Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAVAJO NATION; HAVASUPAI TRIBE; 

REX TILOUSI; DIANNA UQUALLA;

SIERRA CLUB; WHITE MOUNTAIN

APACHE NATION; YAVAPAI-APACHE

NATION; THE FLAGSTAFF ACTIVIST

NETWORK,

Plaintiffs-Appellants,

and

HUALAPAI TRIBE; NORRIS NEZ; BILL

BUCKY PRESTON; HOPI TRIBE; No. 06-15371

CENTER FOR BIOLOGICAL DIVERSITY, D.C. Nos.

Plaintiffs, CV-05-01824-PGR 

v. CV-05-01914-PGR

CV-05-01949-PGR UNITED STATES FOREST SERVICE;

CV-05-01966-PGR NORA RASURE, in her official

capacity as Forest Supervisor,

Responsible Officer, Coconino

National Forest; HARV FORSGREN,

appeal deciding office, Regional

Forester, in his official capacity,

Defendants-Appellees,

ARIZONA SNOWBOWL RESORT

LIMITED PARTNERSHIP,

Defendant-intervenor-Appellee. 

10033
NAVAJO NATION; HUALAPAI TRIBE; 

NORRIS NEZ; BILL BUCKY PRESTON;

HAVASUPAI TRIBE; REX TILOUSI;

DIANNA UQUALLA; SIERRA CLUB;

WHITE MOUNTAIN APACHE NATION;

YAVAPAI-APACHE NATION; CENTER

FOR BIOLOGICAL DIVERSITY; THE

FLAGSTAFF ACTIVIST NETWORK,

Plaintiffs,

and No. 06-15436

HOPI TRIBE, D.C. Nos.

Plaintiff-Appellant, CV-05-01824-PGR 

v. CV-05-01914-PGR

CV-05-01949-PGR UNITED STATES FOREST SERVICE;

CV-05-01966-PGR NORA RASURE, in her official

capacity as Forest Supervisor,

Responsible Officer, Coconino

National Forest; HARV FORSGREN,

appeal deciding office, Regional

Forester, in his official capacity,

Defendants-Appellees,

ARIZONA SNOWBOWL RESORT

LIMITED PARTNERSHIP,

Defendant-intervenor-Appellee. 

10034 NAVAJO NATION v. USFS
HUALAPAI TRIBE; NORRIS NEZ; BILL 

BUCKY PRESTON,

Plaintiffs-Appellants,

v.

No. 06-15455

UNITED STATES FOREST SERVICE;

D.C. No. NORA RASURE, in her official  CV-05-01824-PGR capacity as Forest Supervisor,

Responsible Officer, Coconino OPINION

National Forest; HARV FORSGREN,

appeal deciding office, Regional

Forester, in his official capacity,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted

December 11, 2007—Pasadena, California

Filed August 8, 2008

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Diarmuid F. O’Scannlain, Pamela Ann Rymer,

Andrew J. Kleinfeld, Barry G. Silverman,

William A. Fletcher, Raymond C. Fisher, Richard R. Clifton,

Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge W. Fletcher

NAVAJO NATION v. USFS 10035
COUNSEL

Howard M. Shanker (argued), Laura Lynn Berglan, The

Shanker Law Firm, PLC, Tempe, Arizona; Jack F. Trope

(argued), Association on American Indian Affairs, Rockville,

Maryland; William C. Zukosky, DNA-People’s Legal Services, Flagstaff, Arizona; Terence M. Gurley and Zackeree

Kelin, DNA-People’s Legal Services, Window Rock, Arizona; Lisa A. Reynolds, James E. Scarboro (argued), Arnold

& Porter LLP, Denver, Colorado; Anthony S. Canty, Lynelle

Kym Hartway, Office of General Counsel, The Hopi Tribe,

Kykotsmovi, Arizona, for the plaintiffs-appellants. 

Catherine E. Stetson (argued), Andrew L. Spielman, Hogan &

Hartson LLP, Washington, DC; Janice M. Schneider, Bruce

Babbitt, Latham & Watkins LLP, Washington, DC; Sue Ellen

Wooldridge, Matthew J. McKeown, Andrew C. Mergen,

Kathryn E. Kovacs, Lane M. McFadden (argued), United

States Department of Justice, Environment & Natural

Resources Division, Washington, DC; Philip A. Robbins,

Paul G. Johnson, Michael J. O’Connor, John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix, Arizona, for the

defendants-appellees. 

NAVAJO NATION v. USFS 10039
Geraldine Link, National Ski Areas Association, Lakewood,

Colorado; Ezekiel J. Williams, Jacy T. Rock, Faegre & Benson LLP, Denver, Colorado; Glenn E. Porzak, P. Fritz Holleman, Eli A. Feldman, Porzak Browning & Bushong LLP,

Boulder, Colorado; for the National Ski Areas Association as

Amicus Curiae in Support of the defendants-appellees. 

William Perry Pendley, Mountain States Legal Foundation,

Lakewood, Colorado; for the Mountain States Legal Foundation as Amicus Curiae in Support of the defendants-appellees.

OPINION

BEA, Circuit Judge: 

In this case, American Indians ask us to prohibit the federal

government from allowing the use of artificial snow for skiing

on a portion of a public mountain sacred in their religion. At

the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow.1

 The Plaintiffs claim the use of such snow on a

sacred mountain desecrates the entire mountain, deprecates

their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this governmentapproved use of artificial snow on government-owned park

land violates the Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321

et seq., and the National Historic Preservation Act (“NHPA”),

16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm

the district court’s denial of relief on all grounds.

1

It appears that some of the Plaintiffs would challenge any means of

making artificial snow, even if no recycled wastewater were used. Panel

Oral Argument (Sept. 14, 2006) at 12:25-12:45 (Hopi Plaintiffs). 

10040 NAVAJO NATION v. USFS
* * *

Plaintiff Indian tribes and their members consider the San

Francisco Peaks in Northern Arizona to be sacred in their religion.2

 They contend that the use of recycled wastewater to

make artificial snow for skiing on the Snowbowl, a ski area

that covers approximately one percent of the San Francisco

Peaks, will spiritually contaminate the entire mountain and

devalue their religious exercises. The district court found the

Plaintiffs’ beliefs to be sincere; there is no basis to challenge

that finding. The district court also found, however, that there

are no plants, springs, natural resources, shrines with religious

significance, or religious ceremonies that would be physically

affected by the use of such artificial snow. No plants would

be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs

continue to have virtually unlimited access to the mountain,

including the ski area, for religious and cultural purposes. On

the mountain, they continue to pray, conduct their religious

ceremonies, and collect plants for religious use. 

Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of

the artificial snow on the Peaks is offensive to the Plaintiffs’

feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the

mountain. Nevertheless, a government action that decreases

the spirituality, the fervor, or the satisfaction with which a

2The Plaintiffs-Appellants in this case are the Navajo Nation, the Hopi

Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-Apache

Nation, the White Mountain Apache Nation, Bill Bucky Preston (a member of the Hopi Tribe), Norris Nez (a member of the Navajo Nation), Rex

Tilousi (a member of the Havasupai Tribe), Dianna Uqualla (a member of

the Havasupai Tribe), the Sierra Club, the Center for Biological Diversity,

and the Flagstaff Activist Network. 

The Defendants-Appellees are the United States Forest Service; Nora

Rasure, the Forest Supervisor; Harv Forsgren, the Regional Forester; and

Intervenor Arizona Snowbowl Resort Limited Partnership. 

NAVAJO NATION v. USFS 10041
believer practices his religion is not what Congress has

labeled a “substantial burden”—a term of art chosen by Congress to be defined by reference to Supreme Court precedent

—on the free exercise of religion. Where, as here, there is no

showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or

conditioned a governmental benefit upon conduct that would

violate the Plaintiffs’ religious beliefs, there is no “substantial

burden” on the exercise of their religion. 

Were it otherwise, any action the federal government were

to take, including action on its own land, would be subject to

the personalized oversight of millions of citizens. Each citizen

would hold an individual veto to prohibit the government

action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further,

giving one religious sect a veto over the use of public park

land would deprive others of the right to use what is, by definition, land that belongs to everyone. 

“[W]e are a cosmopolitan nation made up of people of

almost every conceivable religious preference.” Braunfeld v.

Brown, 366 U.S. 599, 606 (1961). Our nation recognizes and

protects the expression of a great range of religious beliefs.

Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much

we might wish the government to conform its conduct to our

religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government—let alone a government that

presides over a nation with as many religions as the United

States of America—could function were it required to do so.

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

452 (1988).

10042 NAVAJO NATION v. USFS
I. Factual and Procedural Background3

The Snowbowl ski area (“the Snowbowl”) is located on

federally owned public land and operates under a special use

permit issued by the United States Forest Service (“the Forest

Service”). Navajo Nation v. U.S. Forest Serv., 408 F. Supp.

2d 866, 883-84 (D. Ariz. 2006). Specifically, the Snowbowl

is situated on Humphrey’s Peak, the highest of the San Francisco Peaks (“the Peaks”), located within the Coconino

National Forest in Northern Arizona. Id. at 869, 883. The

Peaks cover about 74,000 acres. Id. at 883. The Snowbowl

sits on 777 acres, or approximately one percent of the Peaks.

Id. at 883-84. 

The Forest Service designated the Snowbowl as a public

recreation facility after finding the Snowbowl “represented an

opportunity for the general public to access and enjoy public

lands in a manner that the Forest Service could not otherwise

offer in the form of a major facility anywhere in Arizona.” Id.

at 884. The Snowbowl has been in operation since the 1930s

and is the only downhill ski area within the Coconino

National Forest.4Id.

The Peaks have long-standing religious and cultural significance to Indian tribes. The tribes believe the Peaks are a living entity. Id. at 887. They conduct religious ceremonies, such

as the Navajo Blessingway Ceremony, on the Peaks. Id. The

3We find no clear error in the district court’s findings of fact, so our

statement of the facts is based on the district court opinion. The dissent

cursorily asserts that “the majority misstates the evidence below,” Dissent

at 10077, but fails to cite any fact in the opinion that it claims to be misstated, or as to which the district court erred in its findings of fact. 

4

In addition to downhill skiing, many other activities are conducted on

the Peaks: sheep and cattle grazing, timber harvesting, road building, mining, motorcross, mountain biking, horseback riding, hiking, and camping.

Navajo Nation, 408 F. Supp. 2d at 884. Further, gas and electric transmission lines, water pipelines, and cellular towers are located on the Peaks.

Id. 

NAVAJO NATION v. USFS 10043
tribes also collect plants, water, and other materials from the

Peaks for medicinal bundles and tribal healing ceremonies. Id.

According to the tribes, the presence of the Snowbowl desecrates for them the spirituality of the Peaks. Id. Certain Indian

religious practitioners believe the desecration of the Peaks has

caused many disasters, including the September 11, 2001 terrorist attacks, the Columbia Space Shuttle accident, and

increases in natural disasters. Id.

This case is not the first time Indian tribes have challenged

the operation of the Snowbowl. In 1981, before the enactment

of RFRA, the tribes brought a challenge to the Forest Service’s approval of a number of upgrades to the Snowbowl,

including the installation of new lifts, slopes, and facilities.

See Wilson v. Block, 708 F.2d 735, 739 (D.C. Cir. 1983).5 The

tribes asserted that the approved upgrades would “seriously

impair their ability to pray and conduct ceremonies upon the

Peaks” and to gather from the Peaks sacred objects necessary

to their religious practices. Id. at 740. According to the tribes,

this constituted an unconstitutional burden on the exercise of

their religion under the Free Exercise Clause of the First

Amendment. Id.

The D.C. Circuit in Wilson rejected the Indian tribes’ challenge to the upgrades. Id. at 739-45. Although the court noted

that the proposed upgrades would cause the Indians “spiritual

disquiet,” the upgrades did not impose a sufficient burden on

the exercise of their religion: “Many government actions may

offend religious believers, and may cast doubt upon the veracity of religious beliefs, but unless such actions penalize faith,

they do not burden religion.” Id. at 741-42. The Indian tribes

have continued to conduct religious activities on the Peaks

ever since. Navajo Nation, 408 F. Supp. 2d at 884. 

5At the time Wilson was decided, artificial snow from recycled wastewater was not used on the Snowbowl and was thus not at issue. 

10044 NAVAJO NATION v. USFS
With this brief background, we turn to the Plaintiffs’ challenge in this case. In 2002, the Snowbowl submitted a proposal to the Forest Service to upgrade its operations. Id. at

885. The proposal included a request for artificial snowmaking from recycled wastewater for use on the Snowbowl. Id.

The Snowbowl had suffered highly variable snowfall for several years; this resulted in operating losses that threatened its

ski operation. Id. at 884-85, 907. Indeed, the district court

found that artificial snowmaking is “needed to maintain the

viability of the Snowbowl as a public recreational resource.”

Id. at 907. 

The recycled wastewater to be used for snowmaking is

classified as “A+” by the Arizona Department of Environmental Quality (“ADEQ”).6

Id. at 887. A+ recycled wastewater is the highest quality of recycled wastewater recognized

by Arizona law and may be safely and beneficially used for

many purposes, including irrigating school ground landscapes

and food crops. See Ariz. Admin. Code R18-11-309 tbl. A.

Further, the ADEQ has specifically approved the use of recycled wastewater for snowmaking. Id.

In addition to being used to make snow, the recycled wastewater also will be used for fire suppression on the Peaks. Navajo Nation, 408 F. Supp. 2d at 886. The pipeline that will

transport the recycled wastewater to the Snowbowl will be

equipped with fire hydrants to provide water for fire suppression in rural residential areas and to fight forest fires. Id. Fur6The recycled wastewater that will be used at the Snowbowl “will

undergo specific advanced treatment requirements, including tertiary treatment with disinfection. In addition, the reclaimed water will comply with

specific monitoring requirements, including frequent microbiological testing to assure pathogens are removed, and reporting requirements.” Navajo

Nation, 408 F. Supp. 2d at 887. Further, the recycled wastewater will

“comply with extensive treatment and monitoring requirements under

three separate permit programs: the Arizona Pollutant Discharge Elimination System (“AZPDES”) Permit, the Arizona Aquifer Protection Permit

Program, and the Water Reuse Program.” Id.

NAVAJO NATION v. USFS 10045
ther, a reservoir of recycled wastewater will be kept on the

Snowbowl for forest fire suppression. Id.

The Forest Service conducted an extensive review of the

Snowbowl’s proposal. As part of its review, the Forest Service made more than 500 contacts with Indian tribes, including between 40 and 50 meetings, to determine the potential

impact of the proposal on the tribes.7Id. at 885. In a December 2004 Memorandum of Agreement, the Forest Service

committed to, among other things: (1) continue to allow the

tribes access to the Peaks, including the Snowbowl, for cultural and religious purposes; and (2) work with the tribes periodically to inspect the conditions of the religious and cultural

sites on the Peaks and ensure the tribes’ religious activities on

the Peaks are uninterrupted. Id. at 900-01. 

7Of course, the impact of the Snowbowl proposal on the American

Indian tribes is not the only factor the Forest Service must consider in

administering the Coconino National Forest. Congress has directed the

Forest Service to manage the National Forests for “outdoor recreation,

range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C.

§ 528. Additionally, the Forest Service must follow a number of other

directives under federal laws and executive orders in administering the

Coconino National Forest, including, but not limited to: NEPA; NHPA;

the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq.;

the National Forest Ski Area Permit Act of 1986, 16 U.S.C. § 497b; the

Wilderness Act, 16 U.S.C. § 1131 et seq.; and the Multiple-Use SustainedYield Act of 1960, 16 U.S.C. §§ 528 et seq. Navajo Nation, 408 F. Supp.

2d at 896. 

The Forest Service’s task is complicated by the number of sacred sites

under its jurisdiction. In the Coconino National Forest alone, there are

approximately a dozen mountains recognized as sacred by American

Indian tribes. Id. at 897. The district court found the tribes hold other landscapes to be sacred as well, such as canyons and canyon systems, rivers

and river drainages, lakes, discrete mesas and buttes, rock formations,

shrines, gathering areas, pilgrimage routes, and prehistoric sites. Id.

Within the Southwestern Region forest lands alone, there are between

40,000 and 50,000 prehistoric sites. Id. The district court also found the

Navajo and the Hualapai Plaintiffs consider the entire Colorado River to

be sacred. Id. at 897-98. New sacred areas are continuously being recognized by the Plaintiffs. Id. at 898. 

10046 NAVAJO NATION v. USFS
Following the review process, the Forest Supervisor

approved the Snowbowl’s proposal, including the use of recycled wastewater to make artificial snow, and issued a Final

Environmental Impact Statement and a Record of Decision in

February 2005. Id. at 885-86. The Plaintiffs appealed the Forest Supervisor’s decision approving the Snowbowl’s proposal

to an administrative appeal board within the Forest Service.

Id. In June 2005, the Forest Service issued its final administrative decision and affirmed the Forest Supervisor’s approval

of the proposed upgrades. Id. at 886. 

After their unsuccessful administrative appeal, the Plaintiffs filed this action in federal district court. The Plaintiffs

alleged that the Forest Service’s authorization of the use of

recycled wastewater on the Snowbowl violates: (1) RFRA; (2)

NEPA; (3) NHPA; (4) ESA; (5) the Grand Canyon National

Park Enlargement Act (“GCEA”), 16 U.S.C. § 228i; and (6)

the National Forest Management Act of 1976 (“NFMA”), 16

U.S.C. §§ 1600 et seq.

8

Id. at 871. Following cross-motions

for summary judgment, the district court denied the Plaintiffs’

motions for summary judgment and granted the Defendants’

motion for summary judgment on all claims, except the

RFRA claim. Id. at 869, 908. 

After an 11-day bench trial on the RFRA claim, the district

court held that the proposed upgrades, including the use of

recycled wastewater to make artificial snow on the Peaks, do

not violate RFRA. Id. at 883, 907. The district court found

that the upgrades did not bar the Plaintiffs’ “access, use, or

ritual practice on any part of the Peaks.” Id. at 905. As a

result, the court held that the Plaintiffs had failed to demonstrate the Snowbowl upgrade “coerces them into violating

their religious beliefs or penalizes their religious activity,” as

required to establish a substantial burden on the exercise of

their religion under RFRA. Id.

8On appeal, the Plaintiffs have abandoned their claims under the ESA,

GCEA, and NFMA, leaving only the RFRA, NEPA, and NHPA claims.

NAVAJO NATION v. USFS 10047
A three-judge panel of this court reversed the district court

in part, holding that the use of recycled wastewater on the

Snowbowl violates RFRA, and in one respect, that the Forest

Service failed to comply with NEPA. See Navajo Nation v.

U.S. Forest Serv., 479 F.3d 1024, 1029 (9th Cir. 2007). The

panel affirmed the grant of summary judgment to the Defendants on four of five NEPA claims and the NHPA claim. Id.

We took the case en banc to revisit the panel’s decision and

to clarify our circuit’s interpretation of “substantial burden”

under RFRA. 

II. Standard of Review

We review de novo the district court’s grant of summary

judgment. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177

F.3d 800, 804 (9th Cir. 1999). We review the district court’s

conclusions of law following a bench trial de novo and its

findings of fact for clear error. Lentini v. Cal. Ctr. for the

Arts, Escondido, 370 F.3d 837, 843 (9th Cir. 2004). 

III. Religious Freedom Restoration Act of 1993

Plaintiffs contend the use of artificial snow, made from

recycled wastewater, on the Snowbowl imposes a substantial

burden on the free exercise of their religion, in violation of the

Religious Freedom Restoration Act of 1993 (“RFRA”), 42

U.S.C. §§ 2000bb et seq. We hold that the Plaintiffs have

failed to establish a RFRA violation. The presence of recycled

wastewater on the Peaks does not coerce the Plaintiffs to act

contrary to their religious beliefs under the 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.9

9The Defendants do not contend RFRA is inapplicable to the government’s use and management of its own land, which is at issue in this case.

Because this issue was not raised or briefed by the parties, we have no

occasion to consider it. Therefore, we assume, without deciding, that

RFRA applies to the government’s use and management of its land, and

conclude there is no RFRA violation in this case. 

10048 NAVAJO NATION v. USFS
[1] RFRA was enacted in response to the Supreme Court’s

decision in Employment Division v. Smith, 494 U.S. 872

(1990).10 In Smith, the Supreme Court held that the Free Exercise Clause does not bar the government from burdening the

free exercise of religion with a “valid and neutral law of general applicability.” Id. at 879 (citation and internal quotation

marks omitted). Applying that standard, the Smith Court

rejected the Free Exercise Clause claims of the plaintiffs, who

were denied state unemployment compensation after being

discharged from their jobs for ingesting peyote for religious

purposes. Id. at 890. 

