Posted by: Patricia Salkin | August 15, 2008

Use of Recycled Wastewater on Sacred Mountain Does Not Violate RFRA, NEPA or NHPA

The Ninth Circuit Court of Appeals has held that the Government’s use of recycled wastewater to create artificial snow on government-owned parkland located on mountain sacred to Indian tribes’ religion, did not violate the Religious Freedom Restoration Act, the National Environmental Policy Act, nor the National Historic Preservation Act. Further, the presence of recycled wastewater on a mountain sacred to tribe does not coerce plaintiffs to act contrary to their religious beliefs under threat of sanctions, nor does it condition a governmental benefit upon conduct that would violate their religious beliefs, as required to establish a “substantial burden” on religious exercise under RFRA. Although presence of wastewater offended plaintiffs’ religious sensibilities and allegedly decreased plaintiffs’ spiritual fulfillment from practicing their religion on mountain(specifically the tribe alleged that the planned use of recycled wastewater, which contains 0.0001% human waste, on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities) , under Supreme Court precedent, an adverse effect on plaintiffs’ subjective emotional religious experience does not constitute a substantial burden on free exercise of religion. In finding no substantial burden on the exercise of religion, the Court said, “The use of recycled wastewater on a ski area that covers one percent of the Peaks does not force the Plaintiffs to choose between following the tenets of their religion and receiving a governmental benefit, as in Sherbert. The use of recycled wastewater to make artificial snow also does not coerce the Plaintiffs to act contrary to their religion under the threat of civil or criminal sanctions, as in Yoder. The Plaintiffs are not fined or penalized in any way for practicing their religion on the Peaks or on the Snowbowl.”  The Court further said that, a government action that decreases the spirituality, the fervor, or the satisfaction with which a   believer practices his religion is not what Congress has labeled a “substantial burden”—a term of art chosen by Congress to be defined by reference to Supreme Court precedent —on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.”


The Ninth Circuit relied on the District Court’s analysis in upholding their determination that there were no NEPA or NHPA violations.



Note: Although many people remember that RFRA was deemed unconstitutional in City of Boerne v. Flores, 521 U.S. 507 (1997)  as applied to states and local governments, in Guam v. Guerrero, 290 F.3d 1210, 1220-22 (9th Cir. 2002), the Court made it clear that RFRA still applied to the federal government.


Navajo Nation v. United States Forest Service, 2008 WL 3167692 (9th Cir. 8/8/2008 )


The opinion can be accessed at:$file/0615371.pdf?openelement


Thanks to Dwight Merriam from Robinson & Cole in Hartford, CT for bringing this case to the Law of the Land.


For a current paper that covers RLUIPA cases across the country, see:


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