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COOL News: Navajo & Hopi Win Big Case Using Religious Freedom Act!

Posted on Saturday, March 17 @ 20:00:58 UTC by skip

The Ninth Circuit Court of Appeals has just reversed a decision against a number of Native American tribes that sought to allow a commercial ski resort to pollute a mountain sacred to all these tribes.

Using the Religious Freedom Act, the tribes which included the Hopi, Navajo and Havasupai tribes among others, argued that their religious practices would be damaged if not ended by the use of recycled sewage water to create artificial snow at the resort.

Invoking centuries of religious ceremonial use of the mountain in the San Francisco Peaks area of Arizona, they successfully argued that the resort was impinging upon their freedom of religion. Under RFRA, the government was imposing too great a burden on the tribes as their sacred mountain was essential to their worship and healing practices, as the mountain's water is used to heal, and stones and herbs gathered there are a traditional part of the medicine man's bundle.

This is likely to set some new precedents, as it clearly defines when the government's interest is compelling enough, and when it's not to force a burden upon a religion's practices.

Click Read more to read the courts decision!

Volume 1 of 2













Plaintiffs, CV-05-01824-PGR v. CV-05-01914-PGR

ORA RASURE, in her official CV-05-01966-PGR
capacity as Forest Supervisor,

Responsible Officer, Coconino

National Forest; HARV FORSGREN,
appeal deciding office, Regional

Forester, in his official capacity,




Defendant-intervenor-Appellee. þ








and No. 06-15436


Plaintiffs-Appellant, CV-05-01824-PGR v. CV-05-01914-PGR

ORA RASURE, in her official CV-05-01966-PGR
capacity as Forest Supervisor,

Responsible Officer, Coconino

National Forest; HARV FORSGREN,
appeal deciding office, Regional

Forester, in his official capacity,




Defendant-intervenor-Appellee. þ






No. 06-15455

UNITED STATES FOREST SERVICE;NORA RASURE, in her official D.C. No. capacity as Forest Supervisor, CV-05-01824-PGR
Responsible Officer, Coconino OPINION

National Forest; HARV FORSGREN,
appeal deciding office, Regional

Forester, in his official capacity,

Defendants-Appellees. þ

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted

September 14, 2006—San Francisco, California

Filed March 12, 2007

Before: William A. Fletcher and Johnnie B. Rawlinson,

Circuit Judges, and Thelton E. Henderson,* District Judge.

Opinion by Judge William A. Fletcher

*The Honorable Thelton E. Henderson, Senior United States District

Judge for the Northern District of California, sitting by designation.



Howard M. Shanker, Tempe, Arizona; William Curtis

Zukosky, DNA People’s Legal Services, Flagstaff, Arizona;

Terence M. Gurley, DNA People’s Legal Services, Window

Rock, Arizona; Laura Lynn Berglan, DNA People’s Legal

Services, Tuba City, Arizona; Anthony S. Canty, Lynelle

Kym Hartway, The Hopi Tribe, Kykotsmovi, Arizona, for the


Rachael Dougan, Lane McFadden, United States Department

of Justice, Environment & Natural Resources Division, Washington,

D.C.; Janice M. Schneider, Bruce Babbitt, Latham &

Watkins, Washington, D.C.; Philip A. Robbins, Paul G. Johnson,

Jennings Strouss & Salmon, Phoenix, Arizona, for the



W. FLETCHER, Circuit Judge:

The San Francisco Peaks in the Coconino National Forest

in northern Arizona have long-standing religious significance

to numerous Indian tribes of the American Southwest. The

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

highest and most religiously significant of the San Francisco


Peaks. After preparing an Environmental Impact Statement,

the United States Forest Service approved a proposed expansion

of the Snowbowl’s facilities. One component of the

expansion would enable the Snowbowl to make artificial

snow from recycled sewage effluent. Plaintiffs challenged the

Forest Service’s approval of the expansion under the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C.

§§ 2000bb et seq., the National Environmental Protection Act
(“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National HistoricPreservation Act (“NHPA”), 16 U.S.C. §§ 470

et seq.
After a bench trial, the district court held that the proposed

expansion did not violate RFRA. Navajo Nation v. U.S. ForestServ., 408 F. Supp. 2d 866, 907 (D. Ariz. 2006). At the
same time, the district court granted summary judgment to the

defendants on the plaintiffs’ NEPA and NHPA claims. Id. at
872-80. This appeal followed as to all three claims.

Plaintiffs-appellants 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

(of the Hopi Tribe), Norris Nez (of the Navajo Nation),

Rex Tilousi (of the Havasupai Tribe), Dianna Uqualla (of the

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

Diversity, and the Flagstaff Activist Network. Defendantsappellees

are the United States Forest Service; Nora Rasure,

the Forest Supervisor; Harv Forsgren, the Regional Forester;

and intervenor Arizona Snowbowl Resort Limited Partnership

(“ASR”), the owner of the Snowbowl.

We reverse the decision of the district court in part. We

hold that the Forest Service’s approval of the Snowbowl’s use

of recycled sewage effluent to make artificial snow on the San

Francisco Peaks violates RFRA, and that in one respect the

Final Environmental Impact Statement prepared in this case

does not comply with NEPA. We affirm the grant of summary

judgment to Appellees on four of Appellants’ five NEPA

claims and their NHPA claim.


I. Background

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. The Peaks tower

over the desert landscape of the Colorado Plateau in northern

Arizona. At 12,633 feet, Humphrey’s Peak is the highest point

in the state. The Peaks are located 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. Arizona Wilderness Act of

1984, Pub. L. No. 98-406, § 101(a)(22), 98 Stat. 1485. The

Forest Service has identified the Peaks as eligible for inclusion

in the National Register of Historic Places and as a “traditional

cultural property.” A traditional cultural property is

one “associat[ed] with cultural practices or beliefs of a living

community that (a) are rooted in that community’s history,

and (b) are important in maintaining the continuing cultural

identity of the community.” National Register Bulletin 38:

Guidelines for Evaluating and Documenting Traditional Cultural

(rev. ed. 1998), available at http://

The Forest 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 Service has acknowledged

that the Peaks are sacred to at least thirteen formally

recognized Indian tribes, and that this religious significance is

of centuries’ duration. Though there are differences among

these tribes’ religious beliefs and practices associated with the

Peaks, there are important commonalities. As the Service has

noted, many of these 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.

Organized skiing has existed at the Arizona Snowbowl

since 1938. The original lodge was destroyed by fire in 1952.

A replacement lodge was built in 1956. A poma lift was

installed in 1958, and a chair lift was installed in 1962. In

1977, the then-owner of the Snowbowl requested authorization

to clear 120 acres of new ski runs and to do additional

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 other 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).

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 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. In September 2002, ASR submitted a facilities

improvement proposal to the Forest Service. In February

2004, the Forest Service issued a Draft Environmental Impact

Statement. A year later, in February 2005, the Forest Service


issued a Final Environmental Impact Statement (“FEIS”) and

Record of Decision (“ROD”). The ROD approved “Alternative

Two” of the FEIS, the alternative preferred by the Snowbowl.

Under Alternative Two, a number of changes were

proposed, including: an area for snow play and snow tubing

would be developed; a new high-speed ski lift would be

added; three existing lifts would be relocated and upgraded;

66 new acres of skiable terrain would be developed; 50 acres

of trails would be re-contoured; a three-acre beginner’s area

would be re-contoured and developed; an existing lodge

would be upgraded; and a new lodge would be built.

Alternative Two also included a proposal to make artificial

snow using treated sewage effluent. Treated sewage effluent

is wastewater discharged by households, businesses, and

industry that has been treated for certain kinds of reuse. Under

Alternative Two, the City of Flagstaff would provide the

Snowbowl with up to 1.5 million gallons per day of its treated

sewage effluent from November through February. A new

14.8-mile pipeline would be built between Flagstaff and the

Snowbowl to carry the treated effluent. At the beginning of

the ski season, during November and December, the Snowbowl

would cover 205.3 acres of Humphrey’s Peak with artificial

snow to build a base layer. The Snowbowl would then

make additional artificial snow as necessary during the rest of

the season, depending on the amount of natural snow.

