Navajo Nation v. USFS

1058 535 FEDERAL REPORTER, 3d SERIES
mandating that businesses quote all prices whether it has subject matter jurisdiction
inclusive of Washingtons B & O Tax. Un- over Appellants claims.
der RCW 82.04.500, businesses are allowed
VACATED AND REMANDED.
to itemize the B & O Tax and pass the B &
O Tax to the consumer, so long as the tax
is disclosed to the consumer during the
course of negotiating a purchase price.
Appleway Chevrolet, 157 P.3d at 851 (em-
phasis in original). RCW 82.04.500 there- ,
fore acts as a consumer protection statute,
regulating the method of disclosure, rather
than the reasonableness or propriety of
the underlying rate.2 The legislative histo-
ry of section 332(c)(3)(A) confirms that
Congress did not intend the FCA to pre-
NAVAJO NATION; Havasupai Tribe;
clude the states from adopting measures
Rex Tilousi; Dianna Uqualla; Sierra
like RCW 82.04.500, but rather considered
Club; White Mountain Apache Na-
them other terms and conditions that are
tion; YavapaiApache Nation; The
expressly excluded from section Flagstaff Activist Network, Plaintiffs
332(c)(3)(A)s preemption of rates. See Appellants,
H.R.Rep. No. 103111, at 261 (1993), re-
printed in 1993 U.S.C.C.A.N. 378, 588 (ex- and
plaining that terms and conditions TTT
include such matters as customer billing Hualapai Tribe; Norris Nez; Bill Bucky
information and practices and billing dis- Preston; Hopi Tribe; Center for Bio-
putes and other consumer protection mat- logical Diversity, Plaintiffs,
ters (emphasis added)). v.
We hold, therefore, that the FCA does UNITED STATES FOREST SERVICE;
not preempt state claims brought pursuant Nora Rasure, in her official capacity
to RCW 82.04.500. as Forest Supervisor, Responsible Of-
ficer, Coconino National Forest; Harv
IV. CONCLUSION Forsgren, appeal deciding office, Re-
gional Forester, in his official capaci-
Having concluded that there is no feder- ty, DefendantsAppellees,
al preemption of Appellants state law
claims, this court is of the opinion that the Arizona Snowbowl Resort Limited
matter should be vacated and remanded to Partnership, Defendant
the district court for a determination of intervenorAppellee.
2. Contrary to the claims of Cingular and ami- gotiation or on customers bills, how much of
cus curiae CTIAThe Wireless Association, the purchase price is attributable to the B &
we are skeptical that requiring businesses to O Tax. It simply may not add a B & O
quote prices on a tax-inclusive basis will nec- charge as one of several fees and taxes after
essarily mislead or conceal from consumers [it and its customers] negotiated and agreed
the effect of the states tax on their rates. upon a final purchase price. Appleway
Cingular remains free to disclose, during ne- Chevrolet, 157 P.3d at 851.
NAVAJO NATION v. U.S. FOREST SERVICE 1059
Cite as 535 F.3d 1058 (9th Cir. 2008)
Navajo Nation; Hualapai Tribe; Norris trial, the United States District Court for
Nez; Bill Bucky Preston; Havasupai the District of Arizona, Paul G. Rosenblatt,
Tribe; Rex Tilousi; Dianna Uqualla; J., 408 F.Supp.2d 866, held that the pro-
Sierra Club; White Mountain Apache posed use did not violate the Religious
Nation; YavapaiApache Nation; Freedom Restoration Act (RFRA) and
Center for Biological Diversity; The granted Forest Services motion for sum-
Flagstaff Activist Network, Plaintiffs, mary judgment on claims brought under
and National Environmental Policy Act
Hopi Tribe, PlaintiffAppellant, (NEPA) and the National Historic Preser-
vation Act (NHPA). Appeal was taken. The
v.
Court of Appeals, William A. Fletcher, Cir-
United States Forest Service; Nora Ras- cuit Judge, 479 F.3d 1024, affirmed in part,
ure, in her official capacity as Forest
reversed in part and remanded, and appli-
Supervisor, Responsible Officer, Co-
cation for rehearing en banc was granted.
conino National Forest; Harv Fors-
gren, appeal deciding office, Regional Holdings: The Court of Appeals, Bea,
Forester, in his official capacity, De- Circuit Judge, held that:
fendantsAppellees,
(1) proposed use of recycled wastewater to
Arizona Snowbowl Resort Limited make artificial snow for commercial ski
Partnership, Defendant resort located in national park on
intervenorAppellee. mountain considered sacred by some
Hualapai Tribe; Norris Nez; Bill Indian tribes would not substantially
Bucky Preston, Plaintiffs burden free exercise of religion by
Appellants, tribal members, within meaning of the
RFRA;
v.
United States Forest Service; Nora Ras- (2) Final Environmental Impact State-
ure, in her official capacity as Forest ment (FEIS) prepared by Forest Ser-
Supervisor, Responsible Officer, Co- vice satisfied requirements of NEPA;
conino OPINION National Forest; and
Harv Forsgren, appeal deciding office,
(3) in preparing FEIS, Forest Services
Regional Forester, in his official ca-
consultation process concerning effects
pacity, DefendantsAppellees.
on historic properties to which Indian
Nos. 0615371, 0615436, 0615455. tribes attached religious and cultural
United States Court of Appeals, significance was substantively and pro-
Ninth Circuit. cedurally adequate under the NHPA.
Argued and Submitted Dec. 11, 2007. Affirmed.
Filed Aug. 8, 2008.
William A. Fletcher, Circuit Judge, dis-
Background: Numerous Indian tribes, sented and filed opinion, in which Preger-
their members, and environmental organi- son and Fisher, Circuit Judges, joined.
zation brought action challenging the For-
est Services decision to authorize pro-
posed use of recycled wastewater to make
1. Federal Courts O776
artificial snow for commercial ski resort
located in national park on mountain con- Court of Appeals reviews de novo dis-
sidered sacred by tribes. Following bench trict courts grant of summary judgment.
2. Federal Courts O776, 850.1 Freedom Restoration Act of 1993, 3(a),