[2] Congress found that in Smith, the “Supreme Court virtually eliminated the requirement that the government justify

burdens on religious exercise imposed by laws neutral toward

religion.” 42 U.S.C. § 2000bb(a)(4). Congress further found

that “laws ‘neutral’ toward religion may burden religious

exercise as surely as laws intended to interfere with religious

exercise.” Id. § 2000bb(a)(2). With the enactment of RFRA,

Congress created a cause of action for persons whose exercise

of religion is substantially burdened by a government action,

regardless of whether the burden results from a neutral law of

general applicability. See id. § 2000bb-1. RFRA states, in relevant part:

(a) In general

Government shall not substantially burden a person’s

exercise of religion even if the burden results from

a rule of general applicability, except as provided in

subsection (b) of this section. 

10In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court

invalidated RFRA as applied to the States and their subdivisions, holding

RFRA exceeded Congress’s powers under the Enforcement Clause of the

Fourteenth Amendment. Id. at 532, 536. We have held that RFRA remains

operative as to the federal government. See Guam v. Guerrero, 290 F.3d

1210, 1220-22 (9th Cir. 2002). 

NAVAJO NATION v. USFS 10049
(b) Exception

Government may substantially burden a person’s

exercise of religion only if it demonstrates that application of the burden to the person— 

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

Id.

[3] To establish a prima facie RFRA claim, a plaintiff must

present evidence sufficient to allow a trier of fact rationally to

find the existence of two elements. First, the activities the

plaintiff claims are burdened by the government action must

be an “exercise of religion.” See id. § 2000bb-1(a). Second,

the government action must “substantially burden” the plaintiff’s exercise of religion. See id. If the plaintiff cannot prove

either element, his RFRA claim fails. Conversely, should the

plaintiff establish a substantial burden on his exercise of religion, the burden of persuasion shifts to the government to

prove that the challenged government action is in furtherance

of a “compelling governmental interest” and is implemented

by “the least restrictive means.” See id. § 2000bb-1(b). If the

government cannot so prove, the court must find a RFRA violation. 

We now turn to the application of these principles to the

facts of this case. The first question is whether the activities

Plaintiffs claim are burdened by the use of recycled wastewater on the Snowbowl constitute an “exercise of religion.”

RFRA defines “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of

religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C.

§ 2000cc-5(7)(A). The Defendants do not contest the district

10050 NAVAJO NATION v. USFS
court’s holding that the Plaintiffs’ religious beliefs are sincere

and the Plaintiffs’ religious activities on the Peaks constitute

an “exercise of religion” within the meaning of RFRA. 

[4] The crux of this case, then, is whether the use of recycled wastewater on the Snowbowl imposes a “substantial burden” on the exercise of the Plaintiffs’ religion. RFRA does

not specifically define “substantial burden.” Fortunately, we

are not required to interpret the term by our own lights.

Rather, we are guided by the express language of RFRA and

decades of Supreme Court precedent. 

A.

[5] Our interpretation begins, as it must, with the statutory

language. RFRA’s stated purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S.

398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and

to guarantee its application in all cases where free exercise of

religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).

RFRA further states “the compelling interest test as set forth

in . . . Federal court rulings [prior to Smith] is a workable test

for striking sensible balances between religious liberty and

competing prior governmental interests.” Id. § 2000bb(a)(5).

Of course, the “compelling interest test” cited in the abovequoted RFRA provisions applies only if there is a substantial

burden on the free exercise of religion. That is, the government is not required to prove a compelling interest for its

action or that its action involves the least restrictive means to

achieve its purpose, unless the plaintiff first proves the government action substantially burdens his exercise of religion.

The same cases that set forth the compelling interest test also

define what kind or level of burden on the exercise of religion

is sufficient to invoke the compelling interest test. See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (noting the “free

exercise inquiry asks whether government has placed a substantial burden” on the free exercise of religion (citing Yoder

NAVAJO NATION v. USFS 10051
and other pre-Smith decisions)). Therefore, the cases that

RFRA expressly adopted and restored—Sherbert, Yoder, and

federal court rulings prior to Smith—also control the “substantial burden” inquiry. 

It is to those decisions we now turn. 

B.

In Sherbert, a Seventh-day Adventist was fired by her

South Carolina employer because she refused to work on Saturdays, her faith’s day of rest. Sherbert, 374 U.S. at 399.

Sherbert filed a claim for unemployment compensation benefits with the South Carolina Employment Security Commission, which denied her claim, finding she had failed to accept

work without good cause. Id. at 399-401. The Supreme Court

held South Carolina could not, under the Free Exercise

Clause, condition unemployment compensation so as to deny

benefits to Sherbert because of the exercise of her faith. Such

a condition unconstitutionally forced Sherbert “to choose

between following the precepts of her religion and forfeiting

benefits, on the one hand, and abandoning one of the precepts

of her religion in order to accept work, on the other hand.” Id.

at 404.11

In Yoder, defendants, who were members of the Amish

religion, were convicted of violating a Wisconsin law that

required their children to attend school until the children

11As the Supreme Court later elaborated: 

Where the state conditions receipt of an important benefit upon conduct

proscribed by a religious faith, or where it denies such a benefit because

of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a

burden upon religion exists. While the compulsion may be indirect, the

infringement upon free exercise is nonetheless substantial. 

Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18

(1981) (emphasis added) (discussing Sherbert). 

10052 NAVAJO NATION v. USFS
reached the age of sixteen, under the threat of criminal sanctions for the parents. Yoder, 406 U.S. at 207-08. The defendants sincerely believed their children’s attendance in high

school was “contrary to the Amish religion and way of life.”

Id. at 209. The Supreme Court reversed the defendants’ convictions, holding the application of the compulsory schoolattendance law to the defendants “unduly burden[ed]” the

exercise of their religion, in violation of the Free Exercise

Clause. Id. at 207, 220. According to the Court, the Wisconsin

law “affirmatively compel[led the defendants], under threat of

criminal sanction, to perform acts undeniably at odds with

fundamental tenets of their religious beliefs.” Id. at 218. 

[6] The Supreme Court’s decisions in Sherbert and Yoder,

relied upon and incorporated by Congress into RFRA, lead to

the following conclusion: Under RFRA, a “substantial burden” is imposed only when individuals are forced to choose

between following the tenets of their religion and receiving a

governmental benefit (Sherbert) or coerced to act contrary to

their religious beliefs by the threat of civil or criminal sanctions (Yoder). Any burden imposed on the exercise of religion

short of that described by Sherbert and Yoder is not a “substantial burden” within the meaning of RFRA, and does not

require the application of the compelling interest test set forth

in those two cases. 

[7] Applying Sherbert and Yoder, there is no “substantial

burden” on the Plaintiffs’ exercise of religion in this case. The

use of recycled wastewater on a ski area that covers one percent of the Peaks does not force the Plaintiffs to choose

between following the tenets of their religion and receiving a

governmental benefit, as in Sherbert. The use of recycled

wastewater to make artificial snow also does not coerce the

Plaintiffs to act contrary to their religion under the threat of

civil or criminal sanctions, as in Yoder. The Plaintiffs are not

fined or penalized in any way for practicing their religion on

the Peaks or on the Snowbowl. Quite the contrary: the Forest

Service “has guaranteed that religious practitioners would still

NAVAJO NATION v. USFS 10053
have access to the Snowbowl” and the rest of the Peaks for

religious purposes. Navajo Nation, 408 F. Supp. 2d at 905. 

[8] The only effect of the proposed upgrades is on the

Plaintiffs’ subjective, emotional religious experience. That is,

the presence of recycled wastewater on the Peaks is offensive

to the Plaintiffs’ religious sensibilities. To plaintiffs, it will

spiritually desecrate a sacred mountain and will decrease the

spiritual fulfillment they get from practicing their religion on

the mountain. Nevertheless, under Supreme Court precedent,

the diminishment of spiritual fulfillment—serious though it

may be—is not a “substantial burden” on the free exercise of

religion.12

12The dissent’s assertion that we misunderstand the “nature of religious

belief and practice” is misplaced. See Dissent at 10104. One need not

study the writings of Sir Francis Bacon, id. at 10076, or William James,

id. at 10105, to understand “religious exercise invariably, and centrally,

involves a ‘subjective spiritual experience.’ ” Id. at 10105. We agree with

the dissent that spiritual fulfillment is a central part of religious exercise.

We also note that the Indians’ conception of their lives as intertwined with

particular mountains, rivers, and trees, which are divine parts of their

being, is very well explained in the dissent. Nevertheless, the question in

this case is not whether a subjective spiritual experience constitutes an

“exercise of religion” under RFRA. That question is undisputed: The Indians’ religious activities on the Peaks, including the spiritual fulfillment

they derive from such religious activities, are an “exercise of religion.” 

Rather, the sole question is whether a government action that affects

only subjective spiritual fulfillment “substantially burdens” the exercise of

religion. For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater

can only be expressed by the Plaintiffs as damaged spiritual feelings.

Under Supreme Court precedent, government action that diminishes subjective spiritual fulfillment does not “substantially burden” religion. 

Indeed, the Supreme Court in Yoder drew the same distinction between

objective and subjective effect on religious exercise that the dissent criticizes us for drawing today: “Nor is the impact of the compulsoryattendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the

kind of objective danger to the free exercise of religion that the First

10054 NAVAJO NATION v. USFS
The Supreme Court’s decision in Lyng v. Northwest Indian

Cemetery Protective Ass’n, 485 U.S. 439 (1988), is on point.

In Lyng, Indian tribes challenged the Forest Service’s

approval of plans to construct a logging road in the Chimney

Rock area of the Six Rivers National Forest in California. Id.

at 442. The tribes contended the construction would interfere

with their free exercise of religion by disturbing a sacred area.

Id. at 442-43. The area was an “integral and indispensible

part” of the tribes’ religious practices, and a Forest Service

study concluded the construction “would cause serious and

irreparable damage to the sacred areas.” Id. at 442 (citations

and internal quotation marks omitted). 

The Supreme Court rejected the Indian tribes’ Free ExerAmendment was designed to prevent.” Yoder, 406 U.S. at 218 (emphasis

added). Contrary to the dissent’s assertions, in Yoder, it was not the effect

of the high school’s secular education on the children’s subjective religious sensibilities that constituted the undue burden on the free exercise

of religion. Rather, the undue burden was the penalty of criminal sanctions

on the parents for refusing to enroll their children in such school. See

Lyng, 485 U.S. at 457 (“[T]here is nothing whatsoever in the Yoder opinion to support the proposition that the ‘impact’ on the Amish religion

would have been constitutionally problematic if the statute at issue had not

been coercive in nature.”); Yoder, 406 U.S. at 218 (“The impact of the

compulsory-attendance law on respondents’ practice of the Amish religion

is not only severe, but inescapable, for the Wisconsin law affirmatively

compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”). Likewise,

in Sherbert, the protected interest was the receipt of unemployment benefits and not, as the dissent contends, the right to take religious rest on Saturday. See Sherbert, 374 U.S. at 410 (“This holding . . . reaffirms a

principle that . . . no State may exclude . . . the members of any . . . faith,

because of their faith, or lack of it, from receiving the benefits of public

welfare legislation.” (citations and internal quotation marks omitted)). The

Sherbert Court certainly did not hold public employers were required not

to work their Seventh-day Adventist employees on Saturdays, or not to

fire them if they refused to work on Saturdays. Hence, the protected interest was not a mandatory day off, but the money from unemployment benefits that voluntarily taking the day off would otherwise forfeit. 

NAVAJO NATION v. USFS 10055
cise Clause challenge.13 The Court held the government plan,

which would “diminish the sacredness” of the land to Indians

and “interfere significantly” with their ability to practice their

religion, did not impose a burden “heavy enough” to violate

the Free Exercise Clause. Id. at 447-49.14 The plaintiffs were

not “coerced by the Government’s action into violating their

religious beliefs” (as in Yoder) nor did the “governmental

action penalize religious activity by denying [the plaintiffs] an

equal share of the rights, benefits, and privileges enjoyed by

other citizens” (as in Sherbert). See id. at 449. 

The Lyng Court, with language equally applicable to this

case, further stated:

The Government does not dispute, and we have no

reason to doubt, that the logging and road-building

13That Lyng was a Free Exercise Clause, not RFRA, challenge is of no

material consequence. Congress expressly instructed the courts to look to

pre-Smith Free Exercise Clause cases, which include Lyng, to interpret

RFRA. See 42 U.S.C. § 2000bb(a)(5) (“[T]he compelling interest test as

set forth in . . . Federal court rulings [prior to Smith] is a workable test for

striking sensible balances between religious liberty and competing prior

governmental interests.”). 

14Our dissenting colleague is therefore incorrect in his assertion that

“Lyng did not hold that the road at issue would cause no ‘substantial burden’ on religious exercise.” See Dissent at 10092. Although Lyng did not

use the precise phrase “substantial burden,” it squarely held the government plan did not impose a “burden . . . heavy enough” on religious exercise to trigger the compelling interest test: “It is undisputed that the Indian

respondents’ beliefs are sincere and that the Government’s proposed

actions will have severe adverse effects on the practice of their religion.

Those respondents contend that the burden on their religious practices is

heavy enough to violate the Free Exercise Clause unless the Government

can demonstrate a compelling need [in its project.] We disagree.” Lyng,

485 U.S. at 447. Thus, Lyng declined to require the government to show

a compelling interest because the burden on the exercise of the Indians’

religion was not “heavy enough”—not, as the dissent asserts, despite the

presence of a substantial burden on the exercise of their religion. See Dissent at 10092. 

10056 NAVAJO NATION v. USFS
projects at issue in this case could have devastating

effects on traditional Indian religious practices. 

* * *

Even if we assume that . . . the [logging] road will

“virtually destroy the . . . Indians’ ability to practice

their religion,” the Constitution simply does not provide a principle that could justify upholding [the

plaintiffs’] legal claims. However much we might

wish that it were otherwise, government simply

could not operate if it were required to satisfy every

citizen’s religious needs and desires. A broad range

of government activities—from social welfare programs to foreign aid to conservation projects—will

always be considered essential to the spiritual wellbeing of some citizens, often on the basis of sincerely held religious beliefs. Others will find the

very same activities deeply offensive, and perhaps

incompatible with their own search for spiritual fulfillment and with the tenets of their religion. 

* * *

No disrespect for these practices is implied when one

notes that such beliefs could easily require de facto

beneficial ownership of some rather spacious tracts

of public property. 

* * *

The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian

respondents from visiting the Chimney Rock area

would raise a different set of constitutional questions. Whatever rights the Indians may have to the

use of the area, however, those rights do not divest

NAVAJO NATION v. USFS 10057
the Government of its right to use what is, after all,

its land. 

Id. at 451-53 (citation omitted) (last emphasis added). 

Like the Indians in Lyng, the Plaintiffs here challenge a

government-sanctioned project, conducted on the government’s own land, on the basis that the project will diminish

their spiritual fulfillment. Even were we to assume, as did the

Supreme Court in Lyng, that the government action in this

case will “virtually destroy the . . . Indians’ ability to practice

their religion,” there is nothing to distinguish the roadbuilding project in Lyng from the use of recycled wastewater

on the Peaks. We simply cannot uphold the Plaintiffs’ claims

of interference with their faith and, at the same time, remain

faithful to Lyng’s dictates. 

According to the Plaintiffs, Lyng is not controlling in this

RFRA case because the Lyng Court refused to apply the Sherbert test that was expressly adopted in RFRA. Hopi Br. at 40.

In support, the Plaintiffs cite the Supreme Court’s statement

in Smith that Lyng “declined to apply Sherbert analysis to the

Government’s logging and road construction activities on

lands used for religious purposes by several Native American

Tribes.” Smith, 494 U.S. at 883. This contention is unpersuasive.

“The Sherbert analysis” to which the Supreme Court

referred in the quoted sentence from Smith is the Sherbert

“compelling interest” test. See id. (noting that in recent cases,

including Lyng, the Court had upheld the application of a

valid and neutral law “regardless of whether it was necessary

to effectuate a compelling interest” under Sherbert). But the

Sherbert compelling interest test is triggered only when there

is a cognizable burden on the free exercise of religion. Lyng

declined to apply the compelling interest test from Sherbert,

not because Lyng purported to overrule or reject Sherbert’s

10058 NAVAJO NATION v. USFS
analysis, but because the burden on the exercise of religion

that was present in Sherbert was missing in Lyng. 

The Lyng Court held the government’s road-building project in that case, unlike in Sherbert, did not deny the Plaintiffs

“an equal share of the rights, benefits, and privileges enjoyed

by other citizens.” Lyng, 485 U.S. at 449. In Sherbert, the

plaintiff could not get unemployment compensation, available

to all other South Carolinians. In Lyng, all park users, including the Indians, could use the new road and the lands to which

it led. Because the government action did not “burden” the

exercise of the Indians’ religion, the Lyng Court had no occasion to require the government to present a compelling interest for its road-building. Thus, Lyng is consistent with the

Sherbert standard codified in RFRA and forecloses the Plaintiffs’ RFRA claims in this case. 

Finally, the Supreme Court’s pre-Smith decision in Bowen

v. Roy, 476 U.S. 693 (1986), is also on point. In Bowen, the

parents of an American Indian child brought a Free Exercise

Clause challenge to the statutory requirement to obtain a

Social Security Number for their daughter in order to receive

certain welfare benefits. Id. at 695-96. The plaintiffs believed

the government’s use of a Social Security Number would

“ ‘rob the spirit’ of [their] daughter and prevent her from

attaining greater spiritual power.” Id. at 696. The Bowen

Court rejected the plaintiffs’ Free Exercise Clause claims and

stated:

Never to our knowledge has the Court interpreted the

First Amendment to require the Government itself to

behave in ways that the individual believes will further his or her spiritual development or that of his or

her family. The Free Exercise Clause simply cannot

be understood to require the Government to conduct

its own internal affairs in ways that comport with the

religious beliefs of particular citizens. Just as the

Government may not insist that [the plaintiffs]

NAVAJO NATION v. USFS 10059
engage in any set form of religious observance, so

[the plaintiffs] may not demand that the Government

join in their chosen religious practices by refraining

from using a number to identify their daughter.

“[T]he Free Exercise Clause is written in terms of

what the government cannot do to the individual, not

in terms of what the individual can extract from the

government.” 

Id. at 699-700 (quoting Sherbert, 374 U.S. at 412 (Douglas,

J., concurring)) (emphasis in original). 

The plaintiffs in Bowen could not force the government to

alter its internal management procedures to identify their

daughter by her name, even though they believed the use of

a Social Security Number would prevent her from attaining

greater spiritual power. It necessarily follows that the Plaintiffs in this case, despite their sincere belief that the use of

recycled wastewater on the Peaks will spiritually desecrate a

sacred mountain, cannot dictate the decisions that the government makes in managing “what is, after all, its land.” See

Lyng, 485 U.S. at 453 (emphasis in original).15

15Our circuit’s RFRA jurisprudence is consistent with the Supreme

Court’s pre-Smith precedent examined in this section. In Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002), we held that a Guam statute criminalizing the importation of marijuana did not substantially burden the

practice of Rastafarianism under RFRA, even though “marijuana use is

sacramental in the practice of that religion.” Id. at 1212-13, 1222-23. After

noting “RFRA re-establishes the Sherbert standard,” we defined “substantial burden” as “ ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ including when, if enforced, it ‘results in the

choice to the individual of either abandoning his religious principle or facing criminal prosecution.’ ” Id. at 1218, 1222 (citation omitted) (quoting

Thomas, 450 U.S. at 718; Braunfeld, 366 U.S. at 605). Applying this test,

we held that the Guam statute did not substantially burden Guerrero’s free

exercise rights, because Rastafarianism does not require the importation,

as distinguished from simple possession, of marijuana. Id. at 1223.

The dissent contends that our substantial burden standard is inconsistent

with Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997). In Mockai10060 NAVAJO NATION v. USFS
C.

For six principal reasons, the Plaintiffs and the dissent

would have us depart from the Supreme Court’s pre-Smith

jurisprudence in interpreting RFRA. We decline to do so and

will address each of their contentions in turn. 

First, the dissent asserts our interpretation of “substantial

burden” is inconsistent with the dictionary definition of that

term. Dissent at 10086-87. According to the dissent,

“[b]ecause Congress did not define ‘substantial burden,’

either directly or by reference to pre-Smith case law, we

should define . . . that term according to its ordinary meaning.” Id. at 10089. 

But here, Congress expressly referred to and restored a

body of Supreme Court case law that defines what constitutes

a substantial burden on the exercise of religion (i.e., Sherbert,

Yoder, and other pre-Smith cases). See 42 U.S.C.

§§ 2000bb(a)(4)-(5); 2000bb(b)(1).16 Thus, we must look to

tis, this court held that state prison officials substantially burden a Catholic

priest’s religious exercise under RFRA, when the officials intrude into the

Sacrament of Penance by recording a confession from an inmate to a

priest. Id. at 1530-31. Mockaitis cannot serve as precedent here for two

reasons. First, its holding has been invalidated by the Supreme Court’s

decision in City of Boerne, where the Court found RFRA unconstitutional

as applied to the States and their subdivisions. See City of Boerne, 521

U.S. at 532, 536. Second, we find Mockaitis unhelpful in formulating the

substantial burden test. Mockaitis did not define substantial burden, let

alone analyze the substantial burden standard under the Sherbert/Yoder

framework restored in RFRA, nor did the decision attempt to explain why

such framework should not apply to define substantial burden. 