II. Standards of Review

Following a bench trial, we review the district court’s conclusions

of law de novo and its findings of fact for clear error.

Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 (9th Cir.

We review de novo a grant of summary judgment. MuckleshootIndian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804
(9th Cir. 1999). Appellants bring their NEPA and NHPA

claims under the Administrative Procedure Act (“APA”),


which provides that courts shall “hold unlawful and set aside

agency action, findings, and conclusions of law” that are

either “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law,” or “without observance of

procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

III. Religious Freedom Restoration Act

[1] 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); see alsoid. § 2000cc-5(7)(B) (further specifying that “[t]he use, building,
or conversion of real property for the purpose of religious

exercise shall be considered to be religious exercise”). Subsection

(b) of § 2000bb-1 qualifies the ban on substantially

burdening the free exercise of religion. It 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

the Court’s decision in 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 First Amendment’s
Free Exercise Clause 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 “hy-


brid” decisions invoking multiple constitutional interests, the

Court refused to apply the “compelling government interest”

test to a claim brought solely under the Free Exercise Clause.

Id. at 881-82, 885-86. The Court acknowledged, however,
that although the Constitution does not require a compelling

interest test in such a case, legislation 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, 374U.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,
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) (holding RFRA constitutional

as applied to the federal government). 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 prohibits state and
local governments from imposing substantial burdens on the

exercise of religion through prisoner or land-use regulations.

42 U.S.C. §§ 2000cc, 2000cc-1. In addition, RLUIPA

replaced RFRA’s original, constitution-based definition of

“exercise of religion” with the broader definition quoted

above. RLUIPA §§ 7-8, 114 Stat. at 806-07. Under RLUIPA,

and under RFRA after its amendment by RLUIPA in 2000,

“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-


In several ways, RFRA provides greater protection for religious

practices than did the Supreme Court’s pre-Smith free
exercise cases. First, as we have previously noted, 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.” United States
v. Bauer, 84 F.3d 1549, 1558 (9th Cir. 1996) (as amended).

Cf. U.S. Const. amd. 1 (“Congress shall make no law . . . prohibiting
the free exercise [of religion].”); Lyng v. Nw. IndianCemetery Protective Ass’n

, 485 U.S. 439, 451 (1988) (“The
crucial word in the constitutional text is ‘prohibit’: ‘For the

Free Exercise Clause is written in terms of what the government

cannot do to the individual, not in terms of what the

individual can exact from the government.’ ” (quoting Sherbert,
374 U.S. at 412 (Douglas, J., concurring))).

Second, as the Supreme Court noted in City of Boerne,
RFRA provides stronger protection for free exercise than the

First Amendment did under the pre-Smith cases because “the
Act imposes in every case a least restrictive means require-


ment — a requirement that was not used in the pre-Smith

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

Third, RFRA provides broader protection for free exercise

because it applies Sherbert’s compelling interest test “in all
cases” where the free 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. Smith, 494 U.S. at 883 (“In recent
years, we have abstained from applying the Sherbert test (outside
the unemployment compensation field) at all.”); see, e.g.,

O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (notapplicable to prison regulations); Bowen v. Roy, 476 U.S. 693,
707 (1986) (Burger, J., for plurality) (not applicable in enforcing

“facially neutral and uniformly applicable requirement for

the administration of welfare programs”); Goldman v. Weinberger,
475 U.S. 503, 506-07 (1986) (not applicable to military


Finally, and perhaps most important, Congress expanded

the statutory protection for religious exercise in 2000 by

amending 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” — RFRA now protects a broader range of religious

conduct than the Supreme Court’s interpretation of “exercise

of religion” under the First Amendment. See Guru Nanak SikhSoc’y v. County of Sutter, 456 F.3d 978, 995 n.21 (9th Cir.
2006) (noting same). To the extent that our RFRA cases prior

to RLUIPA depended on a narrower definition of “religious

exercise,” those cases are no longer good law. See, e.g., Bryantv. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (burden must
prevent adherent “from engaging in conduct or having a religious

experience which the faith mandates” and must be “an

interference with a tenet or belief that is central to religious

doctrine” (quoting Graham v. Comm’r, 822 F.2d 844, 850-51
(9th Cir. 1987)); Stefanow v. McFadden, 103 F.3d 1466, 1471


(9th Cir. 1996) (no substantial burden because prisoner was

not prevented from “engaging in any practices mandated by

his religion”); Goehring v. Brophy, 94 F.3d 1294, 1299 (9th
Cir. 1996) (plaintiffs failed to establish “a substantial burden

on a central tenet of their religion”). The district court in this

case therefore erred by disregarding the amended definition

and requiring Appellants to prove that the proposed action

would prevent them “from engaging in conduct or having a

religious experience which the faith mandates.” 408 F. Supp.
2d at 904 (quoting Worldwide Church of God, Inc. v. PhiladelphiaChurch of God, Inc

., 227 F.3d 1110, 1121 (9th Cir.
2000), decided before RLUIPA’s passage) (emphasis added).

Even after RLUIPA, RFRA plaintiffs must prove that the

burden on their religious exercise is “substantial.” The burden

must be “more than an ‘inconvenience,’ ” Guerrero, 290 F.3dat 1222 (quoting Worldwide Church of God, 227 F.3d at
1121), and must prevent the plaintiff “from engaging in [religious]

conduct or having a religious experience,” Bryant, 46F.3d at 949 (quoting

Graham, 822 F.2d at 850-51). Thus, in
addressing the tribes’ RFRA claim we must answer the following

questions: (1) What is the “exercise of religion” in

which the tribal members engage with respect to the San

Francisco Peaks? (2) What “burden,” if any, would be

imposed on that exercise of religion if the proposed expansion

of the Snowbowl went forward? (3) If there is a burden,

would the burden be “substantial”? (4) If there would be a

substantial burden, can the “application of the burden” to the

tribal members be justified as “in furtherance of a compelling

governmental interest” and “the least restrictive means of furthering

that compelling governmental interest”? We address

these questions in turn.

A. “Exercise of Religion”

[2] RFRA protects “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). The district court


stated that it was not “challenging the honest religious beliefs

of any witness.” Nor do Appellees dispute the sincerity of

Appellants’ testimony concerning their religious beliefs and

practices. Indeed, Appellees concede that the Peaks as a

whole are significant to Appellants’ “exercise of religion.”

We focus our analysis on the Peaks’ significance to the Hopi

and Navajo, and to a lesser extent on the Hualapai and Havasupai.

1. The Hopi

Hopi religious practices center on the 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 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, “high
place of snow”) to receive instructions from a spiritual presence,

Ma’saw. At the Peaks, they entered a spiritual covenantwith Ma’saw to take care of the land, before they 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, orKachina 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 withnightly dances at which the

Katsinam appear in costume and
perform. The Katsinam stay while the Hopi plant their cornand it germinates. Then, in July, the Hopi mark the

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 villagesfrom 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 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

40 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.”

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, 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

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 all ceremonies’

conclusion, 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” regularly, 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. 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


As in Hopi religious practice, the Peaks are so sacred in

Navajo beliefs that, as testified by Joe Shirley, Jr., President

of 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.

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.

4. The Havasupai

The Peaks are similarly central to the beliefs of the Havasupai,

as the Forest Service has 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 sub-


stance, 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.

B. “Burden”

The proposed expansion of the Snowbowl entails depositing

millions of gallons of treated sewage effluent — often

euphemistically called “reclaimed water” — from the City of

Flagstaff onto the Peaks. Depending on weather conditions,

substantially more than 100 million gallons of effluent could

be deposited over the course of the winter ski season.

Before treatment, the raw sewage consists of waste discharged

into Flagstaff’s sewers by households, businesses,

and industry. The FEIS describes the treatment performed by


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

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 . . . .