Court of Appeals reviews district 42 U.S.C.A. 2000bb1(a).
courts conclusions of law following a bench
trial de novo and its findings of fact for 5. Civil Rights O1406
clear error. In cause of action under the Religious
Freedom Restoration Act (RFRA), once
3. Civil Rights O1073
plaintiff establishes a substantial burden
Indians O144
on his exercise of religion, burden of per-
Proposed use of recycled wastewater suasion shifts to government to prove that
to make artificial snow for commercial ski
challenged government action is in further-
resort located in national park on moun-
ance of compelling governmental interest
tain considered sacred by some Indian
and is implemented by the least restrictive
tribes would not substantially burden
means; if government cannot so prove,
free exercise of religion by tribal members,
then court must find an RFRA violation.
within meaning of the Religious Freedom
Religious Freedom Restoration Act of
Restoration Act (RFRA), though proposed
1993, 3(b), 42 U.S.C.A. 2000bb1(b).
action might offend tribal members reli-
gious sensibilities and be seen as desecrat- 6. Civil Rights O1032, 1406
ing this sacred mountain, where ski resort Government action imposes substan-
occupied roughly one percent of surface of tial burden on free exercise of religion, so
mountain, proposed use did not prevent as to shift to government the burden, in
tribal members from accessing mountain cause of action under the Religious Free-
for purpose of carrying out religious ob- dom Restoration Act (RFRA), of showing
servances, and proposed use did not coerce that challenged government action is in
tribal members to act contrary to their furtherance of compelling governmental
religious beliefs under threat of sanctions, interest and is implemented in the least
nor did it condition any governmental ben- restrictive means, only when government
efit on conduct that would violate their action forces individuals to choose between
religious beliefs. Religious Freedom Res- following tenets of their religion and re-
toration Act of 1993, 3(a), 42 U.S.C.A. ceiving a governmental benefit or coerces
2000bb1(a). them to act contrary to their religious
See publication Words and Phras-
beliefs by threat of civil or criminal sanc-
es for other judicial constructions
and definitions. tions; lesser burden is not a substantial
burden, within meaning of the RFRA.
4. Civil Rights O1032
Religious Freedom Restoration Act of
To establish prima facie claim for vio- 1993, 3, 42 U.S.C.A. 2000bb1.
lation of the Religious Freedom Restora-
See publication Words and Phras-
tion Act (RFRA), plaintiff must present es for other judicial constructions
evidence sufficient to allow trier of fact and definitions.
rationally to find existence of two ele-
ments: (1) that the activities allegedly bur- 7. Statutes O212.6
dened by government action constitute an When statute does not expressly de-
exercise of religion; and (2) that the fine a term of settled meaning, courts in-
government action substantially burdens terpreting statute must infer, unless stat-
plaintiffs exercise of religion; if plaintiff ute otherwise dictates, that Congress
cannot prove either of these two element, means to incorporate the established
then his RFRA claim fails. Religious meaning of that term.
Cite as 535 F.3d 1058 (9th Cir. 2008)
8. Civil Rights O1032, 1073 snow for commercial ski resort adequately
Religious Land Use and Institutional- considered environmental impact of divert-
ized Persons Act (RLUIPA) does not ap- ing this treated wastewater from regional
ply to federal government action, but only aquifer, as required by the NEPA; imme-
to action by state or local governments, diately after describing parameters of
and even as to state and local govern- study area for watershed analysis, FEIS
ments, it applies only to government land- identified as one of cumulative effects to be
use regulations of private land, not to gov- analyzed the potential long-term effects on
ernments management of its own land. regional aquifer from diversions of recy-
Religious Land Use and Institutionalized cled wastewater for snowmaking, and pro-
Persons Act of 2000, 2 et seq., 42 vided quantitative analysis concluding that
U.S.C.A. 2000cc et seq. snowmaking would result in an estimated
9. Environmental Law O604(6) net average reduction in groundwater re-
Final Environmental Impact State- charge to regional aquifer of slightly less
ment (FEIS) concerning proposed use of than two percent of citys total annual
recycled wastewater to make artificial water production. National Environmen-
snow for commercial ski resort adequately tal Policy Act of 1969, 102(2)(C), 42
disclosed to public, and made clear that U.S.C.A. 4332(2)(C).
Forest Service had considered, the risk 11. Environmental Law O604(6)
posed by endocrine disruptors, as required Final Environmental Impact State-
by the NEPA; main body of FEIS con- ment (FEIS) prepared by Forest Service
tained subsection on endocrine disruptors
concerning proposed use of recycled
which cited range of research and dis-
wastewater to make artificial snow for
cussed the growing scientific and govern-
commercial ski resort satisfied its obli-
mental concern about their effects on wild-
gations under the NEPA to discuss effects
life, humans and environment, disclosed
of proposed action on human environment;
and discussed studies done on endocrine
FEIS made clear that Forest Service had
disruptors in the recycled wastewater pro-
conducted extensive analysis of issue,
posed for use, contained table listing
drawing from existing literature and ex-
amounts of suspected disruptors measured
tensive consultation with affected Indian
in water, briefly summarized study of its
effect on various animals in experiments tribes, and the FEIS described at length
conducted by university professor, and the religious beliefs and practices of tribes
commented that concentrations of suspect- and impact that proposal would likely have
ed endocrine disruptors were significantly on those beliefs and practices. National
lower in recycled wastewater proposed for Environmental Policy Act of 1969,
use than in other wastewater also meas- 102(2)(A), 42 U.S.C.A. 4332(2)(A).
ured in study, and that proposed use of 12. Environmental Law O89
this recycled wastewater for snowmaking In preparing Final Environmental Im-
would not result in comparable environ- pact Statement (FEIS) concerning pro-
mental exposure. National Environmental posed use of recycled wastewater to make
Policy Act of 1969, 2 et seq., 42 U.S.C.A. artificial snow for commercial ski resort
4321 et seq.
located on mountain that was considered
10. Environmental Law O604(6) sacred by some Indian tribes, Forest Ser-
Final Environmental Impact State- vices consultation process concerning ef-
ment (FEIS) concerning proposed use of fects on historic properties to which Indian
recycled wastewater to make artificial tribes attached religious and cultural sig-
nificance was substantively and procedur- Geraldine Link, National Ski Areas As-
ally adequate under National Historic sociation, Lakewood, CO; Ezekiel J.
Preservation Act (NHPA). 16 U.S.C.A. Williams, Jacy T. Rock, Faegre & Benson
470a(d)(6). LLP, Denver, CO; Glenn E. Porzak, P.
Fritz Holleman, Eli A. Feldman, Porzak
West Codenotes Browning & Bushong LLP, Boulder, CO;
Recognized as Unconstitutional for the National Ski Areas Association as
42 U.S.C.A. 2000bb-1, 42 U.S.C.A. Amicus Curiae in Support of the defen-
2000bb-2, 42 U.S.C.A. 2000bb-3, 42 dants-appellees.
U.S.C.A. 2000bb-4 William Perry Pendley, Mountain States
Legal Foundation, Lakewood, CO; for the
Mountain States Legal Foundation as
Amicus Curiae in Support of the defen-
dants-appellees.
Howard M. Shanker (argued), Laura Appeal from the United States District
Lynn Berglan, The Shanker Law Firm, Court for the District of Arizona; Paul G.
PLC, Tempe, AZ; Jack F. Trope (argued), Rosenblatt, District Judge, Presiding.
Association on American Indian Affairs, D.C. Nos. CV0501824PGR, CV05
Rockville, MD; Kimberly Schooley, DNA 01914PGR, CV0501949PGR, CV05
Peoples Legal Services, Flagstaff, Ari- 01966PGR.
zona; Terence M. Gurley and Zackeree
Kelin, DNAPeoples Legal Services, Win- Before: ALEX KOZINSKI, Chief
dow Rock, AZ; Lisa A. Reynolds, James Judge, HARRY PREGERSON,
E. Scarboro (argued), Arnold & Porter DIARMUID F. OSCANNLAIN,
LLP, Denver, CO; Anthony S. Canty, Ly- PAMELA ANN RYMER, ANDREW J.
nelle Kym Hartway, Office of General KLEINFELD, BARRY G. SILVERMAN,
Counsel, The Hopi Tribe, Kykotsmovi, AZ, W. FLETCHER, RAYMOND C.
for the plaintiffs-appellants. FISHER, RICHARD R. CLIFTON,
CARLOS T. BEA, and SANDRA S.
Catherine E. Stetson (argued), Andrew
IKUTA, Circuit Judges.
L. Spielman, Hogan & Hartson LLP,
Washington, DC; Janice M. Schneider, Opinion by Judge BEA; Dissent by
Latham & Watkins LLP, Washington, DC; Judge WILLIAM A. FLETCHER.
Sue Ellen Wooldridge, Matthew J.
McKeown, Andrew C. Mergen, Kathryn E. BEA, Circuit Judge:
Kovacs, Lane M. McFadden (argued), In this case, American Indians ask us to
United States Department of Justice, En- prohibit the federal government from al-
vironment & Natural Resources Division, lowing the use of artificial snow for skiing
Washington, DC; Philip A. Robbins, Paul on a portion of a public mountain sacred in
G. Johnson, Michael J. OConnor, John J. their religion. At the heart of their claim
Egbert, Jennings, Strouss & Salmon, is the planned use of recycled wastewater,
P.L.C., Phoenix, AZ, for the defendants- which contains 0.0001% human waste, to
appellees. make artificial snow.1 The Plaintiffs claim
1. It appears that some of the Plaintiffs would used. Panel Oral Argument (Sept. 14, 2006)
challenge any means of making artificial at 12:2512:45 (Hopi Plaintiffs).
snow, even if no recycled wastewater were
Cite as 535 F.3d 1058 (9th Cir. 2008)
the use of such snow on a sacred mountain gious and cultural purposes. On the
desecrates the entire mountain, deprecates mountain, they continue to pray, conduct
their religious ceremonies, and injures their religious ceremonies, and collect
their religious sensibilities. We are called plants for religious use.
upon to decide whether this government-
approved use of artificial snow on govern- Thus, the sole effect of the artificial
ment-owned park land violates the Reli- snow is on the Plaintiffs subjective spiritu-
gious Freedom Restoration Act of 1993 al experience. That is, the presence of the
(RFRA), 42 U.S.C. 2000bb et seq., the artificial snow on the Peaks is offensive to
National Environmental Policy Act of 1969 the Plaintiffs feelings about their religion
(NEPA), 42 U.S.C. 4321 et seq., and and will decrease the spiritual fulfillment
the National Historic Preservation Act Plaintiffs get from practicing their religion
(NHPA), 16 U.S.C. 470 et seq. We on the mountain. Nevertheless, a govern-
hold that it does not, and affirm the dis- ment action that decreases the spirituality,
trict courts denial of relief on all grounds. the fervor, or the satisfaction with which a
believer practices his religion is not what
* * * Congress has labeled a substantial bur-
Plaintiff Indian tribes and their mem- dena term of art chosen by Congress to
bers consider the San Francisco Peaks in be defined by reference to Supreme Court
Northern Arizona to be sacred in their precedenton the free exercise of religion.
religion.2 They contend that the use of Where, as here, there is no showing the
recycled wastewater to make artificial government has coerced the Plaintiffs to
snow for skiing on the Snowbowl, a ski act contrary to their religious beliefs under
area that covers approximately one per- the threat of sanctions, or conditioned a
cent of the San Francisco Peaks, will spiri- governmental benefit upon conduct that
tually contaminate the entire mountain and would violate the Plaintiffs religious be-
devalue their religious exercises. The dis- liefs, there is no substantial burden on
trict court found the Plaintiffs beliefs to the exercise of their religion.
be sincere; there is no basis to challenge
that finding. The district court also found, Were it otherwise, any action the federal
however, that there are no plants, springs, government were to take, including action
natural resources, shrines with religious on its own land, would be subject to the
significance, or religious ceremonies that personalized oversight of millions of citi-
would be physically affected by the use of zens. Each citizen would hold an individu-
such artificial snow. No plants would be al veto to prohibit the government action
destroyed or stunted; no springs polluted; solely because it offends his religious be-
no places of worship made inaccessible, or liefs, sensibilities, or tastes, or fails to sat-
liturgy modified. The Plaintiffs continue isfy his religious desires. Further, giving
to have virtually unlimited access to the one religious sect a veto over the use of
mountain, including the ski area, for reli- public park land would deprive others of
2. The PlaintiffsAppellants in this case are the of the Havasupai Tribe), the Sierra Club, the
Navajo Nation, the Hopi Tribe, the Havasupai Center for Biological Diversity, and the Flag-
Tribe, the Hualapai Tribe, the Yavapai staff Activist Network.
Apache Nation, the White Mountain Apache The DefendantsAppellees are the United
Nation, Bill Bucky Preston (a member of the States Forest Service; Nora Rasure, the For-
Hopi Tribe), Norris Nez (a member of the est Supervisor; Harv Forsgren, the Regional
Navajo Nation), Rex Tilousi (a member of the Forester; and Intervenor Arizona Snowbowl
Havasupai Tribe), Dianna Uqualla (a member Resort Limited Partnership.
the right to use what is, by definition, land at 869, 883. The Peaks cover about 74,000
that belongs to everyone. acres. Id. at 883. The Snowbowl sits on
[W]e are a cosmopolitan nation made 777 acres, or approximately one percent of
up of people of almost every conceivable the Peaks. Id. at 88384.
religious preference. Braunfeld v. The Forest Service designated the
Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 6 Snowbowl as a public recreation facility
L.Ed.2d 563 (1961). Our nation recognizes after finding the Snowbowl represented
and protects the expression of a great an opportunity for the general public to
range of religious beliefs. Nevertheless, access and enjoy public lands in a manner
respecting religious credos is one thing; that the Forest Service could not other-
requiring the government to change its wise offer in the form of a major facility
conduct to avoid any perceived slight to anywhere in Arizona. Id. at 884. The
them is quite another. No matter how Snowbowl has been in operation since the
much we might wish the government to 1930s and is the only downhill ski area
conform its conduct to our religious prefer- within the Coconino National Forest.4 Id.
ences, act in ways that do not offend our
The Peaks have long-standing religious
religious sensibilities, and take no action
and cultural significance to Indian tribes.
that decreases our spiritual fulfillment, no
The tribes believe the Peaks are a living
governmentlet alone a government that
entity. Id. at 887. They conduct religious
presides over a nation with as many reli-
ceremonies, such as the Navajo Blessing-
gions as the United States of America
way Ceremony, on the Peaks. Id. The
could function were it required to do so.
tribes also collect plants, water, and other
Lyng v. Nw. Indian Cemetery Protective
materials from the Peaks for medicinal
Assn, 485 U.S. 439, 452, 108 S.Ct. 1319, 99
L.Ed.2d 534 (1988). bundles and tribal healing ceremonies. Id.
According to the tribes, the presence of
I. Factual and Procedural the Snowbowl desecrates for them the
Background3 spirituality of the Peaks. Id. Certain Indi-
The Snowbowl ski area (the Snow- an religious practitioners believe the dese-
bowl) is located on federally owned public cration of the Peaks has caused many di-
land and operates under a special use per- sasters, including the September 11, 2001
mit issued by the United States Forest terrorist attacks, the Columbia Space
Service (the Forest Service). Navajo Shuttle accident, and increases in natural
Nation v. U.S. Forest Serv., 408 F.Supp.2d disasters. Id.
866, 88384 (D.Ariz.2006). Specifically, the This case is not the first time Indian
Snowbowl is situated on Humphreys Peak, tribes have challenged the operation of the
the highest of the San Francisco Peaks Snowbowl. In 1981, before the enactment
(the Peaks), located within the Coconino of RFRA, the tribes brought a challenge to
National Forest in Northern Arizona. Id. the Forest Services approval of a number
3. We find no clear error in the district courts 4. In addition to downhill skiing, many other
findings of fact, so our statement of the facts activities are conducted on the Peaks: sheep
is based on the district court opinion. The and cattle grazing, timber harvesting, road
dissent cursorily asserts that the majority building, mining, motorcross, mountain bik-
misstates the evidence below, Dissent at ing, horseback riding, hiking, and camping.
1081, but fails to cite any fact in the opinion Navajo Nation, 408 F.Supp.2d at 884. Fur-
ther, gas and electric transmission lines, wa-
that it claims to be misstated, or as to which
ter pipelines, and cellular towers are located
the district court erred in its findings of fact.
on the Peaks. Id.
Cite as 535 F.3d 1058 (9th Cir. 2008)
of upgrades to the Snowbowl, including the highly variable snowfall for several years;
installation of new lifts, slopes, and facili- this resulted in operating losses that
ties. See Wilson v. Block, 708 F.2d 735, threatened its ski operation. Id. at 884
739 (D.C.Cir.1983).5 The tribes asserted 85, 907. Indeed, the district court found
that the approved upgrades would seri- that artificial snowmaking is needed to
ously impair their ability to pray and con- maintain the viability of the Snowbowl as a
duct ceremonies upon the Peaks and to public recreational resource. Id. at 907.
gather from the Peaks sacred objects nec-
The recycled wastewater to be used for
essary to their religious practices. Id. at
snowmaking is classified as Av by the
740. According to the tribes, this consti-
Arizona Department of Environmental
tuted an unconstitutional burden on the
Quality (ADEQ).6 Id. at 887. Av recy-
exercise of their religion under the Free
cled wastewater is the highest quality of
Exercise Clause of the First Amendment.
recycled wastewater recognized by Ari-
Id.
zona law and may be safely and beneficial-
The D.C. Circuit in Wilson rejected the ly used for many purposes, including irri-
Indian tribes challenge to the upgrades. gating school ground landscapes and food
Id. at 73945. Although the court noted
crops. See Ariz. Admin. Code R1811309
that the proposed upgrades would cause
tbl. A. Further, the ADEQ has specifical-
the Indians spiritual disquiet, the up-
ly approved the use of recycled wastewater
grades did not impose a sufficient burden
for snowmaking. Id.
on the exercise of their religion: Many
government actions may offend religious In addition to being used to make snow,
believers, and may cast doubt upon the the recycled wastewater also will be used
veracity of religious beliefs, but unless for fire suppression on the Peaks. Navajo
such actions penalize faith, they do not Nation, 408 F.Supp.2d at 886. The pipe-
burden religion. Id. at 74142. The In- line that will transport the recycled waste-
dian tribes have continued to conduct reli- water to the Snowbowl will be equipped
gious activities on the Peaks ever since. with fire hydrants to provide water for fire
Navajo Nation, 408 F.Supp.2d at 884. suppression in rural residential areas and
With this brief background, we turn to to fight forest fires. Id. Further, a reser-
the Plaintiffs challenge in this case. In voir of recycled wastewater will be kept on
2002, the Snowbowl submitted a proposal the Snowbowl for forest fire suppression.
to the Forest Service to upgrade its opera- Id.
tions. Id. at 885. The proposal included a The Forest Service conducted an exten-
request for artificial snowmaking from re- sive review of the Snowbowls proposal.
cycled wastewater for use on the Snow- As part of its review, the Forest Service
bowl. Id. The Snowbowl had suffered made more than 500 contacts with Indian
5. At the time Wilson was decided, artificial thogens are removed, and reporting require-
snow from recycled wastewater was not used ments. Navajo Nation, 408 F.Supp.2d at
on the Snowbowl and was thus not at issue. 887. Further, the recycled wastewater will
comply with extensive treatment and moni-
6. The recycled wastewater that will be used
toring requirements under three separate
at the Snowbowl will undergo specific ad-
permit programs: the Arizona Pollutant Dis-
vanced treatment requirements, including
charge Elimination System (AZPDES) Per-
tertiary treatment with disinfection. In addi-
tion, the reclaimed water will comply with mit, the Arizona Aquifer Protection Permit
specific monitoring requirements, including Program, and the Water Reuse Program.
frequent microbiological testing to assure pa- Id.
tribes, including between 40 and 50 meet- pervisors approval of the proposed up-
ings, to determine the potential impact of grades. Id. at 886.
the proposal on the tribes.7 Id. at 885. In After their unsuccessful administrative
a December 2004 Memorandum of Agree- appeal, the Plaintiffs filed this action in
ment, the Forest Service committed to, federal district court. The Plaintiffs al-
among other things: (1) continue to allow leged that the Forest Services authoriza-
the tribes access to the Peaks, including tion of the use of recycled wastewater on
the Snowbowl, for cultural and religious the Snowbowl violates: (1) RFRA; (2)
purposes; and (2) work with the tribes NEPA; (3) NHPA; (4) ESA; (5) the
periodically to inspect the conditions of the Grand Canyon National Park Enlargement
religious and cultural sites on the Peaks Act (GCEA), 16 U.S.C. 228i; and (6)
and ensure the tribes religious activities the National Forest Management Act of
on the Peaks are uninterrupted. Id. at 1976 (NFMA), 16 U.S.C. 1600 et seq.8
90001. Id. at 871. Following cross-motions for
summary judgment, the district court de-
Following the review process, the For- nied the Plaintiffs motions for summary
est Supervisor approved the Snowbowls judgment and granted the Defendants mo-
proposal, including the use of recycled tion for summary judgment on all claims,
wastewater to make artificial snow, and except the RFRA claim. Id. at 869, 908.
issued a Final Environmental Impact After an 11day bench trial on the
Statement and a Record of Decision in RFRA claim, the district court held that
February 2005. Id. at 88586. The Plain- the proposed upgrades, including the use
tiffs appealed the Forest Supervisors deci- of recycled wastewater to make artificial
sion approving the Snowbowls proposal to snow on the Peaks, do not violate RFRA.
an administrative appeal board within the Id. at 883, 907. The district court found
Forest Service. Id. In June 2005, the that the upgrades did not bar the Plain-
Forest Service issued its final administra- tiffs access, use, or ritual practice on any
tive decision and affirmed the Forest Su- part of the Peaks. Id. at 905. As a
7. Of course, the impact of the Snowbowl pro- tion. In the Coconino National Forest alone,
posal on the American Indian tribes is not the there are approximately a dozen mountains
only factor the Forest Service must consider recognized as sacred by American Indian
in administering the Coconino National For- tribes. Id. at 897. The district court found
est. Congress has directed the Forest Service the tribes hold other landscapes to be sacred
to manage the National Forests for outdoor as well, such as canyons and canyon systems,
recreation, range, timber, watershed, and rivers and river drainages, lakes, discrete me-
wildlife and fish purposes. 16 U.S.C. 528. sas and buttes, rock formations, shrines, gath-
Additionally, the Forest Service must follow a ering areas, pilgrimage routes, and prehistor-
number of other directives under federal laws ic sites. Id. Within the Southwestern Region
and executive orders in administering the Co- forest lands alone, there are between 40,000
conino National Forest, including, but not and 50,000 prehistoric sites. Id. The district
limited to: NEPA; NHPA; the Endangered court also found the Navajo and the Hualapai
Species Act of 1973 (ESA), 16 U.S.C. Plaintiffs consider the entire Colorado River
1531 et seq.; the National Forest Ski Area to be sacred. Id. at 89798. New sacred
Permit Act of 1986, 16 U.S.C. 497b; the areas are continuously being recognized by
Wilderness Act, 16 U.S.C. 1131 et seq.; and the Plaintiffs. Id. at 898.
the MultipleUse SustainedYield Act of 1960,
16 U.S.C. 528 et seq. Navajo Nation, 408 8. On appeal, the Plaintiffs have abandoned
F.Supp.2d at 896. their claims under the ESA, GCEA, and
The Forest Services task is complicated by NFMA, leaving only the RFRA, NEPA, and
the number of sacred sites under its jurisdic- NHPA claims.
Cite as 535 F.3d 1058 (9th Cir. 2008)
result, the court held that the Plaintiffs on the Snowbowl imposes a substantial
had failed to demonstrate the Snowbowl burden on the free exercise of their reli-
upgrade coerces them into violating their gion, in violation of the Religious Freedom
religious beliefs or penalizes their religious Restoration Act of 1993 (RFRA), 42
activity, as required to establish a sub- U.S.C. 2000bb et seq. We hold that the
stantial burden on the exercise of their Plaintiffs have failed to establish a RFRA
religion under RFRA. Id. violation. The presence of recycled waste-
A three-judge panel of this court re- water on the Peaks does not coerce the
versed the district court in part, holding Plaintiffs to act contrary to their religious
that the use of recycled wastewater on the beliefs under the threat of sanctions, nor
Snowbowl violates RFRA, and in one re- does it condition a governmental benefit
spect, that the Forest Service failed to upon conduct that would violate their reli-
comply with NEPA. See Navajo Nation v. gious beliefs, as required to establish a
U.S. Forest Serv., 479 F.3d 1024, 1029 (9th substantial burden on religious exercise
Cir.2007). The panel affirmed the grant of under RFRA.9
summary judgment to the Defendants on RFRA was enacted in response to the
four of five NEPA claims and the NHPA Supreme Courts decision in Employment
claim. Id. We took the case en banc to Division v. Smith, 494 U.S. 872, 110 S.Ct.
revisit the panels decision and to clarify 1595, 108 L.Ed.2d 876 (1990).10 In Smith,
our circuits interpretation of substantial the Supreme Court held that the Free
burden under RFRA. Exercise Clause does not bar the govern-
ment from burdening the free exercise of
II. Standard of Review religion with a valid and neutral law of
[1, 2] We review de novo the district general applicability. Id. at 879, 110
courts grant of summary judgment. S.Ct. 1595 (citation and internal quotation
Muckleshoot Indian Tribe v. U.S. Forest marks omitted). Applying that standard,
Serv., 177 F.3d 800, 804 (9th Cir.1999). the Smith Court rejected the Free Exer-
We review the district courts conclusions cise Clause claims of the plaintiffs, who
of law following a bench trial de novo and were denied state unemployment compen-
its findings of fact for clear error. Lentini sation after being discharged from their
v. Cal. Ctr. for the Arts, Escondido, 370 jobs for ingesting peyote for religious pur-
F.3d 837, 843 (9th Cir.2004). poses. Id. at 890, 110 S.Ct. 1595.
Congress found that in Smith, the Su-
III. Religious Freedom Restoration preme Court virtually eliminated the re-
Act of 1993 quirement that the government justify
[3] Plaintiffs contend the use of artifi- burdens on religious exercise imposed by
cial snow, made from recycled wastewater, laws neutral toward religion. 42 U.S.C.
9. The Defendants do not contend RFRA is 10. In City of Boerne v. Flores, 521 U.S. 507,
inapplicable to the governments use and 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the
management of its own land, which is at issue Supreme Court invalidated RFRA as applied
in this case. Because this issue was not to the States and their subdivisions, holding
raised or briefed by the parties, we have no RFRA exceeded Congresss powers under the
occasion to consider it. Therefore, we as- Enforcement Clause of the Fourteenth
sume, without deciding, that RFRA applies to Amendment. Id. at 532, 536, 117 S.Ct. 2157.
the governments use and management of its We have held that RFRA remains operative as
land, and conclude there is no RFRA violation to the federal government. See Guam v.
Guerrero, 290 F.3d 1210, 122022 (9th Cir.
in this case.
2002).
2000bb(a)(4). Congress further found the least restrictive means. See id.
that laws neutral toward religion may 2000bb1(b). If the government cannot
burden religious exercise as surely as laws so prove, the court must find a RFRA
intended to interfere with religious exer- violation.
cise. Id. 2000bb(a)(2). With the enact- We now turn to the application of these
ment of RFRA, Congress created a cause principles to the facts of this case. The
of action for persons whose exercise of first question is whether the activities
religion is substantially burdened by a gov- Plaintiffs claim are burdened by the use of
ernment action, regardless of whether the recycled wastewater on the Snowbowl con-
burden results from a neutral law of gen- stitute an exercise of religion. RFRA
eral applicability. See id. 2000bb1. defines exercise of religion as any exer-
RFRA states, in relevant part: cise of religion, whether or not compelled
(a) In general by, or central to, a system of religious
Government shall not substantially bur- belief. 42 U.S.C. 2000bb2(4); 42
den a persons exercise of religion even U.S.C. 2000cc5(7)(A). The Defendants
if the burden results from a rule of do not contest the district courts holding
general applicability, except as provided that the Plaintiffs religious beliefs are sin-
in subsection (b) of this section. cere and the Plaintiffs religious activities
(b) Exception on the Peaks constitute an exercise of
Government may substantially burden a religion within the meaning of RFRA.
persons exercise of religion only if it The crux of this case, then, is whether
demonstrates that application of the the use of recycled wastewater on the
burden to the person Snowbowl imposes a substantial burden
(1) is in furtherance of a compelling gov- on the exercise of the Plaintiffs religion.
ernmental interest; and RFRA does not specifically define sub-
(2) is the least restrictive means of fur- stantial burden. Fortunately, we are not
thering that compelling governmental required to interpret the term by our own
interest. lights. Rather, we are guided by the ex-
Id. press language of RFRA and decades of
[4, 5] To establish a prima facie RFRA Supreme Court precedent.
claim, a plaintiff must present evidence
sufficient to allow a trier of fact rationally A.
to find the existence of two elements. Our interpretation begins, as it must,
First, the activities the plaintiff claims are with the statutory language. RFRAs
burdened by the government action must stated purpose is to restore the compel-
be an exercise of religion. See id. ling interest test as set forth in Sherbert v.
2000bb1(a). Second, the government Verner, 374 U.S. 398, 83 S.Ct. 1790, 10
action must substantially burden the L.Ed.2d 965 (1963) and Wisconsin v. Yo-
plaintiffs exercise of religion. See id. If der, 406 U.S. 205, 92 S.Ct. 1526, 32
the plaintiff cannot prove either element, L.Ed.2d 15 (1972) and to guarantee its
his RFRA claim fails. Conversely, should application in all cases where free exercise
the plaintiff establish a substantial burden of religion is substantially burdened. 42
on his exercise of religion, the burden of U.S.C. 2000bb(b)(1). RFRA further
persuasion shifts to the government to states the compelling interest test as set
prove that the challenged government ac- forth in TTT Federal court rulings [prior to
tion is in furtherance of a compelling gov- Smith ] is a workable test for striking
ernmental interest and is implemented by sensible balances between religious liberty
Cite as 535 F.3d 1058 (9th Cir. 2008)
and competing prior governmental inter- 83 S.Ct. 1790. The Supreme Court held
ests. Id. 2000bb(a)(5). South Carolina could not, under the Free
Of course, the compelling interest test Exercise Clause, condition unemployment
cited in the above-quoted RFRA provisions compensation so as to deny benefits to
applies only if there is a substantial bur- Sherbert because of the exercise of her
den on the free exercise of religion. That faith. Such a condition unconstitutionally
is, the government is not required to prove forced Sherbert to choose between follow-
a compelling interest for its action or that ing the precepts of her religion and forfeit-
its action involves the least restrictive ing benefits, on the one hand, and aban-
means to achieve its purpose, unless the doning one of the precepts of her religion
plaintiff first proves the government action in order to accept work, on the other
substantially burdens his exercise of reli- hand. Id. at 404, 83 S.Ct. 1790.11
gion. The same cases that set forth the In Yoder, defendants, who were mem-
compelling interest test also define what bers of the Amish religion, were convicted
kind or level of burden on the exercise of of violating a Wisconsin law that required
religion is sufficient to invoke the compel- their children to attend school until the
ling interest test. See Hernandez v.
children reached the age of sixteen, under
Commr, 490 U.S. 680, 699, 109 S.Ct. 2136,
the threat of criminal sanctions for the
104 L.Ed.2d 766 (1989) (noting the free
parents. Yoder, 406 U.S. at 20708, 92
exercise inquiry asks whether government
S.Ct. 1526. The defendants sincerely be-
has placed a substantial burden on the
lieved their childrens attendance in high
free exercise of religion (citing Yoder and
school was contrary to the Amish religion
other pre-Smith decisions)). Therefore,
and way of life. Id. at 209, 92 S.Ct. 1526.
the cases that RFRA expressly adopted
The Supreme Court reversed the defen-
and restoredSherbert, Yoder, and federal
dants convictions, holding the application
court rulings prior to Smithalso control
the substantial burden inquiry. of the compulsory school-attendance law to
the defendants unduly burden[ed] the
It is to those decisions we now turn.
exercise of their religion, in violation of the
B. Free Exercise Clause. Id. at 207, 220, 92
S.Ct. 1526. According to the Court, the
In Sherbert, a Seventh-day Adventist
Wisconsin law affirmatively compel[led
was fired by her South Carolina employer
the defendants], under threat of criminal
because she refused to work on Saturdays,
sanction, to perform acts undeniably at
her faiths day of rest. Sherbert, 374 U.S.
odds with fundamental tenets of their reli-
at 399, 83 S.Ct. 1790. Sherbert filed a
gious beliefs. Id. at 218, 92 S.Ct. 1526.
claim for unemployment compensation
benefits with the South Carolina Employ- [6] The Supreme Courts decisions in
ment Security Commission, which denied Sherbert and Yoder, relied upon and incor-
her claim, finding she had failed to accept porated by Congress into RFRA, lead to
work without good cause. Id. at 399401, the following conclusion: Under RFRA, a
11. As the Supreme Court later elaborated: upon religion exists. While the compulsion
Where the state conditions receipt of an may be indirect, the infringement upon free
important benefit upon conduct proscribed exercise is nonetheless substantial.
by a religious faith, or where it denies such Thomas v. Review Bd. of Ind. Employment
a benefit because of conduct mandated by Sec. Div., 450 U.S. 707, 71718, 101 S.Ct.
religious belief, thereby putting substantial 1425, 67 L.Ed.2d 624 (1981) (emphasis add-
pressure on an adherent to modify his be- ed) (discussing Sherbert ).
havior and to violate his beliefs, a burden
substantial burden is imposed only when gion under the threat of civil or criminal
individuals are forced to choose between sanctions, as in Yoder. The Plaintiffs are
following the tenets of their religion and not fined or penalized in any way for prac-
receiving a governmental benefit (Sher- ticing their religion on the Peaks or on the
bert ) or coerced to act contrary to their Snowbowl. Quite the contrary: the For-
religious beliefs by the threat of civil or est Service has guaranteed that religious
criminal sanctions (Yoder ). Any burden practitioners would still have access to the
imposed on the exercise of religion short of Snowbowl and the rest of the Peaks for
that described by Sherbert and Yoder is religious purposes. Navajo Nation, 408
not a substantial burden within the F.Supp.2d at 905.
meaning of RFRA, and does not require The only effect of the proposed up-
the application of the compelling interest grades is on the Plaintiffs subjective, emo-
test set forth in those two cases. tional religious experience. That is, the
Applying Sherbert and Yoder, there is no presence of recycled wastewater on the
substantial burden on the Plaintiffs ex- Peaks is offensive to the Plaintiffs reli-
ercise of religion in this case. The use of gious sensibilities. To plaintiffs, it will
recycled wastewater on a ski area that spiritually desecrate a sacred mountain
covers one percent of the Peaks does not and will decrease the spiritual fulfillment
force the Plaintiffs to choose between fol- they get from practicing their religion on
lowing the tenets of their religion and re- the mountain. Nevertheless, under Su-
ceiving a governmental benefit, as in Sher- preme Court precedent, the diminishment
bert. The use of recycled wastewater to of spiritual fulfillmentserious though it
make artificial snow also does not coerce may beis not a substantial burden on
the Plaintiffs to act contrary to their reli- the free exercise of religion.12
12. The dissents assertion that we misunder- gration of man and mountain into one, the
stand the nature of religious belief and prac- burden of the recycled wastewater can only
tice is misplaced. See Dissent at 1096. One be expressed by the Plaintiffs as damaged
need not study the writings of Sir Francis spiritual feelings. Under Supreme Court
Bacon, id. at 108081, or William James, id. precedent, government action that diminishes
at 1096, to understand religious exercise in- subjective spiritual fulfillment does not sub-
variably, and centrally, involves a subjective stantially burden religion.
spiritual experience. Id. at 1096. We Indeed, the Supreme Court in Yoder drew
agree with the dissent that spiritual fulfill- the same distinction between objective and
ment is a central part of religious exercise. subjective effect on religious exercise that the
We also note that the Indians conception of dissent criticizes us for drawing today: Nor
their lives as intertwined with particular is the impact of the compulsory-attendance
mountains, rivers, and trees, which are divine law confined to grave interference with im-
parts of their being, is very well explained in portant Amish religious tenets from a subjec-
tive point of view. It carries with it precisely
the dissent. Nevertheless, the question in this
the kind of objective danger to the free exer-
case is not whether a subjective spiritual ex-
cise of religion that the First Amendment was
perience constitutes an exercise of religion
designed to prevent. Yoder, 406 U.S. at 218,
under RFRA. That question is undisputed:
92 S.Ct. 1526 (emphasis added). Contrary to
The Indians religious activities on the Peaks,
the dissents assertions, in Yoder, it was not
including the spiritual fulfillment they derive
the effect of the high schools secular edu-
from such religious activities, are an exer-
cation on the childrens subjective religious
cise of religion.
sensibilities that constituted the undue burden
Rather, the sole question is whether a gov- on the free exercise of religion. Rather, the
ernment action that affects only subjective undue burden was the penalty of criminal
spiritual fulfillment substantially burdens sanctions on the parents for refusing to enroll
the exercise of religion. For all of the rich their children in such school. See Lyng, 485
complexity that describes the profound inte- U.S. at 457, 108 S.Ct. 1319 ([T]here is noth-
Cite as 535 F.3d 1058 (9th Cir. 2008)
The Supreme Courts decision in Lyng tions and internal quotation marks omit-
v. Northwest Indian Cemetery Protective ted).
Assn, 485 U.S. 439, 108 S.Ct. 1319, 99
L.Ed.2d 534 (1988), is on point. In Lyng, The Supreme Court rejected the Indian
Indian tribes challenged the Forest Ser- tribes Free Exercise Clause challenge.13
vices approval of plans to construct a log- The Court held the government plan,
ging road in the Chimney Rock area of the which would diminish the sacredness of
Six Rivers National Forest in California. the land to Indians and interfere signifi-
Id. at 442, 108 S.Ct. 1319. The tribes cantly with their ability to practice their
contended the construction would interfere religion, did not impose a burden heavy
with their free exercise of religion by dis- enough to violate the Free Exercise
turbing a sacred area. Id. at 44243, 108 Clause. Id. at 44749, 108 S.Ct. 1319.14
S.Ct. 1319. The area was an integral and The plaintiffs were not coerced by the
indispensable part of the tribes religious Governments action into violating their re-
practices, and a Forest Service study con- ligious beliefs (as in Yoder ) nor did the
cluded the construction would cause seri- governmental action penalize religious ac-
ous and irreparable damage to the sacred tivity by denying [the plaintiffs] an equal
areas. Id. at 442, 108 S.Ct. 1319 (cita- share of the rights, benefits, and privileges
ing whatsoever in the Yoder opinion to sup- courts to look to pre-Smith Free Exercise
port the proposition that the impact on the Clause cases, which include Lyng, to interpret
Amish religion would have been constitution- RFRA. See 42 U.S.C. 2000bb(a)(5) ([T]he
ally problematic if the statute at issue had not compelling interest test as set forth in TTT
been coercive in nature.); Yoder, 406 U.S. at Federal court rulings [prior to Smith ] is a
218, 92 S.Ct. 1526 (The impact of the com- workable test for striking sensible balances
pulsory-attendance law on respondents prac- between religious liberty and competing prior
tice of the Amish religion is not only severe, governmental interests.).
but inescapable, for the Wisconsin law affir-
matively compels them, under threat of crimi- 14. Our dissenting colleague is therefore incor-
nal sanction, to perform acts undeniably at rect in his assertion that Lyng did not hold
odds with fundamental tenets of their reli- that the road at issue would cause no sub-
gious beliefs.). Likewise, in Sherbert, the stantial burden on religious exercise. See
protected interest was the receipt of unem- Dissent at 108990. Although Lyng did not
ployment benefits and not, as the dissent con- use the precise phrase substantial burden,
tends, the right to take religious rest on Satur- it squarely held the government plan did not
day. See Sherbert, 374 U.S. at 410, 83 S.Ct. impose a burden TTT heavy enough on reli-
1790 (This holding TTT reaffirms a principle gious exercise to trigger the compelling inter-
that TTT no State may exclude TTT the mem- est test: It is undisputed that the Indian
bers of any TTT faith, because of their faith, or respondents beliefs are sincere and that the
lack of it, from receiving the benefits of public Governments proposed actions will have se-
welfare legislation. (citations and internal vere adverse effects on the practice of their
quotation marks omitted)). The Sherbert religion. Those respondents contend that the
Court certainly did not hold public employers burden on their religious practices is heavy
were required not to work their Seventh-day enough to violate the Free Exercise Clause
Adventist employees on Saturdays, or not to unless the Government can demonstrate a
fire them if they refused to work on Satur- compelling need [in its project.] We dis-
days. Hence, the protected interest was not a agree. Lyng, 485 U.S. at 447, 108 S.Ct.
mandatory day off, but the money from unem- 1319. Thus, Lyng declined to require the
ployment benefits that voluntarily taking the government to show a compelling interest
day off would otherwise forfeit. because the burden on the exercise of the
Indians religion was not heavy enough
13. That Lyng was a Free Exercise Clause, not not, as the dissent asserts, despite the pres-
RFRA, challenge is of no material conse- ence of a substantial burden on the exercise
quence. Congress expressly instructed the of their religion. See Dissent at 108990.
enjoyed by other citizens (as in Sherbert ). Chimney Rock area would raise a differ-
See id. at 449, 108 S.Ct. 1319. ent set of constitutional questions.
The Lyng Court, with language equally Whatever rights the Indians may have
applicable to this case, further stated: to the use of the area, however, those
The Government does not dispute, and rights do not divest the Government of
we have no reason to doubt, that the its right to use what is, after all, its
logging and road-building projects at is- land.
sue in this case could have devastating Id. at 45153, 108 S.Ct. 1319 (citation omit-
effects on traditional Indian religious ted) (last emphasis added).
practices. Like the Indians in Lyng, the Plaintiffs
here challenge a government-sanctioned
* * * project, conducted on the governments
Even if we assume that TTT the [logging] own land, on the basis that the project will
road will virtually destroy the TTT Indi- diminish their spiritual fulfillment. Even
ans ability to practice their religion, were we to assume, as did the Supreme
the Constitution simply does not provide Court in Lyng, that the government action
a principle that could justify upholding in this case will virtually destroy the TTT
[the plaintiffs] legal claims. However Indians ability to practice their religion,
much we might wish that it were other- there is nothing to distinguish the road-
wise, government simply could not oper- building project in Lyng from the use of
ate if it were required to satisfy every recycled wastewater on the Peaks. We
citizens religious needs and desires. A simply cannot uphold the Plaintiffs claims
broad range of government activities of interference with their faith and, at the
from social welfare programs to foreign same time, remain faithful to Lyngs dic-
aid to conservation projectswill always tates.
be considered essential to the spiritual According to the Plaintiffs, Lyng is not
well-being of some citizens, often on the controlling in this RFRA case because the
basis of sincerely held religious beliefs. Lyng Court refused to apply the Sherbert
Others will find the very same activities test that was expressly adopted in RFRA.
deeply offensive, and perhaps incompati- Hopi Br. at 40. In support, the Plaintiffs
ble with their own search for spiritual cite the Supreme Courts statement in
fulfillment and with the tenets of their Smith that Lyng declined to apply Sher-
religion. bert analysis to the Governments logging
and road construction activities on lands
* * * used for religious purposes by several Na-
No disrespect for these practices is im- tive American Tribes. Smith, 494 U.S. at
plied when one notes that such beliefs 883, 110 S.Ct. 1595. This contention is
could easily require de facto beneficial unpersuasive.
ownership of some rather spacious The Sherbert analysis to which the
tracts of public property. Supreme Court referred in the quoted sen-
tence from Smith is the Sherbert compel-
* * * ling interest test. See id. (noting that in
The Constitution does not permit gov- recent cases, including Lyng, the Court
ernment to discriminate against reli- had upheld the application of a valid and
gions that treat particular physical sites neutral law regardless of whether it was
as sacred, and a law prohibiting the necessary to effectuate a compelling inter-
Indian respondents from visiting the est under Sherbert ). But the Sherbert
Cite as 535 F.3d 1058 (9th Cir. 2008)
compelling interest test is triggered only rejected the plaintiffs Free Exercise
when there is a cognizable burden on the Clause claims and stated:
free exercise of religion. Lyng declined to Never to our knowledge has the Court
apply the compelling interest test from interpreted the First Amendment to re-
Sherbert, not because Lyng purported to quire the Government itself to behave in
overrule or reject Sherberts analysis, but ways that the individual believes will
because the burden on the exercise of reli- further his or her spiritual development
gion that was present in Sherbert was or that of his or her family. The Free
missing in Lyng. Exercise Clause simply cannot be under-
The Lyng Court held the governments stood to require the Government to con-
road-building project in that case, unlike in duct its own internal affairs in ways that
Sherbert, did not deny the Plaintiffs an comport with the religious beliefs of par-
equal share of the rights, benefits, and ticular citizens. Just as the Government
privileges enjoyed by other citizens. may not insist that [the plaintiffs] en-
Lyng, 485 U.S. at 449, 108 S.Ct. 1319. In gage in any set form of religious observ-
Sherbert, the plaintiff could not get unem- ance, so [the plaintiffs] may not demand
ployment compensation, available to all that the Government join in their chosen
other South Carolinians. In Lyng, all religious practices by refraining from
park users, including the Indians, could using a number to identify their daugh-
use the new road and the lands to which it ter. [T]he Free Exercise Clause is
led. Because the government action did written in terms of what the government
not burden the exercise of the Indians cannot do to the individual, not in terms
religion, the Lyng Court had no occasion of what the individual can extract from
to require the government to present a the government.
compelling interest for its road-building. Id. at 699700, 106 S.Ct. 2147 (quoting
Thus, Lyng is consistent with the Sherbert Sherbert, 374 U.S. at 412, 83 S.Ct. 1790
standard codified in RFRA and forecloses (Douglas, J., concurring)) (emphasis in
the Plaintiffs RFRA claims in this case. original).
Finally, the Supreme Courts pre-Smith The plaintiffs in Bowen could not force
decision in Bowen v. Roy, 476 U.S. 693, the government to alter its internal man-
106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), is agement procedures to identify their
also on point. In Bowen, the parents of an daughter by her name, even though they
American Indian child brought a Free Ex- believed the use of a Social Security Num-
ercise Clause challenge to the statutory ber would prevent her from attaining
requirement to obtain a Social Security greater spiritual power. It necessarily fol-
Number for their daughter in order to lows that the Plaintiffs in this case, despite
receive certain welfare benefits. Id. at their sincere belief that the use of recycled
69596, 106 S.Ct. 2147. The plaintiffs be- wastewater on the Peaks will spiritually
lieved the governments use of a Social desecrate a sacred mountain, cannot dic-
Security Number would rob the spirit of tate the decisions that the government
[their] daughter and prevent her from at- makes in managing what is, after all, its
taining greater spiritual power. Id. at land. See Lyng, 485 U.S. at 453, 108
696, 106 S.Ct. 2147. The Bowen Court S.Ct. 1319 (emphasis in original).15
15. Our circuits RFRA jurisprudence is con- held that a Guam statute criminalizing the
sistent with the Supreme Courts pre-Smith importation of marijuana did not substantially
precedent examined in this section. In Guam burden the practice of Rastafarianism under
v. Guerrero, 290 F.3d 1210 (9th Cir.2002), we RFRA, even though marijuana use is sacra-
C. of religion (i.e., Sherbert, Yoder, and other

