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Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 08 Cal. Daily Op. Serv. 10,292, 2008 Daily Journal D.A.R. 12,425

Facts

The Indian tribes consider the San Francisco Peaks in Northern Arizona sacred and argue that using recycled wastewater for artificial snow desecrates the mountain and harms their religious practices. The Forest Service approved the Snowbowl ski area’s proposal to use recycled wastewater for snowmaking after extensive consultations with the tribes. The district court found that the tribes' beliefs were sincere but that the use of artificial snow would not physically affect their religious practices or access to the mountain.

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.

Issue

Does the proposed use of recycled wastewater to make artificial snow for a ski resort on a sacred mountain substantially burden the free exercise of religion of the Indian tribes under the RFRA?

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”), 42 U.S.C. §§ 2000bb et seq.

Rule

Under the RFRA, a substantial burden on the exercise of religion occurs only when individuals are forced to choose between following their religious tenets and receiving a governmental benefit or are coerced to act contrary to their beliefs under threat of sanctions.

RFRA states, in relevant part: (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.

Analysis

The court determined that the use of recycled wastewater did not impose a substantial burden on the tribes' religious exercise because it did not coerce them into violating their beliefs or penalize their religious activities. The presence of artificial snow was found to affect only the tribes' subjective spiritual experience, which does not meet the threshold for a substantial burden as defined by RFRA and relevant Supreme Court precedents.

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.

Conclusion

The court affirmed the district court's ruling that the proposed use of recycled wastewater for artificial snow does not violate the RFRA, NEPA, or NHPA.

We hold that the Plaintiffs have failed to establish a RFRA violation.

Who won?

The Forest Service prevailed because the court found that the use of recycled wastewater did not substantially burden the tribes' exercise of religion and complied with environmental regulations.

The Forest Service 'has guaranteed that religious practitioners would still have access to the Snowbowl' and the rest of the Peaks for religious purposes.

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