Although the treated sewage effluent would satisfy the

requirements of Arizona law for “reclaimed water,” the FEIS

explains that 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 colony-forming 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.” According to 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 safely and beneficially

used for many purposes. See id. § R18-11-309 Tbl. A (2005)(permitting its use for, inter alia, irrigating food crops and
schoolyards; flushing toilets; fire protection; certain commercial

air conditioning systems; and non-self-service car

washes); 7 Ariz. Admin. Reg. 876 (Feb. 16, 2001) (“Water

reclamation is an important strategy for conserving and augmenting

Arizona’s drinking water supply. Source substitution,

or the reuse of reclaimed water to replace potable water that

currently is used for nonpotable purposes, conserves higher

quality sources of water for human consumption and domestic

purposes.”). However, the Arizona Department of Environmental

Quality (“ADEQ”) requires that users take precautions

to avoid human ingestion. For example, users must “place and

maintain signage . . . 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). Irrigation users

must employ “application methods that reasonably preclude

human contact with reclaimed water,” 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). Arizona law prohibits uses involving “full-immersion

water activity with a potential of ingestion,” and “evaporative

cooling or misting.” Id. § R18-9-704(G)(2).
Under the proposed action challenged in this case, up to 1.5

million gallons per day of treated sewage effluent would be

sprayed on the mountain from November through February.

In November and December, the Snowbowl would use it to

build a base layer of artificial snow over 205.3 acres of Humphrey’s

Peak. The Snowbowl would then spray more as necessary

depending on the amount of natural snowfall. The

proposed action also involves constructing a reservoir on the

mountain with a surface area of 1.9 acres to hold 10 million

gallons of treated sewage effluent. The stored effluent would

allow snowmaking to continue after Flagstaff cuts off the supply

at the end of February.

The ADEQ approved the use of treated sewage effluent for

snowmaking in 2001, noting that four other states already permitted

its use for that purpose. 7 Ariz. Admin. Reg. 880 (Feb.

16, 2001). However, the Snowbowl would be the first ski

resort in the nation to make its snow entirely from undiluted

treated sewage effluent. The Snowbowl’s general manager

testified in the district court that no other resort in the country

currently makes its artificial snow “exclusively” out of undiluted

sewage effluent.

Appellants claim that the use of treated sewage effluent to

make artificial snow on the Peaks would substantially burden

their exercise of religion. Because Appellants’ 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 contamination of natural resources

necessary for the performance of certain religious ceremonies

— 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.”

Three Navajo practitioners’ testimony at the bench 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

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

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 Appellants’ 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.

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

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

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.”

C. “Substantial Burden” on the “Exercise of Religion”

[3] To establish a prima facie case under RFRA, a plaintiff
must show that the government’s proposed action imposes a

substantial burden on the plaintiff’s ability to practice freely


his or her religion. Guerrero, 290 F.3d at 1222. Although the
burden need not concern a religious practice that is “compelled

by, or central to, a system of religious belief,” 42

U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A), the burden “must be

more than an ‘inconvenience,’ ” Guerrero, 290 F.3d at 1222(quoting Worldwide Church of God, 227 F.3d at 1121). The
burden must prevent the plaintiff “from engaging in [religious]

conduct or having a religious experience.” Bryant, 46
F.3d at 949 (quoting Graham, 822 F.2d at 850-51).

[4] 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.

[5] We conclude that Appellants have shown that the use
of treated sewage effluent on the Peaks would impose a sub-


stantial burden on their exercise of religion. This showing is

particularly strong for the Navajo and the Hopi. Because we

hold that the Navajo and the Hopi have shown a substantial

burden on their exercise of religion, we need not reach the

somewhat closer question of whether the Hualapai and the

Havasupai have also done so.

D. “Compelling Governmental Interest” and

“Least Restrictive Means”

[6] The Forest Service and the Snowbowl argue that even
if Appellants have shown a substantial burden on their religious

exercise, approving the use of treated sewage effluent

to make artificial snow at a commercial ski area is “in furtherance

of a compelling governmental interest” and constitutes

“the least restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. § 2000bb-1(b). “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.” Cityof Boerne, 521 U.S. at 534. “[O]nly those interests of the
highest order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion.” Yoder, 406
U.S. at 215.

The Supreme Court has recently emphasized that, even

with respect to governmental interests of the highest order, a

“categorical” or general assertion of a compelling interest is

not sufficient. In Gonzales v. O Centro Espirita Beneficente,
126 S. Ct. 1211 (2006), the Court held under RFRA that the

government’s general interest in enforcing the Controlled

Substances Act was insufficient to justify the substantial burden

on religious exercise imposed on a small religious group

by a ban on a South American hallucinogenic plant. Id. at
1220-21. The Court stated that it did not “doubt the general

interest in promoting public health and safety . . . , but under

RFRA invocation of such general interests, standing alone, is

not enough.” Id. at 1225. “[S]trict scrutiny ‘at least requires


a case-by-case determination of the question, sensitive to the

facts of each particular claim.’ ” Id. at 1221 (quoting Smith,
494 U.S. at 899 (O’Connor, J., concurring in the judgment)).

The Forest Service and the Snowbowl argued successfully

in the district court, and argue here, that approving the use of

treated sewage effluent to make artificial snow serves several

compelling governmental interests. In the words of the district

court, those compelling interests are: (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. The

district court concluded that all three were compelling governmental

interests and that approving the proposed action was

“the least restrictive means for achieving [the government’s]

land management decision.” Id. at 907. Before this court, the
Forest Service argues that the first two interests are compelling.

The Snowbowl argues that all three are compelling. We

disagree. We take the proffered interests in turn.

[7] 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 Espirita, “broadly formulated
interests justifying the general applicability of government

mandates” and are therefore insufficient on their own to meet

RFRA’s compelling interest test. 126 S. Ct. at 1220. Appellants

argue 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, where public demand for

skiing and snowplay is strong. We are unwilling to hold that

authorizing the use of artificial snow at an already functioning

commercial ski area in order to expand and improve its facili-


ties, as well as to extend its ski season in dry years, is a governmental

interest “of the highest order.” Yoder, 406 U.S. at

However, Appellees contend that the very survival of the

Arizona Snowbowl as a commercial ski area depends on their

being able to make artificial snow with treated sewage effluent.

They point to the district court’s statement that “the evidence

adduced at trial demonstrates that snowmaking is

needed to maintain the viability of the Snowbowl as a public

recreational resource.” 408 F. Supp. 2d at 907. The record

does not support the conclusion that the Snowbowl will necessarily

cease to exist as a ski area if the proposed expansion

does not go forward. As we noted above, there were two very

dry years in 1995-96 and 2001-02. But in other recent years

there has been heavy snowfall, particularly in 1991-91, 1992-

93, 1997-98, and 2004-05. Relying only on natural snowfall,

the Snowbowl has been in operation since 1938, and it undertook

a substantial expansion in 1979. The current owners purchased

the Snowbowl in 1992 for $4 million and now seek

approval for another substantial expansion. It is clear that the

current owners expect that the resort would be substantially

more profitable — and the income stream more consistent —

if the expansion were allowed to proceed. But the evidence in

the record does not support a conclusion that the Snowbowl

will necessarily go out of business if it is required to continue

to rely on natural snow and to remain a relatively small, lowkey

resort. The current owners may or may not decide to continue

their ownership. But a sale by the current owners is not

the same thing as the closure of the Snowbowl.

Even if there is a substantial threat that the Snowbowl will

close entirely as a commercial ski area, we are not convinced

that there is a compelling governmental interest in allowing
the Snowbowl to make artificial snow from treated sewage

effluent to avoid that result. We are struck by the obvious fact

that the Peaks are located in a desert. It is (and always has

been) predictable that some winters will be dry. The then-


owners of the Snowbowl knew this when they expanded the

Snowbowl in 1979, and the current owners knew this when

they purchased it in 1992. The current owners now propose

to change these natural conditions by adding treated sewage

effluent. Under some circumstances, such a proposal might be

permissible or even desirable. But in this case, we cannot conclude

that authorizing the proposed use of treated sewage

effluent is justified by a compelling governmental interest in

providing public recreation. Even without the proposed

expansion of the Snowbowl, members of the public will continue

to enjoy many recreational activities on the Peaks. Such

activities include the downhill skiing that is now available at

the Snowbowl. Even if the Snowbowl were to close (which

we think is highly unlikely), continuing recreational activities

on the Peaks would include “motorcross, mountain biking,

horseback riding, hiking and camping,” as well as other snowrelated

activities such as cross-country skiing, snowshoeing,

and snowplay. 408 F. Supp. 2d at 884.