For six principal reasons, the Plaintiffs pre-Smith cases). See 42 U.S.C.
and the dissent would have us depart from 2000bb(a)(4)-(5); 2000bb(b)(1).16 Thus,
the Supreme Courts pre-Smith jurispru- we must look to those cases in interpreting
dence in interpreting RFRA. We decline to the meaning of substantial burden. Fur-
do so and will address each of their con- ther, the dissents approach overlooks a
tentions in turn. well-established canon of statutory inter-
pretation. Where a statute does not ex-
First, the dissent asserts our interpreta-
pressly define a term of settled meaning,
tion of substantial burden is inconsistent
courts interpreting the statute must infer,
with the dictionary definition of that term.
unless the statute otherwise dictates, that
Dissent at 108687. According to the dis-
Congress means to incorporate the estab-
sent, [b]ecause Congress did not define
lished meaning of th[at] ter[m]. See
substantial burden, either directly or by
NLRB v. Town & Country Elec., Inc., 516
reference to pre-Smith case law, we should
U.S. 85, 94, 116 S.Ct. 450, 133 L.Ed.2d 371
define TTT that term according to its ordi-
(1995) (citations and internal quotation
nary meaning. Id. at 1088.
marks omitted) (alterations in original).
[7] But here, Congress expressly re- Here, Congress incorporated into RFRA a
ferred to and restored a body of Supreme term of artsubstantial burdenprevi-
Court case law that defines what consti- ously used in numerous Supreme Court
tutes a substantial burden on the exercise cases in applying the Free Exercise
mental in the practice of that religion. Id. at stitutional as applied to the States and their
121213, 122223. After noting RFRA re- subdivisions. See City of Boerne, 521 U.S. at
establishes the Sherbert standard, we defined 532, 536, 117 S.Ct. 2157. Second, we find
substantial burden as substantial pres- Mockaitis unhelpful in formulating the sub-
sure on an adherent to modify his behavior stantial burden test. Mockaitis did not define
and to violate his beliefs, including when, if substantial burden, let alone analyze the sub-
enforced, it results in the choice to the indi- stantial burden standard under the Sher-
vidual of either abandoning his religious prin- bert/Yoder framework restored in RFRA, nor
ciple or facing criminal prosecution. Id. at did the decision attempt to explain why such
1218, 1222 (citation omitted) (quoting Thom- framework should not apply to define sub-
as, 450 U.S. at 718, 101 S.Ct. 1425; Braun- stantial burden.
feld, 366 U.S. at 605, 81 S.Ct. 1144). Apply-
ing this test, we held that the Guam statute 16. The dissent would limit the significance of
did not substantially burden Guerreros free Congresss citation of Sherbert and Yoder
exercise rights, because Rastafarianism does strictly to the content of what constitutes a
not require the importation, as distinguished compelling interest, not also when that test
from simple possession, of marijuana. Id. at should be applied. But both Sherbert and
1223. Yoder use the same compelling interest test.
The dissent contends that our substantial If that is all Congress intended by the citation
burden standard is inconsistent with Mockai- of the two cases, its citation of Yoder was
tis v. Harcleroad, 104 F.3d 1522 (9th Cir. redundant and superfluous. We must inter-
1997). In Mockaitis, this court held that state pret statutes as a whole, giving effect to each
prison officials substantially burden a Catho- word and making every effort not to interpret
lic priests religious exercise under RFRA, a provision in a manner that renders other
when the officials intrude into the Sacrament provisions of the same statute inconsistent,
of Penance by recording a confession from an meaningless or superfluous. Boise Cascade
inmate to a priest. Id. at 153031. Mockaitis Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.
cannot serve as precedent here for two rea- 1991). Hence, we apply the two separate and
sons. First, its holding has been invalidated distinct substantial burden standards in Sher-
by the Supreme Courts decision in City of bert and Yoder to determine when the compel-
Boerne, where the Court found RFRA uncon- ling interest test is invoked.
Cite as 535 F.3d 1058 (9th Cir. 2008)
Clause. The dissent would have us ignore none. In the pre-Smith cases adopted in
this Supreme Court precedent and, in- RFRA, the Supreme Court has found a
stead, invent a new definition for substan- substantial burden on the exercise of reli-
tial burden by reference to a dictionary. gion only when the burden fell within the
Dissent at 108687. This we cannot do. Sherbert/Yoder framework. See Sherbert,
Rather, we must presume Congress meant 374 U.S. at 40306, 83 S.Ct. 1790; Yoder,
to incorporate into RFRA the definition of 406 U.S. at 207, 220, 92 S.Ct. 1526; Thom-
substantial burden used by the Supreme as, 450 U.S. at 71718, 101 S.Ct. 1425
Court. (applying Sherbert ); Hobbie v. Unemploy-
ment Appeals Commn of Fla., 480 U.S.
Second, the dissent asserts that our defi-
136, 14045, 107 S.Ct. 1046, 94 L.Ed.2d 190
nition of substantial burden is restric-
(1987) (applying Sherbert ); Frazee v. Ill.
tive and cannot be found in Sherbert, Dept. of Employment Sec., 489 U.S. 829,
Yoder, or any other pre-Smith case. Dis- 83235, 109 S.Ct. 1514, 103 L.Ed.2d 914
sent at 1088.17 The dissent contends it is (1989) (applying Sherbert ). Because Con-
clear that RFRA protects against bur- gress expressly restored pre-Smith cases
dens that, while imposed by a different in RFRA, we cannot conclude RFRAs
mechanism than those in Sherbert and Yo- substantial burden standard expands be-
der, are also substantial. Id. at 1090. yond the pre-Smith cases to cover govern-
For this purportedly clear proposition, ment actions never recognized by the Su-
the dissent cites no authority. That is, the preme Court to constitute a substantial
dissent cannot point to a single Supreme burden on religious exercise.18
Court case where the Court found a sub- Third, the Plaintiffs assert RFRAs com-
stantial burden on the free exercise of pelling interest test includes a least re-
religion outside the Sherbert/Yoder frame- strictive means requirement, which was
work. The reason is simple: There is not used in the pre-Smith jurisprudence
17. Relatedly, the dissent states Sherbert and my Swaggart Ministries v. Bd. of Equalization
Yoder used the word burden, but nowhere of Cal., 493 U.S. 378, 38485, 110 S.Ct. 688,
defined, or even used, the phrase substantial 107 L.Ed.2d 796 (1990). Where the Supreme
burden. Dissent at 108889. The dissent Court has equated the content of substantial
is correct that neither Sherbert nor Yoder used burden to burden and undue burden,
the precise term substantial burden. Sher- we must do the same.
bert held that a burden on the free exercise
of religion requires the government to show a 18. For the same reason, the dissent is incor-
compelling interest, Sherbert, 374 U.S. at 403, rect in its assertion that [h]ad Congress
83 S.Ct. 1790, and Yoder held that an wished to establish the standard employed by
undu[e] burden[ ] on the free exercise of the majority, it could easily have stated that
religion does the same, Yoder, 406 U.S. at Government shall not, through the imposition
220, 92 S.Ct. 1526. For our purposes, how- of a penalty or denial of a benefit, substantially
ever, this distinction is immaterial. Later Su- burden a persons exercise of religion. See
preme Court cases have cited Yoder and other Dissent at 1087 (emphasis in original). The
pre-Smith decisions for the proposition that addition of the italicized text would have been
only a substantial burden on the free exer- superfluous, because the cases Congress re-
cise of religion triggers the compelling inter- stored in RFRA recognize a substantial bur-
est test. See Hernandez, 490 U.S. at 699, 109 den on the exercise of religion only when
S.Ct. 2136 (noting the free exercise inquiry individuals are forced to choose between fol-
asks whether government has placed a sub- lowing the tenets of their religion and receiv-
stantial burden on the exercise of religion ing a governmental benefit (Sherbert ) or
and, if so, whether a compelling governmen- coerced to act contrary to their religious be-
tal interest justifies the burden (citing Yoder liefs by the threat of civil or criminal sanc-
and other pre-Smith decisions)); see also Jim- tions (Yoder ).
RFRA purported to codify. Hopi Br. at (prohibit) and the language of RFRA
31 (quoting City of Boerne, 521 U.S. at (burden) does not affect what constitutes
535, 117 S.Ct. 2157); see also Dissent at a burden on the exercise of religion,
108485. The Plaintiffs note that, whereas under the very cases cited by RFRA as
the government must establish only a com- embodying the congressionally desired
pelling interest to withstand a Free Exer- rule of decision.
cise Clause challenge, the government
Fifth, the Plaintiffs assert Congress ex-
must establish both a compelling interest
panded RFRAs definition of exercise of
and the least restrictive means to with-
religion with the enactment of the Reli-
stand a RFRA challenge. That is true
gious Land Use and Institutionalized Per-
enough, but it puts the cart before the
sons Act of 2000 (RLUIPA), 42 U.S.C.
horse. The additional statutory require-
2000cc et seq. Navajo Br. at 29; see
ment of a least restrictive means is trig-
gered only by a finding that a substantial also Dissent at 108485. Prior to RLUI-
burden exists; that is the sole and thresh- PAs enactment, exercise of religion un-
old issue in this case. Absent a substantial der RFRA meant the exercise of religion
burden, the government need not establish under the First Amendment to the Consti-
a compelling interest, much less prove it tution. 42 U.S.C. 2000bb2(4) (1994).
has adopted the least restrictive means. The Free Exercise Clause of the First
Amendment protects only the observation
Fourth, the Plaintiffs contend RFRA
of a central religious belief or practice.
goes beyond the constitutional language
Hernandez, 490 U.S. at 699, 109 S.Ct. 2136
that forbids the prohibiting of the free
(emphasis added).20 RLUIPA, however,
exercise of religion and uses the broader
amended RFRAs definition of exercise of
verb burden: a government may burden
religion to include any exercise of reli-
religion only on the terms set out by the
gion, whether or not compelled by, or cen-
new statute. Hopi Br. at 3132 (quoting
tral to, a system of religious belief. 42
United States v. Bauer, 84 F.3d 1549, 1558
U.S.C. 2000bb2(4); 42 U.S.C.
(9th Cir.1996)); see also Dissent at 1084.
2000cc5(7)(A).
This contention ignores the Supreme
Courts repeated practice of concluding a The Plaintiffs assertion conflates two
government action prohibits the free ex- distinct questions under RFRA: (1) what
ercise of religion by determining whether constitutes an exercise of religion and
the action places a burden on the exer- (2) what amounts to a substantial bur-
cise of religion.19 Thus, the difference in den on the exercise of that religion. The
the language of the Free Exercise Clause first question, that the Plaintiffs activities
19. See Yoder, 406 U.S. at 220, 92 S.Ct. 1526 question the centrality of particular beliefs or
(A regulation neutral on its face may, in its practices to a faith. Hernandez, 490 U.S. at
application, nonetheless offend the constitu- 699, 109 S.Ct. 2136; see also Smith, 494 U.S.
tional requirement for governmental neutrali- at 887, 110 S.Ct. 1595 (What principle of
ty if it unduly burdens the free exercise of law or logic can be brought to bear to contra-
religion. (emphasis added)); Sherbert, 374 dict a believers assertion that a particular act
U.S. at 403, 83 S.Ct. 1790 (We turn first to is central to his personal faith?). In light of
the question whether the disqualification for
the Supreme Courts disapproval of the cen-
benefits imposes any burden on the free exer-
trality test, we have held the sincerity of a
cise of appellants religion. (emphasis add-
religious belief, not its centrality to a faith,
ed)).
determines whether the Free Exercise Clause
20. Nevertheless, the Hernandez Court also applies. Shakur v. Schriro, 514 F.3d 878,
cautioned: It is not within the judicial ken to 88485 (9th Cir.2008).
Cite as 535 F.3d 1058 (9th Cir. 2008)
are an exercise of religion, is undisputed inapplicable to this case. First, RLUIPA,

in this case. Of course, that question has by its terms, prohibits only state and local
no bearing on the second, substantial governments from applying regulations
burden, question. RFRAs amended def- that govern land use or institutionalized
inition of exercise of religion merely ex- persons to impose a substantial burden
pands the scope of what may not be sub- on the exercise of religion. See 42 U.S.C.
stantially burdened from central tenets 2000cc; 2000cc1; 2000cc5(4)(A).
of a religion to any exercise of religion. Subject to two exceptions not relevant
It does not change what level or kind of here,21 RLUIPA does not apply to a feder-
interference constitutes a substantial bur- al government action, which is the only
den upon such religious exercise. issue in this case. See id. 2000cc5(4).
Finally, the dissent attempts to justify Second, even for state and local govern-
its expansive interpretation of RFRA on ments, RLUIPA applies only to govern-
the basis that RFRA applies in all cases ment land-use regulations of private
where the free exercise of religion is bur- landsuch as zoning lawsnot to the gov-
dened, whereas pre-Smith jurisprudence ernments management of its own land.
excluded entire classes of cases from scru- See id. 2000cc5(5).22 Nonetheless, even
tiny under the compelling interest test, were we to assume the same substantial
e.g., prison and military regulations. Dis- burden standard applies in RLUIPA and
sent at 1085. But no one disputes that RFRA actions, the two RLUIPA cases
RFRA applies here; it is not an issue. cited by the Plaintiffs do not support their
That RFRA applies to classes of cases in RFRA claims.23
which the First Amendments compelling First, in Warsoldier v. Woodford, 418
interest test is inapplicable is irrelevant. F.3d 989 (9th Cir.2005), an American Indi-
This observation does not define what con- an inmate brought a RLUIPA challenge
stitutes a substantial burden and, there- against a prison policy requiring all male
fore, does not speak to the threshold ques- inmates to maintain their hair no longer
tion whether a substantial burden exists. than three inches. Id. at 99192. Warsol-
In sum, Congresss statutory command dier refused to comply with the policy
in RFRA to restore the Supreme Courts because of his sincere religious belief that
pre-Smith jurisprudence is crystal clear, he may cut his hair only upon the death of
and neither the dissent nor the Plaintiffs a loved one, and was punished by confine-
have offered any valid reason for department to his cell, the imposition of addition-
ing from that jurisprudence in interpreting al duty hours, and revocation of certain
RFRA. privileges. Id. at 99192. We held the
prison policy imposed a substantial burden
D. on Warsoldiers exercise of his religion
[8] In support of their RFRA claims, because it coerced him to violate his reli-
the Plaintiffs rely on two of our RLUIPA gious beliefs under the threat of punish-
decisions. For two reasons, RLUIPA is ment. Id. at 99596.
21. Sections 2000cc2(b) (burden of persua- of land TTT, if the claimant has an ownership,
sion) and 2000cc3 (rules of construction) leasehold, easement, servitude, or other proper-
apply also to the federal government. See 42 ty interest in the regulated land. 42 U.S.C.
U.S.C. 2000cc5(4)(B). 2000cc5(5) (emphasis added).
22. RLUIPA defines a land use regulation as 23. Because RLUIPA is inapplicable to this
a zoning or landmarking law TTT that limits case, we express no opinion as to the stan-
or restricts a claimants use or development dards to be applied in RLUIPA actions.
Warsoldier is a straightforward applica- such exercise. Id. at 1034. The Plain-

tion of the Supreme Courts decisions in tiffs contend the use of recycled wastewa-
Sherbert and Yoder. As in Sherbert and ter on the Peaks imposes a significantly
Yoder, Warsoldier was coerced to act con- great restriction or onus on the exercise
trary to his religious beliefs by the threat of their religion.
of sanctions (i.e., confinement to his cell San Jose Christian Colleges statement
and the imposition of additional duty of the substantial burden test does not
hours), and forced to choose between fol- support the Plaintiffs RFRA claims in this
lowing the tenets of his religion and receiv- case. That substantial burden means a
ing a governmental benefit (i.e., by the significantly great restriction or onus
revocation of certain privileges in prison). says nothing about what kind or level of
In contrast, and as analyzed above, the restriction is significantly great. 24 In-
Plaintiffs in this case cannot show the use stead, the substantial burden question
of recycled wastewater coerces them to must be answered by reference to the
violate their religious beliefs under the Supreme Courts pre-Smith jurisprudence,
threat of sanctions, or conditions a govern- including Sherbert and Yoder, that RFRA
ment benefit upon conduct that would vio- expressly adopted. Under that precedent,
late their religious beliefs. the Plaintiffs have failed to show a sub-
Second, the Plaintiffs rely on our state- stantial burden on the exercise of their
ment in San Jose Christian College v. City religion, and thus failed to establish a pri-
of Morgan Hill, 360 F.3d 1024 (9th Cir. ma facie RFRA claim. Accordingly, we
2004), that, under RLUIPA, a substantial affirm the district courts entry of judg-
burden on a religious exercise must be a ment for the Defendants on the RFRA
significantly great restriction or onus upon claim.25
24. The RLUIPA case cited by the dissent, Sha- could have a meal in prison and avoid starva-
kur, 514 F.3d 878, is not to the contrary. tion only if he violated his religious beliefs.
Dissent at 1090, 109394. In Shakur, we held Relying on Sherbert and Thomas, we held that
that a triable issue of fact existed as to wheth- there was a triable issue of fact as to whether
er prison officials denial of Halal meat to the prison policy imposed a substantial bur-
Shakur, a Muslim inmate, imposed a sub- den on Shakurs religious exercise, because
stantial burden on his religious exercise. the policy conditioned a governmental benefit
Shakur, 514 F.3d at 88889. The prison of- to which Shakur was otherwise entitleda
fered Kosher meat meals to Jewish inmates, meal in prisonupon conduct that would vio-
but denied Halal meat meals to Shakur. Id. late Shakurs religious beliefs. Id. Thus, Sha-
at 883, 891. The alternative, vegetarian diet kur is a straightforward application of the
exacerbated Shakurs hiatal hernia and
Sherbert test and is consistent with the sub-
caused excessive gas that interfere[d] with
stantial burden standard we adopt today.
the ritual purity required for his Islamic wor-
ship. Id. at 888 (emphasis added). Con-
trary to the dissents assertions, Dissent at 25. As a last resort, the dissent invokes provoc-
109394, both meal choices provided to Sha- ative soundbites, accusing us of effectively
kur in prison were unacceptable to his reli- read[ing] American Indians out of RFRA.
gionthe non-Halal meat meals were forbid- Dissent at 101314. The dissent contends
den by his religion and the Halal vegetarian the strength of the Indians argument in this
meals interfered with the ritual purity re- case could be seen more easily by the majori-
quired for his religious activities. Shakur, ty if another religion were at issue. Id. at
514 F.3d at 889 (internal quotation marks 1097. In support, the dissent notes the use of
omitted). Like the Seventh-day Adventist in artificial snow on the Peaks is no different
Sherbert, who could obtain unemployment than the government permitt[ing] only bap-
benefits only by working on Saturdays and tismal water contaminated with recycled
thereby violating her religious tenets, Shakur wastewater for Christians or permitt[ing]
Cite as 535 F.3d 1058 (9th Cir. 2008)
IV. National Environmental snow. The Navajo Plaintiffs complaint

