pageok
pageok
pageok
Very Interesting Religious Accommodation Case from the En Banc Ninth Circuit:

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).

Fub:
Next time some prosecutor claims that government witnesses have no reason to lie and their motives are pure as the driven snow, maybe some jurors will remember this decision, and just how pure government snow really is.
8.8.2008 10:05pm
Steve2:
I'll leave the topic of how much human waste is in all water to someone who's taken their environmental engineering class more recently than me to discuss.

I'll just say, instead, the second-to-last quoted paragraph is pretty doggone close to the rationale for the "no taxpayer standing" rule.
8.8.2008 10:18pm
PersonFromPorlock:
Well, what desecrates an altar is whatever initiates believe desecrates an altar. So if .0001% human feces is the poison, I think the Ninth was a little cavalier about the lack of a 'substantial burden' from the Indians' point of view.
8.8.2008 10:23pm
Bill Poser (mail) (www):
It is worth noting that this isn't just any old sacred mountain. The mountain in question is known to Navajos as Dook'o'oosłííd and forms the Wester boundary of the dinetah, the traditional Navajo territory.
8.8.2008 10:34pm
David M. Nieporent (www):
PFP: the court didn't say that the burden wasn't substantial from the Indians' pov; it said that it wasn't a substantial burden as that term is used in the law. A burden is something which either coerces behavior or punishes it. This merely annoys them.
8.8.2008 10:35pm
Bill Adams (mail):
Surely it is the presence of non-Navajos (to put it politely) and their recreational skiing that is really desecrating the mountain in the eyes of the worshippers. (And one might sympathize.) But they know better than to plead that, and have found this fig leaf. The real desire is to have the land back -- to control it as only an owner can -- and the religious hairsplitting that will now be engaged in is almost entirely beside the point.
8.8.2008 10:51pm
Doc W (mail):
Laws, reams of regulations, bureaucracies, perpetual litigation--that's how decisions are made about what happens on government land. On private land, the owner properly decides. Maybe less land should be government property, more land private. Just a thought.
8.8.2008 10:58pm
Bill Poser (mail) (www):

Laws, reams of regulations, bureaucracies, perpetual litigation--that's how decisions are made about what happens on government land. On private land, the owner properly decides. Maybe less land should be government property, more land private. Just a thought.


I'm sure the Navajos would be pleased to accept the return of the land.
8.8.2008 11:13pm
trad and anon:
Surely it is the presence of non-Navajos (to put it politely) and their recreational skiing that is really desecrating the mountain in the eyes of the worshippers. (And one might sympathize.) But they know better than to plead that, and have found this fig leaf. The real desire is to have the land back -- to control it as only an owner can -- and the religious hairsplitting that will now be engaged in is almost entirely beside the point.
Perhaps you should have offered your mind-reading skills to the district court.
8.8.2008 11:45pm
with all due respect ...:
I agree with "Steve2" regarding standing. Valley Forge makes it pretty clear that merely taking offense at something is not enough to establish an injury in fact.
8.8.2008 11:56pm
ed (mail) (www):
Hmmmm.

So does this mean that Christians now have standing to object if a government funded "artist" desecrates a Christian symbol?
8.9.2008 12:47am
Charles Strouss (mail):
Many fundamentalist Muslim and Christian people claim to experience great personal distress that our nation sanctions abortion. Many people feel great pain and distress about the War in Iraq.

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! :)
8.9.2008 1:20am
David Schwartz (mail):
I cannot see how RFRA can possibly be compatible with the Establishment Clause. Government respects the establishment of religion when it creates one set of rules for things that offend religion and another set of rules for things that offend comparable secular views.

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.
8.9.2008 8:32am
Arkady:

So does this mean that Christians now have standing to object if a government funded "artist" desecrates a Christian symbol?


That's not quite apposite. The situation seems more like government-sanctioned graffitti on a church on government land.
8.9.2008 8:52am
pmorem (mail):
It's something of a stretch of the definition of "land", but I think it's a good analogy anyway...

There are people whose religious sensitivities are offended by the appearance of Nancy Pelosi on C-Span.
8.9.2008 9:06am
Bill Adams (mail):

Perhaps you should have offered your mind-reading skills to the district court.


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.
8.9.2008 9:07am
elscorcho (mail):
I know this is off topic, but I have been really interested in this for a long time. Do Native Americans get to have extra rights in perpetuity? Is there any end to the reservation system and the Indian Nations being treated differently than other Americans? What is the legal standing of Indian treaties now? Do they last forever? How many are there and which apply? Does anybody know an expert in this field that has a blog or something.
8.9.2008 9:22am
Soronel Haetir (mail):
Afaik the treaties last in perpituity, though Congress can abrogate them. I'm not sure that it requires the consent of the tribes. As an example, all but one reservation in Alaska was dissolved and the members basically bought off.
8.9.2008 10:04am
Duncan Frissell (mail):
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.

