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Navajo Nation v U.S. Forest Service

Case No. 06-15371 (C.A. 9, Mar. 12, 2007)

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 Historic Preservation 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. Forest Serv., 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. Defendants appellees 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.
 

 

Judge(s): William A. Fletcher
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Circuit Court Judge(s)
William Fletcher
Thelton Henderson
Johnnie Rawlinson

 
Trial Court Judge(s)
Paul Rosenblatt

 
Appellant Lawyer(s) Appellant Law Firm(s)
Howard Shanker
Laura Berglan DNA People's Legal Services
Terence Gurley DNA People's Legal Services
William Zukosky DNA People's Legal Services
Anthony Canty The Hopi Tribe

 
Appellee Lawyer(s) Appellee Law Firm(s)
Paul G. Johnson Jennings Strouss & Salmon PLC
Philip A. Robbins Jennings Strouss & Salmon PLC
Bruce Babbitt Latham & Watkins LLP
Janice M. Schneider Latham & Watkins LLP
Rachael Dougan U.S. Depertment of Justice
Lane McFadden U.S. Depertment of Justice

 

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Click the maroon box above for a formatted PDF of the decision.
medicine men, the hopi tribe, and two nearby ranch owners comment that "[a] few commenters expressed concern that the plaintiffs-appellants, b. consideration of alternatives believe that when the earth was submerged in water, the replaced rfra's original, constitution-based definition of instead, the environmental impact analysis in subchapter treated sewage effluent. indeed, representatives of several of marks omitted). we held that the forest service was required appellees are the united states forest service; nora rasure, because of the extensive record of consultation undertaken by 2852 navajo nation v. usfs ditional cultural property." a traditional cultural property is fresh water and percolates into the underground regional aqui- meaningfully consult with them. they concede that the forest 2000), decided before rluipa's passage) (emphasis added). "objectives" listed in the tribal consulation plan are "get the individual hopi's practice of the hopi way per- `forcefully presented.' " vt. yankee, 435 u.s. at 553-54. that the adeq actually analyzed the risk of skiers ingesting nourish the corn crop. in preparation for the katsinam's could survive. she landed on the peaks, alone, and washed in must not substitute its judgment for that of the agency, but est for multiple uses, including recreational skiing, are, in the tions, praying for the spiritual purity to receive the katsinam. luted sewage effluent. normal periods of use." id. r18-9-704(f). cf. u.s. const. amd. 1 ("congress shall make no law . . . pro- 2888 navajo nation v. usfs lodge, and some other development. an association of navajo appeals. one member of both the sierra club and the flag- d. impact on the regional aquifer v. norton, 276 f.3d 1060, 1071 (9th cir. 2001) (quoting cali- applied to the federal government. see guam v. guerrero, [28] the hopi also incorporate by reference the evidence are on the edge of their territory." the chairman of the hava- and "briefly discuss" the reasons for eliminating any alterna- treated sewage effluent on the peaks would fundamentally human consumption, "full-immersion water activity with a microbial pathogens, are typically found at concentrations child health . . . . children respond very differently in center for biological diversity, we held that an feis ing water source. much like areas of flagstaff where amendments to a forest management plan, prompted by the [25] nevertheless, the feis contains some analysis of the kachinas, who bring water, snow and life to the hopi peo- uses of the peaks, with which appellants also do not seek to employee unilaterally designates." id. at 709. the snowbowl clusions of law de novo and its findings of fact for clear error. the katsinam begin to arrive, and the hopi celebrate with [27] if a proposed undertaking will have an effect on his- vent their children from doing so neither responds to the in the district court, and argue here, that approving the use of are a pure source of their rains and the home of the katsinam. defendants-appellees. visitor or the minor's guardian to avoid consuming 2885navajo nation v. usfs "a+ reclaimed water." the adeq permits use of a+ the proposed expansion of the snowbowl entails deposit- practices. indeed, appellees concede that the peaks as a exercise of religion through prisoner or land-use regulations. alternative." to the contrary, the fact the snowbowl is appar- from the peaks annually, and hopi practitioners look to the disease in the waters -- and that would be like injecting me belief" -- rfra now protects a broader range of religious opinion by judge william a. fletcher appellants failed to exhaust the claim in administrative pro- a proposal we can all work with." the forest service was see a starting place. if appellants do not have a valid rfra stories, hualapai songs and stories about the twins are infused the water used to produce the steam and are cleansed by sultation on this matter from any substantial govern- added). absolutely valuing appellants' religious beliefs over snowbowl had officially submitted its proposal: "[w]e are all water to the snowbowl is not subject to decision by the forest this case and lyng v. northwest indian cemetery assoc'n, discussion of the issue, nor does any response articulate why ii. standards of review argue that avoiding a conflict with the establishment clause tribes' religions have revolved around the peaks for centuries; 2854 navajo nation v. usfs interests justifying the general applicability of government proposed undertaking on the cultural and religious systems on "touching death" depends on the intensity of the encounter. if currently is used for nonpotable purposes, conserves higher life, our daily lives." fer. much of the effluent used to make artificial snow would we hold that the forest service's feis does not fulfil its obli- alternative," children and native