[8] Second, although 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. Appellees provide no specific evidence

that skiing at the Snowbowl in its current state is unsafe. We

do recognize that there is a legitimate safety concern about

snowplay by non-skiers who drive to the Peaks and park

beside the road. The district court found that such snowplay

next to the road has caused “injuries, traffic management

issues, garbage, and sanitation problems.” Id. at 899. The
court further found that the proposed action would address the

problem by creating an off-road managed snowplay area as

part of the Snowbowl complex. Id. But this safety concern is
not a compelling interest that can justify the burden imposed

by the Snowbowl’s expansion. The current dangerous conditions

caused by snowplay do not result from the operation of

the Snowbowl. These conditions are not caused by skiers, but

rather by non-skiers who have stopped along the road. The

Snowbowl’s proposed expansion and the creation of a snow-


play area at the Snowbowl have become linked only because

the Forest Service insisted in the negotiations leading to the

FEIS that, in return for approval of the proposed action, the

Snowbowl agrees to create a snowplay area for non-skiers.

Even assuming that the safety concerns motivating the creation

of the snowplay area are a compelling interest, we do

not agree that inducing a commercial ski resort, which is not

the source of the danger, to develop a snowplay area as a quid

pro quo for approval of the resort’s use of treated sewage

effluent is the least restrictive means of furthering that interest.

[9] Third, approving the proposed action does not serve a
compelling governmental interest in avoiding conflict with

the Establishment Clause. 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.”).

Declining to allow a commercial ski resort in a national forest

to put treated sewage effluent on a sacred mountain is an

accommodation that, in our view, falls far short of an Establishment

Clause violation. Indeed, the Forest Service does not

argue that avoiding a conflict with the Establishment Clause

is a compelling interest served by the proposed action. Only

the Snowbowl makes that argument.

In support of its argument, the Snowbowl cites Estate ofThornton v. Caldor, Inc., 472 U.S. 703 (1985), in which the
Supreme Court struck down a statute allowing all Sabbath

observers “an absolute and unqualified right not to work on

whatever day they designate as their Sabbath,” because the


law’s primary effect was to advance religion by “impos[ing]

on employers and employees an absolute duty to conform

their business practices to the particular religious practices of

the employee by enforcing observance of the Sabbath the

employee unilaterally designates.” Id. at 709. The Snowbowl
argues that holding for Appellants would absolutely privilege

Appellants’ religious beliefs and practices over all other interests.

This is not the case.

The district court found, and the evidence in the record supports,

that Appellants believe that “the presence of the Snowbowl

desecrates the mountain,” regardless of the use of

treated sewage effluent. Indeed, representatives of several of

the tribes brought an unsuccessful First Amendment Free

Exercise challenge to the 1979 expansion of the Snowbowl on

that basis. Wilson v. Block, 708 F.2d 735, 739-45 (D.C. Cir.
1983). In Appellants’ view, the proposed action, including the

use of treated sewage effluent, would only “further desecrate
their sacred mountain.” 408 F. Supp. 2d at 888 (emphasis

added). Absolutely valuing Appellants’ religious beliefs over

all other interests would require shutting down the existing

operation of the Snowbowl — an option that was not considered

as one of the three main alternatives in the FEIS and is

not now sought by Appellants. In our view, declining to

authorize the use of treated sewage effluent on the Peaks does

not absolutely vindicate Appellants’ interests. Rather, such a

refusal is a permitted accommodation to avoid “callous indifference.”

Lynch, 465 U.S. at 673.

[10] We therefore hold that Appellees have not demonstrated
that approving the proposed action serves a compelling

governmental interest by the least restrictive means.

E. Lyng v. Northwest Indian Cemetery Protection

Appellees rely heavily on perceived similarities between

this case and Lyng v. Northwest Indian Cemetery Assoc’n,


485 U.S. 439 (1988), to argue that the proposed action does

not violate RFRA. In Lyng, the Forest Service sought to build
a six-mile section of road connecting two pre-existing roads

in the Chimney Rock area of the Six Rivers National Forest

in northern California. Id. at 442. This area had historically
been used by several Indian tribes for religious purposes. The

route selected for the road was “removed as far as possible

from the sites used by contemporary Indians for specific spiritual

activities.” Id. at 443. “Alternative routes . . . were
rejected because they would have required the acquisition of

private land, had serious soil stability problems, and would in

any event have traversed areas having ritualistic value to

American Indians.” Id.

[11] Plaintiffs, including an Indian organization and several
individual tribal members, challenged the proposed road

under the Free Exercise Clause of the First Amendment, contending

that their religious practices required use of undisturbed

“prayer seats” in the Chimney Rock area. Id. at 443,
453. In their words, “ ‘Prayer seats are oriented so there is an

unobstructed view, and the practitioner must be surrounded

by undisturbed naturalness.’ ” Id. at 453 (emphasis added by
the Court). The Court was willing to “assume that the threat

to the efficacy of at least some religious practices [posed by

the proposed road] is extremely grave.” Id. at 451. The Court
nonetheless held that building the proposed road did not violate

the Free Exercise Clause. In the Court’s view, there was

no principled basis for distinguishing the plaintiffs’ suit from

a suit in which tribal members “might seek to exclude all

human activity but their own from sacred areas of the public

lands.” Id. at 452-53.

[12] For two reasons, Lyng does not control the result in
this case. First, the plaintiffs’ challenge in Lyng was broughtdirectly under the Free Exercise Clause. As we discuss,

the standard that must be satisfied to justify a burden on the

exercise of religion under RFRA is significantly more

demanding than the standard under the Free Exercise Clause.


Most importantly, “exercise of religion” is defined more

broadly under RFRA than “free exercise” under the First

Amendment. Further, the test for a prima facie case under

RFRA is whether there is a “substantial burden” on the exercise

of religion, whereas the traditional test under the First

Amendment is whether free exercise is “prohibited.” Finally,

RFRA adds a “least restrictive means” requirement to the traditional

compelling governmental interest test under the Free

Exercise Clause. The net effect of these changes is that it is

easier for a plaintiff to prevail in a RFRA case than in a pure

free exercise case.

[13] Second, the facts in Lyng were materially differentfrom those in this case. In Lyng, the Court was unable to distinguish
the plaintiffs’ claim from one that would have

required the wholesale exclusion of non-Indians from the land

in question. Further, the government had made significant

efforts to reduce the burden, locating the planned road so as

to reduce as much as possible its auditory and visual impacts.

The Court wrote, “Except for abandoning its project entirely,

and thereby leaving the two existing segments of road to

dead-end in the middle of a National Forest, it is difficult to

see how the Government could have been more solicitous.”

Id. at 454. Finally, the failure to build the six-mile segment of
road would have left the unconnected portions of the road virtually


[14] By contrast, Appellants in this case do not seek to prevent
use of the Peaks by others. A developed commercial ski

area already exists, and Appellants do not seek to interfere

with its current operation. There are many other recreational

uses of the Peaks, with which Appellants also do not seek to

interfere. Far from “seek[ing] to exclude all human activity

but their own from sacred areas of the public lands,” id. at
542-53, Appellants in this case are not seeking to exclude any

of the extensive human activity that now takes place on the

Peaks. The currently proposed expansion of the Snowbowl

may reasonably be seen as part of a continuing course of


development begun in 1938 and continued in 1979. The

equivalent in this case to “abandoning the project entirely” in

Lyng would be abandoning the ski area altogether. The equivalent
of the Forest Service’s minimizing the adverse impact of

the road in Lyng by carefully choosing its location would be
minimizing the adverse impact of the Snowbowl by restricting

its operation to that which can be sustained by natural snowfall.