16The dissent would limit the significance of Congress’s citation of

Sherbert and Yoder strictly to the content of what constitutes a compelling

interest, not also when that test should be applied. But both Sherbert and

Yoder use the same compelling interest test. If that is all Congress

intended by the citation of the two cases, its citation of Yoder was redundant and superfluous. We “must interpret statutes as a whole, giving effect

to each word and making every effort not to interpret a provision in a manNAVAJO NATION v. USFS 10061
those cases in interpreting the meaning of “substantial burden.” Further, the dissent’s approach overlooks a wellestablished canon of statutory interpretation. Where a statute

does not expressly define a term of settled meaning, “courts

interpreting the statute must infer, unless the statute otherwise

dictates, that Congress means to incorporate the established

meaning of th[at] ter[m].” See NLRB v. Town & Country

Elec., Inc., 516 U.S. 85, 94 (1995) (citations and internal quotation marks omitted) (alterations in original). Here, Congress

incorporated into RFRA a term of art—substantial burden—

previously used in numerous Supreme Court cases in applying

the Free Exercise Clause. The dissent would have us ignore

this Supreme Court precedent and, instead, invent a new definition for “substantial burden” by reference to a dictionary.

Dissent at 10086-87. This we cannot do. Rather, we must presume Congress meant to incorporate into RFRA the definition

of “substantial burden” used by the Supreme Court.

Second, the dissent asserts that our definition of “substantial burden” is “restrictive” and cannot be found in Sherbert,

Yoder, or any other pre-Smith case. Dissent at 10089-93.17 The

ner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432

(9th Cir. 1991). Hence, we apply the two separate and distinct substantial

burden standards in Sherbert and Yoder to determine when the compelling

interest test is invoked. 

17Relatedly, the dissent states “Sherbert and Yoder used the word ‘burden,’ but nowhere defined, or even used, the phrase ‘substantial burden.’ ”

Dissent at 10090-91. The dissent is correct that neither Sherbert nor Yoder

used the precise term “substantial burden.” Sherbert held that a “burden”

on the free exercise of religion requires the government to show a compelling interest, Sherbert, 374 U.S. at 403, and Yoder held that an “undu[e]

burden[ ]” on the free exercise of religion does the same, Yoder, 406 U.S.

at 220. For our purposes, however, this distinction is immaterial. Later

Supreme Court cases have cited Yoder and other pre-Smith decisions for

the proposition that only a “substantial burden” on the free exercise of religion triggers the compelling interest test. See Hernandez, 490 U.S. at 699

(noting the “free exercise inquiry asks whether government has placed a

10062 NAVAJO NATION v. USFS
dissent contends it is “clear that RFRA protects against burdens that, while imposed by a different mechanism than those

in Sherbert and Yoder, are also ‘substantial.’ ” Id. at 10093.

[9] For this purportedly “clear” proposition, the dissent

cites no authority. That is, the dissent cannot point to a single

Supreme Court case where the Court found a substantial burden on the free exercise of religion outside the Sherbert/Yoder

framework. The reason is simple: There is none. In the preSmith cases adopted in RFRA, the Supreme Court has found

a substantial burden on the exercise of religion only when the

burden fell within the Sherbert/Yoder framework. See Sherbert, 374 U.S. at 403-06; Yoder, 406 U.S. at 207, 220;

Thomas, 450 U.S. at 717-18 (applying Sherbert); Hobbie v.

Unemployment Appeals Comm’n of Fla., 480 U.S. 136,

140-45 (1987) (applying Sherbert); Frazee v. Ill. Dep’t. of

Employment Sec., 489 U.S. 829, 832-35 (1989) (applying

Sherbert). Because Congress expressly restored pre-Smith

cases in RFRA, we cannot conclude RFRA’s “substantial burden” standard expands beyond the pre-Smith cases to cover

government actions never recognized by the Supreme Court

to constitute a substantial burden on religious exercise.18

substantial burden” on the exercise of religion “and, if so, whether a compelling governmental interest justifies the burden” (citing Yoder and other

pre-Smith decisions)); see also Jimmy Swaggart Ministries v. Bd. of

Equalization of Cal., 493 U.S. 378, 384-85 (1990). Where the Supreme

Court has equated the content of “substantial burden” to “burden” and

“undue burden,” we must do the same. 

18For the same reason, the dissent is incorrect in its assertion that “[h]ad

Congress wished to establish the standard employed by the majority, it

could easily have stated that ‘Government shall not, through the imposition of a penalty or denial of a benefit, substantially burden a person’s

exercise of religion.’ ” See Dissent at 10087 (emphasis in original). The

addition of the italicized text would have been superfluous, because the

cases Congress restored in RFRA recognize a substantial burden on the

exercise of religion only when individuals are forced to choose between

following the tenets of their religion and receiving a governmental benefit

(Sherbert) or coerced to act contrary to their religious beliefs by the threat

of civil or criminal sanctions (Yoder). 

NAVAJO NATION v. USFS 10063
Third, the Plaintiffs assert RFRA’s compelling interest test

includes a “least restrictive means” requirement, which “ ‘was

not used in the pre-Smith jurisprudence RFRA purported to

codify.’ ” Hopi Br. at 31 (quoting City of Boerne, 521 U.S. at

535); see also Dissent at 10083. The Plaintiffs note that,

whereas the government must establish only a compelling

interest to withstand a Free Exercise Clause challenge, the

government must establish both a compelling interest and the

least restrictive means to withstand a RFRA challenge. That

is true enough, but it puts the cart before the horse. The additional statutory requirement of a least restrictive means is triggered only by a finding that a substantial burden exists; that

is the sole and threshold issue in this case. Absent a substantial burden, the government need not establish a compelling

interest, much less prove it has adopted the least restrictive

means. 

Fourth, the Plaintiffs contend RFRA goes beyond the constitutional language that “forbids the ‘prohibiting’ of the free

exercise of religion and uses the broader verb ‘burden’: a government may burden religion only on the terms set out by the

new statute.” Hopi Br. at 31-32 (quoting United States v.

Bauer, 84 F.3d 1549, 1558 (9th Cir. 1996)); see also Dissent

at 10083. This contention ignores the Supreme Court’s

repeated practice of concluding a government action “prohibits” the free exercise of religion by determining whether the

action places a “burden” on the exercise of religion.19 Thus,

the difference in the language of the Free Exercise Clause

(“prohibit”) and the language of RFRA (“burden”) does not

affect what constitutes a “burden” on the exercise of religion,

under the very cases cited by RFRA as embodying the congressionally desired rule of decision. 

19See Yoder, 406 U.S. at 220 (“A regulation neutral on its face may, in

its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.”

(emphasis added)); Sherbert, 374 U.S. at 403 (“We turn first to the question whether the disqualification for benefits imposes any burden on the

free exercise of appellant’s religion.” (emphasis added)). 

10064 NAVAJO NATION v. USFS
Fifth, the Plaintiffs assert Congress expanded RFRA’s definition of “exercise of religion” with the enactment of the Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. Navajo Br. at 29;

see also Dissent at 10083-84. Prior to RLUIPA’s enactment,

“exercise of religion” under RFRA meant “the exercise of

religion under the First Amendment to the Constitution.” 42

U.S.C. § 2000bb-2(4) (1994). The Free Exercise Clause of the

First Amendment protects only “the observation of a central

religious belief or practice.” Hernandez, 490 U.S. at 699

(emphasis added).20 RLUIPA, however, amended RFRA’s

definition of “exercise of religion” to include “any exercise of

religion, whether or not compelled by, or central to, a system

of religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C.

§ 2000cc-5(7)(A). 

The Plaintiffs’ assertion conflates two distinct questions

under RFRA: (1) what constitutes an “exercise of religion”

and (2) what amounts to a “substantial burden” on the exercise of that religion. The first question, that the Plaintiffs’

activities are an “exercise of religion,” is undisputed in this

case. Of course, that question has no bearing on the second,

“substantial burden,” question. RFRA’s amended definition of

“exercise of religion” merely expands the scope of what may

not be substantially burdened from “central tenets” of a religion to “any exercise of religion.” It does not change what

level or kind of interference constitutes a “substantial burden”

upon such religious exercise. 

20Nevertheless, the Hernandez Court also cautioned: “It is not within

the judicial ken to question the centrality of particular beliefs or practices

to a faith.” Hernandez, 490 U.S. at 699; see also Smith, 494 U.S. at 887

(“What principle of law or logic can be brought to bear to contradict a

believer’s assertion that a particular act is ‘central’ to his personal faith?”).

In light of the Supreme Court’s disapproval of “the centrality test,” we

have held the sincerity of a religious belief, not its centrality to a faith,

determines whether the Free Exercise Clause applies. Shakur v. Schriro,

514 F.3d 878, 884-85 (9th Cir. 2008). 

NAVAJO NATION v. USFS 10065
Finally, the dissent attempts to justify its expansive interpretation of RFRA on the basis that RFRA applies “in all

cases” where the free exercise of religion is burdened,

whereas pre-Smith jurisprudence excluded entire classes of

cases from scrutiny under the compelling interest test, e.g.,

prison and military regulations. Dissent at 10084. But no one

disputes that RFRA applies here; it is not an issue. That

RFRA applies to classes of cases in which the First Amendment’s compelling interest test is inapplicable is irrelevant.

This observation does not define what constitutes a “substantial burden” and, therefore, does not speak to the threshold

question whether a “substantial burden” exists. 

In sum, Congress’s statutory command in RFRA to restore

the Supreme Court’s pre-Smith jurisprudence is crystal clear,

and neither the dissent nor the Plaintiffs have offered any

valid reason for departing from that jurisprudence in interpreting RFRA. 

D.

[10] In support of their RFRA claims, the Plaintiffs rely on

two of our RLUIPA decisions. For two reasons, RLUIPA is

inapplicable to this case. First, RLUIPA, by its terms, prohibits only state and local governments from applying regulations

that govern land use or institutionalized persons to impose a

“substantial burden” on the exercise of religion. See 42 U.S.C.

§§ 2000cc; 2000cc-1; 2000cc-5(4)(A). Subject to two exceptions not relevant here,21 RLUIPA does not apply to a federal

government action, which is the only issue in this case. See

id. § 2000cc-5(4). Second, even for state and local governments, RLUIPA applies only to government land-use regulations of private land—such as zoning laws—not to the

government’s management of its own land. See id. § 2000cc21Sections 2000cc-2(b) (burden of persuasion) and 2000cc-3 (rules of

construction) apply also to the federal government. See 42 U.S.C.

§ 2000cc-5(4)(B). 

10066 NAVAJO NATION v. USFS
5(5).

22 Nonetheless, even were we to assume the same “substantial burden” standard applies in RLUIPA and RFRA

actions, the two RLUIPA cases cited by the Plaintiffs do not

support their RFRA claims.23

First, in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.

2005), an American Indian inmate brought a RLUIPA challenge against a prison policy requiring all male inmates to

maintain their hair no longer than three inches. Id. at 991-92.

Warsoldier refused to comply with the policy because of his

“sincere religious belief that he may cut his hair only upon the

death of a loved one,” and was punished by confinement to

his cell, the imposition of additional duty hours, and revocation of certain privileges. Id. at 991-92. We held the prison

policy imposed a substantial burden on Warsoldier’s exercise

of his religion because it coerced him to violate his religious

beliefs under the threat of punishment. Id. at 995-96. 

Warsoldier is a straightforward application of the Supreme

Court’s decisions in Sherbert and Yoder. As in Sherbert and

Yoder, Warsoldier was coerced to act contrary to his religious

beliefs by the threat of sanctions (i.e., confinement to his cell

and the imposition of additional duty hours), and forced to

choose between following the tenets of his religion and

receiving a governmental benefit (i.e., by the revocation of

certain privileges in prison). In contrast, and as analyzed

above, the Plaintiffs in this case cannot show the use of recycled wastewater coerces them to violate their religious beliefs

under the threat of sanctions, or conditions a government benefit upon conduct that would violate their religious beliefs. 

22RLUIPA defines a “land use regulation” as “a zoning or landmarking

law . . . that limits or restricts a claimant’s use or development of land

. . ., if the claimant has an ownership, leasehold, easement, servitude, or

other property interest in the regulated land.” 42 U.S.C. § 2000cc-5(5)

(emphasis added). 

23Because RLUIPA is inapplicable to this case, we express no opinion

as to the standards to be applied in RLUIPA actions. 

NAVAJO NATION v. USFS 10067
Second, the Plaintiffs rely on our statement in San Jose

Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th

Cir. 2004), that, under RLUIPA, a “substantial burden” on a

religious exercise must be “a significantly great restriction or

onus upon such exercise.” Id. at 1034. The Plaintiffs contend

the use of recycled wastewater on the Peaks imposes a “significantly great restriction or onus” on the exercise of their

religion. 

[11] San Jose Christian College’s statement of the “substantial burden” test does not support the Plaintiffs’ RFRA

claims in this case. That “substantial burden” means a “significantly great restriction or onus” says nothing about what kind

or level of restriction is “significantly great.”

24 Instead, the

“substantial burden” question must be answered by reference

24The RLUIPA case cited by the dissent, Shakur, 514 F.3d 878, is not

to the contrary. Dissent at 10094, 10099-10101. In Shakur, we held that

a triable issue of fact existed as to whether prison officials’ denial of Halal

meat to Shakur, a Muslim inmate, imposed a “substantial burden” on his

religious exercise. Shakur, 514 F.3d at 888-89. The prison offered Kosher

meat meals to Jewish inmates, but denied Halal meat meals to Shakur. Id.

at 883, 891. The alternative, vegetarian diet exacerbated Shakur’s hiatal

hernia and caused excessive gas that “interfere[d] with the ritual purity

required for his Islamic worship.” Id. at 888 (emphasis added). Contrary

to the dissent’s assertions, Dissent at 10099-10100, both meal choices provided to Shakur in prison were “unacceptable” to his religion—the nonHalal meat meals were forbidden by his religion and the Halal vegetarian

meals interfered with the ritual purity required for his religious activities.

Shakur, 514 F.3d at 889 (internal quotation marks omitted). Like the

Seventh-day Adventist in Sherbert, who could obtain unemployment benefits only by working on Saturdays and thereby violating her religious

tenets, Shakur could have a meal in prison and avoid starvation only if he

violated his religious beliefs. Relying on Sherbert and Thomas, we held

that there was a triable issue of fact as to whether the prison policy

imposed a substantial burden on Shakur’s religious exercise, because the

policy conditioned a governmental benefit to which Shakur was otherwise

entitled—a meal in prison—upon conduct that would violate Shakur’s

religious beliefs. Id. Thus, Shakur is a straightforward application of the

Sherbert test and is consistent with the substantial burden standard we

adopt today.

10068 NAVAJO NATION v. USFS
to the Supreme Court’s pre-Smith jurisprudence, including

Sherbert and Yoder, that RFRA expressly adopted. Under that

precedent, the Plaintiffs have failed to show a “substantial

burden” on the exercise of their religion, and thus failed to

establish a prima facie RFRA claim. Accordingly, we affirm

the district court’s entry of judgment for the Defendants on

the RFRA claim.25

IV. National Environmental Policy Act of 1969

Plaintiffs contend the district court erred in granting summary judgment to the Defendants on five claims under the

National Environmental Policy Act of 1969 (“NEPA”), 42

U.S.C. §§ 4321 et seq. We adopt the parts of the original

three-judge panel opinion affirming the district court’s grant

of summary judgment to the Defendants on the following four

NEPA claims: (1) the Final Environmental Impact Statement

25As a last resort, the dissent invokes provocative soundbites, accusing

us of “effectively read[ing] American Indians out of RFRA.” Dissent at

10137. The dissent contends “the strength of the Indians’ argument in this

case could be seen more easily by the majority if another religion were at

issue.” Id. at 10105. In support, the dissent notes the use of artificial snow

on the Peaks is no different than the government “permitt[ing] only” baptismal water contaminated with recycled wastewater for Christians or

“permitt[ing] only” non-Kosher food for Orthodox Jews. Id. at 10105-06.

Putting aside the Equal Protection Clause violation that may arise from

a law targeting only Christians or only Jews, the dissent’s examples are

clearly distinguishable. When a law “permits only” recycled wastewater

to carry out baptisms or “permits only” non-Kosher food for Orthodox

Jews, the government compels religious adherents to engage in activities

repugnant to their religious beliefs under the penalty of sanctions. Such

government compulsion is specifically prohibited by the Supreme Court’s

decision in Yoder. A law permitting Indians to use only recycled wastewater in their religious or healing ceremonies would likewise constitute a

substantial burden on their religious exercise. But there is no such law in

this case. When the government allows the use of recycled wastewater on

a ski area, it does not compel the Plaintiffs to act contrary to their religious

tenets. The Plaintiffs remain free to use natural water in their religious or

healing ceremonies and otherwise practice their religion using whatever

resources they may choose. 

NAVAJO NATION v. USFS 10069
(“FEIS”) failed to consider a reasonable range of alternatives

to the use of recycled wastewater; (2) the FEIS failed to discuss and consider the scientific viewpoint of Dr. Paul Torrence; (3) the FEIS failed adequately to consider the

environmental impact of diverting the recycled wastewater

from Flagstaff’s regional aquifer; and (4) the FEIS failed adequately to consider the social and cultural impacts of the

Snowbowl upgrades on the Hopi people. See Navajo Nation,

479 F.3d at 1054-59. 

The remaining NEPA claim, which is raised only by the

Navajo Plaintiffs, is that the FEIS failed adequately to consider the risks posed by human ingestion of artificial snow.

The Navajo Plaintiffs’ complaint did not include this NEPA

claim or the factual allegations upon which the claim rests.

The Navajo Plaintiffs raised this claim for the first time in

their motion for summary judgment. In their opposition to the

Navajo Plaintiffs’ summary judgment motion, the Defendants

contended the Navajo Plaintiffs had failed to raise this NEPA

claim in their complaint. In response, the Navajo Plaintiffs

moved to amend their complaint to add a distinct and new

NEPA cause of action claiming for the first time that the FEIS

failed to consider the risks posed by human ingestion of artificial snow. The district court denied the Navajo Plaintiffs’

motion to amend and did not address this NEPA claim on the

merits. Navajo Nation, 408 F. Supp. 2d at 908. The Navajo

Plaintiffs failed to appeal the district court’s denial of their

motion to amend, and therefore, the district court’s denial of

said motion is not before us. 

Further, on this appeal, the Navajo Plaintiffs do not explain

why their complaint is otherwise sufficient to state this NEPA

claim—despite the Defendants’ assertions that the Navajo

Plaintiffs failed to plead this NEPA claim.26 Indeed, the Nav26The dissent quotes a sentence from the Navajo Plaintiffs’ reply brief

that cursorily states this NEPA claim was “ ‘properly pled’ ” in the district

court. Dissent at 10130 (quoting Navajo Reply Br. at 23). Nevertheless,

10070 NAVAJO NATION v. USFS
ajo Plaintiffs concede “the specific allegations at issue were

not included” in their complaint. Navajo Reply Br. at 23-24.

Rather, the Navajo Plaintiffs assert this NEPA claim was adequately presented to the district court because the claim “was

briefed at summary judgment by all parties and presented at

oral argument [to the district court].” Id. at 24. Nevertheless,

our precedents make clear that where, as here, the complaint

does not include the necessary factual allegations to state a

claim, raising such claim in a summary judgment motion is

insufficient to present the claim to the district court. See, e.g.,

Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989,

992 (9th Cir. 2006) (“ ‘Simply put, summary judgment is not

a procedural second chance to flesh out inadequate pleadings.’ ”); Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963,

968-69 (9th Cir. 2006) (holding that the complaint did not satisfy the notice pleading requirements of Federal Rule of Civil

Procedure 8(a) because the complaint “gave the [defendants]

no notice of the specific factual allegations presented for the

first time in [the plaintiff’s] opposition to summary judgment”).27 Because the Navajo Plaintiffs failed sufficiently to

present this NEPA claim to the district court and also failed

the Navajo Plaintiffs’ reply brief does not state what words in the complaint are sufficient to plead this NEPA claim, nor does the brief cite any

case or rule that makes it so. It is well-established that a bare assertion in

an appellate brief, with no supporting argument, is insufficient to preserve

a claim on appeal. See Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 n.1

(9th Cir. 2008). The dissent’s advocacy of why the Navajo Plaintiffs’

complaint satisfies the notice pleading requirements of Federal Rule of

Civil Procedure 8(a) is the dissent’s own invention and disregards the rule

that we do not manufacture arguments for an appellant. See id.

27The dissent notes that the Navajo Plaintiffs raised the issue of human

ingestion of artificial snow during the preparation of the FEIS and in the

administrative appeal. Dissent at 10127-29. This, of course, is irrelevant

to the question whether this claim was presented to the district court. A

party may raise a claim at the administrative proceedings, but forego that

claim on judicial review. Further, presenting a claim during the administrative proceedings does not put the defendants on notice that such claim

will also be raised before the district court. 

