Lead Article:

AMERICAN INDIANS: NO LAND USE VETO

En Banc Ninth Circuit Embraces MSLF View

American Indian religious practitioners have no right to demand that a federal agency bar uses of federal lands that are contrary to their religion, an en banc U.S. Court of Appeals for the Ninth Circuit ruled. In overturning a contrary ruling by a three-judge panel and upholding a decision by the U.S. Forest Service to permit Arizona Snowbowl, which lies seven miles north of Flagstaff in the Coconino National Forest, to make snow using recycled wastewater, the Ninth Circuit ruled in accordance with MSLF’s friend of the court brief. The ruling in Navajo Nation v. U.S. Forest Service vindicates the position taken by MSLF for nearly a decade and a half in cases involving the use of federal land and the Constitution’s Establishment Clause. In an 8-3 ruling, the majority proclaimed:

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.

The majority also declared, "[G]iving 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," relying on a 1988 Supreme Court ruling written by Justice O’Connor that American Indian religious practitioners may not bar other uses from federal land. MSLF urged that view upon the Ninth Circuit.

The Arizona Snowbowl is a ski area on Humphreys Peak, near Flagstaff, Arizona, where there has been organized skiing since 1938. A 1979 Forest Service plan to expand the ski area was challenged by Navajo medicine men and the Hopi Tribe but was upheld in 1983. In September 2002, Snowbowl proposed to improve skiing at the resort, which was approved by the Forest Service in February 2005. In addition to expanding and upgrading the ski terrain, Snowbowl proposed to extend the ski season by making artificial snow using treated sewage effluent from the City of Flagstaff.

Contending that such a use would desecrate the religious sites of American Indian religious practitioners, several Indian tribes, individual Indians, and environmental groups sued the Forest Service for approving Snowbowl’s expansion and use of recycled effluent. An Arizona federal district court upheld the Forest Service’s decision; however, a three-judge panel of the Ninth Circuit reversed that decision, holding that the Forest Service plan violated the Religious Freedom Restoration Act (RFRA). On October 17, 2007, the Ninth Circuit agreed to rehear the case. MSLF filed an amicus brief on November 7, 2007. Oral arguments were held on December 11, 2007.

MSLF began its litigation against efforts by American Indian religious practitioners to bar use of federal land in the 1990s when the National Park Service sought to close Devils Tower in Wyoming to climbing. MSLF continued its litigation as to the Lewis and Clark National Forest in Montana (1 million acres closed to energy exploration), the Bighorn National Forest in Wyoming (50,000 acres closed to logging), the Plumas National Forest in California (miner barred from claims), Rainbow Bridge National Monument in Utah (tourists barred from arch). Nearly all ended with dismissals for lack of standing. MSLF later sought to bar the closure of private land in Arizona to mining due to demands from American Indian religious practitioners. The Ninth Circuit ruled that American Indian religion is not covered by the Establishment Clause. Later, the Ninth Circuit upheld the closure of Cave Rock on National Forest lands near Lake Tahoe, Nevada, based on the earlier Ninth Circuit’s ruling. The Navajo Nation ruling sharply limits both rulings.

It is likely the Supreme Court will be asked to hear the case.