It's Navajo Nation v. U.S. Forest Service; I haven't yet read the whole opinion (I'm on a trip), but here are the opening paragraphs:
In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. [Footnote: It appears that some of the Plaintiffs would challenge any means of making artificial snow, even if no recycled wastewater were used.] The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this government-approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds.
Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion. They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use.
Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” -- a term of art chosen by Congress to be defined by reference to Supreme Court precedent -- on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.
Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.
“[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government -- let alone a government that presides over a nation with as many religions as the United States of America -- could function were it required to do so. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988).
I'll just say, instead, the second-to-last quoted paragraph is pretty doggone close to the rationale for the "no taxpayer standing" rule.
I'm sure the Navajos would be pleased to accept the return of the land.
So does this mean that Christians now have standing to object if a government funded "artist" desecrates a Christian symbol?
How could the government possibly guarantee that none of its citizens will inflame another citizen's sensibilities? Obviously it cannot be done, because then someone else would have THEIR sensibilities hurt.
If abortion were banned, pro-choice people would be offended. If US troops immediately pulled out of Iraq, many people would be offended. If skiers cannot ski where and when they want, then they will miss an experience that is important to them. And yes, skiing can be a religious experience -- once I described a feeling I had while skiing to my yoga teacher, who said it sounded like Dyhanam! :)
At an absolute minimum, the Dissent's read of RFRA violates the Establishment Clause. The Dissent would hold that what the government can do on its own land as a rule of general applicability can received heightened scrutiny if it offends sincerely-held religious views.
What happens if we can find one person who sincerely finds skiing on artificial snow to be a religious experience of value? And how do we distinguish the normal spiritual enjoyment of skiing with the religious enjoyment of skiing?
I think RFRA is on solid ground so long as it is read to only apply to cases where you are denied a personal benefit because of conditions you find unconscionable, where you are directly harmed for exercising your religion, or in cases where the government had a special duty to you such as when you are in its custody as a prisoner.
But to be able to say "you can't do that over there, even though it has no secular objective relationship to me at all, because it offends my religion" -- that's got to be over the line.
That's not quite apposite. The situation seems more like government-sanctioned graffitti on a church on government land.
There are people whose religious sensitivities are offended by the appearance of Nancy Pelosi on C-Span.
Does it really take mindreading ability to see the pretext here? Especially since some of the plaintiffs have already dropped the "waste water" excuse? No artificial snow, no profitability, no resort. It's the whole resort that desecrates -- not just the skiing (people skateboarding through your church) but the people doing it, who they are and their lack of reverence. My mindreading extends to thinking you don't really doubt this either.
But of course the court can't just assume it. So the game goes on.
Sounds like a good idea to me.
In Lujan, one of the main standing cases -- and one that restricted standing and insisted on the "injury in fact" -- it was undisputed that it was sufficient for standing to say "This project injures me because it would harm the populations of this endangered crocodile which I had a ticket to Africa to go see."
The way "offense" is being used in this religious case, like in the NEPA cases, isn't the same as in those taxpayer standing cases. It's more than just "I feel that this is illegal just like everyone else does" -- the way that someone might feel about "In God We Trust" on the currency or might feel that the Iraq War is illegal. Rather, it's more personal, something of the form "I use this resource in a particular way because of my aesthetic views, religious views, etc., and this project would injure that special pleasure I get out of the resource."
So it seems like "Putting recycled snow on this mountain offends the sensibilities of my religion" is a fine way to get standing.
It's just that, under RFRA, you have no remedy under the substantive law, because it's not considered a "substantial burden" on your religion for free-exercise purposes.
But perhaps I'm reading it differently than some here are. It sounds to me that the ski resort won but some of the comments seem to indicate otherwise.
But I'll press on with my understanding. This is great because it will preempt the fanatical muslims from using our courts to inflict their sharia law onto the rest of us. That seems to me to be the main result, besides limiting the stone age people among us from controlling our ski resorts.
It seems clear to me that this was nothing more than an attempt to get an injunction to stop using the ski resort so that the plaintiffs could extract money from those businesses.
But perhaps I'm reading it differently than some here are. It sounds to me that the ski resort won but some of the comments seem to indicate otherwise.
But I'll press on with my understanding. This is great because it will preempt the fanatical muslims from using our courts to inflict their sharia law onto the rest of us. That seems to me to be the main result, besides limiting the stone age people among us from controlling our ski resorts.
It seems clear to me that this was nothing more than an attempt to get an injunction to stop using the ski resort so that the plaintiffs could extract money from those businesses.
2) Congress can abrogate a treaty w/o tribal consent (albeit it may then have to pay compensation). In a case I worked on, Dion v. U.S., the Court held that the Eagle Protection Act abrogated treaty hunting rights, as to taking of eagles.
You are comparing things that require a physical, comprehensible causal nexus to things that do not. That is a fundamental different in kind. In principle, any action anywhere could give anyone with the right religious view standing to sue over that action.