NAVAJO NATION v. USFS 10071
to appeal the district court’s denial of their motion to amend

the complaint to add this NEPA claim, the claim is waived on

appeal. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,

1063 n.3 (9th Cir. 2007). 

[12] Accordingly, we affirm the district court’s grant of

summary judgment to the Defendants on all NEPA claims. 

V. National Historic Preservation Act

[13] Finally, the Plaintiffs contend the district court erred

in granting summary judgment to the Defendants on their

claim under the National Historic Preservation Act

(“NHPA”), 16 U.S.C. §§ 470 et seq. We adopt the part of the

original three-judge panel opinion affirming the district

court’s grant of summary judgment to the Defendants on the

NHPA claim. See Navajo Nation, 479 F.3d at 1059-60. 

VI. Conclusion

We affirm the district court’s entry of judgment in favor of

the Defendants on the RFRA claim, and the district court’s

grant of summary judgment to the Defendants on the NEPA

and the NHPA claims. 

AFFIRMED.

10072 NAVAJO NATION v. USFS
Volume 2 of 2

NAVAJO NATION v. USFS 10073
W. FLETCHER, Circuit Judge, dissenting, joined by Judge

Pregerson and Judge Fisher: 

The en banc majority today holds that using treated sewage

effluent to make artificial snow on the most sacred mountain

of southwestern Indian tribes does not violate the Religious

Freedom Restoration Act (“RFRA”). It also holds that a supposed pleading mistake prevents the tribes from arguing under

the National Environmental Protection Act (“NEPA”) that the

Forest Service failed to consider the likelihood that children

and others would ingest snow made from the effluent. I dissent from both holdings. 

I. Religious Freedom Restoration Act

[D]ivers great learned men have been heretical,

whilst they have sought to fly up to the secrets of

the Deity by the waxen wings of the senses.

- Sir Francis Bacon, Of the Proficience and

Advancement of Learning, Divine and

Human (Book I, 1605).

The majority holds that spraying 1.5 million gallons per

day of treated sewage effluent on the most sacred mountain

of southwestern Indian tribes does not “substantially burden”

their “exercise of religion” in violation of RFRA. According

to the majority, “no plants, springs, natural resources, shrines

with religious significance, or religious ceremonies . . . would

be physically affected” by the use of the treated sewage effluent. Maj. op. at 10041. According to the majority, the “sole

effect” of the dumping of the treated sewage effluent is on the

Indians’ “subjective spiritual experience.” Id. at 10041. The

majority holds:

[T]he presence of the artificial snow on the Peaks is

offensive to the Plaintiffs’ mental and emotional

feelings about their religion and will decrease the

10076 NAVAJO NATION v. USFS
spiritual fulfillment Plaintiffs get from practicing

their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer

practices his religion is not what Congress has

labeled a “substantial burden” . . . on the free exercise of religion. Where, as here, there is no showing

the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of

sanctions, or conditioned a governmental benefit

upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the

exercise of their religion. 

Id. In so holding, the majority misstates the evidence below,

misstates the law under RFRA, and misunderstands the very

nature of religion. 

A. Background

The San Francisco Peaks in northern Arizona have longstanding religious significance to numerous Indian tribes of

the American Southwest. Humphrey’s Peak, Agassiz Peak,

Doyle Peak, and Fremont Peak form a single large mountain

commonly known as the San Francisco Peaks, or simply the

Peaks. Humphrey’s Peak is the highest point in Arizona. 

The Peaks lie within the 1.8 million acres of the Coconino

National Forest. In 1984, Congress designated 18,960 acres of

the Peaks as the Kachina Peaks Wilderness. The Forest Service has identified the Peaks as eligible for inclusion in the

National Register of Historic Places and as a “traditional cultural property.” The Service has described the Peaks as “a

landmark upon the horizon, as viewed from the traditional or

ancestral lands of the Hopi, Zuni, Acoma, Navajo, Apache,

Yavapai, Hualapai, Havasupai, and Paiute.” 

The Forest Service has acknowledged that the Peaks are

sacred to at least thirteen formally recognized Indian tribes,

NAVAJO NATION v. USFS 10077
and that this religious significance is of centuries’ duration.

There are differences among these tribes’ religious beliefs and

practices associated with the Peaks, but there are important

commonalities. As the Service has noted, many of the tribes

share beliefs that water, soil, plants, and animals from the

Peaks have spiritual and medicinal properties; that the Peaks

and everything on them form an indivisible living entity; that

the Peaks are home to deities and other spirit beings; that

tribal members can communicate with higher powers through

prayers and songs focused on the Peaks; and that the tribes

have a duty to protect the Peaks. 

The Arizona Snowbowl is a ski area on Humphrey’s Peak,

the most sacred of the San Francisco Peaks. Organized skiing

has existed at the Arizona Snowbowl since 1938. In 1977, the

then-owner of the Snowbowl requested authorization to clear

120 acres of new ski runs and to do other development. In

1979, after preparing an Environmental Impact Statement, the

Forest Service authorized the clearing of 50 of the 120

requested acres, the construction of a new lodge, and some

additional development. An association of Navajo medicine

men, the Hopi tribe, and two nearby ranch owners brought

suit under, inter alia, the Free Exercise Clause of the First

Amendment and NEPA. The D.C. Circuit upheld the Forest

Service’s decision. Wilson v. Block, 708 F.2d 735 (D.C. Cir.

1983). In Wilson, the court applied only the First Amendment,

for RFRA did not yet exist. The then-proposed expansion of

the Snowbowl did not involve any use of treated sewage

effluent. 

Until now, the Snowbowl has always depended on natural

snowfall. In dry years, the operating season is short, with few

skiable days and few skiers. The driest year in recent memory

was 2001-02, when there were 87 inches of snow, 4 skiable

days, and 2,857 skiers. Another dry year was 1995-96, when

there were 113 inches of snow, 25 skiable days, and 20,312

skiers. By contrast, in wet years, there are many skiable days

and many skiers. For example, in 1991-92, there were 360

10078 NAVAJO NATION v. USFS
inches of snow, 134 skiable days, and 173,000 skiers; in

1992-93, there were 460 inches of snow, 130 skiable days,

and 180,062 skiers; in 1997-98, there were 330 inches of

snow, 115 skiable days, and 173,862 skiers; and in 2004-05,

there were 460 inches of snow, 139 skiable days, and 191,317

skiers. 

ASR, the current owner, purchased the Snowbowl in 1992

for $4 million, with full knowledge of weather conditions in

northern Arizona. In September 2002, ASR submitted a

development proposal to the Forest Service. In February

2005, the Forest Service issued a Final Environmental Impact

Statement (“FEIS”) and Record of Decision (“ROD”). The

ROD approved the development alternative preferred by

ASR, which included a proposal to make artificial snow using

treated sewage effluent. 

Under the alternative approved in the ROD, the City of

Flagstaff would provide the Snowbowl with up to 1.5 million

gallons per day of its treated sewage effluent — euphemistically called “reclaimed water” — from November through

February. A 14.8-mile pipeline would be built between Flagstaff and the Snowbowl to carry the treated effluent. The

Snowbowl would be the first ski resort in the nation to make

artificial snow entirely from undiluted treated sewage effluent. 

Before treatment, raw sewage consists of waste discharged

into Flagstaff’s sewers by households, businesses, hospitals,

and industries. The FEIS describes the treatment performed

by Flagstaff:

In the primary treatment stage, solids settle out as

sludge . . . . Scum and odors are also removed . . . .

Wastewater is then gravity-fed for secondary treatment through the aeration/denitrification process,

where biological digestion of waste occurs . . . . in

which a two-stage anoxic/aerobic process removes

NAVAJO NATION v. USFS 10079
nitrogen, suspended solids, and [digestible organic

matter] from the wastewater. The secondary clarifiers remove the by-products generated by this biological process, recycle microorganisms back into the

process from return activated sludge, and separate

the solids from the waste system. The waste sludge

is sent to [a different plant] for treatment. The water

for reuse then passes through the final sand and

anthracite filters prior to disinfection by ultraviolet

light radiation. . . . Water supplied for reuse is further treated with a hypochlorite solution to assure

that residual disinfection is maintained . . . . 

The effluent that emerges after treatment by Flagstaff satisfies the requirements of Arizona law for “reclaimed water.”

However, as the FEIS explains, the treatment does not produce pure water: 

Fecal coliform bacteria, which are used as an indicator of microbial pathogens, are typically found at

concentrations ranging from 105 to 107 colonyforming units per 100 milliliters (CFU/100 ml) in

untreated wastewater. Advanced wastewater treatment may remove as much as 99.9999+ percent of

the fecal coliform bacteria; however, the resulting

effluent has detectable levels of enteric bacteria,

viruses, and protazoa, including Cryptosporidium

and Giardia. 

Under Arizona law, the treated sewage effluent must be

free of “detectable fecal coliform organisms” in only “four of

the last seven daily reclaimed water samples.” Ariz. Admin.

Code § R18-11-303(B)(2)(a). The FEIS acknowledges that

the treated sewage effluent also contains “many unidentified

and unregulated residual organic contaminants.” Treated sewage effluent may be used for many things, including irrigation

and flushing toilets, but the Arizona Department of Environ10080 NAVAJO NATION v. USFS
mental Quality (“ADEQ”) requires that precautions be taken

to avoid ingestion by humans. 

Under the alternative approved in the ROD, treated sewage

effluent would be sprayed on 205.3 acres of Humphrey’s Peak

during the ski season. In November and December, the Snowbowl would use the effluent to build a base layer of artificial

snow. The Snowbowl would then make more snow from the

effluent depending on the amount of natural snowfall. The

Snowbowl would also construct a reservoir on the mountain

with a surface area of 1.9 acres to hold treated sewage effluent. The stored effluent would allow snowmaking to continue

after Flagstaff cuts off the supply at the end of February. 

B. Religious Freedom Restoration Act

Under the Religious Freedom Restoration Act of 1993

(“RFRA”), the federal government may not “substantially

burden a person’s exercise of religion even if the burden

results from a rule of general applicability, except as provided

in subsection (b).” 42 U.S.C. § 2000bb-1(a). “Exercise of religion” is defined to include “any exercise of religion, whether

or not compelled by, or central to, a system of religious

belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A). Subsection (b) of § 2000bb-1 provides, “Government may substantially burden a person’s exercise of religion only if it

demonstrates that application of the burden to the person —

(1) is in furtherance of a compelling governmental interest;

and (2) is the least restrictive means of furthering that compelling governmental interest.” 

These provisions of RFRA were prompted by two Supreme

Court decisions. RFRA was originally adopted in response to

Employment Division, Department of Human Resources of

Oregon v. Smith, 494 U.S. 872 (1990). In Smith, an Oregon

statute denied unemployment benefits to drug users, including

Indians who used peyote in religious ceremonies. Id. at 890.

The Court held that the Free Exercise Clause of the First

NAVAJO NATION v. USFS 10081
Amendment does not prohibit burdens on religious practices

if they are imposed by laws of general applicability such as

the Oregon statute. Characterizing its prior cases striking

down generally applicable laws as “hybrid” decisions invoking multiple constitutional interests, the Court refused to subject facially neutral regulations to strict scrutiny when

challenged solely under the First Amendment. Id. at 881-82,

885-86. However, the Court acknowledged that although the

Constitution does not require a “compelling government interest” test in such a case, Congress could impose one. Id. at

890. 

In RFRA, enacted three years later, Congress made formal

findings that the Court’s decision in Smith “virtually eliminated the requirement that the government justify burdens on

religious exercise imposed by laws neutral toward religion,”

and that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior

governmental interests.” Pub. L. No. 103-141, § 2(a), 107

Stat. 1488, 1488 (1993) (codified at 42 U.S.C. § 2000bb(a)).

Congress declared that the purposes of RFRA were “to provide a claim or defense to persons whose religious exercise is

substantially burdened by government” and “to restore the

compelling interest test as set forth in Sherbert v. Verner, 374

U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205

(1972), and to guarantee its application in all cases where free

exercise of religion is substantially burdened.” Id. § 2(b), 107

Stat. at 1488 (codified at 42 U.S.C. § 2000bb(b)). In this initial version of RFRA, adopted in 1993, Congress defined “exercise of religion” as “exercise of religion under the First

Amendment to the Constitution.” Id. § 5, 107 Stat. at 1489

(codified at 42 U.S.C. § 2000bb-2(4) (1994) (repealed)). 

In 1997, in City of Boerne v. Flores, 521 U.S. 507 (1997),

the Supreme Court held RFRA unconstitutional as applied to

state and local governments because it exceeded Congress’s

authority under § 5 of the Fourteenth Amendment. Id. at 529,

10082 NAVAJO NATION v. USFS
534-35. The Court did not, however, invalidate RFRA as

applied to the federal government. See Guam v. Guerrero,

290 F.3d 1210, 1220-21 (9th Cir. 2002). Three years later, in

response to City of Boerne, Congress enacted the Religious

Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”). Pub. L. No. 106-274, 114 Stat. 803 (codified at

42 U.S.C. §§ 2000cc et seq.). RLUIPA replaced RFRA’s original First Amendment definition of “exercise of religion” with

the broader statutory definition quoted above. RLUIPA §§ 7-

8, 114 Stat. at 806-07. Under RFRA after its amendment by

RLUIPA, “exercise of religion” is defined to include “any

exercise of religion, whether or not compelled by, or central

to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4),

2000cc-5(7)(A). 

In several ways, RFRA provides greater protection for religious practices than did the Supreme Court’s pre-Smith cases,

which were based solely on the First Amendment. First,

RFRA “goes beyond the constitutional language that forbids

the ‘prohibiting’ of the free exercise of religion and uses the

broader verb ‘burden.’ ” United States v. Bauer, 84 F.3d

1549, 1558 (9th Cir. 1996) (as amended). Cf. U.S. Const.

amend. 1 (“Congress shall make no law . . . prohibiting the

free exercise [of religion].”); Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 451 (1988) (“The crucial

word in the constitutional text is ‘prohibit’ . . . .”). 

Second, as the Supreme Court noted in City of Boerne,

RFRA provides greater protection than did the First Amendment under the pre-Smith cases because “the Act imposes in

every case a least restrictive means requirement — a requirement that was not used in the pre-Smith jurisprudence RFRA

purported to codify.” 521 U.S. at 535. 

Third, in passing RLUIPA in 2000, Congress amended

RFRA’s definition of “exercise of religion.” Under the

amended definition — “any exercise of religion, whether or

not compelled by, or central to, a system of religious belief”

NAVAJO NATION v. USFS 10083
— RFRA now protects a broader range of conduct than was

protected under the Supreme Court’s interpretation of “exercise of religion” under the First Amendment. See Guru Nanak

Sikh Soc’y v. County of Sutter, 456 F.3d 978, 995 n.21 (9th

Cir. 2006) (noting same). After 2000, RFRA plaintiffs must

still prove that the burden on their religious exercise is “substantial,” but the difficulty of showing a substantial burden is

decreased because a broader range of religious exercise is

now protected under RFRA. That is, some governmental

actions were not previously considered burdens because they

burdened non-protected religious exercise. Given the new

broader definition of statutorily protected “exercise of religion,” those actions have now become burdens within the

meaning of RFRA. 

Finally, and perhaps most important, RFRA provides

broader protection because it applies Sherbert and Yoder’s

compelling interest test “in all cases” where the exercise of

religion is substantially burdened. 42 U.S.C. § 2000bb(b).

Prior to Smith, the Court had refused to apply the compelling

interest analysis in various contexts, exempting entire classes

of free exercise cases from such heightened scrutiny. See, e.g.,

Lyng, 485 U.S. at 454; O’Lone v. Estate of Shabazz, 482 U.S.

342, 349 (1987); Goldman v. Weinberger, 475 U.S. 503, 507-

08 (1986); see also Smith, 494 U.S. at 883 (“In recent years,

we have abstained from applying the Sherbert test (outside

the unemployment compensation field) at all.”). RFRA

rejected the categorical barriers to strict scrutiny employed in

those cases. 

C. The Majority’s Misstatements of the Law under RFRA

The majority misstates the law under RFRA in three ways.

First, it concludes that a “substantial burden” on the “exercise

of religion” under RFRA occurs only when the government

“has coerced the Plaintiffs to act contrary to their religious

beliefs under threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ reli10084 NAVAJO NATION v. USFS
gious beliefs.” Maj. op. at 10042. Second, it ignores the

impact of RLUIPA, and cases interpreting RLUIPA, on the

definition of a “substantial burden” on the “exercise of religion” in RFRA. Third, it treats as an open question whether

RFRA applies to the federal government’s use of its own

land. I discuss these misstatements in turn. 

1. Definition of “Substantial Burden”

Neither RFRA nor RLUIPA defines “substantial burden.”

1

RFRA states, 

The purposes of [RFRA] are — 

(1) to restore the compelling interest test as set forth

in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of

religion is substantially burdened; and 

(2) to provide a claim or defense to persons whose

religious freedom is substantially burdened by government. 

42 U.S.C. § 2000bb(b). The majority uses this statutory text

to conclude that the purpose of RFRA was to “restore” a de

facto “substantial burden” test supposedly employed in Sherbert and Yoder. In the hands of the majority, that test is

extremely restrictive, allowing a finding of “substantial burden” only in those cases where the burden is imposed by the

same mechanisms as in those two cases. In the majority’s

words, “Where . . . there is no showing the government has

coerced the Plaintiffs to act contrary to their religious beliefs

under threat of sanctions, or conditioned a governmental ben1Although the majority opinion uses the noun phrase “substantial burden,” RFRA employs the verb phrase “substantially burden.” Because the

distinction is not material, I use the terms interchangeably. 

NAVAJO NATION v. USFS 10085
efit upon conduct that would violate the Plaintiffs’ religious

beliefs, there is no ‘substantial burden’ on the exercise of their

religion.” Maj. op. at 10042. 

For six reasons, the majority is wrong in looking to Sherbert and Yoder for an exhaustive definition of what constitutes a “substantial burden.” First, the majority’s approach is

inconsistent with the plain meaning of the phrase “substantial

burden.” Second, RFRA does not incorporate any pre-RFRA

definition of “substantial burden.” Third, even if RFRA did

incorporate a pre-RFRA definition of “substantial burden,”

Sherbert, Yoder, and other pre-RFRA Supreme Court cases

did not use the term in the restrictive manner employed by the

majority. That is, the cases on which the majority relies did

not state that interferences with the exercise of religion constituted a “substantial burden” only when imposed through the

two mechanisms used in Sherbert and Yoder. Fourth, the purpose of RFRA was to expand rather than to contract protection for the exercise of religion. If a disruption of religious

practices can qualify as a “substantial burden” under RFRA

only when it is imposed by the same mechanisms as in Sherbert and Yoder, RFRA would permit interferences with religion that it was surely intended to prevent. Fifth, the

majority’s approach overrules fourteen years of contrary circuit precedent. Sixth, the majority’s approach is inconsistent

with our cases applying RLUIPA. The Supreme Court has

instructed us that RLUIPA employs the same analytic framework and standard as RFRA. I consider these reasons in turn.

a. Substantial Burden on the Exercise of Religion

The majority contends that the phrase “substantial burden”

refers only to burdens that are created by two mechanisms —

the imposition of a penalty, or the denial of a government

benefit. But the phrase “substantial burden” has a plain and

ordinary meaning that does not depend on the presence of a

penalty or deprivation of benefit. A “burden” is “[s]omething

that hinders or oppresses.” Black’s Law Dictionary (8th ed.

10086 NAVAJO NATION v. USFS
2004). A burden is “substantial” if it is “[c]onsiderable in

importance, value, degree, amount, or extent.” American Heritage Dictionary (4th ed. 2000). In RFRA, the phrase “substantial burden” modifies the phrase “exercise of religion.”

Thus, RFRA prohibits government action that “hinders or

oppresses” the exercise of religion “to a considerable degree.”

See also San Jose Christian College v. City of Morgan Hill,

360 F.3d 1024, 1034 (9th Cir. 2004) (using dictionary definitions to define “substantial burden” under RLUIPA and concluding that “for a land use regulation to impose a ‘substantial

burden’ it must be ‘oppressive’ to a ‘significantly great’

extent.”). 

The text of RFRA does not describe a particular mechanism

by which religion cannot be burdened. Rather, RFRA prohibits government action with a particular effect on religious

exercise. This prohibition is categorical: “Government shall

not substantially burden a person’s exercise of religion . . . .”