The record in this case establishes the religious importance

of the Peaks to the Appellant tribes who live around it. From

time immemorial, they have relied on the Peaks, and the

purity of the Peaks’ water, as an integral part of their religious

beliefs. The Forest Service and the Snowbowl now propose to

put treated sewage effluent on the Peaks. To get some sense

of equivalence, it may be useful to imagine the effect on

Christian beliefs and practices — and the imposition that

Christians would experience — if the government were to

require that baptisms be carried out with “reclaimed water.”

[15] The Court in Lyng denied the Free Exercise claim in
part because it could not see a stopping place. We uphold the

RFRA claim in this case in part because otherwise we cannot

see a starting place. If Appellants do not have a valid RFRA

claim in this case, we are unable to see how any Native American

plaintiff can ever have a successful RFRA claim based

on beliefs and practices tied to land that they hold sacred.

F. Conclusion

[16] For the foregoing reasons, we conclude that Appellants
prevail on their RFRA claim.


Volume 2 of 2


IV. National Environmental Policy Act

The National Environmental Protection Act requires federal

agencies to prepare a detailed environmental impact statement

for all “major Federal actions significantly affecting the quality

of the human environment.” 42 U.S.C. § 4332(2)(C). This

requirement “ensures that the agency, in reaching its decision,

will have available, and will carefully consider, detailed information

concerning significant environmental impacts,” and

that “relevant information will be made available to the larger

audience that may also play a role in both the decisionmaking

process and the implementation of that decision.” Robertsonv. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
Appellants assert five NEPA claims. We hold that only the

first of them merits reversal. We consider each in turn.

A. Human Ingestion of Snow Made from

Treated Sewage Effluent

The Navajo Nation, the White Mountain Apache Tribe, the

Yavapai-Apache Tribe, the Havasupai Tribe, Rex Tilousi,

Dianna Uqualla, the Sierra Club, the Center for Biological

Diversity, and the Flagstaff Activist Network (“Navajo

Appellants” or “Appellants”) claim that the FEIS failed to

consider adequately the risks posed by human ingestion of

artificial snow made from treated sewage effluent.

1. Administrative Exhaustion and Notice of Claim

in the District Court

We begin by addressing Appellees’ argument that we

should not reach the merits of this claim. Appellees argue that

Appellants failed to exhaust the claim in administrative proceedings

as required by the APA, 5 U.S.C. § 704, and that

Appellants failed to raise it in the district court. We conclude

that Appellants sufficiently raised the claim in comments on

the draft EIS and in their administrative appeals, and that they

properly raised it in the district court.


We have interpreted the NEPA exhaustion requirements

leniently because “[r]equiring more might unduly burden

those who pursue administrative appeals unrepresented by

counsel, who may frame their claims in non-legal terms.”

Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900
(9th Cir. 2002). “The plaintiffs have exhausted their administrative

appeals if the appeal, taken as a whole, provided sufficient

notice to the [agency] to afford it the opportunity to

rectify the violations that the plaintiffs alleged.” Id. at 899;

see also Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764
(2004) (plaintiffs’ participation must “ ‘alert[ ] the agency to

the parties’ position and contentions,’ in order to allow the

agency to give the issue meaningful consideration” (quoting

Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council,

, 435 U.S. 519, 553 (1978)). “Claims must be raised
with sufficient clarity to allow the decision maker to understand

and rule on the issue raised, but there is no bright-line

standard as to when this requirement has been met and we

must consider exhaustion arguments on a case-by-case basis.”

Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 965
(9th Cir. 2002). The aim is to prevent plaintiffs from engaging

in “unjustified obstructionism by making cryptic and obscure

reference to matters that ‘ought to be’ considered and then,

after failing to do more to bring the matter to the agency’s

attention, seeking to have that agency determination vacated

on the ground that the agency failed to consider matters

‘forcefully presented.’ ” Vt. Yankee, 435 U.S. at 553-54.
The core of Appellants’ claim is that the FEIS has insufficiently

analyzed the risk of ingestion — particularly by children

— of artificial snow made from treated sewage effluent.

This risk was evident to the Forest Service from the beginning.

At least from the standpoint of public relations, the Service

responded to the risk at a very early stage. In October

2002, even before the draft EIS was published, the Service

wrote what it called a “strategic talking point.” The “talking

point” began with the question: “Will my kids get sick if they

eat artificial snow made from treated wastewater?” It contin-


ued with a scripted answer: “[T]his question is really one that

will be thoroughly answered in the NEPA analysis process.”

As we discuss below, the question was not subsequently
“thoroughly answered in the NEPA analysis process.”

[17] Appellants were among those who raised this issue,
both in comments on the draft EIS and in administrative

appeals. One member of both the Sierra Club and the Flagstaff

Activist Network commented that “we’ll be dealing with

treated sewage that is undiluted with fresh water and people

who will be falling in great frozen piles of the stuff and probably

accidentally swallowing some. Not to speak of children

and even adults who indulge in the winter tradition of eating

snow.” A member of the Sierra Club and the Center for Biological

Diversity noted that “various disturbing trends have

led researchers to believe that environmental exposures are

contributing to children’s declining health status”: “If concerns

about wildlife and adult human health are not sufficient

to justify prudence in the further contamination of the northern

Arizona Ecosystems and waters with various societal

chemicals, then perhaps concerns for child health might dictate

a more conservative approach.”

Further, the Navajo Nation, the Sierra Club, the Flagstaff

Activist Network, the Center for Biological Diversity, and the

Hualapai Tribe objected in their administrative appeal:

The Forest Service never asked for interagency consultation

on this matter from any substantial government

authority including the National Institute of

Child Health . . . . Children respond very differently

from adults to drugs and pollutants. Moreover, different

genetic make-ups respond differently to drugs

and chemicals. No data at all exist on the long-term

effects of reclaimed water pollutants on two major

populations that can be impacted by the “preferred

alternative,” children and Native Americans.


In their administrative appeal, the Havasupai protested that

“[k]ids and skiers will be getting a mouthful of [the water].”

[18] These comments and appeals were more than sufficient
to put the Forest Service on notice of the claim and to

exhaust Appellants’ administrative remedies. The Forest Service

was obviously aware, from the outset of the NEPA process,

of possible health risks from human ingestion of

artificial snow made from treated sewage effluent, and Appellants

were among those who gave the Service reason to

address the issue.

The Appellants’ complaint in the district court satisfied the

notice pleading requirement of Federal Rule of Civil Procedure

8(a)(2) with respect to the risk of ingesting snow, and the

risk to children was specifically briefed in the district court at

summary judgment.

2. Merits

[19] “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. ForestServ., 177 F.3d 800, 814 (9th Cir. 1999) (quoting Robertson,
490 U.S. at 350). 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 inoriginal) (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)). This
standard consists of “a pragmatic judgment whether the EIS’s

form, content and preparation foster both informed decisionmaking

and informed public participation.” Churchill County
v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001) (quoting Californiav. Block

, 690 F.2d 753, 761 (9th Cir. 1982)).
The treated sewage effluent proposed for use in making

artificial snow meets ADEQ standards 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 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, “full-immersion 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).
We conclude that 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 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, “Wa-


tershed 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 gives a partial comparison

of Flagstaff’s monitoring data on the treated sewage effluent

to the national drinking water standards, showing that Flagstaff

has not measured thirteen of the regulated contaminants

and has not measured five of them with sufficient precision to

determine whether the treated sewage effluent meets the standards.

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.

Appellees direct our attention to five responses to comments

on the draft EIS, contained in the second volume of the

FEIS. None of these brief responses constitutes a reasonable

discussion of the issue, nor does any response articulate why


such a discussion is unnecessary. The first response, objecting

to a commenter’s use of the word “sewage” in advocating a

“sewage-free natural environment,” notes that groundwater

tainted by effluent in southern California has not been shown

to have had adverse human health effects. That response does

not address the risk posed by this project: that is, direct exposure

to, and possible ingestion of, snow made from undiluted

treated sewage effluent.