Policy Act of 1969 did not include this NEPA claim or the
[911] Plaintiffs contend the district factual allegations upon which the claim
court erred in granting summary judg- rests. The Navajo Plaintiffs raised this
ment to the Defendants on five claims claim for the first time in their motion for
under the National Environmental Policy summary judgment. In their opposition to
the Navajo Plaintiffs summary judgment
Act of 1969 (NEPA), 42 U.S.C. 4321
motion, the Defendants contended the Na-
et seq. We adopt the parts of the original
vajo Plaintiffs had failed to raise this
three-judge panel opinion affirming the
NEPA claim in their complaint. In re-
district courts grant of summary judg-
sponse, the Navajo Plaintiffs moved to
ment to the Defendants on the following
amend their complaint to add a distinct
four NEPA claims: (1) the Final Environ-
and new NEPA cause of action claiming
mental Impact Statement (FEIS) failed
for the first time that the FEIS failed to
to consider a reasonable range of alterna- consider the risks posed by human in-
tives to the use of recycled wastewater; gestion of artificial snow. The district
(2) the FEIS failed to discuss and consider court denied the Navajo Plaintiffs motion
the scientific viewpoint of Dr. Paul Tor- to amend and did not address this NEPA
rence; (3) the FEIS failed adequately to claim on the merits. Navajo Nation, 408
consider the environmental impact of di- F.Supp.2d at 908. The Navajo Plaintiffs
verting the recycled wastewater from failed to appeal the district courts denial
Flagstaffs regional aquifer; and (4) the of their motion to amend, and therefore,
FEIS failed adequately to consider the the district courts denial of said motion is
social and cultural impacts of the Snow- not before us.
bowl upgrades on the Hopi people. See Further, on this appeal, the Navajo
Navajo Nation, 479 F.3d at 105459. Plaintiffs do not explain why their com-
The remaining NEPA claim, which is plaint is otherwise sufficient to state this
raised only by the Navajo Plaintiffs, is that NEPA claimdespite the Defendants as-
the FEIS failed adequately to consider the sertions that the Navajo Plaintiffs failed to
risks posed by human ingestion of artificial plead this NEPA claim.26 Indeed, the Na-
only non-Kosher food for Orthodox Jews. Id. the Plaintiffs to act contrary to their religious
at 1097. tenets. The Plaintiffs remain free to use natu-
Putting aside the Equal Protection Clause ral water in their religious or healing ceremo-
violation that may arise from a law targeting nies and otherwise practice their religion us-
only Christians or only Jews, the dissents ing whatever resources they may choose.
examples are clearly distinguishable. When a 26. The dissent quotes a sentence from the
law permits only recycled wastewater to Navajo Plaintiffs reply brief that cursorily
carry out baptisms or permits only non- states this NEPA claim was properly pled
Kosher food for Orthodox Jews, the govern- in the district court. Dissent at 1110 (quoting
ment compels religious adherents to engage Navajo Reply Br. at 23). Nevertheless, the
in activities repugnant to their religious be- Navajo Plaintiffs reply brief does not state
liefs under the penalty of sanctions. Such what words in the complaint are sufficient to
government compulsion is specifically prohib- plead this NEPA claim, nor does the brief cite
ited by the Supreme Courts decision in Yo- any case or rule that makes it so. It is well-
der. A law permitting Indians to use only established that a bare assertion in an appel-
recycled wastewater in their religious or heal- late brief, with no supporting argument, is
ing ceremonies would likewise constitute a insufficient to preserve a claim on appeal.
substantial burden on their religious exercise. See Dennis v. BEH1, LLC, 520 F.3d 1066,
But there is no such law in this case. When 1069 n. 1 (9th Cir.2008). The dissents advo-
the government allows the use of recycled cacy of why the Navajo Plaintiffs complaint
wastewater on a ski area, it does not compel satisfies the notice pleading requirements of
vajo Plaintiffs concede the specific allega- Accordingly, we affirm the district
tions at issue were not included in their courts grant of summary judgment to the
complaint. Navajo Reply Br. at 2324. Defendants on all NEPA claims.
Rather, the Navajo Plaintiffs assert this
NEPA claim was adequately presented to V. National Historic Preservation Act
the district court because the claim was [12] Finally, the Plaintiffs contend the
briefed at summary judgment by all par- district court erred in granting summary
ties and presented at oral argument [to the judgment to the Defendants on their claim
district court]. Id. at 24. Nevertheless, under the National Historic Preservation
our precedents make clear that where, as Act (NHPA), 16 U.S.C. 470 et seq.
here, the complaint does not include the We adopt the part of the original three-
judge panel opinion affirming the district
necessary factual allegations to state a
courts grant of summary judgment to the
claim, raising such claim in a summary
Defendants on the NHPA claim. See Na-
judgment motion is insufficient to present
vajo Nation, 479 F.3d at 105960.
the claim to the district court. See, e.g.,
Wasco Prods., Inc. v. Southwall Techs., VI. Conclusion
Inc., 435 F.3d 989, 992 (9th Cir.2006)
We affirm the district courts entry of
( Simply put, summary judgment is not a
judgment in favor of the Defendants on
procedural second chance to flesh out inad- the RFRA claim, and the district courts
equate pleadings. ); Pickern v. Pier 1 grant of summary judgment to the Defen-
Imports (U.S.), Inc., 457 F.3d 963, 96869 dants on the NEPA and the NHPA claims.
(9th Cir.2006) (holding that the complaint
AFFIRMED.
did not satisfy the notice pleading require-
ments of Federal Rule of Civil Procedure WILLIAM A. FLETCHER, Circuit
8(a) because the complaint gave the [de- Judge, dissenting, joined by Judge
fendants] no notice of the specific factual PREGERSON and Judge FISHER:
allegations presented for the first time in The en banc majority today holds that
[the plaintiffs] opposition to summary using treated sewage effluent to make arti-
judgment).27 Because the Navajo Plain- ficial snow on the most sacred mountain of
tiffs failed sufficiently to present this southwestern Indian tribes does not violate
NEPA claim to the district court and also the Religious Freedom Restoration Act
failed to appeal the district courts denial (RFRA). It also holds that a supposed
of their motion to amend the complaint to pleading mistake prevents the tribes from
add this NEPA claim, the claim is waived arguing under the National Environmental
on appeal. See OGuinn v. Lovelock Corr. Policy Act (NEPA) that the Forest Ser-
Ctr., 502 F.3d 1056, 1063 n. 3 (9th Cir. vice failed to consider the likelihood that
2007). children and others would ingest snow
Federal Rule of Civil Procedure 8(a) is the 110809. This, of course, is irrelevant to the
dissents own invention and disregards the question whether this claim was presented to
rule that we do not manufacture arguments the district court. A party may raise a claim
for an appellant. See id. at the administrative proceedings, but forego
that claim on judicial review. Further, pre-
27. The dissent notes that the Navajo Plaintiffs senting a claim during the administrative pro-
raised the issue of human ingestion of artifi- ceedings does not put the defendants on no-
cial snow during the preparation of the FEIS tice that such claim will also be raised before
and in the administrative appeal. Dissent at the district court.
Cite as 535 F.3d 1058 (9th Cir. 2008)
made from the effluent. I dissent from Id. In so holding, the majority misstates
both holdings. the evidence below, misstates the law un-
der RFRA, and misunderstands the very
I. Religious Freedom Restoration Act nature of religion.
[D]ivers great learned men have been
heretical, whilst they have sought to fly A. Background
up to the secrets of the Deity by the The San Francisco Peaks in northern
waxen wings of the senses. Arizona have long-standing religious sig-
Sir Francis Bacon, Of the Profici- nificance to numerous Indian tribes of the
ence and Advancement of Learning, American Southwest. Humphreys Peak,
Divine and Human (Book I, 1605). Agassiz Peak, Doyle Peak, and Fremont
The majority holds that spraying 1.5 mil- Peak form a single large mountain com-
lion gallons per day of treated sewage monly known as the San Francisco Peaks,
effluent on the most sacred mountain of or simply the Peaks. Humphreys Peak is
southwestern Indian tribes does not sub- the highest point in Arizona.
stantially burden their exercise of reli- The Peaks lie within the 1.8 million
gion in violation of RFRA. According to acres of the Coconino National Forest. In
the majority, no plants, springs, natural 1984, Congress designated 18,960 acres of
resources, shrines with religious signifi- the Peaks as the Kachina Peaks Wilder-
cance, or religious ceremonies TTT would
ness. The Forest Service has identified
be physically affected by the use of the
the Peaks as eligible for inclusion in the
treated sewage effluent. Maj. op. at 1063.
National Register of Historic Places and
According to the majority, the sole effect
as a traditional cultural property. The
of the dumping of the treated sewage ef-
Service has described the Peaks as a
fluent is on the Indians subjective spiri-
landmark upon the horizon, as viewed
tual experience. Id. at 1063. The major-
from the traditional or ancestral lands of
ity holds:
the Hopi, Zuni, Acoma, Navajo, Apache,
[T]he presence of the artificial snow on
Yavapai, Hualapai, Havasupai, and Pai-
the Peaks is offensive to the Plaintiffs
ute.
mental and emotional feelings about
their religion and will decrease the spiri- The Forest Service has acknowledged
tual fulfillment Plaintiffs get from prac- that the Peaks are sacred to at least thir-
ticing their religion on the mountain. teen formally recognized Indian tribes, and
Nevertheless, a government action that that this religious significance is of centu-
decreases the spirituality, the fervor, or ries duration. There are differences
the satisfaction with which a believer among these tribes religious beliefs and
practices his religion is not what Con- practices associated with the Peaks, but
gress has labeled a substantial burden there are important commonalities. As
TTT on the free exercise of religion. the Service has noted, many of the tribes
Where, as here, there is no showing the share beliefs that water, soil, plants, and
government has coerced the Plaintiffs to animals from the Peaks have spiritual and
act contrary to their religious beliefs medicinal properties; that the Peaks and
under the threat of sanctions, or condi- everything on them form an indivisible
tioned a governmental benefit upon con- living entity; that the Peaks are home to
duct that would violate the Plaintiffs deities and other spirit beings; that tribal
religious beliefs, there is no substantial members can communicate with higher
burden on the exercise of their religion. powers through prayers and songs focused
on the Peaks; and that the tribes have a knowledge of weather conditions in north-
duty to protect the Peaks. ern Arizona. In September 2002, ASR
The Arizona Snowbowl is a ski area on submitted a development proposal to the
Humphreys Peak, the most sacred of the Forest Service. In February 2005, the
San Francisco Peaks. Organized skiing Forest Service issued a Final Environ-
has existed at the Arizona Snowbowl since mental Impact Statement (FEIS) and
1938. In 1977, the then-owner of the Record of Decision (ROD). The ROD
Snowbowl requested authorization to clear approved the development alternative pre-
120 acres of new ski runs and to do other ferred by ASR, which included a proposal
development. In 1979, after preparing an to make artificial snow using treated sew-
Environmental Impact Statement, the age effluent.
Forest Service authorized the clearing of Under the alternative approved in the
50 of the 120 requested acres, the con- ROD, the City of Flagstaff would provide
struction of a new lodge, and some addi- the Snowbowl with up to 1.5 million gallons
tional development. An association of Na-
per day of its treated sewage effluent
vajo medicine men, the Hopi tribe, and two
euphemistically called reclaimed water
nearby ranch owners brought suit under,
from November through February. A
inter alia, the Free Exercise Clause of the
14.8mile pipeline would be built between
First Amendment and NEPA. The D.C.
Flagstaff and the Snowbowl to carry the
Circuit upheld the Forest Services deci-
treated effluent. The Snowbowl would be
sion. Wilson v. Block, 708 F.2d 735
the first ski resort in the nation to make
(D.C.Cir.1983). In Wilson, the court ap-
artificial snow entirely from undiluted
plied only the First Amendment, for
treated sewage effluent.
RFRA did not yet exist. The then-pro-
posed expansion of the Snowbowl did not Before treatment, raw sewage consists
involve any use of treated sewage effluent. of waste discharged into Flagstaffs sewers
Until now, the Snowbowl has always de- by households, businesses, hospitals, and
pended on natural snowfall. In dry years, industries. The FEIS describes the treat-
the operating season is short, with few ment performed by Flagstaff:
skiable days and few skiers. The driest In the primary treatment stage, solids
year in recent memory was 200102, when settle out as sludgeTTTT Scum and odors
there were 87 inches of snow, 4 skiable are also removedTTTT Wastewater is
days, and 2,857 skiers. Another dry year then gravity-fed for secondary treat-
was 199596, when there were 113 inches ment through the aeration/denitrifica-
of snow, 25 skiable days, and 20,312 skiers. tion process, where biological digestion
By contrast, in wet years, there are many of waste occurs TTTT in which a two-
skiable days and many skiers. For exam- stage anoxic/aerobic process removes ni-
ple, in 199192, there were 360 inches of trogen, suspended solids, and [digestible
snow, 134 skiable days, and 173,000 skiers; organic matter] from the wastewater.
in 199293, there were 460 inches of snow, The secondary clarifiers remove the by-
130 skiable days, and 180,062 skiers; in products generated by this biological
199798, there were 330 inches of snow, process, recycle microorganisms back
115 skiable days, and 173,862 skiers; and into the process from return activated
in 200405, there were 460 inches of snow, sludge, and separate the solids from the
139 skiable days, and 191,317 skiers. waste system. The waste sludge is sent
ASR, the current owner, purchased the to [a different plant] for treatment. The
Snowbowl in 1992 for $4 million, with full water for reuse then passes through the
Cite as 535 F.3d 1058 (9th Cir. 2008)
final sand and anthracite filters prior to ervoir on the mountain with a surface area
disinfection by ultraviolet light radia- of 1.9 acres to hold treated sewage ef-
tionTTTT Water supplied for reuse is fur- fluent. The stored effluent would allow
ther treated with a hypochlorite solution snowmaking to continue after Flagstaff
to assure that residual disinfection is cuts off the supply at the end of February.
maintainedTTTT
The effluent that emerges after treat- B. Religious Freedom Restoration Act
ment by Flagstaff satisfies the require- Under the Religious Freedom Restora-
ments of Arizona law for reclaimed wa- tion Act of 1993 (RFRA), the federal
ter. However, as the FEIS explains, the government may not substantially burden
treatment does not produce pure water: a persons exercise of religion even if the
Fecal coliform bacteria, which are used burden results from a rule of general ap-
as an indicator of microbial pathogens, plicability, except as provided in subsection
are typically found at concentrations (b). 42 U.S.C. 2000bb1(a). Exercise
ranging from 105 to 107 colony-forming
of religion is defined to include any exer-
units per 100 milliliters (CFU/100 ml) in
cise of religion, whether or not compelled
untreated wastewater. Advanced
by, or central to, a system of religious
wastewater treatment may remove as
belief. 42 U.S.C. 2000bb2(4), 2000cc
much as 99.9999v percent of the fecal
5(7)(A). Subsection (b) of 2000bb1 pro-
coliform bacteria; however, the result-
vides, Government may substantially bur-
ing effluent has detectable levels of en-
den a persons exercise of religion only if it
teric bacteria, viruses, and protazoa, in-
demonstrates that application of the bur-
cluding Cryptosporidium and Giardia.
den to the person(1) is in furtherance of
Under Arizona law, the treated sewage
a compelling governmental interest; and
effluent must be free of detectable fecal
(2) is the least restrictive means of further-
coliform organisms in only four of the
ing that compelling governmental inter-
last seven daily reclaimed water samples.
est.
Ariz. Admin. Code R1811303(B)(2)(a).
The FEIS acknowledges that the treated These provisions of RFRA were prompt-
sewage effluent also contains many un- ed by two Supreme Court decisions.
identified and unregulated residual organic RFRA was originally adopted in response
contaminants. Treated sewage effluent to Employment Division, Department of
may be used for many things, including Human Resources of Oregon v. Smith, 494
irrigation and flushing toilets, but the Ari- U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876
zona Department of Environmental Quali- (1990). In Smith, an Oregon statute de-
ty (ADEQ) requires that precautions be nied unemployment benefits to drug users,
taken to avoid ingestion by humans. including Indians who used peyote in reli-
Under the alternative approved in the gious ceremonies. Id. at 890, 110 S.Ct.
ROD, treated sewage effluent would be 1595. The Court held that the Free Exer-
sprayed on 205.3 acres of Humphreys cise Clause of the First Amendment does
Peak during the ski season. In November not prohibit burdens on religious practices
and December, the Snowbowl would use if they are imposed by laws of general
the effluent to build a base layer of artifi- applicability such as the Oregon statute.
cial snow. The Snowbowl would then Characterizing its prior cases striking
make more snow from the effluent depend- down generally applicable laws as hybrid
ing on the amount of natural snowfall. decisions invoking multiple constitutional
The Snowbowl would also construct a res- interests, the Court refused to subject fa-
cially neutral regulations to strict scrutiny Fourteenth Amendment. Id. at 529, 534
when challenged solely under the First 35, 117 S.Ct. 2157. The Court did not,
Amendment. Id. at 88182, 88586, 110 however, invalidate RFRA as applied to
S.Ct. 1595. However, the Court acknowl- the federal government. See Guam v.
edged that although the Constitution does Guerrero, 290 F.3d 1210, 122021 (9th Cir.
not require a compelling government in- 2002). Three years later, in response to
terest test in such a case, Congress could City of Boerne, Congress enacted the Reli-
impose one. Id. at 890, 110 S.Ct. 1595. gious Land Use and Institutionalized Per-
In RFRA, enacted three years later, sons Act of 2000 (RLUIPA). Pub.L. No.
Congress made formal findings that the 106274, 114 Stat. 803 (codified at 42
Courts decision in Smith virtually elimi- U.S.C. 2000cc et seq.). RLUIPA re-
nated the requirement that the govern- placed RFRAs original First Amendment
ment justify burdens on religious exercise definition of exercise of religion with the
imposed by laws neutral toward religion, broader statutory definition quoted above.
and that the compelling interest test as RLUIPA 78, 114 Stat. at 80607. Un-
set forth in prior Federal court rulings is a der RFRA after its amendment by RLUI-
workable test for striking sensible bal- PA, exercise of religion is defined to
ances between religious liberty and com-
include any exercise of religion, whether
peting prior governmental interests.
or not compelled by, or central to, a sys-
Pub.L. No. 103141, 2(a), 107 Stat. 1488,
tem of religious belief. 42 U.S.C.
1488 (1993) (codified at 42 U.S.C.
2000bb2(4), 2000cc5(7)(A).
2000bb(a)). Congress declared that the
purposes of RFRA were to provide a In several ways, RFRA provides greater
claim or defense to persons whose reli- protection for religious practices than did
gious exercise is substantially burdened by the Supreme Courts pre-Smith cases,
government and to restore the compel- which were based solely on the First
ling interest test as set forth in Sherbert v. Amendment. First, RFRA goes beyond
Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 the constitutional language that forbids the
L.Ed.2d 965 (1963), and Wisconsin v. Yo- prohibiting of the free exercise of religion
der, 406 U.S. 205, 92 S.Ct. 1526, 32 and uses the broader verb burden.
L.Ed.2d 15 (1972), and to guarantee its United States v. Bauer, 84 F.3d 1549, 1558
application in all cases where free exercise (9th Cir.1996) (as amended). Cf. U.S.
of religion is substantially burdened. Id. Const. amend. 1 (Congress shall make no
2(b), 107 Stat. at 1488 (codified at 42 law TTT prohibiting the free exercise [of
U.S.C. 2000bb(b)). In this initial version
religion].); Lyng v. Nw. Indian Cemetery
of RFRA, adopted in 1993, Congress de-
Protective Assn, 485 U.S. 439, 451, 108
fined exercise of religion as exercise of
S.Ct. 1319, 99 L.Ed.2d 534 (1988) (The
religion under the First Amendment to the
crucial word in the constitutional text is
Constitution. Id. 5, 107 Stat. at 1489
prohibitTTTT).
(codified at 42 U.S.C. 2000bb2(4) (1994)
(repealed)). Second, as the Supreme Court noted in
In 1997, in City of Boerne v. Flores, 521 City of Boerne, RFRA provides greater
U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 protection than did the First Amendment
(1997), the Supreme Court held RFRA under the pre-Smith cases because the
unconstitutional as applied to state and Act imposes in every case a least restric-
local governments because it exceeded tive means requirementa requirement
Congresss authority under 5 of the that was not used in the pre-Smith juris-
Cite as 535 F.3d 1058 (9th Cir. 2008)
prudence RFRA purported to codify. Smith, 494 U.S. at 883, 110 S.Ct. 1595 (In
521 U.S. at 535, 117 S.Ct. 2157. recent years, we have abstained from ap-
Third, in passing RLUIPA in 2000, Con- plying the Sherbert test (outside the unem-
gress amended RFRAs definition of ex- ployment compensation field) at all.).
ercise of religion. Under the amended RFRA rejected the categorical barriers to
definitionany exercise of religion, strict scrutiny employed in those cases.
whether or not compelled by, or central to,
a system of religious beliefRFRA now
C. The Majoritys Misstatements
protects a broader range of conduct than
of the Law under RFRA
was protected under the Supreme Courts
interpretation of exercise of religion un- The majority misstates the law under
der the First Amendment. See Guru Na- RFRA in three ways. First, it concludes
nak Sikh Socy v. County of Sutter, 456 that a substantial burden on the exer-
F.3d 978, 995 n. 21 (9th Cir.2006) (noting cise of religion under RFRA occurs only
same). After 2000, RFRA plaintiffs must when the government has coerced the
still prove that the burden on their reli- Plaintiffs to act contrary to their religious
gious exercise is substantial, but the dif- beliefs under threat of sanctions, or condi-
ficulty of showing a substantial burden is
tioned a governmental benefit upon con-
decreased because a broader range of reli-
duct that would violate the Plaintiffs reli-
gious exercise is now protected under
gious beliefs. Maj. op. at 1063. Second,
RFRA. That is, some governmental actions
it ignores the impact of RLUIPA, and
were not previously considered burdens
cases interpreting RLUIPA, on the defini-
because they burdened non-protected reli-
tion of a substantial burden on the exer-
gious exercise. Given the new broader
definition of statutorily protected exercise cise of religion in RFRA. Third, it treats
of religion, those actions have now be- as an open question whether RFRA ap-
come burdens within the meaning of plies to the federal governments use of its
RFRA. own land. I discuss these misstatements
in turn.
Finally, and perhaps most important,
RFRA provides broader protection be-
cause it applies Sherbert and Yoders com- 1. Definition of Substantial Burden
pelling interest test in all cases where
the exercise of religion is substantially Neither RFRA nor RLUIPA defines
burdened. 42 U.S.C. 2000bb(b). Prior substantial burden. 1 RFRA states,
to Smith, the Court had refused to apply The purposes of [RFRA] are
the compelling interest analysis in various
contexts, exempting entire classes of free (1) to restore the compelling interest
exercise cases from such heightened scru- test as set forth in Sherbert v. Verner,
tiny. See, e.g., Lyng, 485 U.S. at 454, 108 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d
S.Ct. 1319; OLone v. Estate of Shabazz, 965 (1963) and Wisconsin v. Yoder, 406
482 U.S. 342, 349, 107 S.Ct. 2400, 96 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
L.Ed.2d 282 (1987); Goldman v. Wein- (1972) and to guarantee its application in
berger, 475 U.S. 503, 50708, 106 S.Ct. all cases where free exercise of religion
1310, 89 L.Ed.2d 478 (1986); see also is substantially burdened; and
1. Although the majority opinion uses the Because the distinction is not material, I use
noun phrase substantial burden, RFRA em- the terms interchangeably.
ploys the verb phrase substantially burden.
(2) to provide a claim or defense to per- interferences with religion that it was
sons whose religious freedom is substan- surely intended to prevent. Fifth, the ma-
tially burdened by government. joritys approach overrules fourteen years
42 U.S.C. 2000bb(b). The majority of contrary circuit precedent. Sixth, the
uses this statutory text to conclude that majoritys approach is inconsistent with
the purpose of RFRA was to restore a our cases applying RLUIPA. The Su-
de facto substantial burden test suppos- preme Court has instructed us that RLUI-
edly employed in Sherbert and Yoder. In PA employs the same analytic frame-work
the hands of the majority, that test is ex- and standard as RFRA. I consider these
tremely restrictive, allowing a finding of reasons in turn.
substantial burden only in those cases
where the burden is imposed by the same a. Substantial Burden on the
mechanisms as in those two cases. In Exercise of Religion
the majoritys words, Where TTT there is
no showing the government has coerced The majority contends that the phrase
the Plaintiffs to act contrary to their reli- substantial burden refers only to bur-
gious beliefs under threat of sanctions, or dens that are created by two mecha-
conditioned a governmental benefit upon nismsthe imposition of a penalty, or the
conduct that would violate the Plaintiffs denial of a government benefit. But the
religious beliefs, there is no substantial phrase substantial burden has a plain
burden on the exercise of their religion. and ordinary meaning that does not de-
Maj. op. at 1063. pend on the presence of a penalty or depri-
For six reasons, the majority is wrong in vation of benefit. A burden is [s]ome-
looking to Sherbert and Yoder for an ex- thing that hinders or oppresses. Blacks
haustive definition of what constitutes a Law Dictionary (8th ed.2004). A burden is
substantial burden. First, the majoritys substantial if it is [c]onsiderable in im-
approach is inconsistent with the plain portance, value, degree, amount, or ex-
meaning of the phrase substantial bur- tent. American Heritage Dictionary (4th
den. Second, RFRA does not incorporate ed.2000). In RFRA, the phrase substan-
any pre-RFRA definition of substantial tial burden modifies the phrase exercise
burden. Third, even if RFRA did incor- of religion. Thus, RFRA prohibits gov-
porate a pre-RFRA definition of substan- ernment action that hinders or oppresses
tial burden, Sherbert, Yoder, and other the exercise of religion to a considerable
pre-RFRA Supreme Court cases did not degree. See also San Jose Christian Col-
use the term in the restrictive manner lege v. City of Morgan Hill, 360 F.3d 1024,
employed by the majority. That is, the 1034 (9th Cir.2004) (using dictionary defi-
cases on which the majority relies did not nitions to define substantial burden un-
state that interferences with the exercise der RLUIPA and concluding that for a
of religion constituted a substantial bur-
land use regulation to impose a substantial
den only when imposed through the two
burden it must be oppressive to a signifi-
mechanisms used in Sherbert and Yoder.
cantly great extent.).
Fourth, the purpose of RFRA was to ex-
pand rather than to contract protection for The text of RFRA does not describe a
the exercise of religion. If a disruption of particular mechanism by which religion
religious practices can qualify as a sub- cannot be burdened. Rather, RFRA pro-
stantial burden under RFRA only when it hibits government action with a particular
is imposed by the same mechanisms as in effect on religious exercise. This prohibi-
Sherbert and Yoder, RFRA would permit tion is categorical: Government shall not
Cite as 535 F.3d 1058 (9th Cir. 2008)
substantially burden a persons exercise of the Court refused to require that prison
religionTTTT 42 U.S.C. 2000bb1(a). regulations be justified by a compelling
Had Congress wished to establish the interest, instead demanding only that they
standard employed by the majority, it be reasonably related to legitimate peno-
could easily have stated that Government logical interests. See also Bowen v. Roy,
shall not, through the imposition of a pen- 476 U.S. 693, 707, 106 S.Ct. 2147, 90
alty or denial of a benefit, substantially L.Ed.2d 735 (1986) (Burger, J., for plurali-
burden a persons exercise of religionTTTT ty) (compelling interest test not applicable
It did not do so. The majority is correct in enforcing facially neutral and uniformly
that such text would have been unneces- applicable requirement for the administra-
sary if RFRA had incorporated previous tion of welfare programs); Lyng, 485 U.S.
Supreme Court case law that defined the at 454, 108 S.Ct. 1319 (compelling interest
phrase substantial burden as a term of test not applicable where government in-
art referring only to the imposition of a terferes with religious exercise through
penalty or denial of a benefit. Maj. op. at the use of its own land).
1074. However, as explained below, Con-
In other cases, the Court purported to
gress did not restore any technical defi-
nition of substantial burden found in pre- apply the compelling interest test, but in
RFRA case law, let alone restore the fact applied a watered-down version of the
definition the majority now reads into scrutiny employed in Sherbert and Yoder.
RFRA. Rather than demanding, as it had in Sher-
bert and Yoder, that the particular govern-
b. Restoring Sherbert and Yoder mental interest at stake be compelling, the
The text of RFRA explicitly states that Court accepted extremely general defini-
the purpose of the statute is to restore tions of the governments interest. For
the compelling interest test as set forth in example, in United States v. Lee, 455 U.S.
[Sherbert and Yoder ]. 42 U.S.C. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982),
2000bb(b) (emphasis added). The text the Court balanced an individuals interest
refers separately to substantially burden in a religious exemption from social securi-
and the exercise of religion, but it says ty taxes against the broad public interest
nothing about restoring the definition of in maintaining a sound tax system. Id. at
these terms as used in Sherbert and Yoder. 260, 102 S.Ct. 1051. Likewise, the plurali-
In the years after Sherbert and Yoder, ty in Roy balanced an individuals objec-
the Supreme Court applied the compel- tion to the provision of a social security
ling interest test to fewer and fewer Free number against the governments general
Exercise claims under the First Amend- interest in preventing fraud in [govern-
ment. For example, in Goldman, 475 U.S. ment] benefits programs. 476 U.S. at
at 505, 50708, 106 S.Ct. 1310, the Court 709, 106 S.Ct. 2147; see also David B.
conceded that a military regulation ban- Tillotson, Free Exercise in the 1980s: A
ning civilian headgear implicated the Rollback of Protections, 24 U.S.F. L.Rev.
First Amendment rights of an Orthodox 505, 520 (1990) (The Court has either
Jew who sought to wear a yarmulke, but defined the Governments interest so
then upheld the regulation after minimal broadly that no individuals interest could
scrutiny due to the great deference possibly outweigh it or, more recently, has
[owed] the professional judgment of mili- TTT simply refused to weigh individual
tary authorities concerning the relative im- challenges to uniformly applicable and
portance of a particular military interest. neutral statutes against any government
In OLone, 482 U.S. at 349, 107 S.Ct. 2400, interest, notwithstanding Sherbert.).
Smith, in which the Court refused to be found in Sherbert, Yoder, or any other
apply the compelling governmental inter- case prior to the passage of RFRA.
est test to a generally applicable law bur- In Sherbert, 374 U.S. 398, 83 S.Ct. 1790,
dening the exercise of religion, was the 10 L.Ed.2d 965, the Court held that a
last straw. In direct response, Congress Seventh-day Adventist could not be denied
enacted RFRA, directing the federal unemployment benefits based on her re-
courts to restore the compelling inter- fusal to work on Saturdays. Without us-
est test that had been applied in Sherbert ing the phrase substantial burden, the
and Yoder in all cases where free exercise Court concluded that a requirement that
of religion is substantially burdened. 42 the plaintiff work on Saturdays, on pain of
U.S.C. 2000bb(b). That is, by restoring being fired if she refused, force[d] her to
the compelling interest test, Congress choose between following the precepts of
restored the application of strict scrutiny, her religion and forfeiting benefits, on the
as applied in Sherbert and Yoder, to all one hand, and abandoning one of the pre-
government actions substantially burden- cepts of her religion in order to accept
ing religion, and rejected the restrictive work, on the other hand. Id. at 404, 83
approach to free exercise claims taken in S.Ct. 1790. The Court compared such an
Lyng, Roy, Goldman, OLone, and Lee. imposition to a governmental fine: Gov-
But this directive does not specify what ernmental imposition of such a choice puts
government actions substantially burden the same kind of burden upon the free
religion, thereby triggering the compelling exercise of religion as would a fine im-
interest test. RFRA did not restore any posed against appellant for her Saturday
definition of substantial burden. Be- worship. Id. The Court therefore man-
cause Congress did not define substantial dated that the requirement be justified by
burden, either directly or by reference to a compelling state interest. Id. at 406
pre-Smith case law, we should define (and
09, 83 S.Ct. 1790.
in fact have defined) that term according
In Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32
to its ordinary meaning.
L.Ed.2d 15, the Court held that Amish
c. Substantial Burden Test Not Used in children could not be required to attend
Sherbert, Yoder, and Other Pre school up to the age of sixteen, on penalty
RFRA Cases To Rule Out Certain of criminal sanctions against their parents
Burdens if they did not attend. Without using the
According to the majority, pre-RFRA phrase substantial burden, the Court
cases used the term burden or substan- concluded that a requirement that children
tial burden to refer exclusively to burdens attend school, on pain of criminal punish-
on religion imposed by only two particular ment of their parents if they did not,
types of government action. According to would gravely endanger if not destroy the
the majority, a substantial burden under free exercise of respondents religious be-
RFRA can only be caused by government liefs. Id. at 219, 92 S.Ct. 1526. The
action that either coerce[s an individual] Court therefore required, as it had in
to act contrary to their religious beliefs Sherbert, that the requirement be justified
under threat of sanctions, or condition[s] a by a compelling state interest. Id. at
governmental benefit upon conduct that 22129, 92 S.Ct. 1526.
would violate [an individuals] religious be- Neither Sherbert nor Yoder used the
liefs. Maj. op. at 1063. This restrictive majoritys substantial burden test as the
definition of substantial burden cannot trigger for the application of the compel-
Cite as 535 F.3d 1058 (9th Cir. 2008)
ling interest test. The Court in Sherbert In both [Lyng and Roy ], the challenged
and Yoder used the word burden, but Government action would interfere sig-
nowhere defined, or even used, the phrase nificantly with private persons ability
substantial burden. After holding that to pursue spiritual fulfillment according
the exercise of religion was burdened in to their own religious beliefs. In neither
each case, the Court simply did not opine case, however, would the affected indi-
on what other impositions on free exercise viduals be coerced by the Governments
would, or would not, constitute a burden. action into violating their religious be-
That is, Sherbert and Yoder held that cer- liefs; nor would either governmental ac-
tain interferences with religious exercise tion penalize religious activity by deny-
trigger the compelling interest test. But ing any person an equal share of the
neither case suggested that religious exer- rights, benefits, and privileges enjoyed
cise can be burdened, or substantially by other citizens.
burdened, only by the two types of inter- Id. at 449, 108 S.Ct. 1319 (emphases add-
ference considered in those cases. The
ed). The Court concluded that only coer-
phrase substantial burden is a creation
cion of the sort found in Sherbert and
of later cases which sometimes use Sher-
Yoder would trigger strict scrutiny be-
bert or Yoder as part of a string citation.
cause, [t]he crucial word in the constitu-
See, e.g., Hernandez v. Commissioner of
tional text is prohibit. Id. at 451, 108
Internal Revenue, 490 U.S. 680, 699, 109
S.Ct. 1319.
S.Ct. 2136, 104 L.Ed.2d 766 (1989). Nei-
ther Sherbert nor Yoder, nor any of the Justice Brennan dissented from the ma-
later cases, uses the restrictive definition joritys refusal to apply heightened scruti-
of substantial burden invented by the ny, emphasizing that the First Amendment
majority today. is directed against any form of govern-
mental action that frustrates or inhibits
Nor do other pre-RFRA cases supply
religious practice. Id. at 459, 108 S.Ct.
the majoritys restrictive definition of
1319 (Brennan J., dissenting). In re-
substantial burden. The majority relies
sponse, the Lyng majority conceded that
heavily on Lyng, 485 U.S. 439, 108 S.Ct.
the proposed road would have severe ad-
1319, 99 L.Ed.2d 534, which relies in turn
verse effects on the practice of [plaintiffs]
on Roy, 476 U.S. 693, 106 S.Ct. 2147, 90
religion. Id. at 447, 108 S.Ct. 1319. But
L.Ed.2d 735. In Lyng, tribal members
the Court went out of its way to reject
challenged the construction of a proposed
Justice Brennans contention that the First
road on government land in the Chimney
Rock area of the Six Rivers National For- Amendment is directed at governmental
est as infringing their rights under the action that frustrates or inhibits religious
Free Exercise Clause of the First Amend- practice. It responded, The Constitution
ment. 485 U.S. at 44242, 108 S.Ct. 1319. TTT says no such thing. Rather, it states:
The Court began its analysis by reiterating Congress shall make no law TTT prohibit-
the holding of Roy that [t]he Free Exer- ing the free exercise [of religion]. Id. at
cise Clause simply cannot be understood to 45657, 108 S.Ct. 1319 (quoting id. at 459,
require the Government to conduct its own 108 S.Ct. 1319; U.S. Const. amend. I) (em-
internal affairs in ways that comport with phasis and alterations in original).
the religious beliefs of particular citizens. Lyng did not hold that the road at issue
485 U.S. at 448, 108 S.Ct. 1319 (quoting would cause no substantial burden on
Roy, 476 U.S. at 699700, 106 S.Ct. 2147). religious exercise. The Court in Lyng
The Court then reasoned: never used the phrase substantial bur-
den. Rather, Lyng held that government d. Purpose of RFRA

