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Navajo Nation v. United States Forest Service

United States Court of Appeals for the Ninth Circuit
535 F.3d 1058 (2008)


The San Francisco Peaks (peaks), located in the Coconino National Forest in the State of Arizona, were considered to be a sacred living entity by Native American tribes, including the Navajo Nation (Navajo) (plaintiff). The Navajo collected water and plants from the peaks for healing ceremonies. The Snowbowl ski area (Snowbowl) constituted 1 percent of the peaks. Due to operating losses caused by variable snowfall, the Snowbowl submitted a proposal to the United States Forest Service (USFS) (defendant) to cover the Snowbowl with artificial snow made from recycled wastewater. The Navajo sued the USFS in district court, claiming that the use of recycled wastewater substantially burdened the Navajo’s free exercise of religion, in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq. RFRA provided that the government could not substantially burden the exercise of religion, unless the government demonstrated that the burden was the least restrictive means of furthering a compelling governmental interest. RFRA did not define “substantial burden.” The district court denied relief to the Navajo. A three-judge panel of the court of appeals reversed in part and affirmed in part. The court of appeals heard the case en banc to reconsider the panel’s decision.

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