governments from imposing substantial burdens on the exercise of religion through prisoner or land use regulations. Opinion, at 2842 – 2843.
[v] 42 U.S.C. § 2000bb-1(a), (b).
[vi] 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A).
[vii] 42 U.S.C. § 2000cc-5(7)(B).
[xii] Id at 2862, citing Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002).
[xiii] Id, citing Guerrero, at 1222 and Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995).
[xiv] Id, citing 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A).
[xv] Id at 2863, quoting Boerne, 521 U.S. at 534.
[xvi] Id, quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
[xvii] Arizona Wilderness Act of 1984, Pub.L. No. 98-406, § 101(a)(22), 98 Stat. 1485.
[xviii] National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties (rev. ed.1998), available at http://www. cr.nps.gov/nr/publications/bulletins/nrb38/.
[xx] Id at 2846 – 2861 (describing the religious practices of the Hopi, Navajo, Hualapai and Havasupai tribes).
[xxii] Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983).
[xxiii] Record of Decision, Arizona Snowbowl Facilities Improvements FEIS and Forest Plan Amendment No. 21, at 4 ("ROD") (available at http://www.fs.fed.us/r3/coconino/nepa/2005/feis-snowbowl/snowbowl-rod.pdf.). In dry years, the season has been as short as 4 skiable days (2001 – 2002). In wet years, such as 2004 – 2005, there have been as many as 139 skiable days. Opinion, at 2839.
[xxvii] Ariz. Admin. Code § R18-9-704(H)(2005).
[xxviii] Opinion, at 2854.
[xxix] Id at 2856. "To get some sense of equivalence, it may be useful to imagine the effect on Christian beliefs and practices . . . if the government were to require that baptisms be carried out with "reclaimed water." Id at 2871.
[xxx] 408 F. Supp.2d at 906.
[xxxi] Opinion, at 2865 - 66.
[xxxiv] 485 U.S. 439 (1988).
[xxxv] Opinion, at 2869 – 70.
[xxxix] The Snoqualmie Tribe challenged Puget Sound Energy's hydropower license at Snoqualmie Falls based on the RFRA. That case, presently pending before the Ninth Circuit Court of Appeals, was argued February 8, 2007. (Cause numbers 05-74060 and 05-72739).