After all, they are claiming an injury even without any way to tell that the water used on the mountain is reclaimed. That is, they are claiming that simply by being on or seeing a mountain covered in snow from reclaimed water -- a situation indistinguishable to them from seeing or being on a mountain covered with snow from fresh water -- they nevertheless suffer an injury.
Well, since this doesn't require any detectable difference, why does it require them to even be near the mountain? What if they have a shrine in San Jose that they believe is spiritually-connected to the mountain? (After all, the difference between reclaimed water and pure water as it relates to their injury is purely a matter of their belief.)
Sorry, I don't buy it. This is a huge extension of standing and a huge violation of the Establishment Clause. "You have standing because you have X religious belief."
In the prisoner RFRA cases, the causal nexus is something like the prisoner being compelled to eat the food the government provides him. in the NEPA cases, the causal nexus is something like the difference between seeing an endangered species and not seeing it.
In this case, the causal nexus of the injury is that the litigant's religion considers reclaimed water different from fresh water, even though they will not experience that difference in any objective way. This is a difference that exists solely in the minds of the litigants.
Duh, you are right. I am not sure why I wrote Hungary. I am not so geographically illiterate as to think Romania and Hungary are the same country. Thanks for the catch.
Perhaps you should learn that understanding underlying motivations is often important to understanding an issue.
And once I've considered that (though I'm an atheist), what then? Your suggestion most certaintly does not help resolve any of the conflicts of this case, nor will it help in future cases.
We sometimes go too far in granting aboriginal rights -- for example, Washington state's Makah Indian tribe was allowed to resume whaling even though no living member of the tribe had ever hunted whales before. New England also has a big whaling heritage but New Englanders would not be allowed to resume whaling.
Many of these so-called "Indians" are not real Indians -- they just have a fraction of Indian blood.
The "taxpayer standing" issue should be abolished -- some civil-rights issues (including establishment clause and free-exercise clause issues) involve an expenditure of tax money and others do not. Standing to sue in civil-rights cases should not depend in any way, directly or indirectly, on whether an expenditure of tax money is involved. The "taxpayer standing" rules got really ridiculous in Hein v. Freedom from Religion Foundation when the Supreme Court decided that taxpayers have standing to sue over Congressional allocations of tax money but not over executive-branch allocations of tax money.
Doubtless they've tried to find something in the treaty to cover this long ago. But it would seem that if the treaty gives them a right to use the land for religious purposes, it might be a more fruitful place to argue for implied rights to have a greater say regarding the land's use for other purposes.
However, all tribes have city indians who are environmentalists who hate the modern world that might give jobs to the ones left behind...so I wonder about the tribal politics behind the story.
The Mescalero Apaches however have no problem running a ski resort on their holy mountain. On the other hand, another Apache group where the activists are busy objects to an observatory on their "holy mountain.
The difference: the Mescalero ski resort is tribal run and the idea was promoted by the tribal leader. The observatory is by outsiders.
In the Supreme Court cases of Flast v. Cohen and Hein v. Freedom From Religion Foundation, exceptions to the "no taxpayer standing" rule were made for establishment clause cases. This is discussed in several articles on my blog. I do not intend to imply that the present case, Navajo Nation v. U.S. Forest Service, is an establishment clause case -- it cannot reasonably be charged that the artificial snow is a government attempt to establish a religion.
I should clarify my statement (8.10.2008 9:41pm) about "taxpayer standing" to sue in establishment clause cases. For example, if there is an establishment clause lawsuit over a privately-funded religious symbol on public land, there is no expenditure of tax money involved and hence there is no taxpayer standing issue. However, if the religious symbol is funded by the federal government, Hein v. Freedom from Religion Foundation says that there are two possibilities -- there is taxpayer standing if the funding is by Congress, and no taxpayer standing if the funding is by the executive branch. It is ironic that even though the potential violation of the establishment clause is much greater in the case of federal executive-branch funding of the symbol than in the case of private funding of the symbol, there is standing to sue in the latter case but not in the former. Also, I have no idea whether there is taxpayer standing if the funding is by state or local government. These arbitrary distinctions are crazy.
It appears at first sight that the basis of the present lawsuit, Navajo Nation v. U.S. Forest Service, is statutory (RFRA, NEPA, and NHPA -- see original post's quote from opinion) rather than constitutional, but RFRA could be considered to be an implementation of the free exercise clause. The opinion does appear to make a constitutional argument concerning the free exercise clause:
The lawsuit actually seems frivolous -- the artificial snow is spread on only one percent of the land and contains only a trace of human waste. However, even frivolous cases often get a lot of attention from the courts when the plaintiffs have a fair amount of clout. Another example of the principle, "it's not what you know, it's who you know."
A single circuit judge may call for a vote on whether to have an en banc rehearing -- the en banc rehearing is not actually held unless a majority of the circuit's active non-disqualified judges vote in favor of holding it. -- from FRAP Rule 35