42 U.S.C. § 2000bb-1(a). Had Congress wished to establish

the standard employed by the majority, it could easily have

stated that “Government shall not, through the imposition of

a penalty or denial of a benefit, substantially burden a person’s exercise of religion . . . .” It did not do so. The majority

is correct that such text would have been unnecessary if

RFRA had incorporated previous Supreme Court case law

that defined the phrase “substantial burden” as a term of art

referring only to the imposition of a penalty or denial of a

benefit. Maj. op. at 10061-62. However, as explained below,

Congress did not “restore” any technical definition of “substantial burden” found in pre-RFRA case law, let alone “restore” the definition the majority now reads into RFRA. 

b. “Restoring” Sherbert and Yoder

The text of RFRA explicitly states that the purpose of the

statute is “to restore the compelling interest test as set forth

in [Sherbert and Yoder].” 42 U.S.C. § 2000bb(b) (emphasis

added). The text refers separately to “substantially burden”

NAVAJO NATION v. USFS 10087
and the “exercise of religion,” but it says nothing about “restoring” the definition of these terms as used in Sherbert and

Yoder. 

In the years after Sherbert and Yoder, the Supreme Court

applied the “compelling interest test” to fewer and fewer Free

Exercise claims under the First Amendment. For example, in

Goldman, 475 U.S. at 505, 507-08, the Court conceded that

a military regulation banning civilian “headgear” implicated

the First Amendment rights of an Orthodox Jew who sought

to wear a yarmulke, but then upheld the regulation after minimal scrutiny due to the “great deference [owed] the professional judgment of military authorities concerning the relative

importance of a particular military interest.” In O’Lone, 482

U.S. at 349, the Court refused to require that prison regulations be justified by a compelling interest, instead demanding

only that they be “reasonably related to legitimate penological

interests.” See also Bowen v. Roy, 476 U.S. 693, 707 (1986)

(Burger, J., for plurality) (compelling interest test not applicable in enforcing “facially neutral and uniformly applicable

requirement for the administration of welfare programs”);

Lyng, 485 U.S. at 454 (compelling interest test not applicable

where government interferes with religious exercise through

“the use of its own land”).

In other cases, the Court purported to apply the compelling

interest test, but in fact applied a watered-down version of the

scrutiny employed in Sherbert and Yoder. Rather than

demanding, as it had in Sherbert and Yoder, that the particular

governmental interest at stake be compelling, the Court

accepted extremely general definitions of the government’s

interest. For example, in United States v. Lee, 455 U.S. 252

(1982), the Court balanced an individual’s interest in a religious exemption from social security taxes against the “broad

public interest in maintaining a sound tax system.” Id. at 260.

Likewise, the plurality in Roy balanced an individual’s objection to the provision of a social security number against the

government’s general interest in “preventing fraud in [govern10088 NAVAJO NATION v. USFS
ment] benefits programs.” 476 U.S. at 709; see also David B.

Tillotson, Free Exercise in the 1980s: A Rollback of Protections, 24 U.S.F. L. Rev. 505, 520 (1990) (“The Court has

either defined the Government’s interest so broadly that no

individual’s interest could possibly outweigh it or, more

recently, has . . . simply refused to weigh individual challenges to uniformly applicable and neutral statutes against any

government interest, notwithstanding Sherbert.”). 

Smith, in which the Court refused to apply the compelling

governmental interest test to a generally applicable law burdening the exercise of religion, was the last straw. In direct

response, Congress enacted RFRA, directing the federal

courts to “restore” the “compelling interest test” that had been

applied in Sherbert and Yoder “in all cases where free exercise of religion is substantially burdened.” 42 U.S.C.

§ 2000bb(b). That is, by restoring the “compelling interest

test,” Congress restored the application of strict scrutiny, as

applied in Sherbert and Yoder, to all government actions substantially burdening religion, and rejected the restrictive

approach to free exercise claims taken in Lyng, Roy, Goldman, O’Lone, and Lee. But this directive does not specify

what government actions substantially burden religion,

thereby triggering the compelling interest test. RFRA did not

“restore” any definition of “substantial burden.” Because

Congress did not define “substantial burden,” either directly

or by reference to pre-Smith case law, we should define (and

in fact have defined) that term according to its ordinary meaning. 

c. “Substantial Burden” Test Not Used in Sherbert, Yoder,

and Other Pre-RFRA Cases To Rule Out Certain Burdens

According to the majority, pre-RFRA cases used the term

“burden” or “substantial burden” to refer exclusively to burdens on religion imposed by only two particular types of government action. According to the majority, a “substantial

burden” under RFRA can only be caused by government

NAVAJO NATION v. USFS 10089
action that either “coerce[s an individual] to act contrary to

their religious beliefs under threat of sanctions, or condition[s] a governmental benefit upon conduct that would violate [an individual’s] religious beliefs.” Maj. op. at 10042.

This restrictive definition of “substantial burden” cannot be

found in Sherbert, Yoder, or any other case prior to the passage of RFRA. 

In Sherbert, 374 U.S. 398, the Court held that a Seventhday Adventist could not be denied unemployment benefits

based on her refusal to work on Saturdays. Without using the

phrase “substantial burden,” the Court concluded that a

requirement that the plaintiff work on Saturdays, on pain of

being fired if she refused, “force[d] her to choose between

following the precepts of her religion and forfeiting benefits,

on the one hand, and abandoning one of the precepts of her

religion in order to accept work, on the other hand.” Id. at

404. The Court compared such an imposition to a governmental fine: “Governmental imposition of such a choice puts the

same kind of burden upon the free exercise of religion as

would a fine imposed against appellant for her Saturday worship.” Id. The Court therefore mandated that the requirement

be justified by a “compelling state interest.” Id. at 406-09. 

In Yoder, 406 U.S. 205, the Court held that Amish children

could not be required to attend school up to the age of sixteen,

on penalty of criminal sanctions against their parents if they

did not attend. Without using the phrase “substantial burden,”

the Court concluded that a requirement that children attend

school, on pain of criminal punishment of their parents if they

did not, “would gravely endanger if not destroy the free exercise of respondents’ religious beliefs.” Id. at 219. The Court

therefore required, as it had in Sherbert, that the requirement

be justified by a “compelling state interest.” Id. at 221-29. 

Neither Sherbert nor Yoder used the majority’s substantial

burden test as the trigger for the application of the compelling

interest test. The Court in Sherbert and Yoder used the word

10090 NAVAJO NATION v. USFS
“burden,” but nowhere defined, or even used, the phrase “substantial burden.” After holding that the exercise of religion

was burdened in each case, the Court simply did not opine on

what other impositions on free exercise would, or would not,

constitute a burden. That is, Sherbert and Yoder held that certain interferences with religious exercise trigger the compelling interest test. But neither case suggested that religious

exercise can be “burdened,” or “substantially burdened,” only

by the two types of interference considered in those cases.

The phrase “substantial burden” is a creation of later cases

which sometimes use Sherbert or Yoder as part of a string

citation. See, e.g., Hernandez v. Commissioner of Internal

Revenue, 490 U.S. 680, 699 (1989). Neither Sherbert nor

Yoder, nor any of the later cases, uses the restrictive definition

of “substantial burden” invented by the majority today. 

Nor do other pre-RFRA cases supply the majority’s restrictive definition of “substantial burden.” The majority relies

heavily on Lyng, 485 U.S. 439, which relies in turn on Roy,

476 U.S. 693. In Lyng, tribal members challenged the construction of a proposed road on government land in the Chimney Rock area of the Six Rivers National Forest as infringing

their rights under the Free Exercise Clause of the First

Amendment. 485 U.S. at 442-42. The Court began its analysis

by reiterating the holding of Roy that “[t]he Free Exercise

Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport

with the religious beliefs of particular citizens.” 485 U.S. at

448 (quoting Roy, 476 U.S. at 699-700). The Court then reasoned:

In both [Lyng and Roy], the challenged Government

action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according

to their own religious beliefs. In neither case, however, would the affected individuals be coerced by

the Government’s action into violating their religious

beliefs; nor would either governmental action penalNAVAJO NATION v. USFS 10091
ize religious activity by denying any person an equal

share of the rights, benefits, and privileges enjoyed

by other citizens. 

Id. at 449 (emphases added). The Court concluded that only

“coercion” of the sort found in Sherbert and Yoder would trigger strict scrutiny because, “[t]he crucial word in the constitutional text is ‘prohibit.’ ” Id. at 451. 

Justice Brennan dissented from the majority’s refusal to

apply heightened scrutiny, emphasizing that the First Amendment “is directed against any form of governmental action

that frustrates or inhibits religious practice.” Id. at 459 (Brennan J., dissenting). In response, the Lyng majority conceded

that the proposed road would have “severe adverse effects on

the practice of [plaintiffs’] religion.” Id. at 447. But the Court

went out of its way to reject Justice Brennan’s contention that

the First Amendment is directed at governmental action that

frustrates or inhibits religious practice. It responded, “The

Constitution . . . says no such thing. Rather, it states: ‘Congress shall make no law . . . prohibiting the free exercise [of

religion].’ ” Id. at 456-57 (quoting id. at 459; U.S. Const.

amend. I) (emphasis and alterations in original). 

Lyng did not hold that the road at issue would cause no

“substantial burden” on religious exercise. The Court in Lyng

never used the phrase “substantial burden.” Rather, Lyng held

that government action that did not coerce religious practices

or attach a penalty to religious belief was insufficient to trigger the compelling interest test despite the presence of a significant burden on religion. The Court explicitly recognized

this in Smith when it wrote, “In [Lyng], we declined to apply

Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by

several Native American Tribes, even though it was undisputed that the activities ‘could have devastating effects on traditional Indian religious practices.’ ” Smith, 494 U.S. at 883

(quoting Lyng, 485 U.S. at 451) (emphasis added). 

10092 NAVAJO NATION v. USFS
The majority’s attempt to read Lyng into RFRA is not just

flawed. It is perverse. In refusing to apply the compelling

interest test to the “severe adverse effects on the practice of

[plaintiffs’] religion” in Lyng, the Court reasoned that the protections of the First Amendment “cannot depend on measuring the effects of a governmental action on a religious

objector’s spiritual development.” 485 U.S. at 447, 451. The

Court directly incorporated this reasoning into Smith. See 494

U.S. at 885. Congress then rejected this very reasoning when

it restored the application of strict scrutiny “in all cases where

free exercise of religion is substantially burdened.” 42 U.S.C.

§ 2000bb(b). 

In sum, it is clear that the interferences with the free exercise of religion that existed in Sherbert and Yoder qualify, to

use the terminology of RFRA, as a “substantial burden.” But

the text, purpose, and enactment history of RFRA make

equally clear that RFRA protects against burdens that, while

imposed by a different mechanism than those in Sherbert and

Yoder, are also “substantial.” 

d. Purpose of RFRA

The express purpose of RFRA was to reject the restrictive

approach to the Free Exercise Clause that culminated in Smith

and to restore the application of strict judicial scrutiny “in all

cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b). The majority’s approach is

fundamentally at odds with this purpose. 

As should be clear, RFRA creates a legally protected interest in the exercise of religion. The protected interest in Sherbert was the right to take religious rest on Saturday, not the

right to receive unemployment insurance. The protected interest in Yoder was the right to avoid secular indoctrination, not,

as the majority contends, the right to avoid criminal punishment. See Maj. Op. at 10054-55 n.12. 

NAVAJO NATION v. USFS 10093
Such interests in religious exercise can be severely burdened by government actions that do not deny a benefit or

impose a penalty. For example, a court would surely hold that

the government had imposed a “substantial burden” on the

“exercise of religion” if it purchased by eminent domain

every Catholic church in the country. Similarly, a court would

surely hold that the Forest Service had imposed a “substantial

burden” on the Indians’ “exercise of religion” if it paved over

the entirety of the San Francisco Peaks. We have already held

that prison officials substantially burden religious exercise if

they record the confessions of Catholic inmates, or refuse to

provide Halal meat meals to a Muslim prisoner. See Mockaitis

v. Harcleroad, 104 F.3d 1522, 1531 (9th Cir. 1997) (“A substantial burden is imposed on . . . free exercise of religion . . .

by the intrusion into the Sacrament of Penance by officials of

the state.”); Shakur v. Schriro, 514 F.3d 878, 888-89 (9th Cir.

2008) (holding that failure of prison officials to provide Muslim prisoner with Halal or Kosher meat diet could constitute

substantial burden on religious exercise under RLUIPA); see

also Lovelace v. Lee, 472 F.3d 174, 198-99 (4th Cir. 2006)

(holding that prisoner’s right to religious diet under RLUIPA

is clearly established for purposes of qualified immunity).

However, the majority’s restrictive definition of “substantial burden” places such injuries entirely outside the coverage

of RFRA because they are imposed through different mechanisms than those employed in Sherbert and Yoder. The majority cannot plausibly justify this result by arguing that the

complete destruction of a religious shrine or place of worship,

violation of a sacrament, or denial of a religious diet are less

“substantial” restrictions on religious exercise than those

caused by the denial of unemployment benefits. Rather, the

majority refuses to apply strict scrutiny to these substantial

injuries because, in its view, “a government that presides over

a nation with as many religions as the United States of America [could not] function were it required to do so.” See Maj.

op. at 10042. 

10094 NAVAJO NATION v. USFS
This proposition was explicitly rejected by RFRA, which

directs courts to apply the compelling governmental interest

test “in all cases” where there is a “substantial burden” on the

“exercise of religion.” See RFRA § 2000bb(a)(5) (stating that

“the compelling interest test . . . is a workable test for striking

sensible balances between religious liberty and competing

prior governmental interests”). It has also been explicitly

rejected by the Supreme Court. See Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430

(2006) (rejecting the government’s argument that the Controlled Substances Act “cannot function . . . if subjected to

judicial exemptions” because “RFRA, and the strict scrutiny

test it adopted, contemplate an inquiry more focused than the

Government’s categorical approach”); id. at 1215 (“Here the

Government’s uniformity argument rests not so much on the

particular statutory program at issue as on slippery slope concerns that could be invoked in response to any RFRA claim

. . .”). The majority’s approach thus places beyond judicial

scrutiny many burdens on religious exercise that RFRA was

intended to prevent, and does so based on “slippery slope”

arguments that the Supreme Court has instructed us to reject.

e. This Circuit’s RFRA Precedents

As I have described above, the majority’s narrow definition

of “substantial burden” conflicts with RFRA’s text and purpose. The majority’s approach also conflicts with our prior

application of RFRA in this circuit. 

We first addressed the definition of “substantial burden”

under RFRA in Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995).

We stated that a “substantial burden” exists where:

[A] governmental [action] burdens the adherent’s

practice of his or her religion . . . by preventing him

or her from engaging in [religious] conduct or having a religious experience . . . . This interference

NAVAJO NATION v. USFS 10095
must be more than an inconvenience; the burden

must be substantial. 

Id. at 949 (quoting Graham v. C.I.R., 822 F.2d 844, 850-51

(9th Cir. 1987)) (second, third, and fifth alterations in Bryant)

(emphasis added). Since Bryant, we have repeatedly refused

to adopt the conclusion of the majority that “a ‘substantial

burden’ is imposed only when individuals are forced to

choose between following the tenets of their religion and

receiving a governmental benefit . . . or coerced to act contrary to their religious beliefs by the threat of civil or criminal

sanctions.” Maj. op. at 10053. See, e.g., Worldwide Church of

God v. Philadelphia Church of God, Inc., 227 F.3d 1110,

1121 (9th Cir. 2000) (substantial burden where government

“prevent[s] [plaintiff] from engaging in [religious] conduct or

having a religious experience” and is “more than an inconvenience”) (quoting Goehring v. Brophy, 94 F.3d 1294, 1299

(9th Cir. 1996); and Bryant, 46 F.3d at 949); Stefanow v.

McFadden, 103 F.3d 1466, 1471 (9th Cir. 1996) (same). We

have noted that “[a] statute burdens the free exercise of religion if it ‘put[s] substantial pressure on an adherent to modify

his behavior and to violate his beliefs,’ including when, if

enforced, it ‘results in the choice to the individual of either

abandoning his religious principle or facing criminal prosecution.’ ” Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir.

2002) (emphasis added) (quoting Thomas v. Review Bd. of

Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); and

Braunfeld v. Brown, 366 U.S. 599, 605 (1961)). However,

nothing in our opinions suggests that the government can substantially burden religion only by applying a penalty or withholding a benefit based on religion. 

In fact, we have held precisely the opposite. In Mockaitis,

a district attorney for Lane County, Oregon, with the assistance of officials at the Lane County Jail, recorded the confession of a detained murder suspect to a Catholic priest. 104

F.3d at 1524-26. The prisoner and the priest learned of the

taping only after it occurred. Id. at 1526. Although the pris10096 NAVAJO NATION v. USFS
oner did not seek suppression of the tape, the priest, together

with the Archbishop of Portland, sought an injunction under

RFRA barring future taping. Id. at 1526-1527. We concluded

the initial taping violated RFRA and held that an injunction

was warranted because, 

A substantial burden is imposed on [the Archbishop’s] free exercise of religion as the responsible head

of the archdiocese of Portland by the intrusion into

the Sacrament of Penance by officials of the state, an

intrusion defended in this case by an assistant

attorney-general of the state as not contrary to any

law. Archbishop George has justifiable grounds for

fearing that without a declaratory judgment and an

injunction in this case the administration of the Sacrament of Penance for which he is responsible in his

archdiocese will be made odious in jails by the intrusion of law enforcement officers. 

Id. at 1531 (emphasis added). Mockaitis was not only correctly decided. It is also flatly inconsistent with the majority

opinion. 

The majority does not dispute that Mockaitis is inconsistent

with its approach today, but instead argues that Mockaitis

“cannot serve as precedent” for two reasons. Maj. op. at

10060-61 n.15. First, the Majority notes that City of Boerne,

521 U.S. at 532, overruled our application of RFRA to a state

subdivision in Mockaitis. But the federalism holding of City

of Boerne, 521 U.S. at 532, was entirely unrelated to our definition of “substantial burden.” We do not normally discard

our prior view of the law simply because it was expressed in

a case that is overruled on unrelated grounds. To the contrary,

this circuit has cited cases that have been “overruled on other

grounds” in 1,508 opinions. Mockaitis continues to demonstrate that we have previously refused to adopt the majority’s

restrictive definition of “substantial burden.” 

NAVAJO NATION v. USFS 10097
Second, the majority finds Mockaitis “unhelpful” because

it “did not define substantial burden, let alone analyze the

substantial burden standard under the Sherbert/Yoder framework restored in RFRA, [or] attempt to explain why such

framework should not apply to define substantial burden.”

Maj. op. at 10061 n.15. As I have explained above, RFRA did

not employ the term “substantial burden” as a term of art limiting the application of RFRA to burdens caused by the precise mechanisms at issue in Sherbert and Yoder. In rejecting

this argument, the majority dismisses Mockaitis precisely

because it proves my point. That is, because Mockaitis does

not treat “substantial burden” as a term of art limited to burdens caused by the precise mechanisms at issue in Sherbert

and Yoder, the majority must perforce reject it. The conflict

between Mocktaitis and the majority’s approach today reflects

the novelty of today’s opinion, not any shortcomings of

Mocakaitis. 

Notably absent from the majority’s opinion is any explanation of why the result reached in Mockaitis is incorrect. Under

the majority’s approach, it is clear that governmental eavesdropping on a prisoner’s confession to his priest would not

impose a substantial burden on the prisoner or priest under

RFRA. This cannot be the law. 

f. This Circuit’s RLUIPA Precedents

Our cases interpreting the definition of “substantial burden”

under RLUIPA have applied a similar definition to the definition employed in Bryant, 46 F.3d at 949. In applying

RLUIPA, we have stated that “for a land use regulation to

impose a ‘substantial burden,’ it must be ‘oppressive’ to a

‘significantly great’ extent. That is, a ‘substantial burden’ on

‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.” Warsoldier v. Woodford,

418 F.3d 989, 995 (9th Cir. 2005) (quoting San Jose Christian

College, 360 F.3d at 1034). In other words, we have defined

“substantial burden” according to the effect of a government

10098 NAVAJO NATION v. USFS
action on religious exercise rather than particular mechanisms

by which this effect is achieved. 

Moreover, we recently held that a substantial burden could

exist under RLUIPA in a case that involved no imposition of

a penalty or deprivation of a benefit. In Shakur, 514 F.3d 878,

a Muslim inmate brought a RLUIPA challenge alleging that

the Arizona Department of Corrections substantially burdened

his exercise of religion by refusing to provide him with a

Halal or Kosher meat diet. Id. at 888-89. The imposition on

Shakur was in fact relatively mild because the prison provided

him with a vegetarian diet as an alternative to the ordinary

meat diet. Id. at 888, 891. Nonetheless, we found that Shakur

had asserted a cognizable substantial burden under RLUIPA

when he alleged that the vegetarian diet he was forced to eat

for lack of Halal meat gave him indigestion, thereby disrupting his religious practices. Id. at 888. Because the Arizona

Department of Corrections had not imposed any penalty or

withheld any benefit from Shakur based on his exercise of

religion, Shakur is, like Mockaitis, flatly inconsistent with the

majority opinion. 