Sounds like a good idea to me.
8.9.2008 10:19am
tommears (mail):
The three largest groups of indigenous people in northern Arizona consider these mountains sacred--the Havasupai, Hopi &Navajo. The land at the peaks and around the mountains is considered to be the homes of several different divine to semi-divine entities. Consider how you would feel if someone were able to literally piss on heaven.
8.9.2008 11:23am
Dave N (mail):
Off topic, but am I the only one who finds it interesting that two of the best writers on the Ninth Circuit, Judge Bea (Spain) and Judge Kozinski (Hungary) speak English as a second language?
8.9.2008 1:12pm
Sasha Volokh (mail) (www):
I don't think this really relates to standing.... There's no reason why religious offense can't qualify to give you standing. For example, in NEPA cases where the plaintiff claims there should have been an Environmental Impact Statement, the injury that supports standing is often of the form "I like hiking here and this project would make the place uglier for me," i.e., a mere aesthetic injury.

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.
8.9.2008 1:21pm
Skyler (mail) (www):
I think this is great.

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.
8.9.2008 4:30pm
Skyler (mail) (www):
I think this is great.

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.
8.9.2008 4:30pm
Dave Hardy (mail) (www):
1) Treaties last in perpetuity. At Interior we often dealt with hunting, fishing, and even crop gathering rights, often completely unlimited because nobody on the frontier in 1850 envisioned running short of salmon or deer. They'd frequently provided that the tribe retained rights to hunt or fish (or in one case, gather wild rice) on the land they were giving up while going to the reservation. Occasionally they'd be an outer limit, say the right might end when the land was settled on (which did Interior little good, since it was hard to say that a park or wildlife refuge was "settled" within the meaning of the treaty.

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.
8.9.2008 7:55pm
David Schwartz (mail):
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."


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."
8.9.2008 10:04pm
David Schwartz (mail):
Can you cite any other case where causal nexus needed for injury existed solely in the minds of one of the litigants?

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.
8.9.2008 11:55pm
krs:
Dave N, Kozinski's from Romania
8.10.2008 12:07am
Alan K. Henderson (mail) (www):
I'm sure the Navajos would be pleased to accept the return of the land.
The mountain is well within the borders of mythical Aztlan - MEChA might not be so pleased :-)
8.10.2008 4:36am
Dave N (mail):
krs,

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.
8.10.2008 12:32pm
Mike McDougal (mail):
trad and anon: "Perhaps you should have offered your mind-reading skills to the district court."

Perhaps you should learn that understanding underlying motivations is often important to understanding an issue.
8.10.2008 4:42pm
Mike McDougal (mail):

Consider how you would feel if someone were able to literally piss on heaven.

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.
8.10.2008 4:47pm
Larry Fafarman (mail) (www):
The complaint about the 0.0001% human waste content of the recycled water is ridiculous -- naturally occurring bodies of water have much higher concentrations of human and/or animal waste. This complaint trivializes the fact that water pollution can be a really serious problem -- e.g., acid rain has damaged forests and killed fish and other wildlife, and pollution from sewage and industrial waste runoff are big problems.

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.
8.10.2008 10:41pm
ReaderY:
In this case, the Navajo are attempting to assert a kind of ownership over the land because they have have a historical and spiritual connection to it. Their claim really isn't quite the same thing as a standard Free Exercise claim. It's that their connection to the land should give them greater rights and entitle their practices to greater respect than if they were strangers.

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.
8.11.2008 2:48am
A.C.:
Don't human, and for that matter animal, wastes decay once they've been in the environment for a while? And don't they function as fertilizer once that occurs? I thought this was a fundamental and desirable part of nature, not something to get upset about.
8.11.2008 6:36am
tioedong (mail) (www):
tribes differ.
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.
8.11.2008 7:57am
Larry Fafarman (mail) (www):
Steve2 said (8.8.2008 9:18pm) --

I'll just say, instead, the second-to-last quoted paragraph is pretty doggone close to the rationale for the "no taxpayer standing" rule.

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:

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.
8.11.2008 4:52pm
Larry Fafarman (mail) (www):
Oops -- I was surprised to see in the original post's title that this was an en banc decision. En banc rehearings are fairly rare and I think that they are granted if even just a single judge calls for one when a petition for en banc rehearing is made. This case seems straightforward to me and I am wondering what the basis for an en banc rehearing was. Because of the large number of 9th circuit judges (~ 27-29), 9th circuit en banc rehearing panels are only part-court (11 judges, briefly 15) instead of full-court.

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."
8.11.2008 7:27pm
Larry Fafarman (mail) (www):
BTW, Indians' claims to exclusive use of what they consider to be sacred land, which virtually amount to claims of ownership, are contrary to Indians' general opposition to the idea of land ownership and Indians' general belief that land is something that should be shared by all. Indians regarded the Black Hills as sacred land and their refusal to share it with goldseekers led to what is known as the Black Hills War, which included Custer's Last Stand.
8.12.2008 2:28am
Larry Fafarman (mail) (www):
Correction -- my following statement in bold (8.11.2008 6:27pm) was mistaken:
En banc rehearings are fairly rare and I think that they are granted if even just a single judge calls for one when a petition for en banc rehearing is made.

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
8.12.2008 4:30am