A second response purports to answer a question about who

would bear liability for illnesses caused by the treated sewage

effluent. The response states that the treated sewage effluent

is “very strictly controlled,” “acceptable for unrestricted body

contact,” and “authorized for artificial snowmaking for skiing

by ADEQ.” Not only does the response fail to answer the liability

question posed; the response also fails to address the

fact that the ADEQ has specifically disapproved human ingestion

of treated sewage effluent.

The third response is to a question about why warning signs

are necessary if the reclaimed water is not harmful. The FEIS

states, hypothetically: “The extent to which reclaimed water

is or is not a human health and safety concern would depend

on many factors . . . . Poorly or partially treated wastewater

could give rise to infectious disease. On the other hand, it is

technically and economically feasible to treat wastewater to

acceptable drinking water quality.” As above, this is a nonresponsive

answer. While it may be true that “it is technically

and economically feasible” to treat wastewater to the point

where it meets drinking water standards, the fact in this case

is that the treated sewage effluent proposed for use is not

treated to meet standards for potable water. The FEIS then

explains that the signs are required under Arizona law: “In

direct response to the comment, it should be realized that

there are many sites in Arizona where a lower quality of

reclaimed water is used for irrigation. The law protects the

public (e.g., golfers and farm workers) in the hot desert

regions that might otherwise believe the water is potable.”


This response does not address the risk that children or adults

might also think the snow may be ingested. Further, in referring

to the need to guard against ingestion of “lower quality”

reclaimed water, the answer implies (incorrectly) that the artificial

snow would be made of potable water.

The fourth response follows three combined questions: (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.” The 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


The fifth response is on the last page of responses to comments.

The Forest Service in its brief does not call attention

to this response, perhaps because the Service recognizes its

inadequacy. The questions and response are:

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 acci-


dentally consuming the snow in the case of a


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 machine-produced 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.

(Emphasis added.)

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

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.

In addition to directing our attention to the responses

above, Appellees further contend that the FEIS “sets forth relevant

mitigation measures” to “the possibility that someone

may ingest snow.” Although Appellees do not specify 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


Our role in reviewing the FEIS under the APA is not to

second-guess a determination by the Forest Service about

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. at 350 (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, 276
F.3d at 1071 (quoting Block, 690 F.2d at 761).

[20] We conclude that the Forest Service has not 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 not provided a “candid acknowledgment” of any such

risks, and has not provided an analysis that will “foster both

informed decision-making and informed public participation.”

We therefore hold that the FEIS does not satisfy NEPA with

respect to the risks of ingesting artificial snow.

B. Consideration of Alternatives

Appellants Norris Nez, Bill “Bucky” Preston, and the

Hualapai Tribe (“Hualapai Appellants” or “Appellants”)

claim that the Forest Service failed to consider a reasonable

range of alternatives in the FEIS. They claim that the range

of alternatives falls short because the Forest Service took

actions that foreclosed considering other alternatives, and

because the Service failed to consider the alternative of drilling

for fresh water.

[21] NEPA provides that an EIS must contain a discussion
of “alternatives to the proposed action,” and that federal agencies

must “study, develop, and describe appropriate alternatives

to recommended courses of action in any proposal which

involves unresolved conflicts concerning alternative uses of

available resources.” 42 U.S.C. § 4332(2)(C)(iii), (E). This

requirement is “the heart of the environmental impact statement.”

40 C.F.R. § 1502.14.

Project alternatives derive from an EIS’s “Purpose and

Need” section, which briefly specifies “the underlying pur-


pose and need to which the agency is responding in proposing

the alternatives including the proposed action.” Id. § 1502.13.
“The stated goal of a project necessarily dictates the range of

‘reasonable’ alternatives and an agency cannot define its

objectives in unreasonably narrow terms.” City of Carmel-bythe-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th
Cir. 1997). Federal agencies must present the environmental

impacts of the proposal in comparative form, “[r]igorously

explore and objectively evaluate all reasonable alternatives,”

and “briefly discuss” the reasons for eliminating any alternatives

from detailed study. 40 C.F.R. § 1502.14(a). “The rule

of reason guides both the choice of alternatives as well as the

extent to which the EIS must discuss each alternative.” Cityof Sausalito v. O’Neill, 386 F.3d 1186, 1207 (9th Cir. 2004)
(alteration and internal punctuation omitted).

The regulations further provide that “[a]gencies shall not

commit resources prejudicing selection of alternatives before

making a final decision.” 40 C.F.R. § 1502.2(f); see also id.

§ 1506.1. An EIS “shall serve as the means of assessing the

environmental impact of proposed agency actions, rather than

justifying decisions already made.” Id. § 1502.2(g). However,
agencies shall also “[i]dentify the agency’s preferred alternative

or alternatives, if one or more exists, in the draft statement

and identify such alternative in the final statement

unless another law prohibits the expression of such a preference.”

Id. § 1502.14(e). We have interpreted this regulation to
mean that “an agency can formulate a proposal or even identify

a preferred course of action before completing an EIS.”

Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power

, 126 F.3d 1158, 1185 (9th Cir. 1997).
The FEIS and ROD define the Proposed Action’s “Purpose

and Need” as follows:

Purpose #1

To ensure a consistent and reliable operating season,

thereby maintaining the economic viability of


the Snowbowl, and stabilizing employment levels

and winter tourism within the local community.

. . . .

Purpose #2:

To improve safety, skiing conditions, and recreational

opportunities, bringing terrain and infrastructure

into balance with current use levels.

The district court upheld this statement of purpose and need

because it responds to documented needs and because it fits

with both the forest plan for the Coconino National Forest and

the Forest Service’s multiple-use mandate. 408 F. Supp. 2d at

873-74. Although Appellants note that an agency does not

have unlimited discretion to define the purpose and need for

a project, they do not appeal this ruling.

Rather, the Hualapai Appellants argue that certain prescoping

memoranda and notes demonstrate that the Forest

Service took actions that foreclosed the consideration of a reasonable

range of alternatives. They largely base their argument

on the scripted “Key Messages” contained in the Forest

Service’s June 2002 “Tribal Consultation Plan”:

1. We [the Forest Service] think it’s a good idea, and

we already know you [tribes] don’t approve of it, but

Snowbowl is there & isn’t going away.

. . . .

6. Upgrade can’t be done without snowmaking

7. Recycled water IS clean, disease-free.

8. How can YOU help US make it work ???

Appellants argue that another June 2002 talking points memorandum

also supports the notion that the adoption of the pro-


posed action was predetermined, quoting part of the scripted

response contained in the memorandum: “Once we accept the

proposal, we DO support it . . . .” Further, they point to a note

from a Forest Service meeting in August 2002, before the

Snowbowl had officially submitted its proposal: “[W]e are all

ambassadors of this [project] and need to provide the same


Despite what these scripted responses written early in the

process suggest, the balance of the administrative record sufficiently

demonstrates that the Forest Service had not foreclosed

all consideration of alternatives. Among the five

“objectives” listed in the Tribal Consulation Plan are “Get

ideas on possible mitigating measures” and “Are there any

additional tribal concerns we don’t already know about.” The

full sentence from the other talking points memorandum indicates

that the Forest Service had not settled on any particular

proposal: “Once we accept the proposal, we DO support it —

That’s why we want your input now so hopefully we can have

a proposal we can all work with.” The Forest Service was

entitled to have in mind a preferred course of action in

advance, see Ass’n of Pub. Agency Customers, 126 F.3d at
1185, and Appellants are unable to point to substantial evidence

indicating that the Forest Service impermissibly “commit[

ted] resources prejudicing selection of alternatives before
making a final decision.” 40 C.F.R. § 1502.2(f) (emphasis


Appellants also argue that the Forest Service failed adequately

to consider fresh water drilling as an alternative to the

use of treated sewage effluent for snowmaking. The Forest

Service (but not the Snowbowl) argues that the doctrine of

exhaustion bars this claim because Appellants did not raise

the issue during the comment period or in their administrative

appeal. The record contradicts the Forest Service. In his

administrative appeal, Appellant Preston argued that the FEIS

was inadequate because “an alternative was suggested for the


use of freshwater instead of reclaimed water for snowmaking,

but was summarily dismissed.”