action that did not coerce religious prac- The express purpose of RFRA was to
tices or attach a penalty to religious belief reject the restrictive approach to the Free
was insufficient to trigger the compelling Exercise Clause that culminated in Smith
interest test despite the presence of a sig- and to restore the application of strict
nificant burden on religion. The Court judicial scrutiny in all cases where free
explicitly recognized this in Smith when it exercise of religion is substantially bur-
wrote, In [Lyng ], we declined to apply dened. 42 U.S.C. 2000bb(b). The ma-
Sherbert analysis to the Governments log- joritys approach is fundamentally at odds
ging and road construction activities on with this purpose.
lands used for religious purposes by sever- As should be clear, RFRA creates a
al Native American Tribes, even though it legally protected interest in the exercise of
was undisputed that the activities could religion. The protected interest in Sher-
have devastating effects on traditional In- bert was the right to take religious rest on
dian religious practices. Smith, 494 Saturday, not the right to receive unem-
U.S. at 883, 110 S.Ct. 1595 (quoting Lyng, ployment insurance. The protected inter-
485 U.S. at 451, 108 S.Ct. 1319) (emphasis est in Yoder was the right to avoid secular
added). indoctrination, not, as the majority con-
The majoritys attempt to read Lyng tends, the right to avoid criminal punish-
into RFRA is not just flawed. It is per- ment. See Maj. Op. at 107071 n. 12.
verse. In refusing to apply the compelling Such interests in religious exercise can
interest test to the severe adverse effects be severely burdened by government ac-
on the practice of [plaintiffs] religion in tions that do not deny a benefit or impose
Lyng, the Court reasoned that the protec- a penalty. For example, a court would
tions of the First Amendment cannot de- surely hold that the government had im-
pend on measuring the effects of a govern- posed a substantial burden on the exer-
mental action on a religious objectors cise of religion if it purchased by eminent
spiritual development. 485 U.S. at 447, domain every Catholic church in the coun-
451, 108 S.Ct. 1319. The Court directly try. Similarly, a court would surely hold
incorporated this reasoning into Smith. that the Forest Service had imposed a
See 494 U.S. at 885, 110 S.Ct. 1595. Con- substantial burden on the Indians exer-
gress then rejected this very reasoning cise of religion if it paved over the entire-
when it restored the application of strict ty of the San Francisco Peaks. We have
scrutiny in all cases where free exercise already held that prison officials substan-
of religion is substantially burdened. 42 tially burden religious exercise if they rec-
U.S.C. 2000bb(b). ord the confessions of Catholic inmates, or
In sum, it is clear that the interferences refuse to provide Halal meat meals to a
with the free exercise of religion that exist- Muslim prisoner. See Mockaitis v. Har-
ed in Sherbert and Yoder qualify, to use cleroad, 104 F.3d 1522, 1531 (9th Cir.1997)
the terminology of RFRA, as a substan- (A substantial burden is imposed on TTT
tial burden. But the text, purpose, and free exercise of religion TTT by the intru-
enactment history of RFRA make equally sion into the Sacrament of Penance by
clear that RFRA protects against burdens officials of the state.); Shakur v. Schriro,
that, while imposed by a different mecha- 514 F.3d 878, 88889 (9th Cir.2008) (hold-
nism than those in Sherbert and Yoder, are ing that failure of prison officials to pro-
also substantial. vide Muslim prisoner with Halal or Kosher
Cite as 535 F.3d 1058 (9th Cir. 2008)
meat diet could constitute substantial bur- categorical approach); id. at 1215 (Here
den on religious exercise under RLUIPA); the Governments uniformity argument
see also Lovelace v. Lee, 472 F.3d 174, rests not so much on the particular statu-
19899 (4th Cir.2006) (holding that prison- tory program at issue as on slippery slope
ers right to religious diet under RLUIPA concerns that could be invoked in response
is clearly established for purposes of quali- to any RFRA claim TTT). The majoritys
fied immunity). approach thus places beyond judicial scru-
However, the majoritys restrictive defi- tiny many burdens on religious exercise
nition of substantial burden places such that RFRA was intended to prevent, and
injuries entirely outside the coverage of does so based on slippery slope argu-
RFRA because they are imposed through ments that the Supreme Court has in-
different mechanisms than those employed structed us to reject.
in Sherbert and Yoder. The majority can-
not plausibly justify this result by arguing e. This Circuits RFRA Precedents
that the complete destruction of a religious As I have described above, the majori-
shrine or place of worship, violation of a tys narrow definition of substantial bur-
sacrament, or denial of a religious diet are den conflicts with RFRAs text and
less substantial restrictions on religious purpose. The majoritys approach also
exercise than those caused by the denial of conflicts with our prior application of
unemployment benefits. Rather, the ma- RFRA in this circuit.
jority refuses to apply strict scrutiny to
We first addressed the definition of
these substantial injuries because, in its
substantial burden under RFRA in
view, a government that presides over a
Bryant v. Gomez, 46 F.3d 948 (9th Cir.
nation with as many religions as the Unit-
ed States of America [could not] function 1995). We stated that a substantial bur-
were it required to do so. See Maj. op. at den exists where:
1064. [A] governmental [action] burdens the
adherents practice of his or her religion
This proposition was explicitly rejected
TTT by preventing him or her from en-
by RFRA, which directs courts to apply
gaging in [religious] conduct or having a
the compelling governmental interest test
religious experienceTTTT This interfer-
in all cases where there is a substantial
ence must be more than an inconven-
burden on the exercise of religion. See
ience; the burden must be substantial.
RFRA 2000bb(a)(5) (stating that the
compelling interest test TTT is a workable Id. at 949 (quoting Graham v. C.I.R., 822
test for striking sensible balances between F.2d 844, 85051 (9th Cir.1987)) (second,
religious liberty and competing prior gov- third, and fifth alterations in Bryant ) (em-
ernmental interests). It has also been phasis added). Since Bryant, we have re-
explicitly rejected by the Supreme Court. peatedly refused to adopt the conclusion of
See Gonzales v. O Centro Espirita Benefi- the majority that a substantial burden is
cente Uniao do Vegetal, 546 U.S. 418, 430, imposed only when individuals are forced
126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) to choose between following the tenets of
(rejecting the governments argument that their religion and receiving a governmental
the Controlled Substances Act cannot benefit TTT or coerced to act contrary to
function TTT if subjected to judicial exemp- their religious beliefs by the threat of civil
tions because RFRA, and the strict scru- or criminal sanctions. Maj. op. at 1053
tiny test it adopted, contemplate an inqui- 54. See, e.g., Worldwide Church of God v.
ry more focused than the Governments Philadelphia Church of God, Inc., 227
F.3d 1110, 1121 (9th Cir.2000) (substantial state, an intrusion defended in this case
burden where government prevent[s] by an assistant attorney-general of the
[plaintiff] from engaging in [religious] con- state as not contrary to any law. Arch-
duct or having a religious experience and bishop George has justifiable grounds
is more than an inconvenience) (quoting for fearing that without a declaratory
Goehring v. Brophy, 94 F.3d 1294, 1299 judgment and an injunction in this case
(9th Cir.1996); and Bryant, 46 F.3d at the administration of the Sacrament of
949); Stefanow v. McFadden, 103 F.3d Penance for which he is responsible in
1466, 1471 (9th Cir.1996) (same). We have his archdiocese will be made odious in
noted that [a] statute burdens the free jails by the intrusion of law enforcement
exercise of religion if it put[s] substantial
officers.
pressure on an adherent to modify his
behavior and to violate his beliefs, includ- Id. at 1531 (emphasis added). Mockaitis
ing when, if enforced, it results in the was not only correctly decided. It is also
choice to the individual of either abandon- flatly inconsistent with the majority opin-
ing his religious principle or facing crimi- ion.
nal prosecution. Guam v. Guerrero, 290 The majority does not dispute that
F.3d 1210, 1222 (9th Cir.2002) (emphasis Mockaitis is inconsistent with its approach
added) (quoting Thomas v. Review Bd. of today, but instead argues that Mockaitis
Ind. Employment Sec. Div., 450 U.S. 707, cannot serve as precedent for two rea-
718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); sons. Maj. op. at 107374 n.15. First, the
and Braunfeld v. Brown, 366 U.S. 599, Majority notes that City of Boerne, 521
605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)). U.S. at 532, 117 S.Ct. 2157, overruled our
However, nothing in our opinions suggests application of RFRA to a state subdivision
that the government can substantially bur- in Mockaitis. But the federalism holding
den religion only by applying a penalty or of City of Boerne, 521 U.S. at 532, 117
withholding a benefit based on religion. S.Ct. 2157, was entirely unrelated to our
In fact, we have held precisely the oppo- definition of substantial burden. We do
site. In Mockaitis, a district attorney for not normally discard our prior view of the
Lane County, Oregon, with the assistance law simply because it was expressed in a
of officials at the Lane County Jail, record- case that is overruled on unrelated
ed the confession of a detained murder grounds. To the contrary, this circuit has
suspect to a Catholic priest. 104 F.3d at cited cases that have been overruled on
152426. The prisoner and the priest other grounds in 1,508 opinions. Mockai-
learned of the taping only after it oc-
tis continues to demonstrate that we have
curred. Id. at 1526. Although the prison-
previously refused to adopt the majoritys
er did not seek suppression of the tape,
restrictive definition of substantial bur-
the priest, together with the Archbishop of
den.
Portland, sought an injunction under
RFRA barring future taping. Id. at 1526 Second, the majority finds Mockaitis
1527. We concluded the initial taping vio- unhelpful because it did not define sub-
lated RFRA and held that an injunction stantial burden, let alone analyze the sub-
was warranted because, stantial burden standard under the Sher-
A substantial burden is imposed on [the bert/Yoder framework restored in RFRA,
Archbishops] free exercise of religion as [or] attempt to explain why such frame-
the responsible head of the archdiocese work should not apply to define substantial
of Portland by the intrusion into the burden. Maj. op. at 1074 n. 15. As I
Sacrament of Penance by officials of the have explained above, RFRA did not em-
Cite as 535 F.3d 1058 (9th Cir. 2008)
ploy the term substantial burden as a in a case that involved no imposition of a

