United States: Appeals Court Limits Tribal Challenges To Development

Indian Law Update

In an Indian Law Update earlier this year, we reported to you tribal challenges to the Arizona Snowbowl Resort expansion and the TransCanada Keystone Pipeline – challenges that highlighted the need for developers to be vigilant about the role that Indian law can play in their projects. On August 8, 2008, the United States Court of Appeals for the Ninth Circuit turned back one such challenge and narrowed the scope of tribal challenges to development under the federal Religious Freedom Restoration Act.

In recent years, tribes have looked to the federal Religious Freedom Restoration Act of 1993, 42 U.S.C. § § 2000bb et seq (RFRA) and to Section 106 of the National Historic Preservation Act, 14 U.S.C. § § 470 et seq (NHP) to protect land sacred to tribes.

The Snowbowl Ski Resort is a private resort located on land leased from the United States Forest Service in the San Francisco Peaks. In 1997 the owners proposed to expand the resort by making snow using treated effluent. The Forest Service approved the expansion plan in March, 2005. Six tribes, including the Navajo and Hopi, sued to stop the expansion.

The tribes argued that the entire San Francisco Peaks landscape is sacred, that using reclaimed water to expand the Snowbowl will negatively affect the spirituality of the land and impair the tribes' religious activities and that the Forest Service's approval of the Snowbowl expansion plan violated the RFRA.

Initially, a panel from the Ninth Circuit Court agreed with the tribes. However, the Court sitting en banc, did not. Its August 8 decision, Navajo Nation v. United States Forest Serv., 2008 U.S. App. LEXIS 16860 (9th Cir. 2008), the court reversed its earlier decision and limited tribes' extra-territorial influence under RFRA.

The court focused primarily on the tribes' claim that the Forest Service approval of the Snowbowl expansion plan violated the RFRA.¹

The RFRA prohibits the government from substantially burdening a person's exercise of religion unless it can show that it has a compelling governmental interest and that it is acting in the least restrictive means possible. The tribes claimed that because the Forest Service did not prove a compelling need to make snow from reclaimed water or that there were no other proposals that would have a lesser impact on the Peaks, the Snowbowl plan should have been rejected.

The Ninth Circuit disagreed with the tribes' reading of the RFRA. It held that the RFRA's threshold inquiry—namely, whether the snow-making plan was a substantial burden to the tribes' exercise of religion—must be addressed before the government has any burden of proof. Drawing from existing Supreme Court precedent, the court held that a religious freedom is "burdened" only when an action is coercive or penal and is intended to induce conduct that violated a person's religious beliefs.

In considering whether using reclaimed water to make snow at the Snowbowl Resort is a burden on tribes' religious freedom, the court accepted the sincerity of the tribes' religious and spiritual beliefs and conceded that the tribes' activities respecting their beliefs constitutes the exercise of religion. However, the court found that the Forest Service's approval of the Snowbowl expansion plan did not coerce the tribes to stop their religious activities, nor were any penalties attached to the plan's approval. Rather, the court found that "[n]o plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified[,]" by the snow-making plan. The court concluded that, absent any physical impacts, and lacking any coercive or penalizing effect, "the sole effect of the artificial snow is on the [tribes'] subjective spiritual experience," and, "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." If it were, it would "giv[e] one religious sect a veto over the use of public park land [and] would deprive others of the right to use what is, by definition, land that belongs to everyone."

Having determined that the Snowbowl expansion plan – albeit using reclaimed water to make snow on sacred ground – does not substantially burden the exercise of the tribes' religion that is protected by RFRA and that the government should not be required to change its conduct merely "to avoid any perceived slight" to the tribes, the court concluded that the Forest Service acted within its authority when it approved Snowbowl's expansion plan.

Navajo Nation v. United States Forest Service is a far more narrow reading of RFRA than tribes would like. By affirming the government's right to manage federal land and articulating a somewhat narrow test for what is an impermissible burden of religious freedom under RFRA, the court has limited the success with which tribes can challenge projects on federal land, at least when the basis of the challenge is impairment of religious exercise. The case does not dispense of tribal challenges to off-reservation projects, however. We anticipate that the tribal plaintiffs in Navajo Nation v. United States Forest Service will appeal the Ninth Circuit's decision to the U.S. Supreme Court. Additionally, tribes may still seek to exert extra-territorial influence over projects by other means—such as asserting cultural significance, or showing administrative violations of federal statutes. Accordingly, developers should still be prepared to consult with tribal neighbors and developers still are well advised to be familiar with the cultural and religious significance of land impacted by their projects and make Indian cultural and religious issues part of their project due diligence.

Footnotes

1 The tribes also argued that the Forest Service violated the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. and the National Historic Preservation Act, 16 U.S.C. §§ 470 et seq.

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