[22] Appellants concede that the FEIS briefly addresses
multiple alternatives to using the treated sewage effluent.

They object, however, that the Forest Service relied on the

Snowbowl’s studies on the feasibility of water alternatives

without conducting sufficient independent investigation and

without disclosing sufficient information to the public to challenge

the Snowbowl’s studies. They further argue that the

Forest Service’s “assertions regarding economic and technical

difficulties are questionable given the exorbitantly high costs

($19,733,000) and the technical difficulty of the selected

alternative.” To the contrary, the fact the Snowbowl is apparently

willing to incur such costs supports the Forest Service’s

conclusion that the alternative sources of water were not reasonable.

In justifying its elimination of the potable water

alternative, the Forest Service cited “logistical and economic

considerations and water availability research,” as well as

“environmental and political issues.” Appellants have not

shown that a fresh water alternative was reasonable in the

middle of the northern Arizona desert, and that the relatively

brief treatment in the FEIS was therefore inadequate. Thus,

although the Forest Service’s discussion was indeed brief,

Appellants have not shown that the discussion was inadequate

under 40 C.F.R. § 1502.14(a).

C. Disclosure of Scientific Viewpoints

The Navajo Appellants claim that the Forest Service failed

to discuss and consider adequately the scientific viewpoint of

Dr. Paul Torrence. Dr. Torrence criticized the draft EIS for

approving the proposal despite the risks posed by endocrinedisrupting

chemicals present in treated sewage effluent.

[23] Regulations require an agency preparing an FEIS to
“assess and consider comments both individually and collectively,”

to respond to the comments, and to state its responses


in the FEIS. 40 C.F.R. § 1503.4(a). Although the agency need

not “set forth at full length the views with which it disagrees,”

Block, 690 F.2d at 773, the agency must “discuss at appropriate
points in the [FEIS] any responsible opposing view which

was not adequately discussed in the draft statement.” 40

C.F.R. § 1502.9(b). Ordinarily, the agency must attach to the

FEIS “all substantive comments . . . whether or not the comment

is thought to merit individual discussion.” Id.
§ 1503.4(b). However, if comments have been “exceptionally

voluminous,” summaries suffice. Id. Under some circumstances,
an agency’s response to a comment need not be given

in the main body of the FEIS and may instead be contained

in a separate “comments and responses” section. Those circumstances

arise when “many of the critical comments

prompted revisions in the body, [the agency] discussed in the

body all of the environmental problems to which the comments

were addressed, and [the agency] provided thoughtful

and well-reasoned responses to most of the critical comments.”

Ore. Natural Res. Council v. Marsh, 832 F.2d 1489,
1498-99 (9th Cir. 1987) (as amended), rev’d on othergrounds,

490 U.S. 360 (1989).In Center for Biological Diversity, we held that an FEIS
was inadequate because it failed “to disclose responsible scientific

opposition to the conclusion upon which it [was]

based.” 349 F.3d at 1160. The FEIS in that case evaluated

amendments to a forest management plan, prompted by the

need to protect the habitat of the northern goshawk. Id. at
1160-61. The alternatives evaluated were all based upon the

scientific conclusion that the birds were “habitat generalists.”

Id. at 1160. The agency received comments from multiple
federal and state agencies citing studies indicating that the

birds were not habitat generalists, and that therefore the proposed

plans would be inadequate. Id. at 1162-63. The agency
responded to the comments directly via letter, but did not disclose

or respond to them specifically in the FEIS. Id. at 1161-
62. Rather, the FEIS merely acknowledged in a summary

comment that “[a] few commenters expressed concern that the


proposed standards and guidelines for the . . . northern goshawk

are grossly inadequate to protect the birds,” and

responded that “[t]he guidelines have been developed over

several years using the best information and scientific review

available” and could “easily be updated through future

amendments.” Id. at 1163 (alterations in original, quotation
marks omitted). We held that the Forest Service was required

to disclose and respond to the comments in the FEIS itself,

because the comments were undisputedly “responsible opposing

scientific viewpoints,” and because the FEIS’s recommendations

undisputedly “rest[ed] upon the Service’s habitat

generalist conclusion.” Id. at 1167.
The FEIS in this case is unlike the FEIS in Center for BiologicalDiversity

. The comments of Dr. Torrence alleged by
Appellants to have been inadequately treated in the FEIS do

not represent an undisclosed opposing viewpoint to which the

Forest Service failed to respond openly in the FEIS. Appellants

object to the district court’s characterization of Dr. Torrence’s

comments as “all . . . variations of the same

allegation: that the agency failed to fully consider the range

of implications of endocrine disruptors.” 408 F. Supp.2d at

877. They assert that Dr. Torrence’s comments raise a broader

set of issues that the FEIS fails to disclose and discuss. Yet

the district court’s characterization is accurate because Dr.

Torrence’s comments all concern endocrine disruptors.

[24] The FEIS discloses, discusses, and responds to the
substance of Dr. Torrence’s comments. The main body of the

FEIS contains a subsection on endocrine disruptors that cites

a range of research and discusses the growing scientific and

governmental concern about their effects on wildlife, humans,

and the environment. The FEIS also discloses and discusses

studies done on endocrine disruptors in the treated sewage

effluent proposed for use in this case. The FEIS contains a

table listing the amounts of suspected disruptors measured in

the water and briefly summarizes a study of its effect on various

animals in experiments conducted by a Northern Arizona


University professor, Dr. Catherine Propper. The FEIS comments

that the concentrations of the suspected endocrine disruptors

are significantly lower in the Rio de Flag water than

in other waste water also measured in the study, and that “the

proposed use of reclaimed water for snowmaking . . . will not

result in comparable environmental exposure as investigated

by Dr. Propper.” Thus, although the FEIS takes a more sanguine

view of the risk than does Dr. Torrence, the main body

of the FEIS discloses to the public, and makes clear that the

Forest Service considered, the risk posed by endocrine disruptors.

D. Impact on the Regional Aquifer

The Navajo Appellants claim that the FEIS inadequately

considers the environmental impact of diverting the treated

sewage effluent from Flagstaff’s regional aquifer. The Forest

Service argues that this claim was not exhausted in the administrative

process. We disagree. Several comments raised the

issue of diverting water that would have gone into the

regional aquifer, including a comment by the Center for Biodiversity

and the Flagstaff Activist Network, as well as a

lengthy analysis submitted by the Sierra Club. Appellants’

administrative appeal explicitly incorporated and reasserted

by reference the submissions of these organizations. Thus,

“taken as a whole,” their appeal “provided sufficient notice to

the [agency] to afford it the opportunity to rectify the violations

that the plaintiffs alleged.” Native Ecosystems Council,
304 F.3d at 899.

On the merits, Appellants claim that the FEIS inadequately

considers the environmental impact of diverting the treated

sewage effluent wastewater from the aquifer. Currently, during

the winter when there is little demand for “reclaimed

water” for irrigation and other uses, the treated sewage effluent

is pumped into the Rio de Flag, where it is diluted with

fresh water and percolates into the underground regional aquifer.

Much of the effluent used to make artificial snow would


eventually make its way back to the aquifer, but some water

would be lost to sublimation and evaporation. The FEIS contains

extensive analysis on the question of the impact of this

water loss on the recharge of the regional aquifer; subchapter

3H, discussed above, is largely devoted to the subject.

Nevertheless, Appellants argue that the FEIS does not adequately

address the cumulative impact on the aquifer caused

by diverting the water. First, they argue that the analysis is

inadequate because the FEIS states that the study area of the

watershed analysis is limited to the Hart Prairie Watershed

and the Agassiz Subwatershed, an area that does not include

the location where the treatment plant discharges the treated

sewage effluent into the Rio de Flag. Therefore, they argue,

the analysis fails to consider the impact on the regional aquifer

caused by diverting the effluent from the Rio de Flag.

However, the analysis of environmental impacts is plainly not

limited to the designated “study area.” Immediately after

describing the parameters of the “study area” for the watershed

analysis, the FEIS identifies as one of the cumulative

effects to be analyzed the “potential long-term effects on the

regional aquifer from diversions of reclaimed water for snowmaking.”