term of art limiting the application of penalty or deprivation of a benefit. In
RFRA to burdens caused by the precise Shakur, 514 F.3d 878, a Muslim inmate
mechanisms at issue in Sherbert and Yo- brought a RLUIPA challenge alleging that
der. In rejecting this argument, the ma- the Arizona Department of Corrections
jority dismisses Mockaitis precisely be- substantially burdened his exercise of reli-
cause it proves my point. That is, because gion by refusing to provide him with a
Mockaitis does not treat substantial bur- Halal or Kosher meat diet. Id. at 88889.
den as a term of art limited to burdens The imposition on Shakur was in fact rela-
caused by the precise mechanisms at issue tively mild because the prison provided
in Sherbert and Yoder, the majority must him with a vegetarian diet as an alterna-
perforce reject it. The conflict between tive to the ordinary meat diet. Id. at 888,
Mockaitis and the majoritys approach to- 891. Nonetheless, we found that Shakur
day reflects the novelty of todays opinion, had asserted a cognizable substantial bur-
not any shortcomings of Mockaitis. den under RLUIPA when he alleged that
Notably absent from the majoritys opin- the vegetarian diet he was forced to eat for
ion is any explanation of why the result lack of Halal meat gave him indigestion,
reached in Mockaitis is incorrect. Under thereby disrupting his religious practices.
the majoritys approach, it is clear that Id. at 888. Because the Arizona Depart-
governmental eavesdropping on a prison- ment of Corrections had not imposed any
ers confession to his priest would not im- penalty or withheld any benefit from Sha-
pose a substantial burden on the prisoner kur based on his exercise of religion, Sha-
or priest under RFRA. This cannot be the kur is, like Mockaitis, flatly inconsistent
law. with the majority opinion.
In attempting to distinguish Shakur, the
f. This Circuits RLUIPA Precedents majority again refuses to accept the impli-
Our cases interpreting the definition of cations of its own rule. The majority
substantial burden under RLUIPA have claims that Shakur is a straightforward
applied a similar definition to the definition application of the Sherbert test because
employed in Bryant, 46 F.3d at 949. In the policy conditioned a governmental
applying RLUIPA, we have stated that benefit to which Shakur was otherwise en-
for a land use regulation to impose a titleda meal in prisonupon conduct
substantial burden, it must be oppressive that would violate Shakurs religious be-
to a significantly great extent. That is, a liefs. Maj. op. at 1078 n. 24. However,
substantial burden on religious exercise like Mockaitis, Shakur applied the ordi-
must impose a significantly great restric- nary meaning of the phrase substantial
tion or onus upon such exercise. Warsol- burden, which is inconsistent with the
dier v. Woodford, 418 F.3d 989, 995 (9th majoritys newly minted Sherbert test.
Cir.2005) (quoting San Jose Christian Col- In Sherbert, a Seventh-day Adventist was
lege, 360 F.3d at 1034). In other words, denied unemployment benefits after she
we have defined substantial burden ac- was fired for refusing to work on Satur-
cording to the effect of a government ac- days because, according to the state, she
tion on religious exercise rather than par- had fail[ed], without good cause, to accept
ticular mechanisms by which this effect is suitable work when offered. 374 U.S. at
achieved. 399400, 83 S.Ct. 1790 (internal quotation
Moreover, we recently held that a sub- marks omitted). In other words, the
stantial burden could exist under RLUIPA plaintiff in Sherbert was denied a govern-
ment benefit, to which she was otherwise est Services failure to offer spiritually
entitled, because of her religious observ- pure sites and materials is the equivalent
ance. of prison officials failing to offer religiously
Contrary to the majoritys assertions, pure meals. In short, in denying the Indi-
the inmate in Shakur was not denied any ans claims, the majority contends that the
government benefit to which he was other- phrase substantial burden applies only
wise entitled because of his religious ob- where the government imposes sanctions
servance. Shakur had a legal interest in or condition[s] a governmental benefit
some meal in prison, but he was never upon conduct that would violate the Plain-
denied this interest as a consequence of his tiffs religious beliefs. The majority then
religious observance. Eating the vegetari- abandons this definition in its attempts to
an meals provided by the prison was per- distinguish Shakur, which did not involve
mitted by Shakurs religion. Shakur had the conditioning of government benefits on
no legal interest in Halal meat meals, ex- conduct that would violate religious beliefs.
cept to the extent the governments failure The need for such semantic contortions
to provide them interfered with his subjec- only highlights the degree to which the
tive religious experience. Nonetheless, we majoritys rule is inconsistent with our pri-
held that the failure of the prison to pro- or case law and fails to capture the mean-
vide Halal meat meals could constitute a ing of the term substantial burden.
substantial burden on Shakurs religious
exercise because the vegetarian meals al- 2. The Applicability of RLUIPA
legedly exacerbate[d] [Shakurs] hiatal The majoritys second misstatement is
hernia and cause[d] excessive gas that in-
that RLUIPA does not apply to suits
terfere[d] with the ritual purity required
brought under RFRA. It writes:
for [Shakurs] Islamic worship. Id. at
For two reasons, RLUIPA is inapplica-
889. That is, although the government
ble to this case. First, RLUIPA, by its
had in no way penalized Shakurs exercise
terms, prohibits only state and local gov-
of his religion by denying a benefit to
ernments from applying regulations that
which he was otherwise entitled, we held
govern land use or institutionalized per-
that RFRA may impose an affirmative
sons to impose a substantial burden on
duty on prison officials to provide Halal
meat meals where the failure to do so the exercise of religionTTTT Subject to
harms the inmates sense of ritual puri- two exceptions not relevant here, RLUI-
ty. Id. PA does not apply to a federal govern-
ment action, which is not at issue in this
The provision of special meals is a gov-
case. TTT Second, even for state and
ernment action that benefits an inmate.
local governments, RLUIPA applies
But this is true of virtually any religious
only to government land-use regulations
accommodation. Thus, Shakur can only
of private land, not to the governments
be explained as consistent with the majori-
management of its own land.
tys rule if the mere accommodation of
religion is a governmental benefit. But Maj. op. at 1077. From this, the majority
such a broad rule cannot support the ma- concludes that RLUIPA cases finding a
joritys conclusion in this case. Under substantial burden on the exercise of
such a definition, the Forest Service offers religion are irrelevant to RFRA cases.
the Indians in this case a government It is true that much of RLUIPA applies
benefit in the form of access to their specifically to state and local zoning deci-
sacred land and ritual materials. The For- sions and to actions by prison officials.
Cite as 535 F.3d 1058 (9th Cir. 2008)
But it is demonstrably not true that to the same standard as set forth in
RLUIPA is inapplicable to this case, and RFRA[.] O Centro, 546 U.S. at 436, 126
that cases decided under RLUIPA may be S.Ct. 1211 (emphasis added). Because
disregarded in RFRA cases. Not only did RFRA and RLUIPA cases share the same
RLUIPA amend the definition of exercise analytic framework and terminology and
of religion contained in RFRA, RLUIPA are, in the words of the Court in O Centro,
also applies the same substantial burden governed by the same standard, RLUI-
test that is applied in RFRA cases. PA cases are necessarily applicable to
Prior to the passage of RLUIPA in RFRA cases.
2000, RFRA provided that the term exer-
cise of religion means the exercise of reli- 3. Applicability of RFRA
gion under the First Amendment to the to Federal Land
Constitution. Pub.L. No. 103141, 5,
Finally, the majority misstates the law
107 Stat. at 1489 (codified at 42 U.S.C.
when it treats as an open question whether
2000bb2(4) (1994) (repealed)). RLUI-
RFRA applies to federal land. The major-
PA changed the definition of exercise of
ity writes:
religion in RFRA. RLUIPA 78, 114
Stat. at 80607. As a result of RLUIPA, The Defendants do not contend that
42 U.S.C. 2000bb2 now provides, As RFRA is inapplicable to the govern-
used in this chapterTTT (4) the term ments use and management of its own
exercise of religion means religious exer- land, which is at issue in this case.
cise, as defined in section 2000cc5 of this Because this issue was not raised or
title. (emphasis added). The chapter to briefed by the parties, we have no oc-
which 2000bb2 refers is Chapter 21B of casion to consider it. Therefore, we
Title 42. Chapter 21B is the codification assume, without deciding, that RFRA
of the Religious Freedom Restoration Act. applies to the governments use and
Section 2000cc5, to which 2000bb2 re- management of its land[.]
fers, provides, The term religious exer- Maj. op. at 1067 n. 9.
cise includes any exercise of religion,
It is hardly an open question whether
whether or not compelled by, or central to,
RFRA applies to federal land. For good
a system of religious belief.
reason, none of the defendants argued that
RFRA and RLUIPA not only share the
RFRA is inapplicable to actions on federal
same definition of exercise of religion,
land. There is nothing in the text of
they also share the same analytic frame-
RFRA that says, or even suggests, that
work and terminology. Under both stat-
such a carve-out from RFRA exists. No
utes, the imposition of a substantial bur-
case has ever so held, or even suggested,
den on a persons exercise of religion
that RFRA is inapplicable to federal land.
may be justified only by a compelling gov-
ernmental interest and a showing that The majority opinion uses silence of the
such interest is furthered by the least re- briefs in this case as an excuse to treat the
strictive means. See 42 U.S.C. 2000bb applicability of RFRA to federal land as an
1(b) (RFRA); 42 U.S.C. 2000cc1(a)(1 open question. However, the majority ig-
2) (RLUIPA). The Supreme Court has nores the following exchange with the gov-
explicitly stated that the Religious Land ernments attorney during oral argument
Use and Institutionalized Persons Act of before the en banc panel. In that ex-
2000 TTT allows federal and state prisoners change, the government explicitly stated
to seek religious accommodation pursuant that RFRA applies to federal land:
Question [by a member of the en banc and exercise, as well as the nature of the
panel]: Is it your position that the sub- inquiry mandated by RFRA. The majority
stantial burden test is simply never trig- characterizes the Indians religious belief
gered when the government is using its and exercise as merely a subjective spiri-
own land? That its simply outside the tual experience. Though I would not
coverage of RFRA if the government is choose precisely those words, they come
using its own land? close to describing what the majority
Answer [by the governments attorney]: thinks it is not describinga genuine reli-
No, your honor, that is not our posi- gious belief and exercise. Contrary to
tionTTTT what the majority writes, and appears to
Question: So, the use of government think, religious exercise invariably, and
land has the potential under RFRA to centrally, involves a subjective spiritual
impose a substantial burden? experience.
Answer: It is possible that certain activ-
ities on certain government land can still Religious belief concerns the human
substantially burden religious activities. spirit and religious faith, not physical harm
Question: And would then violate and scientific fact. Religious exercise
RFRA if there were no compelling state sometimes involves physical things, but the
interest? physical or scientific character of these
Answer: Correct. Yes. things is secondary to their spiritual and
[En banc argument at 35:06.] religious meaning. The centerpiece of re-
ligious belief and exercise is the subjec-
D. Misunderstanding of Religious tive and the spiritual. As William
Belief and Practice James wrote, religion may be defined as
In addition to misstating the law under the feelings, acts, and experiences of indi-
RFRA, the majority misunderstands the vidual men [and women] in their solitude,
nature of religious belief and practice. so far as they apprehend themselves to
The majority concludes that spraying up to stand in relation to whatever they may
1.5 million gallons of treated sewage ef- consider the divine. WILLIAM JAMES, THE
fluent per day on Humphreys Peak, the VARIETIES OF RELIGIOUS EXPERIENCE: A
most sacred of the San Francisco Peaks, STUDY IN HUMAN NATURE 3132 (1929).
does not impose a substantial burden on
the Indians exercise of religion. In so The majoritys misunderstanding of the
concluding, the majority emphasizes the nature of religious belief and exercise as
lack of physical harm. According to the merely subjective is an excuse for refus-
majority, [T]here are no plants, springs, ing to accept the Indians religion as wor-
natural resources, shrines with religious thy of protection under RFRA. According
significance, nor any religious ceremonies to undisputed evidence in the record, and
that would be physically affected by using the finding of the district court, the Indi-
treated sewage effluent to make artificial ans in this case are sincere in their reli-
snow. In the majoritys view, the sole gious beliefs. The record makes clear that
effect of using treated sewage effluent on their religious beliefs and practice do not
Humphreys Peak is on the Indians sub- merely require the continued existence of
jective spiritual experience. Maj. op. at certain plants and shrines. They require
1063. that these plants and shrines be spiritually
The majoritys emphasis on physical pure, undesecrated by treated sewage ef-
harm ignores the nature of religious belief fluent.
Cite as 535 F.3d 1058 (9th Cir. 2008)
Perhaps the strength of the Indians ar- the district court wrote that it was not
gument in this case could be seen more challenging the honest religious beliefs of
easily by the majority if another religion any witness. The majority concedes that
were at issue. For example, I do not think the Indians are sincere. It writes, The
that the majority would accept that the district court found the Plaintiffs beliefs to
burden on a Christians exercise of religion be sincere; there is no basis to challenge
would be insubstantial if the government that finding. Maj. op. at 1063.
permitted only treated sewage effluent for
The majority seeks to undermine the
use as baptismal water, based on an argu-
importance of the district courts finding,
ment that no physical harm would result
and its own concession, by contending that
and any adverse effect would merely be on
the Indians consider virtually everything
the Christians subjective spiritual experi-
sacred. It writes:
ence. Nor do I think the majority would
In the Coconino National Forest alone,
accept such an argument for an orthodox
there are approximately a dozen moun-
Jew if the government permitted only non-
Kosher food. tains recognized as sacred by American
Indian tribes. The district court found
E. Proper Application of RFRA the tribes hold other landscapes to be
Applying our precedents, which properly sacred as well, such as canyons and can-
reject the majoritys restrictive approach, yon systems, rivers and river drainages,
I would hold that the Indians have shown lakes, discrete mesas and buttes, rock
a substantial burden on the exercise of formations, shrines, gathering areas, pil-
their religion under RFRA. I also believe grimage routes, and prehistoric sites.
that the Forest Service has failed to show Within the Southwestern Region forest
that approval of the Snowbowl expansion lands alone, there are between 40,000
was the least restrictive means to further a and 50,000 prehistoric sites. The dis-
compelling governmental interest. trict court also found the Navajo and the
Hualapai Plaintiffs consider the entire
1. Substantial Burden on the Colorado River to be sacred. New sa-
Exercise of Religion cred areas are continuously being recog-
RFRA defines exercise of religion as nized by the Plaintiffs.
any exercise of religion, whether or not Maj. op. at 1066 n. 7 (citations omitted).
compelled by, or central to, a system of The majority implies that if we hold,
religious belief. 42 U.S.C. 2000bb
based on the sincerity of the Indianss
2(4), 2000cc5(7)(A). Under our prior case
religious belief, that there has been a sub-
law, a substantial burden on the exer-
stantial burden in this case, there is no
cise of religion exists where government
stopping place. That is, since virtually
action prevents an individual from engag-
everything is sacred, virtually any govern-
ing in [religious] conduct or having a reli-
mental action affecting the Indians sa-
gious experience and the interference is
cred land will be a substantial burden
more than an inconvenience. Bryant, 46
F.3d at 949. under RFRA.
The majoritys implication rests upon an
a. The Indians Sacred Land and inadequate review of the record. The dis-
their Exercise of Religion trict court conducted a two-week trial de-
The Appellees do not dispute the sincer- voted solely to the Indians RFRA claim.
ity of the Indians testimony concerning The trial record demonstrates that the
their religious beliefs and practices, and word sacred is a broad and undifferenti-
ated term. That term does not capture and Havasupai historic territory, only a
the various degrees in which the Indians few of these mountains are holy or par-
hold land to be sacred. For example, Vin- ticularly sacred. For the White Moun-
cent Randall, an Apache legislator, histori- tain Apache, there are four holy moun-
an, and cultural teacher, responded to a tains. They are the San Francisco Peaks,
question regarding mountains that were Mt. Graham, Mt. Baldy, and Red Moun-
sacred sites as follows: tain/Four Peaks. Trial tr. at 63943. For
Thats your term sacred. Thats not the Navajo, there are also four holy moun-
my term. I talked about holy mountains tains. They are the San Francisco Peaks,
this morning. I talked about Gods the Blanca Peak, Mt. Taylor, and the Hes-
mountainsTTTT Sacred to you is not the perous Mountains. Trial tr. at 739.
other terms. There are other places of
honor and respect. Youre looking at The Indians allow different uses on sa-
everything as being sacred. There is cred land depending on the degree of sa-
notthere is honor and respect, just as credness. For example, Mount Baldy is
much as the Twin Towers is a place of one of the White Mountain Apaches holy
honor and respect. Gettysburg. Yes, mountains. Though they consider all of
there are places like that in Apache their reservation land sacred in the
land, but there are four holy mountains. sense in which that term is used by the
Holy mountains. majority, Mount Baldy is not merely sa-
Trial tr. 72223 (emphasis added). cred. It is holy. The record is clear that
Dianna Uqualla, subchief of the Havasu- the Apache do not permit camping, fishing,
pai, again explained that there are dif- or hunting on the portion of Mount Baldy
ferent degrees of sacred: The whole under their control, even though they per-
reservation is sacred to us, but the mit such activities elsewhere on their res-
mountains are more sacred. They are ervation.
like ourif you go to a church there
would be like our tabernacle, that would b. Substantial Burden on the Indians
be our altars. Thats thethats the Exercise of Religion
difference like being in Fort Defiance or
Window Rock versus going to each of The record in this case makes clear that
the sacred mountains. The San Fran- the San Francisco Peaks are particularly
cisco Peaks would be like our tabernacle, sacred to the surrounding Indian tribes.
our altar to the west. Humphreys Peak is the most sacred, or
SER 1253 (emphasis added). holy, of the Peaks. I accept as sincere the
Indians testimony about their religious be-
Many White Mountain Apache, Navajo,
liefs and practices, and I accept as sincere
and Havasupai members refer to all land
their testimony that the Peaks, and in
that is owned, or was ever owned, by their
particular Humphreys Peak, are not
tribe as sacred. For example, Ramon Ri-
merely sacred but holy mountains.
ley, Cultural Resource Director for the
White Mountain Apache, testified that the In the discussion that follows, I focus on
entire Apache reservation is sacred. the evidence presented by the Hopi and
Trial tr. at 625, 64751. Uqualla testified Navajo, and to a lesser extent on the Hua-
to the same effect with respect to Hava- lapai and Havasupai. I first describe the
suapai land. SER 1253. Indians religious practices, and then dis-
But while there are many mountains cuss the effect the Snowbowl expansion
within White Mountain Apache, Navajo, would have on these practices.
Cite as 535 F.3d 1058 (9th Cir. 2008)
i. The Indians Religious Practices come to understand more profoundly.