In attempting to distinguish Shakur, the majority again

refuses to accept the implications of its own rule. The majority claims that Shakur is a “straightforward application of the

Sherbert test” because “the policy conditioned a governmental benefit to which Shakur was otherwise entitled—a meal in

prison—upon conduct that would violate Shakur’s religious

beliefs.” Maj. op. at 10068 n.24. However, like Mockaitis,

Shakur applied the ordinary meaning of the phrase “substantial burden,” which is inconsistent with the majority’s newly

minted “Sherbert test.” In Sherbert, a Seventh-day Adventist

was denied unemployment benefits after she was fired for

refusing to work on Saturdays because, according to the state,

she had “fail[ed], without good cause, to accept suitable work

when offered.” 374 U.S. at 399-400 (internal quotation marks

omitted). In other words, the plaintiff in Sherbert was denied

NAVAJO NATION v. USFS 10099
a government benefit, to which she was otherwise entitled,

because of her religious observance. 

Contrary to the majority’s assertions, the inmate in Shakur

was not denied any government benefit to which he was otherwise entitled because of his religious observance. Shakur

had a legal interest in some meal in prison, but he was never

denied this interest as a consequence of his religious observance. Eating the vegetarian meals provided by the prison was

permitted by Shakur’s religion. Shakur had no legal interest

in Halal meat meals, except to the extent the government’s

failure to provide them interfered with his subjective religious

experience. Nonetheless, we held that the failure of the prison

to provide Halal meat meals could constitute a substantial

burden on Shakur’s religious exercise because the vegetarian

meals allegedly “exacerbate[d] [Shakur’s] hiatal hernia and

cause[d] excessive gas that interfere[d] with the ritual purity

required for [Shakur’s] Islamic worship.” Id. at 889. That is,

although the government had in no way penalized Shakur’s

exercise of his religion by denying a benefit to which he was

otherwise entitled, we held that RFRA may impose an affirmative duty on prison officials to provide Halal meat meals

where the failure to do so harms the inmate’s sense of “ritual

purity.” Id. 

The provision of special meals is a government action that

benefits an inmate. But this is true of virtually any religious

accommodation. Thus, Shakur can only be explained as consistent with the majority’s rule if the mere accommodation of

religion is a governmental benefit. But such a broad rule cannot support the majority’s conclusion in this case. Under such

a definition, the Forest Service offers the Indians in this case

a “government benefit” in the form of access to their sacred

land and ritual materials. The Forest Service’s failure to offer

spiritually pure sites and materials is the equivalent of prison

officials failing to offer religiously pure meals. In short, in

denying the Indians’ claims, the majority contends that the

phrase “substantial burden” applies only where the govern10100 NAVAJO NATION v. USFS
ment imposes sanctions or “condition[s] a governmental benefit upon conduct that would violate the Plaintiffs’ religious

beliefs.” The majority then abandons this definition in its

attempts to distinguish Shakur, which did not involve the conditioning of government benefits on conduct that would violate religious beliefs. The need for such semantic contortions

only highlights the degree to which the majority’s rule is

inconsistent with our prior case law and fails to capture the

meaning of the term “substantial burden.”

2. The Applicability of RLUIPA

The majority’s second misstatement is that RLUIPA does

not apply to suits brought under RFRA. It writes: 

For two reasons, RLUIPA is inapplicable to this

case. First, RLUIPA, by its terms, prohibits only

state and local governments from applying regulations that govern land use or institutionalized persons to impose a “substantial burden” on the exercise

of religion. . . . Subject to two exceptions not relevant here, RLUIPA does not apply to a federal government action, which is not at issue in this case.

. . . Second, even for state and local governments,

RLUIPA applies only to government land-use regulations of private land, not to the government’s management of its own land. 

Maj. op. at 10066. From this, the majority concludes that

RLUIPA cases finding a “substantial burden” on the exercise

of religion are irrelevant to RFRA cases. 

It is true that much of RLUIPA applies specifically to state

and local zoning decisions and to actions by prison officials.

But it is demonstrably not true that RLUIPA is “inapplicable

to this case,” and that cases decided under RLUIPA may be

disregarded in RFRA cases. Not only did RLUIPA amend the

definition of “exercise of religion” contained in RFRA,

NAVAJO NATION v. USFS 10101
RLUIPA also applies the same “substantial burden” test that

is applied in RFRA cases. 

Prior to the passage of RLUIPA in 2000, RFRA provided

that “the term ‘exercise of religion’ means the exercise of religion under the First Amendment to the Constitution.” Pub. L.

No. 103-141, § 5, 107 Stat. at 1489 (codified at 42 U.S.C.

§ 2000bb-2(4) (1994) (repealed)). RLUIPA changed the definition of “exercise of religion” in RFRA. RLUIPA §§ 7-8,

114 Stat. at 806-07. As a result of RLUIPA, 42 U.S.C.

§ 2000bb-2 now provides, “As used in this chapter — . . . (4)

the term ‘exercise of religion’ means religious exercise, as

defined in section 2000cc-5 of this title.” (emphasis added).

The “chapter” to which 2000bb-2 refers is Chapter 21B of

Title 42. Chapter 21B is the codification of the Religious

Freedom Restoration Act. Section 2000cc-5, to which

§ 2000bb-2 refers, provides, “The term ‘religious exercise’

includes any exercise of religion, whether or not compelled

by, or central to, a system of religious belief.” 

RFRA and RLUIPA not only share the same definition of

“exercise of religion,” they also share the same analytic

framework and terminology. Under both statutes, the imposition of a “substantial burden” on a person’s “exercise of religion” may be justified only by a compelling governmental

interest and a showing that such interest is furthered by the

least restrictive means. See 42 U.S.C. § 2000bb-1(b) (RFRA);

42 U.S.C. § 2000cc-1(a)(1-2) (RLUIPA). The Supreme Court

has explicitly stated that “the Religious Land Use and Institutionalized Persons Act of 2000 . . . allows federal and state

prisoners to seek religious accommodation pursuant to the

same standard as set forth in RFRA[.]” O Centro, 546 U.S.

at 436 (emphasis added). Because RFRA and RLUIPA cases

share the same analytic framework and terminology and are,

in the words of the Court in O Centro, governed by the “same

standard,” RLUIPA cases are necessarily applicable to RFRA

cases. 

10102 NAVAJO NATION v. USFS
3. Applicability of RFRA to Federal Land

Finally, the majority misstates the law when it treats as an

open question whether RFRA applies to federal land. The

majority writes:

The Defendants do not contend that RFRA is inapplicable to the government’s use and management of

its own land, which is at issue in this case. Because

this issue was not raised or briefed by the parties, we

have no occasion to consider it. Therefore, we

assume, without deciding, that RFRA applies to the

government’s use and management of its land[.] 

Maj. op. at 10048 n.9. 

It is hardly an open question whether RFRA applies to federal land. For good reason, none of the defendants argued that

RFRA is inapplicable to actions on federal land. There is

nothing in the text of RFRA that says, or even suggests, that

such a carve-out from RFRA exists. No case has ever so held,

or even suggested, that RFRA is inapplicable to federal land.

The majority opinion uses silence of the briefs in this case

as an excuse to treat the applicability of RFRA to federal land

as an open question. However, the majority ignores the following exchange with the government’s attorney during oral

argument before the en banc panel. In that exchange, the government explicitly stated that RFRA applies to federal land:

Question [by a member of the en banc panel]: Is it

your position that the substantial burden test is simply never triggered when the government is using its

own land? That it’s simply outside the coverage of

RFRA if the government is using its own land? 

Answer [by the government’s attorney]: No, your

honor, that is not our position. . . . 

NAVAJO NATION v. USFS 10103
Question: So, the use of government land has the

potential under RFRA to impose a substantial burden? 

Answer: It is possible that certain activities on certain government land can still substantially burden

religious activities. 

Question: And would then violate RFRA if there

were no compelling state interest? 

Answer: Correct. Yes. 

[En banc argument at 35:06.]

D. Misunderstanding of Religious Belief and Practice

In addition to misstating the law under RFRA, the majority

misunderstands the nature of religious belief and practice. The

majority concludes that spraying up to 1.5 million gallons of

treated sewage effluent per day on Humphrey’s Peak, the

most sacred of the San Francisco Peaks, does not impose a

“substantial burden” on the Indians’ “exercise of religion.” In

so concluding, the majority emphasizes the lack of physical

harm. According to the majority, “[T]here are no plants,

springs, natural resources, shrines with religious significance,

nor any religious ceremonies that would be physically affected” by using treated sewage effluent to make artificial snow.

In the majority’s view, the “sole effect” of using treated sewage effluent on Humphrey’s Peak is on the Indians’ “subjective spiritual experience.” Maj. op. at 10041. 

The majority’s emphasis on physical harm ignores the

nature of religious belief and exercise, as well as the nature

of the inquiry mandated by RFRA. The majority characterizes

the Indians’ religious belief and exercise as merely a “subjective spiritual experience.” Though I would not choose precisely those words, they come close to describing what the

10104 NAVAJO NATION v. USFS
majority thinks it is not describing — a genuine religious

belief and exercise. Contrary to what the majority writes, and

appears to think, religious exercise invariably, and centrally,

involves a “subjective spiritual experience.” 

Religious belief concerns the human spirit and religious

faith, not physical harm and scientific fact. Religious exercise

sometimes involves physical things, but the physical or scientific character of these things is secondary to their spiritual

and religious meaning. The centerpiece of religious belief and

exercise is the “subjective” and the “spiritual.” As William

James wrote, religion may be defined as “the feelings, acts,

and experiences of individual men [and women] in their solitude, so far as they apprehend themselves to stand in relation

to whatever they may consider the divine.” WILLIAM JAMES,

THE VARIETIES OF RELIGIOUS EXPERIENCE: A STUDY IN HUMAN

NATURE 31-32 (1929). 

The majority’s misunderstanding of the nature of religious

belief and exercise as merely “subjective” is an excuse for

refusing to accept the Indians’ religion as worthy of protection under RFRA. According to undisputed evidence in the

record, and the finding of the district court, the Indians in this

case are sincere in their religious beliefs. The record makes

clear that their religious beliefs and practice do not merely

require the continued existence of certain plants and shrines.

They require that these plants and shrines be spiritually pure,

undesecrated by treated sewage effluent. 

Perhaps the strength of the Indians’ argument in this case

could be seen more easily by the majority if another religion

were at issue. For example, I do not think that the majority

would accept that the burden on a Christian’s exercise of religion would be insubstantial if the government permitted only

treated sewage effluent for use as baptismal water, based on

an argument that no physical harm would result and any

adverse effect would merely be on the Christian’s “subjective

spiritual experience.” Nor do I think the majority would

NAVAJO NATION v. USFS 10105
accept such an argument for an orthodox Jew if the government permitted only non-Kosher food. 

E. Proper Application of RFRA

Applying our precedents, which properly reject the majority’s restrictive approach, I would hold that the Indians have

shown a substantial burden on the exercise of their religion

under RFRA. I also believe that the Forest Service has failed

to show that approval of the Snowbowl expansion was the

least restrictive means to further a compelling governmental

interest. 

1. “Substantial Burden” on the “Exercise of Religion”

RFRA defines “exercise of religion” as “any exercise of

religion, whether or not compelled by, or central to, a system

of religious belief.” 42 U.S.C. § § 2000bb-2(4), 2000cc5(7)(A). Under our prior case law, a “substantial burden” on

the “exercise of religion” exists where government action prevents an individual “from engaging in [religious] conduct or

having a religious experience” and the interference is “more

than an inconvenience.” Bryant, 46 F.3d at 949. 

a. The Indians’ “Sacred” Land and their “Exercise of

Religion”

The Appellees do not dispute the sincerity of the Indians’

testimony concerning their religious beliefs and practices, and

the district court wrote that it was not “challenging the honest

religious beliefs of any witness.” The majority concedes that

the Indians are sincere. It writes, “The district court found the

Plaintiffs’ beliefs to be sincere; there is no basis to challenge

that finding.” Maj. op. at 10041. 

The majority seeks to undermine the importance of the district court’s finding, and its own concession, by contending

that the Indians consider virtually everything sacred. It writes:

10106 NAVAJO NATION v. USFS
In the Coconino National Forest alone, there are

approximately a dozen mountains recognized as

sacred by American Indian tribes. The district court

found the tribes hold other landscapes to be sacred

as well, such as canyons and canyon systems, rivers

and river drainages, lakes, discrete mesas and buttes,

rock formations, shrines, gathering areas, pilgrimage

routes, and prehistoric sites. Within the Southwestern Region forest lands alone, there are between

40,000 and 50,000 prehistoric sites. The district

court also found the Navajo and the Hualapai Plaintiffs consider the entire Colorado River to be sacred.

New sacred areas are continuously being recognized

by the Plaintiffs. 

Maj. op. at 10046 n.7 (citations omitted). 

The majority implies that if we hold, based on the sincerity

of the Indians’s religious belief, that there has been a substantial burden in this case, there is no stopping place. That is,

since virtually everything is sacred, virtually any governmental action affecting the Indians’ “sacred” land will be a substantial burden under RFRA. 

The majority’s implication rests upon an inadequate review

of the record. The district court conducted a two-week trial

devoted solely to the Indians’ RFRA claim. The trial record

demonstrates that the word “sacred” is a broad and undifferentiated term. That term does not capture the various degrees

in which the Indians hold land to be sacred. For example,

Vincent Randall, an Apache legislator, historian, and cultural

teacher, responded to a question regarding mountains that

were “sacred sites” as follows:

That’s your term “sacred.” That’s not my term. I

talked about holy mountains this morning. I talked

about God’s mountains. . . . Sacred to you is not the

other terms. There are other places of honor and

NAVAJO NATION v. USFS 10107
respect. You’re looking at everything as being

sacred. There is not — there is honor and respect,

just as much as the Twin Towers is a place of honor

and respect. Gettysburg. Yes, there are places like

that in Apache land, but there are four holy mountains. Holy mountains. 

Trial tr. 722-23 (emphasis added). 

Dianna Uqualla, subchief of the Havasupai, again

explained that there are different degrees of “sacred”: 

The whole reservation is sacred to us, but the mountains are more sacred. They are like our — if you go

to a church there would be like our tabernacle, that

would be our altars. That’s the — that’s the difference like being in Fort Defiance or Window Rock

versus going to each of the sacred mountains. The

San Francisco Peaks would be like our tabernacle,

our altar to the west. 

SER 1253 (emphasis added). 

Many White Mountain Apache, Navajo, and Havasupai

members refer to all land that is owned, or was ever owned,

by their tribe as sacred. For example, Ramon Riley, Cultural

Resource Director for the White Mountain Apache, testified

that the entire Apache reservation is “sacred.” Trial tr. at 625,

647-51. Uqualla testified to the same effect with respect to

Havasuapai land. SER 1253. 

But while there are many mountains within White Mountain Apache, Navajo, and Havasupai historic territory, only a

few of these mountains are “holy” or particularly “sacred.”

For the White Mountain Apache, there are four holy mountains. They are the San Francisco Peaks, Mt. Graham, Mt.

Baldy, and Red Mountain/Four Peaks. Trial tr. at 639-43. For

the Navajo, there are also four holy mountains. They are the

10108 NAVAJO NATION v. USFS
San Francisco Peaks, the Blanca Peak, Mt. Taylor, and the

Hesperous Mountains. Trial tr. at 739. 

The Indians allow different uses on sacred land depending

the degree of sacredness. For example, Mount Baldy is one of

the White Mountain Apache’s holy mountains. Though they

consider all of their reservation land “sacred” in the sense in

which that term is used by the majority, Mount Baldy is not

merely sacred. It is holy. The record is clear that the Apache

do not permit camping, fishing, or hunting on the portion of

Mount Baldy under their control, even though they permit

such activities elsewhere on their reservation. 

b. Substantial Burden on the Indians’ Exercise of Religion

The record in this case makes clear that the San Francisco

Peaks are particularly sacred to the surrounding Indian tribes.

Humphrey’s Peak is the most sacred, or holy, of the Peaks. I

accept as sincere the Indians’ testimony about their religious

beliefs and practices, and I accept as sincere their testimony

that the Peaks, and in particular Humphrey’s Peak, are not

merely sacred but holy mountains. 

In the discussion that follows, I focus on the evidence presented by the Hopi and Navajo, and to a lesser extent on the

Hualapai and Havasupai. I first describe the Indians’ religious

practices, and then discuss the effect the Snowbowl expansion

would have on these practices. 

i. The Indians’ Religious Practices

(1) The Hopi

Hopi religious beliefs and practices center on the San Francisco Peaks. As stated by the district court, “The Peaks are

where the Hopi direct their prayers and thoughts, a point in

the physical world that defines the Hopi universe and serves

as the home of the Kachinas, who bring water, snow and life

NAVAJO NATION v. USFS 10109
to the Hopi people.” 408 F. Supp. 2d at 894. The Hopi have

been making pilgrimages to the Peaks since at least 1540,

when they first encountered Europeans, and probably long

before that. 

The Hopi believe that when they emerged into this world,

the clans journeyed to the Peaks (or Nuvatukyaovi, the “high

place of snow”) to receive instructions from a spiritual presence, Ma’saw. At the Peaks, they entered a spiritual covenant

with Ma’saw to take care of the land, and then migrated down

to the Hopi villages. The Hopi re-enact their emergence from

the Peaks annually, and Hopi practitioners look to the Peaks

in their daily songs and prayers as a place of tranquility, sanctity, and purity. 

The Peaks are also the primary home of the powerful spiritual beings called Katsinam (Hopi plural of Katsina, or

Kachina in English). Hundreds of specific Katsinam personify

the spirits of plants, animals, people, tribes, and forces of

nature. The Katsinam are the spirits of Hopi ancestors, and the

Hopi believe that when they die, their spirits will join the Katsinam on the Peaks. As spiritual teachers of “the Hopi way,”

the Katsinam teach children and remind adults of the moral

principles by which they must live. These principles are

embodied in traditional songs given by the Katsinam to the

Hopi and sung by the Hopi in their everyday lives. One Hopi

practitioner compared these songs to sermons, which children

understand simplistically but which adults come to understand

more profoundly. Many of these songs focus on the Peaks. 

Katsinam serve as intermediaries between the Hopi and the

higher powers, carrying prayers from the Hopi villages to the

Peaks on an annual cycle. From July through January, the

Katsinam live on the Peaks. In sixteen days of ceremonies and

prayers at the winter solstice, the Hopi pray and prepare for

the Katsinam’s visits to the villages. In February or March,

the Katsinam begin to arrive, and the Hopi celebrate with

nightly dances at which the Katsinam appear in costume and

10110 NAVAJO NATION v. USFS
perform. The Katsinam stay while the Hopi plant their corn

and it germinates. Then, in July, the Hopi mark the Katsinam’s departure for the Peaks. 

The Hopi believe that pleasing the Katsinam on the Peaks

is crucial to their livelihood. Appearing in the form of clouds,

the Katsinam are responsible for bringing rain to the Hopi villages from the Peaks. The Katsinam must be treated with

respect, lest they refuse to bring the rains from the Peaks to

nourish the corn crop. In preparation for the Katsinam’s

arrival, prayer sticks and feathers are delivered to every member of the village, which they then deposit in traditional locations, praying for the spiritual purity necessary to receive the

Katsinam. The Katsinam will not arrive until the peoples’

hearts are in the right place, a state they attempt to reach

through prayers directed at the spirits on the Peaks. 

The Hopi have at least fourteen shrines on the Peaks. Every

year, religious leaders select members of each of the approximately forty congregations, or kiva, among the twelve Hopi

villages to make a pilgrimage to the Peaks. They gather from

the Peaks both water for their ceremonies and boughs of

Douglas fir worn by the Katsinam in their visits to the villages. 

(2) The Navajo

The Peaks are also of fundamental importance to the religious beliefs and practices of the Navajo. The district court

found, “[T]he Peaks are considered . . . to be the ‘Mother of

the Navajo People,’ their essence and their home. The whole

of the Peaks is the holiest of shrines in the Navajo way of

life.” 408 F. Supp. 2d at 889. Considering the mountain “like

family,” the Navajo greet the Peaks daily with prayer songs,

of which there are more than one hundred relating to the four

mountains sacred to the Navajo. Witnesses described the

Peaks as “our leader” and “very much an integral part of our

life, our daily lives.” 

NAVAJO NATION v. USFS 10111
The Navajo creation story revolves around the Peaks. The

mother of humanity, called the Changing Woman and compared by one witness to the Virgin Mary, resided on the Peaks

and went through puberty there, an event which the people

celebrated as a gift of new life. Following this celebration,

called the kinaalda, the Changing Woman gave birth to twins,

from whom the Navajo are descended. The Navajo believe

that the Changing Woman’s kinaalda gave them life, generation after generation. Young women today still celebrate their

own kinaalda with a ceremony one witness compared to a

Christian confirmation or a Jewish bat mitzvah. The ceremony sometimes involves water especially collected from the

Peaks because of the Peaks’ religious significance. 

The Peaks are represented in the Navajo medicine bundles

found in nearly every Navajo household. The medicine bundles are composed of stones, shells, herbs, and soil from each

of four sacred mountains. One Navajo practitioner called the

medicine bundles “our Bible,” because they have “embedded”

within them “the unwritten way of life for us, our songs, our

ceremonies.” The practitioner traced their origin to the

Changing Woman: When her twins wanted to find their

father, the Changing Woman instructed them to offer prayers

to the Peaks and conduct ceremonies with medicine bundles.

