## Facts

- The U.S. Forest Service approved improvements at the Arizona Snowbowl ski area on the San Francisco Peaks, federal land within the Coconino National Forest.
- The approval included making artificial snow using treated “A+” reclaimed wastewater on ski runs covering about 1% of the Peaks.
- Multiple tribes and tribal members asserted the Peaks are sacred and that snow made from reclaimed wastewater would spiritually contaminate the mountain and impair religious practice.
- The district court credited the sincerity of the religious beliefs but found no physical effects on plants, springs, shrines, or ceremonies and no loss of access to places of worship; tribal members retained broad access for religious and cultural activities.
- After completing NEPA review and consultation measures, the Forest Service issued a final decision approving the project; the district court rejected claims under RFRA, NEPA, and NHPA.

## Issues

1. Whether authorizing reclaimed-wastewater snowmaking on a sacred mountain substantially burdens the plaintiffs’ exercise of religion under the Religious Freedom Restoration Act (RFRA).
2. Whether the Forest Service complied with NEPA’s procedural requirements in its Environmental Impact Statement and decisionmaking.
3. Whether the Forest Service complied with the National Historic Preservation Act (NHPA) regarding effects on historic properties and cultural resources.

## Decision

- The Ninth Circuit, sitting en banc, affirmed judgment for the Forest Service and the ski-area operator.
- The court held the approval did not impose a “substantial burden” on religious exercise under RFRA because it did not coerce conduct contrary to belief, impose sanctions, or condition governmental benefits on religious compliance.
- The court held the Forest Service satisfied NEPA by taking the required “hard look” at environmental, health, and cultural impacts through its EIS and related process.
- The court held the Forest Service complied with NHPA’s consultation and procedural obligations and that NHPA does not require a particular substantive result.

## Legal Principles

- Under RFRA, a “substantial burden” generally requires governmental coercion that pressures an adherent to violate religious beliefs through threatened sanctions or denial of benefits.
- Government land-use decisions that do not bar access, compel religiously forbidden conduct, or penalize religious practice may have serious spiritual consequences yet still fall short of RFRA’s substantial-burden threshold.
- NEPA is procedural; agency compliance is satisfied when the agency reasonably evaluates relevant environmental consequences and alternatives and explains its decision, even if challengers dispute the agency’s conclusions.
- NHPA principally imposes procedural duties of identification, consultation, and consideration of effects on historic properties; it does not guarantee that a project affecting culturally significant resources must be rejected.

## Conclusion

The en banc Ninth Circuit upheld the Forest Service’s approval of reclaimed-wastewater snowmaking on the San Francisco Peaks, concluding that the action did not substantially burden the tribes’ religious exercise under RFRA absent coercion, penalties, or loss of access, and that the agency’s NEPA and NHPA processes met the statutes’ procedural requirements.


Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008)