Second, Appellants argue that the FEIS is inadequate,

because the Forest Service “refused” to consider the impact of

the wastewater diversion. They point to two portions of the

FEIS that do, indeed, disclaim responsibility for analyzing the

impact on the regional aquifer. The FEIS states that, due to an

Arizona Supreme Court decision holding that cities can sell

wastewater, “the authority of the city to provide reclaimed

water to the Snowbowl is not subject to decision by the Forest

Service and is therefore not within the jurisdictional purview

of this analysis.” In the comments and responses portion of

the FEIS, the Forest Service reiterates, “The City has the legal

right to put the reclaimed water to any reasonable use they see

fit and is the responsible entity to determine the most suitable

and beneficial use of reclaimed water.”


[25] Nevertheless, the FEIS contains some analysis of the
environmental impact of the diversion on the regional aquifer.

After stating that the issue “extends well beyond the scope of

the EIS” and “is provided as general information but will not

be specifically considered in selecting an alternative,” the

Forest Service provides a quantitative analysis concluding

that the snowmaking would “result in an estimated net average

reduction in groundwater recharge to the regional aquifer

of . . . . slightly less than two percent of the City of Flagstaff’s

total annual water production.” Ultimately, the FEIS concludes

that the cumulative impact is “negligible for overall

change in aquifer recharge.” Despite the odd and backhanded

way in which it is presented, we conclude that the analysis in

the FEIS is a “reasonably thorough discussion” of the issue.

Ctr. for Biological Diversity, 349 F.3d at 1166.
E. Social and Cultural Impacts

The Hopi Appellants argue that the FEIS inadequately analyzes

the social and cultural impacts of the proposed action on

the Hopi people. NEPA requires agencies to “utilize a systematic,

interdisciplinary approach which will insure the integrated

use of the natural and social sciences and the

environmental design arts in planning and in decisionmaking

which may have an impact on man’s environment.” 42 U.S.C.

§ 4332(2)(A). Agencies must “identify and develop methods

and procedures . . . which will insure that presently unquantified

environmental amenities and values may be given appropriate

consideration in decisionmaking along with economic

and technical considerations.” Id. § 4332(2)(B). Finally, agencies
must prepare an EIS for “major Federal actions significantly

affecting the quality of the human environment.” Id.
§ 4332(2)(C). The regulations define “human environment”

broadly to “include the natural and physical environment and

the relationship of people with that environment,” and note

that “[w]hen an [EIS] is prepared and economic or social and

natural or physical environmental effects are interrelated, then

the [EIS] will discuss all of these effects on the human envi-


ronment.” 40 C.F.R. § 1508.14. The “effects” that should be

discussed include “aesthetic, historic, cultural, economic,

social, or health” effects, “whether direct, indirect, or cumulative.”

Id. § 1508.8.

[26] The FEIS addresses the “human environment” through
lengthy discussions of the relationship of the Hopi and others

to the San Francisco Peaks and the impact of the proposed

action on those relationships. The FEIS acknowledges that “it

is difficult to be precise in the analysis of the impact of the

proposed undertaking on the cultural and religious systems on

the Peaks, as much of the information stems from oral histories

and a deep, underlying belief system of the indigenous

peoples involved.” Nevertheless, the FEIS makes clear that

the Forest Service conducted an extensive analysis of the

issue, drawing from existing literature and extensive consultation

with the affected tribes. The FEIS describes at length the

religious beliefs and practices of the Hopi and the Navajo and

the “irretrievable impact” the proposal would likely have on

those beliefs and practices. The Forest Service has thus satisfied

its obligations under NEPA to discuss the effects of the

proposed action on the human environment.

F. Conclusion

For the foregoing reasons, we hold that the FEIS was inadequate

with respect to its discussion of the risks posed by possible

human ingestion of artificial snow made from treated

sewage effluent. We hold that the FEIS was adequate in the

four other respects challenged.

V. National Historic Preservation Act

[27] If a proposed undertaking will have an effect on historic
properties to which Indian tribes attach religious and cultural

significance, the National Historic Preservation Act

(“NHPA”) requires the federal agency to consult with the

affected tribes before proceeding. See 16 U.S.C.


§§ 470a(d)(6), 470f; 36 C.F.R. §§ 800.1 et seq. Under NHPA
regulations, “[c]onsultation means the process of seeking, discussing,

and considering the views of other participants, and,

where feasible, seeking agreement with them.” 36 C.F.R.

§ 800.16(f).

The Hopi Appellants argue that the Forest Service did not

meaningfully consult with them. They concede that the Forest

Service “sought tribal consultation on the religious and cultural

significance of the Peaks, and provided a reasonable

opportunity for the tribes to participate in the process,” but

they assert that those consultations were meaningless because

the Forest Service prejudged the matter.

The evidence proffered by the Hopi Appellants does not

support their claim. Their primary evidence is a letter from

the Forest Service to the tribe. The Hopi Appellants contend

that the letter shows that the proposal ultimately approved in

the FEIS was preordained. The letter informs the Hopi that

the owner of the Snowbowl is working on a draft proposal,

states that the Forest Service believes the Hopi should be

involved in the development of this proposal, and asks for

input on “how the interests and concerns of the Hopi people

might best be addressed” before the Forest Service accepts the


The Hopi Appellants specifically object to the following

paragraph in the letter:

The proposed development of the Arizona Snowbowl

was the subject of a bitter lawsuit in 1981.

Hopefully by involving the Hopi Tribe in planning

the development this time, we can all avoid expensive

and time-consuming litigation. However, the

result of the 1981 lawsuit was a legal decision that

allows the development of the Arizona Snowbowl

and the construction of a number of facilities. The

Snowbowl now wishes to complete the development,


and it is important to stress that the scope of the proposal,

with a few exceptions, is within the concept

approved by the court decision. It is also important

to note that all facilities will stay within the permitted


They argue that this letter “informed [them] at the outset that,

based on its incorrect reading of an earlier court decision

(apparently referring to Wilson v. Block, 708 F.2d 735 (D.C.
Cir. 1983)), the Forest Service had no discretion to disapprove

the development proposed by the Snowbowl, thus making the

Proposed Action a foregone conclusion.”

The Hopi Appellants’ interpretation misconstrues the Forest

Service’s letter. The letter indicates that most but not all

of the proposal is within the scope of the 1979 decision — the

“few exceptions” include snowmaking. Hence the letter specifically

notes that the Snowbowl intends to introduce new

components never addressed in Wilson, thus implying that the
Forest Service need not accept the proposal. This implication

is supported by the letter’s suggestion that consultation might

avoid a court battle. Thus, while the Forest Service’s letter

signals receptiveness to the Snowbowl’s proposal, it does not

demonstrate that the Forest Service failed to meaningfully

consult with the Hopi.

[28] The Hopi also incorporate by reference the evidence
that the Hualapai presented in their argument discussed above

that the Forest Service took actions that foreclosed the consideration

of a reasonable range of alternatives. However,

because of the extensive record of consultation undertaken by

the Forest Service in this case, we agree with the district court

that “[a]lthough the consultation process did not end with a

decision the tribal leaders supported, this does not mean that

the Forest Service’s consultation process was substantively

and procedurally inadequate.” 408 F. Supp. 2d at 879 n.11;

see also id. at 879-80 & n.11 (describing the scope of the consultations
in detail).


VI. Conclusion

In sum, we reverse the district court on two grounds. First,

we hold that the Forest Service’s approval of the proposed

expansion of the Snowbowl, including the use of treated sewage

effluent to make artificial snow, violates RFRA. Second,

we hold that the Forest Service’s FEIS does not fulfil its obligations

under NEPA because it neither reasonably discusses

the risks posed by the possibility of human ingestion of artificial

snow made from treated sewage effluent nor articulates

why such discussion is unnecessary. We affirm the district

court’s grant of summary judgment on Appellants’ remaining

four NEPA claims and on their NHPA claim.

AFFIRMED in part, REVERSED in part, and

REMANDED. The parties shall bear their own costs on



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