The Navajo believe that the medicine bundles are conduits for

prayers; by praying to the Peaks with a medicine bundle containing soil from the Peaks, the prayer will be communicated

to the mountain. 

As their name suggests, medicine bundles are also used in

Navajo healing ceremonies, as is medicine made with plants

collected from the Peaks. Appellant Norris Nez, a Navajo

medicine man, testified that “like the western doctor has his

black bag with needles and other medicine, this bundle has in

there the things to apply medicine to a patient.” Explaining

why he loves the mountain as his mother, he testified, “She

is holding medicine and things to make us well and healthy.

We suckle from her and get well when we consider her our

10112 NAVAJO NATION v. USFS
Mother.” Nez testified that he collects many different plants

from the Peaks to make medicine. 

The Peaks play a role in every Navajo religious ceremony.

The medicine bundle is placed to the west, facing the Peaks.

In the Blessingway ceremony, called by one witness “the

backbone of our ceremony” because it is performed at the

conclusion of all ceremonies, the Navajo pray to the Peaks by

name. 

The purity of nature, including the Peaks, plays an important part in Navajo beliefs. Among other things, it affects how

a medicine bundle — described by one witness as “a living

basket” — is made. The making of a medicine bundle is preceded by a four-day purification process for the medicine man

and the keeper of the bundle. By Navajo tradition, the medicine bundle should be made with leather from a buck that is

ritually suffocated; the skin cannot be pierced by a weapon.

Medicine bundles are “rejuvenated” every few years, by

replacing the ingredients with others gathered on pilgrimages

to the Peaks and three other sacred mountains. 

The Navajo believe their role on earth is to take care of the

land. They refer to themselves as nochoka dine, which one

witness translated as “people of the earth” or “people put on

the surface of the earth to take care of the lands.” They

believe that the Creator put them between four sacred mountains of which the westernmost is the Peaks, or Do’ok’oos-liid

(“shining on top,” referring to its snow), and that the Creator

instructed them never to leave this homeland. Although the

whole reservation is sacred to the Navajo, the mountains are

the most sacred part. As noted previously, one witness drew

an analogy to a church, with the area within the mountains as

the part of the church where the people sit, and the Peaks as

“our altar to the west.” 

As in Hopi religious practice, the Peaks are so sacred in

Navajo beliefs that, according to Joe Shirley, Jr., President of

NAVAJO NATION v. USFS 10113
the Navajo Nation, a person “cannot just voluntarily go up on

this mountain at any time. It’s — it’s the holiest of shrines in

our way of life. You have to sacrifice. You have to sing certain songs before you even dwell for a little bit to gather

herbs, to do offerings.” After the requisite preparation, the

Navajo go on pilgrimages to the Peaks to collect plants for

ceremonial and medicinal use. 

(3) The Hualapai

The Peaks figure centrally in the beliefs of the Hualapai.

The Hualapai creation story takes place on the Peaks. The

Hualapai believe that at one time the world was deluged by

water, and the Hualapai put a young girl on a log so that she

could survive. She landed on the Peaks, alone, and washed in

the water. In the water, she conceived a son, who was a man

born of water. She washed again, and conceived another son.

These were the twin warriors or war gods, from whom the

Hualapai are today descended. Later, one of the twins became

ill, and the other collected plants and water from the Peaks,

thereby healing his brother. From this story comes the Hualapai belief that the mountain and its water and plants are sacred

and have medicinal properties. One witness called the story of

the deluge, the twins, and their mother “our Bible story” and

drew a comparison to Noah’s Ark. As in Biblical parables and

stories, Hualapai songs and stories about the twins are infused

with moral principles. 

Hualapai spiritual leaders travel to the Peaks to deliver

prayers. Like the Hopi and the Navajo, the Hualapai believe

that the Peaks are so sacred that one has to prepare oneself

spiritually to visit. A spiritual leader testified that he prays to

the Peaks every day and fasts before visiting to perform the

prayer feather ceremony. In the prayer feather ceremony, a

troubled family prays into an eagle feather for days, and the

spiritual leader delivers it to the Peaks; the spirit of the eagle

then carries the prayer up the mountain and to the Creator. 

10114 NAVAJO NATION v. USFS
The Hualapai collect water from the Peaks. Hualapai religious ceremonies revolve around water, and they believe

water from the Peaks is sacred. In their sweat lodge purification ceremony, the Hualapai add sacred water from the Peaks

to other water, and pour it onto heated rocks to make steam.

In a healing ceremony, people seeking treatment drink from

the water used to produce the steam and are cleansed by

brushing the water on their bodies with feathers. At the conclusion of the healing ceremony, the other people present also

drink the water. A Hualapai tribal member who conducts

healing ceremonies testified that water from the Peaks is used

to treat illnesses of “high parts” of the body like the eyes,

sinuses, mouth, throat, and brain, including tumors, meningitis, forgetfulness, and sleepwalking. He testified that the

Peaks are the only place to collect water with those medicinal

properties, and that he travels monthly to the Peaks to collect

it from Indian Springs, which is lower on the mountain and

to the west of the Snowbowl. The water there has particular

significance to the Hualapai because the tribe’s archaeological

sites are nearby. 

In another Hualapai religious ceremony, when a baby has

a difficult birth, a Hualapai spiritual leader brings a portion of

the placenta to the Peaks so that the child will be strong like

the twins and their mother in the Hualapai creation story. The

Hualapai also grind up ponderosa pine needles from the Peaks

in sacred water from the Peaks to aid women in childbirth. 

A Hualapai religious law forbids mixing the living and the

dead. In testimony in the district court, a spiritual leader gave

the example of washing a baby or planting corn immediately

after taking part in a death ceremony. Mixing the two will

cause a condition that was translated into English as “the

ghost sickness.” The leader testified that purification after

“touching death” depends on the intensity of the encounter. If

he had just touched the dead person’s clothes or belongings,

he might be purified in four days, but if he touched a body,

it would require a month. 

NAVAJO NATION v. USFS 10115
(4) The Havasupai

The Peaks are similarly central to the beliefs of the Havasupai, as the Forest Service acknowledged in the FEIS: 

The Hualapai and the Havasupai perceive the world

as flat, marked in the center by the San Francisco

Peaks, which were visible from all parts of the Havasupai territory except inside the Grand Canyon. The

commanding presence of the Peaks probably

accounts for the Peaks being central to the Havasupai beliefs and traditions, even though the Peaks

themselves are on the edge of their territory. 

The Chairman of the Havasupai testified that the Peaks are the

most sacred religious site of the Havasupai: “That is where

life began.” The Havasupai believe that when the earth was

submerged in water, the tribe’s “grandmother” floated on a

log and landed and lived on the Peaks, where she survived on

water from the Peaks’ springs and founded the tribe. 

Water is central to the religious practices of the Havasupai.

Although they do not travel to the Peaks to collect water,

Havasupai tribal members testified that they believe the water

in the Havasu creek that they use in their sweat lodges comes

ultimately from the Peaks, to which they pray daily. They

believe that spring water is a living, life-giving, pure substance, and they do not use tap water in their religious practices. They perform sweat lodge ceremonies, praying and

singing as they use the spring water to make steam; they

believe that the steam is the breath of their ancestors, and that

by taking it into themselves they are purified, cleansed, and

healed. They give water to the dead to take with them on their

journey, and they use it to make medicines. The Havasupai

also gather rocks from the Peaks to use for making steam. 

10116 NAVAJO NATION v. USFS
ii. The Burden Imposed by the Proposed Snowbowl

Expansion

Under the proposed expansion of the Snowbowl, up to 1.5

million gallons per day of treated sewage effluent would be

sprayed on Humphrey’s Peak from November through February. Depending on weather conditions, substantially more

than 100 million gallons of effluent could be deposited over

the course of the winter ski season. 

The Indians claim that the use of treated sewage effluent to

make artificial snow on the Peaks would substantially burden

their exercise of religion. Because the Indians’ religious

beliefs and practices are not uniform, the precise burdens on

religious exercise vary among the Appellants. Nevertheless,

the burdens fall roughly into two categories: (1) the inability

to perform a particular religious ceremony, because the ceremony requires collecting natural resources from the Peaks that

would be too contaminated — physically, spiritually, or both

— for sacramental use; and (2) the inability to maintain daily

and annual religious practices comprising an entire way of

life, because the practices require belief in the mountain’s

purity or a spiritual connection to the mountain that would be

undermined by the contamination. 

The first burden — the inability to perform religious ceremonies because of contaminated resources — has been

acknowledged and described at length by the Forest Service.

The FEIS summarizes: “Snowmaking and expansion of facilities, especially the use of reclaimed water, would contaminate

the natural resources needed to perform the required ceremonies that have been, and continue to be, the basis for the cultural identity for many of these tribes.” Further, “the use of

reclaimed water is believed by the tribes to be impure and

would have an irretrievable impact on the use of the soil,

plants, and animals for medicinal and ceremonial purposes

throughout the entire Peaks, as the whole mountain is

regarded as a single, living entity.” 

NAVAJO NATION v. USFS 10117
Three Navajo practitioners’ testimony at trial echoed the

Forest Service’s assessment in describing how the proposed

action would prevent them from performing various ceremonies. Larry Foster, a Navajo practitioner who is training to

become a medicine man, testified that “once water is tainted

and if water comes from mortuaries or hospitals, for Navajo

there’s no words to say that that water can be reclaimed.” He

further testified that he objected to the current use of the

Peaks as a ski area, but that using treated sewage effluent to

make artificial snow on the Peaks would be “far more serious.” He explained, “I can live with a scar as a human being.

But if something is injected into my body that is foreign, a

foreign object — and reclaimed water, in my opinion, could

be water that’s reclaimed through sewage, wastewater, comes

from mortuaries, hospitals, there could be disease in the

waters — and that would be like injecting me and my mother,

my grandmother, the Peaks, with impurities, foreign matter

that’s not natural.” 

Foster testified that if treated sewage effluent were used on

the Peaks he would no longer be able to go on the pilgrimages

to the Peaks that are necessary to rejuvenate the medicine

bundles, which are, in turn, a part of every Navajo healing

ceremony. He explained:

Your Honor, our way of life, our culture we live in

— we live in the blessingway, in harmony. We try

to walk in harmony, be in harmony with all of

nature. And we go to all of the sacred mountains for

protection. We go on a pilgrimage similar to Muslims going to Mecca. And we do this with so much

love, commitment and respect. And if one mountain

— and more in particularly with the San Francisco

Peaks — which is our bundle mountain, or sacred,

bundle mountain, were to be poisoned or given foreign materials that were not pure, it would create an

imbalance — there would not be a place among the

sacred mountains. We would not be able to go there

10118 NAVAJO NATION v. USFS
to obtain herbs or medicines to do our ceremonies,

because that mountain would then become impure. It

would not be pure anymore. And it would be a devastation for our people. 

Appellant Navajo medicine man Norris Nez testified that

the proposed action would prevent him from practicing as a

medicine man. He told the district court that the presence of

treated sewage effluent would “ruin” his medicine, which he

makes from plants collected from the Peaks. He also testified

that he would be unable to perform the fundamental Blessingway ceremony, because “all [medicine] bundles will be

affected and we will have nothing to use eventually.” 

Foster, Nez, and Navajo practitioner Steven Begay testified

that because they believe the mountain is an indivisible living

entity, the entire mountain would be contaminated even if the

millions of gallons of treated sewage effluent are put onto

only one area of the Peaks. According to Foster, Nez, and

Begay, there would be contamination even on those parts of

the Peaks where the effluent would not come into physical

contact with particular plants or ceremonial areas. To them,

the contamination is not literal in the sense that a scientist

would use the term. Rather, the contamination represents the

poisoning of a living being. In Foster’s words, “[I]f someone

were to get a prick or whatever from a contaminated needle,

it doesn’t matter what the percentage is, your whole body

would then become contaminated. And that’s what would

happen to the mountain.” In Nez’s words, “All of it is holy.

It is like a body. It is like our body. Every part of it is holy

and sacred.” In Begay’s words, “All things that occur on the

mountain are a part of the mountain, and so they will have

connection to it. We don’t separate the mountain.” 

The Hualapai also presented evidence that the proposed

action would prevent them from performing particular religious ceremonies. Frank Mapatis, a Hualapai practitioner and

spiritual leader who visits the Peaks approximately once a

NAVAJO NATION v. USFS 10119
month to collect water for ceremonies and plants for medicine, testified that the use of treated sewage effluent would

prevent him from performing Hualapai sweat lodge and healing ceremonies with the sacred water from the Peaks. Mapatis

testified that he believes that the treated sewage effluent

would seep into the ground and into the spring below the

Snowbowl where he collects his sacred water, so that the

spring water would be “contaminated” by having been

“touched with death.” Because contact between the living and

the dead induces “ghost sickness,” which involves hallucinations, using water touched with death in healing ceremonies

“would be like malpractice.” Further, Mapatis would become

powerless to perform the healing ceremony for ghost sickness

itself, because that ceremony requires water from the Peaks,

the only medicine for illnesses of the upper body and head,

like hallucinations. 

The second burden the proposed action would impose —

undermining the Indians’ religious faith, practices, and way of

life by desecrating the Peaks’ purity— is also shown in the

record. The Hopi presented evidence that the presence of

treated sewage effluent on the Peaks would fundamentally

undermine all of their religious practices because their way of

life, or “beliefway,” is largely based on the idea that the Peaks

are a pure source of their rains and the home of the Katsinam.

Leigh Kuwanwisiwma, a Hopi religious practitioner and

the director of the tribe’s Cultural Preservation Office,

explained the connection between contaminating the Peaks

and undermining the Hopi religion:

The spiritual covenant that the Hopi clans entered

into with the Caretaker I refer to as Ma’saw, the spiritual person and the other d[ei]ties that reside — and

the Katsina that reside in the Peaks started out with

the mountains being in their purest form. They didn’t

have any real intrusion by humanity. 

10120 NAVAJO NATION v. USFS
The purity of the spirits, as best we can acknowledge the spiritual domain, we feel were content in

receiving the Hopi clans. So when you begin to

intrude on that in a manner that is really disrespectful to the Peaks and to the spiritual home of the Katsina, it affects the Hopi people. It affects the Hopi

people, because as clans left and embarked on their

migrations and later coming to the Hopi villages, we

experienced still a mountain and peaks that were in

their purest form as a place of worship to go to, to

visit, to place our offerings, the tranquility, the sanctity that we left a long time ago was still there. 

Antone Honanie, a Hopi practitioner, testified that he would

have difficulty preparing for religious ceremonies, because

treated sewage effluent is “something you can’t get out of

your mind when you’re sitting there praying” to the mountain,

“a place where everything is supposed to be pure.” Emory

Sekaquaptewa, a Hopi tribal member and research anthropologist, testified that the desecration of the mountain would

cause Katsinam dance ceremonies to lose their religious

value. They would “simply be a performance for performance[’s] sake” rather than “a religious effort”: “Hopi people

are raised in this belief that the mountains are a revered place.

And even though they begin with kind of a fantasy notion,

this continues to grow into a more deeper spiritual sense of

the mountain. So that any thing that interrupts this perception,

as they hold it, would tend to undermine the — the integrity

in which they hold the mountain.” 

Summarizing the Hopi’s testimony, the district court wrote:

The individual Hopi’s practice of the Hopi way permeates every part and every day of the individual’s

life from birth to death. . . . The Hopi Plaintiffs testified that the proposed upgrades to the Snowbowl

have affected and will continue to negatively affect

the way they think about the Peaks, the Kachina and

NAVAJO NATION v. USFS 10121
themselves when preparing for any religious activity

involving the Peaks and the Kachina — from daily

morning prayers to the regular calendar of religious

dances that occur throughout the year. . . . The Hopi

Plaintiffs also testified that this negative effect on the

practitioners’ frames of mind due to the continued

and increased desecration of the home of the Kachinas will undermine the Hopi faith and the Hopi way.

According to the Hopi, the Snowbowl upgrades will

undermine the Hopi faith in daily ceremonies and

undermine the Hopi faith in their Kachina ceremonies as well as their faith in the blessings of life that

they depend on the Kachina to bring. 

408 F. Supp. 2d at 894-95. 

The Havasupai presented evidence that the presence of

treated sewage effluent on the Peaks would, by contaminating

the Peaks, undermine their sweat lodge purification ceremonies and could lead to the end of the ceremonies. Rex Tilousi,

Chairman of the Havasupai, testified that Havasupai religious

stories teach that the water in Havasu Creek, which they use

for their sweat ceremonies, flows from the Peaks, where the

Havasupai believe life began. Although none of the three

Havasupai witnesses stated that they would be completely

unable to perform the sweat lodge ceremonies as a consequence of the impurity introduced by the treated sewage effluent, Roland Manakaja, a traditional practitioner, testified that

the impurity would disrupt the ceremony: 

If I was to take the water to sprinkle the rocks to

bring the breath of our ancestors — we believe the

steam is the breath of our ancestors. And the rocks

placed in the west signify where our ancestors go,

the deceased. . . . Once the steam rises, like it does

on the Peaks, the fog or the steam that comes off is

creation. And once the steam comes off and it comes

into our being, it purifies and cleanses us and we go

10122 NAVAJO NATION v. USFS
to the level of trance. . . . It’s going to impact mentally my spirituality. Every time I think about sprinkling that water on the rocks, I’m going to always

think about this sewer that they’re using to recharge

the aquifer. 

He further testified that he was “concerned” that the water’s

perceived impurity might cause the sweat lodge ceremony to

die out altogether, if tribal members fear “breathing the organisms or the chemicals that may come off the steam.” 

The record supports the conclusion that the proposed use of

treated sewage effluent on the San Francisco Peaks would

impose a burden on the religious exercise of all four tribes

discussed above — the Navajo, the Hopi, the Hualapai, and

the Havasupai. However, on the record before us, that burden

falls most heavily on the Navajo and the Hopi. The Forest

Service itself wrote in the FEIS that the Peaks are the most

sacred place of both the Navajo and the Hopi; that those

tribes’ religions have revolved around the Peaks for centuries;

that their religious practices require pure natural resources

from the Peaks; and that, because their religious beliefs dictate that the mountain be viewed as a whole living being, the

treated sewage effluent would in their view contaminate the

natural resources throughout the Peaks. Navajo Appellants

presented evidence in the district court that, were the proposed action to go forward, contamination by the treated sewage effluent would prevent practitioners from making or

rejuvenating medicine bundles, from making medicine, and

from performing the Blessingway and healing ceremonies.

Hopi Appellants presented evidence that, were the proposed

action to go forward, contamination by the effluent would

fundamentally undermine their entire system of belief and the

associated practices of song, worship, and prayer, that depend

on the purity of the Peaks, which is the source of rain and

their livelihoods and the home of the Katsinam spirits.

In light of this showing, it is self-evident that the Snowbowl expansion prevents the Navajo and Hopi “from engagNAVAJO NATION v. USFS 10123
ing in [religious] conduct or having a religious experience”

and that this interference is “more than an inconvenience.”

Bryant, 46 F.3d at 949.The burden imposed on the religious

practices of the Navajo and Hopi is certainly as substantial as

the intrusion on confession deemed a “substantial burden” in

Mockaitis, 104 F.3d at 1531, and the denial of a Halal or

Kosher meat diet deemed a “substantial burden” in Shakur,

514 F.3d at 888-89. Thus, under RFRA, the Forest Service’s

approval of the Snowbowl expansion may only survive if it

furthers a compelling governmental interest by the least

restrictive means. 

c. “Compelling Governmental Interest” and “Least

Restrictive Means”

The majority refuses to hold that spraying treated sewage

effluent on Humphrey’s Peak imposes a “substantial burden”

on the Indians’ “exercise of religion.” It therefore does not

reach the question whether the burden can be justified by a

compelling interest and is the least restrictive means of furthering that purpose. Because I would hold that the Snowbowl

expansion does constitute a substantial burden on the Indians’

religious exercise, I also address this second step of the RFRA

analysis. 

“Requiring a State to demonstrate a compelling interest and

show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.” City of Boerne, 521 U.S. at 534. In applying this

standard, we do not accept a generalized assertion of a compelling interest, but instead require “a case-by-case determination of the question, sensitive to the facts of each particular

claim.” O Centro, 546 U.S. at 431 (quoting Smith, 494 U.S.

at 899 (O’Connor, J., concurring in the judgment)). 

The Forest Service and the Snowbowl have argued that

approving the use of treated sewage effluent to make artificial

snow serves several compelling governmental interests. The

10124 NAVAJO NATION v. USFS
district court characterized those interests as: (1) “selecting

the alternative that best achieves [the Forest Service’s]

multiple-use mandate under the National Forest Management

Act,” which includes “managing the public land for recreational uses such as skiing”; (2) protecting public safety by

“authorizing upgrades at Snowbowl to ensure that users of the

National Forest ski area have a safe experience”; and (3) complying with the Establishment Clause. 408 F. Supp. 2d at 906.