(1) The Hopi Many of these songs focus on the Peaks.
Hopi religious beliefs and practices cen- Katsinam serve as intermediaries be-
ter on the San Francisco Peaks. As stated tween the Hopi and the higher powers,
by the district court, The Peaks are carrying prayers from the Hopi villages to
where the Hopi direct their prayers and the Peaks on an annual cycle. From July
thoughts, a point in the physical world that through January, the Katsinam live on the
defines the Hopi universe and serves as Peaks. In sixteen days of ceremonies and
the home of the Kachinas, who bring wa- prayers at the winter solstice, the Hopi
ter, snow and life to the Hopi people. 408 pray and prepare for the Katsinams visits
F.Supp.2d at 894. The Hopi have been to the villages. In February or March, the
making pilgrimages to the Peaks since at Katsinam begin to arrive, and the Hopi
least 1540, when they first encountered celebrate with nightly dances at which the
Europeans, and probably long before that. Katsinam appear in costume and perform.
The Hopi believe that when they The Katsinam stay while the Hopi plant
emerged into this world, the clans jour- their corn and it germinates. Then, in
neyed to the Peaks (or Nuvatukyaovi, the July, the Hopi mark the Katsinams de-
high place of snow) to receive instruc- parture for the Peaks.
tions from a spiritual presence, Masaw.
The Hopi believe that pleasing the Kat-
At the Peaks, they entered a spiritual cov-
sinam on the Peaks is crucial to their
enant with Masaw to take care of the
livelihood. Appearing in the form of
land, and then migrated down to the Hopi
clouds, the Katsinam are responsible for
villages. The Hopi re-enact their emer-
bringing rain to the Hopi villages from the
gence from the Peaks annually, and Hopi
Peaks. The Katsinam must be treated
practitioners look to the Peaks in their
with respect, lest they refuse to bring the
daily songs and prayers as a place of tran-
rains from the Peaks to nourish the corn
quility, sanctity, and purity.
crop. In preparation for the Katsinams
The Peaks are also the primary home of arrival, prayer sticks and feathers are de-
the powerful spiritual beings called Katsi- livered to every member of the village,
nam (Hopi plural of Katsina, or Kachina which they then deposit in traditional loca-
in English). Hundreds of specific Katsi- tions, praying for the spiritual purity nec-
nam personify the spirits of plants, ani- essary to receive the Katsinam. The Kat-
mals, people, tribes, and forces of nature.
sinam will not arrive until the peoples
The Katsinam are the spirits of Hopi an-
hearts are in the right place, a state they
cestors, and the Hopi believe that when
attempt to reach through prayers directed
they die, their spirits will join the Katsi-
at the spirits on the Peaks.
nam on the Peaks. As spiritual teachers
of the Hopi way, the Katsinam teach The Hopi have at least fourteen shrines
children and remind adults of the moral on the Peaks. Every year, religious lead-
principles by which they must live. These ers select members of each of the approxi-
principles are embodied in traditional mately forty congregations, or kiva, among
songs given by the Katsinam to the Hopi the twelve Hopi villages to make a pilgrim-
and sung by the Hopi in their everyday age to the Peaks. They gather from the
lives. One Hopi practitioner compared Peaks both water for their ceremonies and
these songs to sermons, which children boughs of Douglas fir worn by the Katsi-
understand simplistically but which adults nam in their visits to the villages.
(2) The Navajo their origin to the Changing Woman:

The Peaks are also of fundamental im- When her twins wanted to find their fa-
portance to the religious beliefs and prac- ther, the Changing Woman instructed
tices of the Navajo. The district court them to offer prayers to the Peaks and
found, [T]he Peaks are considered TTT to conduct ceremonies with medicine bundles.
be the Mother of the Navajo People, their The Navajo believe that the medicine bun-
essence and their home. The whole of the dles are conduits for prayers; by praying
Peaks is the holiest of shrines in the Nava- to the Peaks with a medicine bundle con-
jo way of life. 408 F.Supp.2d at 889. taining soil from the Peaks, the prayer will
Considering the mountain like family, be communicated to the mountain.
the Navajo greet the Peaks daily with As their name suggests, medicine bun-
prayer songs, of which there are more dles are also used in Navajo healing cere-
than one hundred relating to the four monies, as is medicine made with plants
mountains sacred to the Navajo. Wit- collected from the Peaks. Appellant Nor-
nesses described the Peaks as our leader ris Nez, a Navajo medicine man, testified
and very much an integral part of our life, that like the western doctor has his black
our daily lives. bag with needles and other medicine, this
The Navajo creation story revolves bundle has in there the things to apply
around the Peaks. The mother of humani- medicine to a patient. Explaining why he
ty, called the Changing Woman and com- loves the mountain as his mother, he testi-
pared by one witness to the Virgin Mary, fied, She is holding medicine and things
resided on the Peaks and went through to make us well and healthy. We suckle
puberty there, an event which the people from her and get well when we consider
celebrated as a gift of new life. Following her our Mother. Nez testified that he
this celebration, called the kinaalda, the collects many different plants from the
Changing Woman gave birth to twins, Peaks to make medicine.
from whom the Navajo are descended.
The Peaks play a role in every Navajo
The Navajo believe that the Changing
religious ceremony. The medicine bundle
Womans kinaalda gave them life, genera-
is placed to the west, facing the Peaks. In
tion after generation. Young women to-
the Blessingway ceremony, called by one
day still celebrate their own kinaalda with
a ceremony one witness compared to a witness the backbone of our ceremony
Christian confirmation or a Jewish bat because it is performed at the conclusion
mitzvah. The ceremony sometimes in- of all ceremonies, the Navajo pray to the
volves water especially collected from the Peaks by name.
Peaks because of the Peaks religious sig- The purity of nature, including the
nificance. Peaks, plays an important part in Navajo
The Peaks are represented in the Nava- beliefs. Among other things, it affects
jo medicine bundles found in nearly every how a medicine bundledescribed by one
Navajo household. The medicine bundles witness as a living basketis made.
are composed of stones, shells, herbs, and The making of a medicine bundle is pre-
soil from each of four sacred mountains. ceded by a four-day purification process
One Navajo practitioner called the medi- for the medicine man and the keeper of
cine bundles our Bible, because they the bundle. By Navajo tradition, the med-
have embedded within them the unwrit- icine bundle should be made with leather
ten way of life for us, our songs, our from a buck that is ritually suffocated; the
ceremonies. The practitioner traced skin cannot be pierced by a weapon. Med-
Cite as 535 F.3d 1058 (9th Cir. 2008)
icine bundles are rejuvenated every few of water. She washed again, and con-
years, by replacing the ingredients with ceived another son. These were the twin
others gathered on pilgrimages to the warriors, or war gods, from whom the
Peaks and three other sacred mountains. Hualapai are today descended. Later, one
The Navajo believe their role on earth is of the twins became ill, and the other
to take care of the land. They refer to collected plants and water from the Peaks,
themselves as nochoka dine, which one thereby healing his brother. From this
witness translated as people of the earth story comes the Hualapai belief that the
or people put on the surface of the earth mountain and its water and plants are
to take care of the lands. They believe sacred and have medicinal properties.
that the Creator put them between four One witness called the story of the deluge,
sacred mountains of which the western- the twins, and their mother our Bible
most is the Peaks, or Dookoos-liid (shin- story and drew a comparison to Noahs
ing on top, referring to its snow), and that Ark. As in Biblical parables and stories,
the Creator instructed them never to leave Hualapai songs and stories about the twins
this homeland. Although the whole reser- are infused with moral principles.
vation is sacred to the Navajo, the moun-
Hualapai spiritual leaders travel to the
tains are the most sacred part. As noted
Peaks to deliver prayers. Like the Hopi
previously, one witness drew an analogy to
and the Navajo, the Hualapai believe that
a church, with the area within the moun-
the Peaks are so sacred that one has to
tains as the part of the church where the
prepare oneself spiritually to visit. A spir-
people sit, and the Peaks as our altar to
itual leader testified that he prays to the
the west.
Peaks every day and fasts before visiting
As in Hopi religious practice, the Peaks to perform the prayer feather ceremony.
are so sacred in Navajo beliefs that, ac- In the prayer feather ceremony, a troubled
cording to Joe Shirley, Jr., President of
family prays into an eagle feather for days,
the Navajo Nation, a person cannot just
and the spiritual leader delivers it to the
voluntarily go up on this mountain at any
Peaks; the spirit of the eagle then carries
time. Itsits the holiest of shrines in
the prayer up the mountain and to the
our way of life. You have to sacrifice.
Creator.
You have to sing certain songs before you
even dwell for a little bit to gather herbs, The Hualapai collect water from the
to do offerings. After the requisite prep- Peaks. Hualapai religious ceremonies re-
aration, the Navajo go on pilgrimages to volve around water, and they believe water
the Peaks to collect plants for ceremonial from the Peaks is sacred. In their sweat
and medicinal use. lodge purification ceremony, the Hualapai
add sacred water from the Peaks to other
(3) The Hualapai water, and pour it onto heated rocks to
The Peaks figure centrally in the beliefs make steam. In a healing ceremony, peo-
of the Hualapai. The Hualapai creation ple seeking treatment drink from the wa-
story takes place on the Peaks. The Hua- ter used to produce the steam and are
lapai believe that at one time the world cleansed by brushing the water on their
was deluged by water, and the Hualapai bodies with feathers. At the conclusion of
put a young girl on a log so that she could the healing ceremony, the other people
survive. She landed on the Peaks, alone, present also drink the water. A Hualapai
and washed in the water. In the water, tribal member who conducts healing cere-
she conceived a son, who was a man born monies testified that water from the Peaks
is used to treat illnesses of high parts of ence of the Peaks probably accounts for
the body like the eyes, sinuses, mouth, the Peaks being central to the Havasu-
throat, and brain, including tumors, men- pai beliefs and traditions, even though
ingitis, forgetfulness, and sleepwalking. the Peaks themselves are on the edge of
He testified that the Peaks are the only their territory.
place to collect water with those medicinal The Chairman of the Havasupai testified
properties, and that he travels monthly to
that the Peaks are the most sacred reli-
the Peaks to collect it from Indian Springs,
gious site of the Havasupai: That is
which is lower on the mountain and to the
where life began. The Havasupai believe
west of the Snowbowl. The water there
that when the earth was submerged in
has particular significance to the Hualapai
water, the tribes grandmother floated
because the tribes archaeological sites are
on a log and landed and lived on the
nearby.
Peaks, where she survived on water from
In another Hualapai religious ceremony, the Peaks springs and founded the tribe.
when a baby has a difficult birth, a Huala-
Water is central to the religious prac-
pai spiritual leader brings a portion of the
placenta to the Peaks so that the child will tices of the Havasupai. Although they do
be strong like the twins and their mother not travel to the Peaks to collect water,
in the Hualapai creation story. The Hua- Havasupai tribal members testified that
lapai also grind up ponderosa pine needles they believe the water in the Havasu creek
from the Peaks in sacred water from the that they use in their sweat lodges comes
Peaks to aid women in childbirth. ultimately from the Peaks, to which they
pray daily. They believe that spring water
A Hualapai religious law forbids mixing
is a living, life-giving, pure substance, and
the living and the dead. In testimony in
they do not use tap water in their religious
the district court, a spiritual leader gave
practices. They perform sweat lodge cere-
the example of washing a baby or planting
corn immediately after taking part in a monies, praying and singing as they use
death ceremony. Mixing the two will the spring water to make steam; they
cause a condition that was translated into believe that the steam is the breath of
English as the ghost sickness. The lead- their ancestors, and that by taking it into
er testified that purification after touch- themselves they are purified, cleansed, and
ing death depends on the intensity of the healed. They give water to the dead to
encounter. If he had just touched the take with them on their journey, and they
dead persons clothes or belongings, he use it to make medicines. The Havasupai
might be purified in four days, but if he also gather rocks from the Peaks to use
touched a body, it would require a month. for making steam.
(4) The Havasupai ii. The Burden Imposed by

The Peaks are similarly central to the the Proposed Snowbowl
beliefs of the Havasupai, as the Forest Expansion
Service acknowledged in the FEIS: Under the proposed expansion of the
The Hualapai and the Havasupai per- Snowbowl, up to 1.5 million gallons per day
ceive the world as flat, marked in the of treated sewage effluent would be
center by the San Francisco Peaks, sprayed on Humphreys Peak from No-
which were visible from all parts of the vember through February. Depending on
Havasupai territory except inside the weather conditions, substantially more
Grand Canyon. The commanding pres- than 100 million gallons of effluent could
Cite as 535 F.3d 1058 (9th Cir. 2008)
be deposited over the course of the winter a medicine man, testified that once water
ski season. is tainted and if water comes from mortu-
The Indians claim that the use of treat- aries or hospitals, for Navajo theres no
ed sewage effluent to make artificial snow words to say that that water can be re-
on the Peaks would substantially burden claimed. He further testified that he ob-
their exercise of religion. Because the jected to the current use of the Peaks as a
Indians religious beliefs and practices are ski area, but that using treated sewage
not uniform, the precise burdens on reli- effluent to make artificial snow on the
gious exercise vary among the Appellants. Peaks would be far more serious. He
Nevertheless, the burdens fall roughly into explained, I can live with a scar as a
two categories: (1) the inability to perform human being. But if something is injected
a particular religious ceremony, because into my body that is foreign, a foreign
the ceremony requires collecting natural objectand reclaimed water, in my opin-
resources from the Peaks that would be ion, could be water thats reclaimed
too contaminatedphysically, spiritually, through sewage, wastewater, comes from
or bothfor sacramental use; and (2) the mortuaries, hospitals, there could be dis-
inability to maintain daily and annual reli- ease in the watersand that would be like
gious practices comprising an entire way injecting me and my mother, my grand-
of life, because the practices require belief mother, the Peaks, with impurities, foreign
in the mountains purity or a spiritual con- matter thats not natural.
nection to the mountain that would be Foster testified that if treated sewage
undermined by the contamination. effluent were used on the Peaks he would
The first burdenthe inability to per- no longer be able to go on the pilgrimages
form religious ceremonies because of con- to the Peaks that are necessary to rejuven-
taminated resourceshas been acknowl- ate the medicine bundles, which are, in
edged and described at length by the turn, a part of every Navajo healing cere-
Forest Service. The FEIS summarizes: mony. He explained:
Snowmaking and expansion of facilities, Your Honor, our way of life, our culture
especially the use of reclaimed water, we live inwe live in the blessingway, in
would contaminate the natural resources harmony. We try to walk in harmony,
needed to perform the required ceremo- be in harmony with all of nature. And
nies that have been, and continue to be, we go to all of the sacred mountains for
the basis for the cultural identity for protection. We go on a pilgrimage simi-
many of these tribes. Further, the use lar to Muslims going to Mecca. And we
of reclaimed water is believed by the do this with so much love, commitment
tribes to be impure and would have an ir- and respect. And if one mountainand
retrievable impact on the use of the soil, more in particularly with the San Fran-
plants, and animals for medicinal and cer- cisco Peakswhich is our bundle moun-
emonial purposes throughout the entire tain, or sacred, bundle mountain, were
Peaks, as the whole mountain is regarded to be poisoned or given foreign materials
as a single, living entity. that were not pure, it would create an
Three Navajo practitioners testimony at imbalancethere would not be a place
trial echoed the Forest Services assess- among the sacred mountains. We would
ment in describing how the proposed ac- not be able to go there to obtain herbs
tion would prevent them from performing or medicines to do our ceremonies, be-
various ceremonies. Larry Foster, a Na- cause that mountain would then become
vajo practitioner who is training to become impure. It would not be pure anymore.
And it would be a devastation for our the Peaks approximately once a month to
people. collect water for ceremonies and plants for
Appellant Navajo medicine man Norris medicine, testified that the use of treated
Nez testified that the proposed action sewage effluent would prevent him from
would prevent him from practicing as a performing Hualapai sweat lodge and heal-
medicine man. He told the district court ing ceremonies with the sacred water from
that the presence of treated sewage ef- the Peaks. Mapatis testified that he be-
fluent would ruin his medicine, which he lieves that the treated sewage effluent
makes from plants collected from the would seep into the ground and into the
Peaks. He also testified that he would be spring below the Snowbowl where he col-
unable to perform the fundamental Bless- lects his sacred water, so that the spring
ingway ceremony, because all [medicine] water would be contaminated by having
bundles will be affected and we will have been touched with death. Because con-
nothing to use eventually. tact between the living and the dead in-
Foster, Nez, and Navajo practitioner duces ghost sickness, which involves hal-
Steven Begay testified that because they lucinations, using water touched with
believe the mountain is an indivisible living death in healing ceremonies would be like
entity, the entire mountain would be con- malpractice. Further, Mapatis would be-
taminated even if the millions of gallons of come powerless to perform the healing
treated sewage effluent are put onto only ceremony for ghost sickness itself, because
one area of the Peaks. According to Fos- that ceremony requires water from the
ter, Nez, and Begay, there would be con- Peaks, the only medicine for illnesses of
tamination even on those parts of the the upper body and head, like hallucina-
Peaks where the effluent would not come tions.
into physical contact with particular plants
The second burden the proposed action
or ceremonial areas. To them, the con-
would imposeundermining the Indians
tamination is not literal in the sense that a
religious faith, practices, and way of life by
scientist would use the term. Rather, the
desecrating the Peaks purityis also
contamination represents the poisoning of
shown in the record. The Hopi presented
a living being. In Fosters words, [I]f
evidence that the presence of treated sew-
someone were to get a prick or whatever
age effluent on the Peaks would funda-
from a contaminated needle, it doesnt
mentally undermine all of their religious
matter what the percentage is, your whole
practices because their way of life, or be-
body would then become contaminated.
And thats what would happen to the liefway, is largely based on the idea that
mountain. In Nezs words, All of it is the Peaks are a pure source of their rains
holy. It is like a body. It is like our body. and the home of the Katsinam.
Every part of it is holy and sacred. In Leigh Kuwanwisiwma, a Hopi religious
Begays words, All things that occur on practitioner and the director of the tribes
the mountain are a part of the mountain, Cultural Preservation Office, explained the
and so they will have connection to it. We connection between contaminating the
dont separate the mountain. Peaks and undermining the Hopi religion:
The Hualapai also presented evidence The spiritual covenant that the Hopi
that the proposed action would prevent clans entered into with the Caretaker I
them from performing particular religious refer to as Masaw, the spiritual person
ceremonies. Frank Mapatis, a Hualapai and the other d[ei]ties that resideand
practitioner and spiritual leader who visits the Katsina that reside in the Peaks
Cite as 535 F.3d 1058 (9th Cir. 2008)
started out with the mountains being in ery day of the individuals life from birth
their purest form. They didnt have any to deathTTTT The Hopi Plaintiffs testi-
real intrusion by humanity. fied that the proposed upgrades to the
The purity of the spirits, as best we Snowbowl have affected and will contin-
can acknowledge the spiritual domain, ue to negatively affect the way they
we feel were content in receiving the think about the Peaks, the Kachina and
Hopi clans. So when you begin to in- themselves when preparing for any reli-
trude on that in a manner that is really gious activity involving the Peaks and
disrespectful to the Peaks and to the the Kachinafrom daily morning pray-
spiritual home of the Katsina, it affects ers to the regular calendar of religious
the Hopi people. It affects the Hopi dances that occur throughout the
people, because as clans left and em- yearTTTT The Hopi Plaintiffs also testi-
barked on their migrations and later fied that this negative effect on the prac-
coming to the Hopi villages, we experi- titioners frames of mind due to the con-
enced still a mountain and peaks that tinued and increased desecration of the
were in their purest form as a place of home of the Kachinas will undermine
worship to go to, to visit, to place our the Hopi faith and the Hopi way. Ac-
offerings, the tranquility, the sanctity cording to the Hopi, the Snowbowl up-
that we left a long time ago was still grades will undermine the Hopi faith in
there.
daily ceremonies and undermine the
Antone Honanie, a Hopi practitioner, Hopi faith in their Kachina ceremonies
testified that he would have difficulty pre- as well as their faith in the blessings of
paring for religious ceremonies, because life that they depend on the Kachina to
treated sewage effluent is something you bring.
cant get out of your mind when youre
408 F.Supp.2d at 89495.
sitting there praying to the mountain, a
place where everything is supposed to be The Havasupai presented evidence that
pure. Emory Sekaquaptewa, a Hopi trib- the presence of treated sewage effluent on
al member and research anthropologist, the Peaks would, by contaminating the
testified that the desecration of the moun- Peaks, undermine their sweat lodge purifi-
tain would cause Katsinam dance ceremo- cation ceremonies and could lead to the
nies to lose their religious value. They end of the ceremonies. Rex Tilousi, Chair-
would simply be a performance for per- man of the Havasupai, testified that Hava-
formance[s] sake rather than a religious supai religious stories teach that the water
effort: Hopi people are raised in this in Havasu Creek, which they use for their
belief that the mountains are a revered sweat ceremonies, flows from the Peaks,
place. And even though they begin with where the Havasupai believe life began.
kind of a fantasy notion, this continues to Although none of the three Havasupai wit-
grow into a more deeper spiritual sense of nesses stated that they would be complete-
the mountain. So that any thing that in- ly unable to perform the sweat lodge cere-
terrupts this perception, as they hold it, monies as a consequence of the impurity
would tend to undermine thethe integri- introduced by the treated sewage effluent,
ty in which they hold the mountain. Roland Manakaja, a traditional practition-
Summarizing the Hopis testimony, the er, testified that the impurity would dis-
district court wrote: rupt the ceremony:
The individual Hopis practice of the If I was to take the water to sprinkle
Hopi way permeates every part and ev- the rocks to bring the breath of our
ancestorswe believe the steam is the ingway and healing ceremonies. Hopi Ap-
breath of our ancestors. And the rocks pellants presented evidence that, were the
placed in the west signify where our proposed action to go forward, contamina-
ancestors go, the deceasedTTTT Once the tion by the effluent would fundamentally
steam rises, like it does on the Peaks, undermine their entire system of belief
the fog or the steam that comes off is and the associated practices of song, wor-
creation. And once the steam comes off ship, and prayer, that depend on the purity
and it comes into our being, it purifies of the Peaks, which is the source of rain
and cleanses us and we go to the level of and their livelihoods and the home of the
tranceTTTT Its going to impact mentally Katsinam spirits.
my spirituality. Every time I think
about sprinkling that water on the rocks, In light of this showing, it is self-evident
Im going to always think about this that the Snowbowl expansion prevents the
sewer that theyre using to recharge the Navajo and Hopi from engaging in [reli-
aquifer. gious] conduct or having a religious experi-
He further testified that he was con- ence and that this interference is more
cerned that the waters perceived impuri- than an inconvenience. Bryant, 46 F.3d
ty might cause the sweat lodge ceremony at 949. The burden imposed on the reli-
to die out altogether, if tribal members gious practices of the Navajo and Hopi is
fear breathing the organisms or the certainly as substantial as the intrusion on
chemicals that may come off the steam. confession deemed a substantial burden
The record supports the conclusion that in Mockaitis, 104 F.3d at 1531, and the
the proposed use of treated sewage ef- denial of a Halal or Kosher meat diet
fluent on the San Francisco Peaks would deemed a substantial burden in Shakur,
impose a burden on the religious exercise 514 F.3d at 88889. Thus, under RFRA,
of all four tribes discussed abovethe Na- the Forest Services approval of the Snow-
vajo, the Hopi, the Hualapai, and the Ha- bowl expansion may only survive if it fur-
vasupai. However, on the record before thers a compelling governmental interest
us, that burden falls most heavily on the by the least restrictive means.
Navajo and the Hopi. The Forest Service
itself wrote in the FEIS that the Peaks c. Compelling Governmental Interest
are the most sacred place of both the and Least Restrictive Means
Navajo and the Hopi; that those tribes The majority refuses to hold that spray-
religions have revolved around the Peaks ing treated sewage effluent on Hum-
for centuries; that their religious practices phreys Peak imposes a substantial bur-
require pure natural resources from the den on the Indians exercise of religion.
Peaks; and that, because their religious
It therefore does not reach the question
beliefs dictate that the mountain be viewed
whether the burden can be justified by a
as a whole living being, the treated sewage
compelling interest and is the least restric-
effluent would in their view contaminate
tive means of furthering that purpose.
the natural resources throughout the
Because I would hold that the Snowbowl
Peaks. Navajo Appellants presented evi-
expansion does constitute a substantial
dence in the district court that, were the
proposed action to go forward, contamina- burden on the Indians religious exercise, I
tion by the treated sewage effluent would also address this second step of the RFRA
prevent practitioners from making or reju- analysis.
venating medicine bundles, from making Requiring a State to demonstrate a
medicine, and from performing the Bless- compelling interest and show that it has
Cite as 535 F.3d 1058 (9th Cir. 2008)
adopted the least restrictive means of believe that authorizing the use of artificial
achieving that interest is the most de- snow at an already functioning commercial
manding test known to constitutional law. ski area in order to expand and improve its
City of Boerne, 521 U.S. at 534, 117 S.Ct. facilities, as well as to extend its ski season
2157. In applying this standard, we do not in dry years, is a governmental interest of
accept a generalized assertion of a compel- the highest order. Yoder, 406 U.S. at
ling interest, but instead require a case- 215, 92 S.Ct. 1526.
by-case determination of the question, sen-
Second, while the Forest Service un-
sitive to the facts of each particular claim.
doubtedly has a general interest in ensur-
O Centro, 546 U.S. at 431, 126 S.Ct. 1211
ing public safety on federal lands, there
(quoting Smith, 494 U.S. at 899, 110 S.Ct.
has been no showing that approving the
1595 (OConnor, J., concurring in the judg-
proposed action advances that interest by
ment)).
the least restrictive means. Appellees
The Forest Service and the Snowbowl have provided no specific evidence that
have argued that approving the use of skiing at the Snowbowl in its current state
treated sewage effluent to make artificial
is unsafe.
snow serves several compelling govern-
mental interests. The district court char- Third, approving the proposed action
acterized those interests as: (1) selecting does not serve a compelling governmental
the alternative that best achieves [the For- interest in avoiding conflict with the Es-
est Services] multiple-use mandate under tablishment Clause. The Forest Service
the National Forest Management Act, has not suggested that avoiding a conflict
which includes managing the public land with the Establishment Clause is a com-
for recreational uses such as skiing; (2) pelling interest served by the proposed
protecting public safety by authorizing action. Only the Snowbowl has made that
upgrades at Snowbowl to ensure that argument. The argument is not convinc-
users of the National Forest ski area have ing. The Supreme Court has repeatedly
a safe experience; and (3) complying with held that the Constitution affirmatively
the Establishment Clause. 408 F.Supp.2d mandates accommodation, not merely tol-
at 906. I would hold that none of these erance, of all religions, and forbids hostili-
interests is compelling. ty toward any. Lynch v. Donnelly, 465
First, the Forest Services interests in U.S. 668, 673, 104 S.Ct. 1355, 79 L.Ed.2d
managing the forest for multiple uses, in- 604 (1984). Anything less would require
cluding recreational skiing, are, in the the callous indifference we have said was
words of the Court in O Centro, broadly never intended by the Establishment
formulated interests justifying the general Clause. Id. (citations omitted); see also
applicability of government mandates and Hobbie v. Unemp. App. Commn of Fla.,
are therefore insufficient on their own to 480 U.S. 136, 14445, 107 S.Ct. 1046, 94
meet RFRAs compelling interest test. L.Ed.2d 190 (1987) (This Court has long
546 U.S. at 431, 126 S.Ct. 1211. Appellees recognized that the government may (and
have argued that approving the proposed sometimes must) accommodate religious
action serves the more particularized com- practices and that it may do so without
pelling interest in providing skiing at the violating the Establishment Clause.). Re-
Snowbowl, because the use of artificial fusing to allow a commercial ski resort in a
snow will allow a more reliable and con- national forest to spray treated sewage
sistent operating season at one of the only effluent on the Indians most sacred moun-
two major ski areas in Arizona. I do not tain is an accommodation that falls far
short of the sort of advancement of reli- a jury. No more is demanded of the