I would hold that none of these interests is compelling. 

First, the Forest Service’s interests in managing the forest

for multiple uses, including recreational skiing, are, in the

words of the Court in O Centro, “broadly formulated interests

justifying the general applicability of government mandates”

and are therefore insufficient on their own to meet RFRA’s

compelling interest test. 546 U.S. at 431. Appellees have

argued that approving the proposed action serves the more

particularized compelling interest in providing skiing at the

Snowbowl, because the use of artificial snow will allow a

more “reliable and consistent operating season” at one of the

only two major ski areas in Arizona. I do not believe that

authorizing the use of artificial snow at an already functioning

commercial ski area in order to expand and improve its facilities, as well as to extend its ski season in dry years, is a governmental interest “of the highest order.” Yoder, 406 U.S. at

215. 

Second, while the Forest Service undoubtedly has a general

interest in ensuring public safety on federal lands, there has

been no showing that approving the proposed action advances

that interest by the least restrictive means. Appellees have

provided no specific evidence that skiing at the Snowbowl in

its current state is unsafe. 

Third, approving the proposed action does not serve a compelling governmental interest in avoiding conflict with the

Establishment Clause. The Forest Service has not suggested

that avoiding a conflict with the Establishment Clause is a

NAVAJO NATION v. USFS 10125
compelling interest served by the proposed action. Only the

Snowbowl has made that argument. The argument is not convincing. The Supreme Court has repeatedly held that the Constitution “affirmatively mandates accommodation, not merely

tolerance, of all religions, and forbids hostility toward any.”

Lynch v. Donnelly, 465 U.S. 668, 673 (1984). “Anything less

would require the ‘callous indifference’ we have said was

never intended by the Establishment Clause.” Id. (citations

omitted); see also Hobbie v. Unemp. App. Comm’n of Fla.,

480 U.S. 136, 144-45 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without

violating the Establishment Clause.”). Refusing to allow a

commercial ski resort in a national forest to spray treated sewage effluent on the Indians’ most sacred mountain is an

accommodation that falls far short of the sort of advancement

of religion that gives rise to an Establishment Clause violation. 

F. Conclusion

I would therefore hold that the proposed expansion of the

Arizona Snowbowl, which would entail spraying up to 1.5

million gallons per day of treated sewage effluent on the holiest of the San Francisco Peaks, violates RFRA. The expansion

would impose a “substantial burden” on the Indians’ “exercise

of religion” and is not justified by a “compelling government

interest.” 

II. National Environmental Protection Act

A. Pleading under Rule 8(a)

The majority concludes that Appellants failed properly to

plead a violation of NEPA in their complaint. The violation

in question is an alleged failure by the Forest Service to analyze the risks posed by human ingestion of artificial snow

made with treated sewage effluent. Because of the asserted

10126 NAVAJO NATION v. USFS
pleading mistake, the majority declines to reach the merits of

the claimed violation. 

Under Federal Rule of Civil Procedure 8(a), a proper complaint need only contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Rule 8(a),

adopted in 1938, replaced the old “code pleading” regime

under which plaintiffs had been required to plead detailed factual allegations in the complaint, on pain of having their complaints dismissed on demurrer. Under the more relaxed

“notice pleading” requirement of Rule 8(a), a plaintiff is not

required to plead detailed facts. Under Rule 8(a), a plaintiff is

required only to “advise the other party of the event being

sued upon, . . . provide some guidance in a subsequent proceeding as to what was decided for purposes of res judicata

and collateral estoppel, and . . . indicate whether the case

should be tried to the court or to a jury. No more is demanded

of the pleadings than this.” 5 C. Wright & A. Miller, Federal

Practice & Procedure § 1202 (2008). 

Appellants’ complaint in the district court, while general,

was sufficient to provide notice that they were asserting

NEPA violations based on the Forest Service’s failure to consider the health risks presented by the Snowbowl expansion.

The Navajo Nation and the Havasupai Tribe both alleged in

their complaints that the Forest Service violated NEPA by

“fail[ing] to take a ‘hard look’ at the impacts of introducing

reclaimed waste water to the ecosystem.” [SER 1184; 1200].

In particular, they alleged, “The FEIS fails to adequately

address the effects of soil disturbance, and the persistent pollutants in reclaimed water.” Id.

In another context, generalized allegations such as these

might be insufficient to alert defendants that a specific health

risk, such as the ingestion of artificial snow, was included in

general statements referring to “the impacts of introducing

reclaimed waste water to the ecosystem” and “persistent pollutants in reclaimed water.” In the context of this case, howNAVAJO NATION v. USFS 10127
ever, Appellants’ allegations were sufficient to put defendants

on notice of the nature of their NEPA claim. 

First, even before the complaint was filed, the Forest Service was well aware of the dispute about whether the FEIS

adequately addressed the risk of children and others ingesting

artificial snow made from treated sewage effluent. For example, in October 2002, before the draft EIS was published, the

Service wrote what it called a “strategic talking point”

addressing the risk posed by the ingestion of the artificial

snow. The “talking point” began with the question: “Will my

kids get sick if they eat artificial snow made from treated

wastewater?” It continued with a scripted answer: “[T]his

question is really one that will be thoroughly answered in the

NEPA analysis process.” Appellants repeatedly made clear to

the Forest Service, both in comments on the draft EIS and in

administrative appeals, that this risk needed to be addressed

as part of the NEPA process. 

Second, Appellants raised the issue of ingestion of artificial

snow in their motion for summary judgment, specifically

addressing several pages to the following argument: “The

FEIS Does Not Contain a ‘Reasonably Thorough Discussion

of the Significant Aspects of the Probable Environmental

Consequences’ of the Project — The FEIS Ignores (In Part)

the Possibility of Children Eating Snow Made from

Reclaimed Water.” [Plaintiffs’ Motion for Summary Judgment at 20-23]. The Forest Service and the Snowbowl both

objected that this argument was not adequately alleged in the

complaint. But they showed no prejudice arising out of the

alleged lack of notice, and they addressed the merits of the

issue in their opposition to the motion. [Defendant’s Response

In Opposition to All Plaintiffs’ Motions for Summary Judgment at 16-17; Arizona Snowbowl Resort LP’s Opposition to

Plaintiffs’ Motions for Summary Judgment at 5-6]. 

Third, Appellants had raised the issue of ingestion of artificial snow in their administrative appeal, and the Forest Ser10128 NAVAJO NATION v. USFS
vice had no need to develop additional evidence, through

discovery or otherwise, in order to address the issue in the district court. 

The majority objects to this analysis on two grounds. First,

it contends that because Appellants have not appealed the district court’s denial of their motion to amend their complaint,

they cannot now contend that their complaint was adequate.

Maj. op. at 10070-71 & n.26. That is not the law. If a complaint is adequate under Rule 8(a), there is no need to amend

it. It is well established that if a plaintiff believes that a complaint satisfies Rule 8(a), he or she may stand on the complaint and appeal a dismissal to the court of appeals. See

WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1318 (9th

Cir. 1996) (citing Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 471 n.3 (9th Cir. 1994) (quoting McGuckin

v. Smith, 974 F.2d 1050, 1053 (9th Cir.1992))). A plaintiff

may move to amend a complaint that, in the view of the district court, is inadequate under Rule 8(a). But making such a

motion is not an admission, for purposes of appeal, that the

district court is correct in viewing the complaint as inadequate. Nor, having made such a motion, is the plaintiff

required to appeal the district court’s denial of that motion in

order to assert that the initial complaint was adequate. See,

e.g., Quinn v. Ocwen Federal Bank FSB, 470 F.3d 1240, 1247

n.2 (8th Cir. 2006). 

Second, the majority contends that the Navajo Appellants

“do not explain why their complaint is otherwise sufficient to

state this NEPA claim—despite the Defendants’ assertion that

the Navajo Plaintiffs failed to plead this NEPA claim.” Maj.

op. at 10070. The majority is wrong. The Navajo Appellants

clearly “explain” why their complaint was sufficient. Part

III.B of their brief in this court is headed: “The FEIS Ignores

the Possibility of Children Eating Snow Made from

Reclaimed Water.” Part III.B.3 of their brief is headed: “This

Issue Was Properly Raised and Considered by the Lower

NAVAJO NATION v. USFS 10129
Court.” [Reply brief, at 19] The first paragraph of Part III.B.3

reads: 

Defendants assert that Plaintiffs did not raise this

issue in their comments on the the DEIS, in their

administrative appeal, or in their Complaint. As a

result, according to defendants, Plaintiffs are precluded from raising this argument on appeal. This

misstates the facts of the case and applicable law. 

[Id.] (Emphasis added). 

The Navajo Appellants explain in their brief that the issue

of children eating snow made from effluent was raised during

the preparation of the FEIS. They explain that defendants

were therefore already well aware of this issue when it was

raised in the district court. They explain, further, in their brief

in this court: “Plaintiffs properly pled violations of NEPA in

their Complaint, even though the specific allegations at issue

were not included therein. The issue [of the FEIS’s failure to

analyze the risk of children ingesting snow made from treated

effluent] was briefed at summary judgment by all parties and

presented at oral argument. The lower court heard the argument . . . and issued a decision on this claim resulting in this

appeal.” Id. at 23-4. 

Under notice pleading, a plaintiff need not make specific

allegations in the complaint, so long as the complaint is sufficient to put defendant on notice of the nature of plaintiff’s

claim. As the Navajo Appellants make clear, the defendants

in the district court were well aware of the nature of plaintiffs’

claim that the FEIS failed to analyze the risk of children eating snow made from the effluent. This is sufficient to satisfy

the notice pleading requirement of Rule 8(a). 

I would therefore reach the merits of Appellants’ claim that

the Forest Service failed to study adequately the risks posed

10130 NAVAJO NATION v. USFS
by human ingestion of artificial snow made with treated sewage effluent. 

B. Merits

“NEPA ‘does not mandate particular results,’ but ‘simply

provides the necessary process’ to ensure that federal agencies

take a ‘hard look’ at the environmental consequences of their

actions.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177

F.3d 800, 814 (9th Cir. 1999) (quoting Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989)). Regulations require that an EIS discuss environmental impacts “in

proportion to their significance.” 40 C.F.R. § 1502.2(b). For

impacts discussed only briefly, there should be “enough discussion to show why more study is not warranted.” Id.

We employ a “ ‘rule of reason [standard] to determine

whether the [EIS] contains a reasonably thorough discussion

of the significant aspects of the probable environmental consequences.’ ” Ctr. for Biological Diversity v. U.S. Forest

Serv., 349 F.3d 1157, 1166 (9th Cir. 2003) (first alteration in

original) (quoting Kern v. U.S. Bureau of Land Mgmt., 284

F.3d 1062, 1071 (9th Cir. 2002)). In reviewing an EIS, a court

must not substitute its judgment for that of the agency, but

rather must uphold the agency decision as long as the agency

has “considered the relevant factors and articulated a rational

connection between the facts found and the choice made.”

Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944,

953-54 (9th Cir. 2003) (quoting Wash. Crab Producers, Inc.

v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir. 1990)). 

The treated sewage effluent proposed for use in making

artificial snow at the Snowbowl meets the standards of the

ADEQ for what Arizona calls “A+ reclaimed water.” The

ADEQ permits use of A+ reclaimed water for snowmaking,

but it has specifically disapproved human ingestion of such

water. Arizona law requires users of reclaimed water to “place

and maintain signage at locations [where the water is used] so

NAVAJO NATION v. USFS 10131
the public is informed that reclaimed water is in use and that

no one should drink from the system.” Ariz. Admin. Code

§ R18-9-704(H) (2005). Human consumption, “fullimmersion water activity with a potential of ingestion,” and

“evaporative cooling or misting” are all prohibited. Id. § R18-

9-704(G)(2). Irrigation users must employ “application methods that reasonably preclude human contact,” including preventing “contact with drinking fountains, water coolers, or

eating areas,” and preventing the treated effluent from “standing on open access areas during normal periods of use.” Id.

§ R18-9-704(F). 

The FEIS does not contain a reasonably thorough discussion of the risks posed by possible human ingestion of artificial snow made from treated sewage effluent, and it does not

articulate why such discussion is unnecessary. 

The main body of the FEIS addresses the health implications of using treated sewage effluent in subchapter 3H, “Watershed Resources.” Much of the subchapter’s analysis

focuses on the “hydrogeologic setting” and on the effect of

the artificial snow once it has melted. The part of the subchapter describing the treated sewage effluent acknowledges that

its risks to human health are not well known because it contains unregulated contaminants in amounts not ordinarily

found in drinking water, including prescription drugs and

chemicals from personal care products. The subchapter contains tables listing the amounts of various organic and inorganic chemical constituents that have been measured in the

treated sewage effluent. One table compares the level of contaminants in Flagstaff’s treated sewage effluent to the level

permitted under national drinking water standards. The table

shows that Flagstaff simply does not test for the presence of

the following contaminants regulated by the national standards: Acrylamide, Dalapon, Di(2-ethylhexyl) adipate,

Dinoseb, Diquat, Endothall, Epichlorohydrin, Ethylene dibromide, Lindane, Oxamyl (Vydate), Picloram, Simazine, and

Aluminum. The table also shows that Flagstaff does not mea10132 NAVAJO NATION v. USFS
sure the following contaminants with sufficient precision to

determine whether they are present at levels that exceed the

national standards: Nitrate, Benzo (a) pyrene (PAHs), Pentachlorophenol, and Polychlorinatedbiphenyls (PCBs). However, the FEIS does not go on to discuss either the health risks

resulting from ingestion of the treated sewage effluent or the

likelihood that humans — either adults or children — will in

fact ingest the artificial snow. 

Instead, the environmental impact analysis in subchapter

3H, the only part of the FEIS to discuss the characteristics of

treated sewage effluent, addresses only the impact on the

watersheds and aquifers. That analysis assesses the treated

sewage effluent’s impact after it has filtered through the

ground, a process the FEIS estimates may result in “an order

of magnitude decrease in concentration of solutes.” Thus,

although the subchapter reasonably discusses the human

health risks to downgradient users, it does not address the

risks entailed in humans’ direct exposure to, and possible

ingestion of, undiluted treated sewage effluent that has not yet

filtered through the ground. 

Only two statements in the FEIS could possibly be mistaken for an analysis of the risk that children would ingest the

artificial snow. The first follows three combined questions by

a commenter: (1) whether signs would be posted to warn that

“reclaimed water” has been used to make the artificial snow;

(2) how much exposure to the snow would be sufficient to

make a person ill; and (3) how long it would take to see

adverse effects on plants and animals downstream. The

response to these questions is four sentences long. It states

that signs would be posted, but it does not say how numerous

or how large the signs would be. It then summarizes the treatment the sewage would undergo. The final sentence asserts:

“In terms of microbiological and chemical water quality, the

proposed use of reclaimed water for snowmaking represents

a low risk of acute or chronic adverse environmental impact

to plants, wildlife, and humans.” 

NAVAJO NATION v. USFS 10133
This response does not answer the specific and highly relevant question: How much direct exposure to the artificial

snow is safe? Nor does the response provide any analysis of

the extent of the likely “exposure,” including the likelihood

that children or adults would accidentally or intentionally

ingest the snow made from non-potable treated sewage effluent. 

Another statement appears on the last page of responses to

comments in the FEIS. The questions and response are:

[Question:] In areas where reclaimed water is presently used, there are signs posted to warn against

consumption of the water. Will these signs be posted

at the Snowbowl? If so, how will that keep children

from putting snow in there [sic] mouths or accidentally consuming the snow in the case of a wreck? 

[Answer:] There will be signs posted at Snowbowl

informing visitors of the use of reclaimed water as a

snowmaking water source. Much like areas of Flagstaff where reclaimed water is used, it is the responsibility of the visitor or the minor’s guardian to avoid

consuming snow made with reclaimed water. It is

important to note that machine-produced snow

would be mixed and therefore diluted with natural

snow decreasing the percentage of machineproduced snow within the snowpack. Because

ADEQ approved the use of reclaimed water, it is

assumed different types of incidental contact that

could potentially occur from use of class A

reclaimed water for snowmaking were fully considered. 

There are several problems with this response. First, the

response does not assess the risk that children will eat the artificial snow. Stating that it is the parents’ responsibility to prevent their children from doing so neither responds to the

10134 NAVAJO NATION v. USFS
question whether signs would prevent children from eating

snow nor addresses whether ingesting artificial snow would

be harmful. Second, the Forest Service’s assumption that the

ADEQ’s approval means the snow must be safe for ingestion

is inconsistent with that same agency’s regulations, which are

designed to prevent human ingestion. Third, the assumption

that the ADEQ actually analyzed the risk of skiers ingesting

the treated sewage effluent snow is not supported by any evidence in the FEIS (or elsewhere in the administrative record).

Finally, the Forest Service’s answer is misleading in stating

that the treated sewage effluent will be “diluted.” The artificial snow would itself be made entirely from treated sewage

effluent and would only be “mixed and therefore diluted”

with natural snow insofar as the artificial snow intermingles

with a layer of natural snow. During a dry winter, there may

be little or no natural snow with which to “dilute” the treated

sewage effluent. 

Appellees have also contended that the FEIS “sets forth relevant mitigation measures” to “the possibility that someone

may ingest snow.” Although Appellees have not specified the

“relevant mitigation measures” to which they refer, the only

mitigation measure mentioned in the FEIS is the requirement

under Arizona law that the Snowbowl post signs “so the public is informed that reclaimed water is in use and that no one

should drink from the system.” Ariz. Admin. Code § R18-9-

704(H) (2005). This “mitigation measure” is not listed along

with the fifty-five mitigation measures catalogued in a table

in the FEIS. Cf. 40 C.F.R. § 1502.14(f) (requiring agencies to

include “appropriate mitigation measures” in the EIS’s

description of the proposal and its alternatives). The measure’s omission from the FEIS table is hardly surprising, however, given that the FEIS does not address as an

environmental impact the risk to human health from the possible ingestion of artificial snow made from treated sewage

effluent. 

Our role in reviewing the FEIS under the APA is not to

second-guess a determination by the Forest Service about

NAVAJO NATION v. USFS 10135
whether artificial snow made from treated sewage effluent

would be ingested and, if so, whether such ingestion would

threaten human health. We are charged, rather, with evaluating whether the FEIS contains “a reasonably thorough discussion of the significant aspects of the probable environmental

consequences.” Ctr. for Biological Diversity, 349 F.3d at

1166 (quotation marks omitted). An agency preparing an EIS

is required to take a “hard look” that “[a]t the least . . . encompasses a thorough investigation into the environmental

impacts of an agency’s action and a candid acknowledgment

of the risks that those impacts entail.” Nat’l Audubon Soc’y v.

Dep’t of the Navy, 422 F.3d 174, 185 (4th Cir. 2005) (citing

Robertson, 490 U.S. 332, 350 (1989) (stating that NEPA

requires environmental costs to be “adequately identified and

evaluated”)). A proper NEPA analysis will “foster both

informed decisionmaking and informed public participation.”

Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.

2001) (quoting California v. Block, 690 F.2d 753, 761 (9th

Cir. 1982)). 

I do not believe that the Forest Service has provided a “reasonably thorough discussion” of any risks posed by human

ingestion of artificial snow made from treated sewage effluent

or articulated why such a discussion is unnecessary, has provided a “candid acknowledgment” of any such risks, and has

provided an analysis that will “foster both informed decisionmaking and informed public participation.” I would therefore

hold that the FEIS does not satisfy NEPA with respect to the

possible risks posed by human ingestion of the artificial snow.

III. Conclusion

I would hold that Appellants have proved violations of both

the Religious Freedom Restoration Act and the National Environmental Policy Act. Of the two, the RFRA violation is by

far the more serious. A NEPA violation can almost always be

cured, and certainly could be cured in this case. However, the

RFRA violation resulting from the proposed development of

10136 NAVAJO NATION v. USFS
the Snowbowl is not curable. Because of the majority’s decision today, there will be a permanent expansion of the Arizona Snowbowl. Up to 1.5 million gallons of treated sewage

effluent per day will be sprayed on Humphrey’s Peak for the

foreseeable future. 

The San Francisco Peaks have been at the center of religious beliefs and practices of Indian tribes of the Southwest

since time out of mind. Humphrey’s Peak, the holiest of the

San Francisco Peaks, will from this time forward be desecrated and spiritually impure. In part, the majority justifies its

holding on the ground that what it calls “public park land” is

land that “belongs to everyone.” Maj. op. at 10042. There is

a tragic irony in this justification. The United States government took this land from the Indians by force. The majority

now uses that forcible deprivation as a justification for spraying treated sewage effluent on the holiest of the Indians’ holy

mountains, and for refusing to recognize that this action constitutes a substantial burden on the Indians’ exercise of their

religion. 

RFRA was passed to protect the exercise of all religions,

including the religions of American Indians. If Indians’ landbased exercise of religion is not protected by RFRA in this

case, I cannot imagine a case in which it will be. I am truly

sorry that the majority has effectively read American Indians

out of RFRA.

NAVAJO NATION v. USFS 10137