gion that gives rise to an Establishment pleadings than this. 5 Charles Alan
Clause violation. Wright & Arthur R. Miller, Federal Prac-
tice & Procedure 1202 (2008).
F. Conclusion
Appellants complaint in the district
I would therefore hold that the proposed court, while general, was sufficient to pro-
expansion of the Arizona Snowbowl, which vide notice that they were asserting
would entail spraying up to 1.5 million NEPA violations based on the Forest Ser-
gallons per day of treated sewage effluent vices failure to consider the health risks
on the holiest of the San Francisco Peaks,
presented by the Snowbowl expansion.
violates RFRA. The expansion would im-
The Navajo Nation and the Havasupai
pose a substantial burden on the Indians
Tribe both alleged in their complaints that
exercise of religion and is not justified
the Forest Service violated NEPA by
by a compelling government interest.
fail[ing] to take a hard look at the im-
II. National Environmental Policy Act pacts of introducing reclaimed waste water
to the ecosystem. [SER 1184; 1200]. In
A. Pleading under Rule 8(a) particular, they alleged, The FEIS fails to
The majority concludes that Appellants adequately address the effects of soil dis-
failed properly to plead a violation of turbance, and the persistent pollutants in
NEPA in their complaint. The violation in reclaimed water. Id.
question is an alleged failure by the Forest In another context, generalized allega-
Service to analyze the risks posed by hu-
tions such as these might be insufficient to
man ingestion of artificial snow made with
alert defendants that a specific health risk,
treated sewage effluent. Because of the
such as the ingestion of artificial snow, was
asserted pleading mistake, the majority
included in general statements referring to
declines to reach the merits of the claimed
the impacts of introducing reclaimed
violation.
waste water to the ecosystem and persis-
Under Federal Rule of Civil Procedure tent pollutants in reclaimed water. In
8(a), a proper complaint need only contain the context of this case, however, Appel-
a short and plain statement of the claim lants allegations were sufficient to put de-
showing that the pleader is entitled to fendants on notice of the nature of their
relief. Rule 8(a), adopted in 1938, re-
NEPA claim.
placed the old code pleading regime un-
der which plaintiffs had been required to First, even before the complaint was
plead detailed factual allegations in the filed, the Forest Service was well aware of
complaint, on pain of having their com- the dispute about whether the FEIS ade-
plaints dismissed on demurrer. Under the quately addressed the risk of children and
more relaxed notice pleading require- others ingesting artificial snow made from
ment of Rule 8(a), a plaintiff is not re- treated sewage effluent. For example, in
quired to plead detailed facts. Under October 2002, before the draft EIS was
Rule 8(a), a plaintiff is required only to published, the Service wrote what it called
advise the other party of the event being a strategic talking point addressing the
sued upon, TTT provide some guidance in a risk posed by the ingestion of the artificial
subsequent proceeding as to what was de- snow. The talking point began with the
cided for purposes of res judicata and col- question: Will my kids get sick if they eat
lateral estoppel, and TTT indicate whether artificial snow made from treated wastewa-
the case should be tried to the court or to ter? It continued with a scripted answer:
Cite as 535 F.3d 1058 (9th Cir. 2008)
[T]his question is really one that will be lieves that a complaint satisfies Rule 8(a),
thoroughly answered in the NEPA analy- he or she may stand on the complaint and
sis process. Appellants repeatedly made appeal a dismissal to the court of appeals.
clear to the Forest Service, both in com- See WMX Technologies, Inc. v. Miller, 80
ments on the draft EIS and in administra- F.3d 1315, 1318 (9th Cir.1996) (citing Car-
tive appeals, that this risk needed to be son Harbor Village Ltd. v. City of Carson,
addressed as part of the NEPA process.
37 F.3d 468, 471 n. 3 (9th Cir.1994) (quot-
Second, Appellants raised the issue of ing McGuckin v. Smith, 974 F.2d 1050,
ingestion of artificial snow in their motion 1053 (9th Cir.1992))). A plaintiff may
for summary judgment, specifically ad- move to amend a complaint that, in the
dressing several pages to the following
view of the district court, is inadequate
argument: The FEIS Does Not Contain
under Rule 8(a). But making such a mo-
a Reasonably Thorough Discussion of the
tion is not an admission, for purposes of
Significant Aspects of the Probable Envi-
ronmental Consequences of the Project appeal, that the district court is correct in
The FEIS Ignores (In Part) the Possibility viewing the complaint as inadequate. Nor,
of Children Eating Snow Made from Re- having made such a motion, is the plaintiff
claimed Water. [Plaintiffs Motion for required to appeal the district courts deni-
Summary Judgment at 2023]. The For- al of that motion in order to assert that the
est Service and the Snowbowl both object- initial complaint was adequate. See, e.g.,
ed that this argument was not adequately Quinn v. Ocwen Federal Bank FSB, 470
alleged in the complaint. But they showed F.3d 1240, 1247 n. 2 (8th Cir.2006).
no prejudice arising out of the alleged lack
of notice, and they addressed the merits of Second, the majority contends that the
the issue in their opposition to the motion. Navajo Appellants do not explain why
[Defendants Response In Opposition to their complaint is otherwise sufficient to
All Plaintiffs Motions for Summary Judg- state this NEPA claimdespite the De-
ment at 1617; Arizona Snowbowl Resort fendants assertion that the Navajo Plain-
LPs Opposition to Plaintiffs Motions for tiffs failed to plead this NEPA claim.
Summary Judgment at 56]. Maj. op. at 1079. The majority is wrong.
Third, Appellants had raised the issue of The Navajo Appellants clearly explain
ingestion of artificial snow in their admin- why their complaint was sufficient. Part
istrative appeal, and the Forest Service III.B of their brief in this court is headed:
had no need to develop additional evi- The FEIS Ignores the Possibility of Chil-
dence, through discovery or otherwise, in dren Eating Snow Made from Reclaimed
order to address the issue in the district Water. Part III.B.3 of their brief is
court. headed: This Issue Was Properly Raised
The majority objects to this analysis on and Considered by the Lower Court.
two grounds. First, it contends that be- [Reply brief, at 19] The first paragraph of
cause Appellants have not appealed the Part III.B.3 reads:
district courts denial of their motion to
amend their complaint, they cannot now Defendants assert that Plaintiffs did not
contend that their complaint was adequate. raise this issue in their comments on the
Maj. op. at 107980 & n. 26. That is not DEIS, in their administrative appeal, or
the law. If a complaint is adequate under in their Complaint. As a result, accord-
Rule 8(a), there is no need to amend it. It ing to defendants, Plaintiffs are preclud-
is well established that if a plaintiff be- ed from raising this argument on appeal.
This misstates the facts of the case and 177 F.3d 800, 814 (9th Cir.1999) (quoting
applicable law. Robertson v. Methow Valley Citizens
[Id.] (Emphasis added). Council, 490 U.S. 332, 350, 109 S.Ct. 1835,
The Navajo Appellants explain in their 104 L.Ed.2d 351 (1989)). Regulations re-
brief that the issue of children eating snow quire that an EIS discuss environmental
made from effluent was raised during the impacts in proportion to their signifi-
preparation of the FEIS. They explain cance. 40 C.F.R. 1502.2(b). For im-
that defendants were therefore already pacts discussed only briefly, there should
well aware of this issue when it was raised be enough discussion to show why more
in the district court. They explain, fur- study is not warranted. Id.
ther, in their brief in this court: Plaintiffs We employ a rule of reason [standard]
properly pled violations of NEPA in their to determine whether the [EIS] contains a
Complaint, even though the specific allega- reasonably thorough discussion of the sig-
tions at issue were not included therein. nificant aspects of the probable environ-
The issue [of the FEISs failure to analyze
mental consequences. Ctr. for Biologi-
the risk of children ingesting snow made
cal Diversity v. U.S. Forest Serv., 349 F.3d
from treated effluent] was briefed at sum-
1157, 1166 (9th Cir.2003) (first alteration in
mary judgment by all parties and present-
original) (quoting Kern v. U.S. Bureau of
ed at oral argument. The lower court
Land Mgmt., 284 F.3d 1062, 1071 (9th
heard the argument TTT and issued a deci-
Cir.2002)). In reviewing an EIS, a court
sion on this claim resulting in this appeal.
Id. at 234. must not substitute its judgment for that
of the agency, but rather must uphold the
Under notice pleading, a plaintiff need
agency decision as long as the agency has
not make specific allegations in the com-
considered the relevant factors and artic-
plaint, so long as the complaint is sufficient
ulated a rational connection between the
to put defendant on notice of the nature of
facts found and the choice made. Selkirk
plaintiffs claim. As the Navajo Appellants
Conservation Alliance v. Forsgren, 336
make clear, the defendants in the district
F.3d 944, 95354 (9th Cir.2003) (quoting
court were well aware of the nature of
Wash. Crab Producers, Inc. v. Mosbacher,
plaintiffs claim that the FEIS failed to
analyze the risk of children eating snow 924 F.2d 1438, 1441 (9th Cir.1990)).
made from the effluent. This is sufficient The treated sewage effluent proposed
to satisfy the notice pleading requirement for use in making artificial snow at the
of Rule 8(a). Snowbowl meets the standards of the
I would therefore reach the merits of ADEQ for what Arizona calls Av re-
Appellants claim that the Forest Service claimed water. The ADEQ permits use
failed to study adequately the risks posed of Av reclaimed water for snowmaking,
by human ingestion of artificial snow made but it has specifically disapproved human
with treated sewage effluent. ingestion of such water. Arizona law re-
quires users of reclaimed water to place
B. Merits and maintain signage at locations [where
NEPA does not mandate particular re- the water is used] so the public is informed
sults, but simply provides the necessary that reclaimed water is in use and that no
process to ensure that federal agencies one should drink from the system. Ariz.
take a hard look at the environmental Admin. Code R189704(H) (2005). Hu-
consequences of their actions. Muckle- man consumption, full-immersion water
shoot Indian Tribe v. U.S. Forest Serv., activity with a potential of ingestion, and
Cite as 535 F.3d 1058 (9th Cir. 2008)
evaporative cooling or misting are all contaminants with sufficient precision to

prohibited. Id. R189704(G)(2). Irri- determine whether they are present at
gation users must employ application levels that exceed the national standards:
methods that reasonably preclude human Nitrate, Benzo (a) pyrene (PAHs), Penta-
contact, including preventing contact chlorophenol, and Polychlorinatedbiphe-
with drinking fountains, water coolers, or nyls (PCBs). However, the FEIS does
eating areas, and preventing the treated not go on to discuss either the health risks
effluent from standing on open access resulting from ingestion of the treated
areas during normal periods of use. Id. sewage effluent or the likelihood that hu-
R189704(F). manseither adults or childrenwill in
The FEIS does not contain a reasonably fact ingest the artificial snow.
thorough discussion of the risks posed by Instead, the environmental impact anal-
possible human ingestion of artificial snow ysis in subchapter 3H, the only part of the
made from treated sewage effluent, and it FEIS to discuss the characteristics of
does not articulate why such discussion is treated sewage effluent, addresses only
unnecessary.
the impact on the watersheds and aquifers.
The main body of the FEIS addresses That analysis assesses the treated sewage
the health implications of using treated effluents impact after it has filtered
sewage effluent in subchapter 3H, Water- through the ground, a process the FEIS
shed Resources. Much of the subchap- estimates may result in an order of mag-
ters analysis focuses on the hydrogeolog- nitude decrease in concentration of so-
ic setting and on the effect of the artificial lutes. Thus, although the subchapter
snow once it has melted. The part of the reasonably discusses the human health
subchapter describing the treated sewage risks to downgradient users, it does not
effluent acknowledges that its risks to hu- address the risks entailed in humans di-
man health are not well known because it
rect exposure to, and possible ingestion of,
contains unregulated contaminants in
undiluted treated sewage effluent that has
amounts not ordinarily found in drinking
not yet filtered through the ground.
water, including prescription drugs and
chemicals from personal care products. Only two statements in the FEIS could
The subchapter contains tables listing the possibly be mistaken for an analysis of the
amounts of various organic and inorganic risk that children would ingest the artifi-
chemical constituents that have been cial snow. The first follows three com-
measured in the treated sewage effluent. bined questions by a commenter: (1)
One table compares the level of contami- whether signs would be posted to warn
nants in Flagstaffs treated sewage ef- that reclaimed water has been used to
fluent to the level permitted under national make the artificial snow; (2) how much
drinking water standards. The table exposure to the snow would be sufficient to
shows that Flagstaff simply does not test make a person ill; and (3) how long it
for the presence of the following contami- would take to see adverse effects on plants
nants regulated by the national standards: and animals downstream. The response to
Acrylamide, Dalapon, Di(2ethylhexyl) adi- these questions is four sentences long. It
pate, Dinoseb, Diquat, Endothall, Epichlo- states that signs would be posted, but it
rohydrin, Ethylene dibromide, Lindane, does not say how numerous or how large
Oxamyl (Vydate), Picloram, Simazine, and the signs would be. It then summarizes
Aluminum. The table also shows that the treatment the sewage would undergo.
Flagstaff does not measure the following The final sentence asserts: In terms of
microbiological and chemical water quality, ents responsibility to prevent their chil-
the proposed use of reclaimed water for dren from doing so neither responds to the
snowmaking represents a low risk of acute question whether signs would prevent chil-
or chronic adverse environmental impact dren from eating snow nor addresses
to plants, wildlife, and humans. whether ingesting artificial snow would be
This response does not answer the spe- harmful. Second, the Forest Services as-
cific and highly relevant question: How sumption that the ADEQs approval means
much direct exposure to the artificial snow the snow must be safe for ingestion is
is safe? Nor does the response provide inconsistent with that same agencys regu-
any analysis of the extent of the likely lations, which are designed to prevent hu-
exposure, including the likelihood that man ingestion. Third, the assumption that
children or adults would accidentally or the ADEQ actually analyzed the risk of
intentionally ingest the snow made from skiers ingesting the treated sewage ef-
non-potable treated sewage effluent. fluent snow is not supported by any evi-
Another statement appears on the last dence in the FEIS (or elsewhere in the
page of responses to comments in the administrative record). Finally, the For-
FEIS. The questions and response are: est Services answer is misleading in stat-
[Question:] In areas where reclaimed ing that the treated sewage effluent will be
water is presently used, there are signs diluted. The artificial snow would itself
posted to warn against consumption of be made entirely from treated sewage ef-
the water. Will these signs be posted at fluent and would only be mixed and
the Snowbowl? If so, how will that keep therefore diluted with natural snow inso-
children from putting snow in there [sic] far as the artificial snow intermingles with
mouths or accidentally consuming the a layer of natural snow. During a dry
snow in the case of a wreck? winter, there may be little or no natural
[Answer:] There will be signs posted at snow with which to dilute the treated
Snowbowl informing visitors of the use sewage effluent.
of reclaimed water as a snowmaking wa- Appellees have also contended that the
ter source. Much like areas of Flagstaff FEIS sets forth relevant mitigation meas-
where reclaimed water is used, it is the ures to the possibility that someone may
responsibility of the visitor or the mi- ingest snow. Although Appellees have
nors guardian to avoid consuming snow not specified the relevant mitigation
made with reclaimed water. It is impor- measures to which they refer, the only
tant to note that machine-produced snow mitigation measure mentioned in the FEIS
would be mixed and therefore diluted is the requirement under Arizona law that
with natural snow decreasing the per- the Snowbowl post signs so the public is
centage of machine-produced snow with- informed that reclaimed water is in use
in the snowpack. Because ADEQ ap- and that no one should drink from the
proved the use of reclaimed water, it is system. Ariz. Admin. Code R189
assumed different types of incidental 704(H) (2005). This mitigation measure
contact that could potentially occur from is not listed along with the fifty-five miti-
use of class A reclaimed water for snow- gation measures catalogued in a table in
making were fully considered. the FEIS. Cf. 40 C.F.R. 1502.14(f) (re-
There are several problems with this quiring agencies to include appropriate
response. First, the response does not mitigation measures in the EISs descrip-
assess the risk that children will eat the tion of the proposal and its alternatives).
artificial snow. Stating that it is the par- The measures omission from the FEIS
Cite as 535 F.3d 1058 (9th Cir. 2008)
table is hardly surprising, however, given would therefore hold that the FEIS does
that the FEIS does not address as an not satisfy NEPA with respect to the pos-
environmental impact the risk to human sible risks posed by human ingestion of the
health from the possible ingestion of artifi- artificial snow.
cial snow made from treated sewage ef-
fluent. III. Conclusion
Our role in reviewing the FEIS under I would hold that Appellants have
the APA is not to second-guess a determi- proved violations of both the Religious
nation by the Forest Service about wheth- Freedom Restoration Act and the National
er artificial snow made from treated sew- Environmental Policy Act. Of the two, the
age effluent would be ingested and, if so, RFRA violation is by far the more serious.
whether such ingestion would threaten hu- A NEPA violation can almost always be
man health. We are charged, rather, with cured, and certainly could be cured in this
evaluating whether the FEIS contains a case. However, the RFRA violation re-
reasonably thorough discussion of the sig- sulting from the proposed development of
nificant aspects of the probable environ- the Snowbowl is not curable. Because of
mental consequences. Ctr. for Biological the majoritys decision today, there will be
Diversity, 349 F.3d at 1166 (quotation a permanent expansion of the Arizona
marks omitted). An agency preparing an Snowbowl. Up to 1.5 million gallons of
EIS is required to take a hard look that treated sewage effluent per day will be
[a]t the least TTT encompasses a thorough sprayed on Humphreys Peak for the fore-
investigation into the environmental im- seeable future.
pacts of an agencys action and a candid
The San Francisco Peaks have been at
acknowledgment of the risks that those
the center of religious beliefs and practices
impacts entail. Natl Audubon Socy v.
Dept of the Navy, 422 F.3d 174, 185 (4th of Indian tribes of the Southwest since
Cir.2005) (citing Robertson, 490 U.S. 332, time out of mind. Humphreys Peak, the
350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) holiest of the San Francisco Peaks, will
(stating that NEPA requires environmen- from this time forward be desecrated and
tal costs to be adequately identified and spiritually impure. In part, the majority
evaluated)). A proper NEPA analysis justifies its holding on the ground that
will foster both informed decisionmaking what it calls public park land is land that
and informed public participation. belongs to everyone. Maj. op. at 1063
Churchill County v. Norton, 276 F.3d 64. There is a tragic irony in this justifi-
1060, 1071 (9th Cir.2001) (quoting Califor- cation. The United States government
nia v. Block, 690 F.2d 753, 761 (9th Cir. took this land from the Indians by force.
1982)). The majority now uses that forcible depri-
vation as a justification for spraying treat-
I do not believe that the Forest Service
has provided a reasonably thorough dis- ed sewage effluent on the holiest of the
cussion of any risks posed by human in- Indians holy mountains, and for refusing
gestion of artificial snow made from treat- to recognize that this action constitutes a
ed sewage effluent or articulated why such substantial burden on the Indians exercise
a discussion is unnecessary, has provided a of their religion.
candid acknowledgment of any such RFRA was passed to protect the exer-
risks, and has provided an analysis that cise of all religions, including the religions
will foster both informed decision-making of American Indians. If Indians land-
and informed public participation. I based exercise of religion is not protected
by RFRA in this case, I cannot imagine a Holdings: The Court of Appeals, Ebel,
case in which it will be. I am truly sorry Circuit Judge, held that:
that the majority has effectively read (1) amendments did not constitute per se
American Indians out of RFRA. violations of Sherman Act;
(2) amendments did not violate manufac-
, turers First Amendment rights;
(3) amendments did not violate manufac-
turers equal protection rights;
KT & G CORP., Xcaliber International (4) amendments did not violate manufac-
Limited, LLC, Plaintiffs turers procedural due process rights;
Appellants, and
v. (5) amendments did not violate Commerce
Clause.
ATTORNEY GENERAL OF the STATE
OF OKLAHOMA, W.A. Drew Affirmed.
Edmondson, in his official capacity as
Attorney General, DefendantAppel- 1. States O18.3
lee. Congress has authority, in exercising
Xcaliber International Limited, its Article I powers, to preempt state law.
LLC, PlaintiffAppellant, U.S.C.A. Const. Art. 1, 1 et seq.
v. 2. States O18.5
Stephen Six, Attorney General, in his Even if Congress has not occupied
official capacity as Attorney General, field, state law is nevertheless preempted
State of Kansas, DefendantAppellee. to extent it actually conflicts with federal
law, that is, when compliance with both
Nos. 055175, 055178.
state and federal law is impossible, or
United States Court of Appeals, when state law stands as obstacle to ac-
Tenth Circuit. complishment and execution of full pur-
July 23, 2008. poses and objectives of Congress.
Background: Tobacco manufacturers that 3. Federal Courts O776, 802
did not participate in states master settle- Court of Appeals reviews summary
ment agreement (MSA) with other tobacco judgment decisions de novo, viewing rec-
manufacturers brought actions alleging ord in light most favorable to parties op-
that Kansass and Oklahomas allocable posing motion. Fed.Rules Civ.Proc.Rule
share amendments, which reduced amount 56(c), 28 U.S.C.A.
of escrow funds refunded to them each
year pursuant to MSA, violated Sherman 4. Antitrust and Trade Regulation
Act and federal constitution. The United O531
States District Court for the Northern States O18.84
District of Oklahoma, Claire V. Eagan, J., Party may successfully enjoin enforce-
2005 WL 5654220, and the United States ment of state statute as being preempted
District Court for the District of Kansas, by federal antitrust laws only if statute on
2006 WL 288705, dismissed complaints, its face irreconcilably conflicts with federal
and NPMs appealed. Appeals were consoli- antitrust policy. Sherman Act, 1, 15
dated. U.S.C.A. 1.

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Navajo Nation v. USFS

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1058 535 FEDERAL REPORTER, 3d SERIES

2. Federal Courts O776, 850.1 Freedom Restoration Act of 1993, 3(a),

C. of religion (i.e., Sherbert, Yoder, and other

are an exercise of religion, is undisputed inapplicable to this case. First, RLUIPA,

Warsoldier is a straightforward applica- such exercise. Id. at 1034. The Plain-

IV. National Environmental snow. The Navajo Plaintiffs complaint

den. Rather, Lyng held that government d. Purpose of RFRA

ploy the term substantial burden as a in a case that involved no imposition of a

i. The Indians Religious Practices come to understand more profoundly.

(2) The Navajo their origin to the Changing Woman:

(4) The Havasupai ii. The Burden Imposed by

short of the sort of advancement of reli- a jury. No more is demanded of the

evaporative cooling or misting are all contaminants with sufficient precision to

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