americans. alent of the forest service's minimizing the adverse impact of 2877navajo nation v. usfs d.c. no.nora rasure, in her official cv-05-01824-pgrcapacity as forest supervisor, peaks; and that the tribes have a duty to protect the peaks. act imposes in every case a least restrictive means require- approved by the court decision. it is also important effluent or articulated why such a discussion is unnecessary, nightly dances at which the katsinam appear in costume and risks, and has not provided an analysis that will "foster both your honor, our way of life, our culture we live in with sufficient clarity to allow the decision maker to under- refusal is a permitted accommodation to avoid "callous indif- consult with the hopi. the only medicine for illnesses of the upper body and head, navajo healing ceremonies, as is medicine made with plants gallons of treated sewage effluent. the stored effluent would ing scientific viewpoints," and because the feis's recommen- vt. yankee nuclear power corp. v. natural res. def. coun- west." but was summarily dismissed." [20] we conclude that the forest service has not provided 2855navajo nation v. usfs proved human ingestion of such water. arizona law requires reclaimed water, it is assumed different types of inci- thornton v. caldor, inc., 472 u.s. 703 (1985), in which the highly relevant question: how much direct exposure to the authorizing the use of artificial snow at an already functioning ogist, testified that the desecration of the mountain would not agree that inducing a commercial ski resort, which is not cil, inc., 435 u.s. 519, 553 (1978)). "claims must be raised 873-74. although appellants note that an agency does not and my mother, my grandmother, the peaks, with impurities, of boerne, 521 u.s. at 534. "[o]nly those interests of the ing to become a medicine man, testified that "once water is dentally consuming the snow in the case of a ceremonies. id. at 890. the court held that the first amend- on beliefs and practices tied to land that they hold sacred. contexts, exempting entire classes of free exercise cases from lages from the peaks. the katsinam must be treated with which may have an impact on man's environment." 42 u.s.c. may do so without violating the establishment clause."). above, appellees further contend that the feis "sets forth rel- been used by several indian tribes for religious purposes. the u.s. at 215. minimizing the adverse impact of the snowbowl by restricting visit, to place our offerings, the tranquility, the sanc- sewage effluent's impact after it has filtered through the where it meets drinking water standards, the fact in this case hualapai tribe; norris nez; bill regional aquifer from diversions of reclaimed water for snow- with natural snow insofar as the artificial snow intermingles making and informed public participation." churchill county activist network, the center for biological diversity, and the by contrast, in wet years, there are many skiable days and is inconsistent with that same agency's regulations, which are witness translated as "people of the earth" or "people put on the deluge, the twins, and their mother "our bible story" and do recognize that there is a legitimate safety concern about defendants-appellees, late the free exercise clause. in the court's view, there was their business practices to the particular religious practices of that "relevant information will be made available to the larger is supported by the letter's suggestion that consultation might connection between the facts found and the choice made." hawk are grossly inadequate to protect the birds," and poisoning of a living being. in foster's words, "[i]f someone water from the peaks is sacred. in their sweat lodge purifica- the fifth response is on the last page of responses to com- ble ingestion of artificial snow made from treated sewage on the peaks would include "motorcross, mountain biking, led researchers to believe that environmental exposures are ing for fresh water. lages to make a pilgrimage to the peaks. they gather from the acceptable drinking water quality." as above, this is a non- and the havasupai. however, on the record before us, that tribe's "grandmother" floated on a log and landed and lived and snowplay. 408 f. supp. 2d at 884. life by desecrating the peaks' purity -- is also shown in the begay, there would be contamination even on those parts of is a compelling interest served by the proposed action. only the record does not support a conclusion that the snowbowl dations undisputedly "rest[ed] upon the service's habitat took a substantial expansion in 1979. the current owners pur- reclamation is an important strategy for conserving and aug- explore and objectively evaluate all reasonable alternatives," feis. none of these brief responses constitutes a reasonable road would have left the unconnected portions of the road vir- whole are significant to appellants' "exercise of religion." cial air conditioning systems; and non-self-service car need to protect the habitat of the northern goshawk. id. at arizona snowbowl as a commercial ski area depends on their vi. conclusion 2873navajo nation v. usfs argues that holding for appellants would absolutely privilege 2849navajo nation v. usfs (9th cir. 2002). the aim is to prevent plaintiffs from engaging tive two" of the feis, the alternative preferred by the snow- for their sweat ceremonies, flows from the peaks, where the after taking part in a death ceremony. mixing the two will embodied in traditional songs given by the katsinam to the and have medicinal properties. one witness called the story of treated sewage effluent. flagstaff onto the peaks. depending on weather conditions, 2897navajo nation v. usfs healing ceremonies testified that water from the peaks is used following a bench trial, we review the district court's con- at 1488 (codified at 42 u.s.c. 2000bb(b)). in this initial ver- for publication route selected for the road was "removed as far as possible the same thing as the closure of the snowbowl. only if it demonstrates that application of the burden to the required ceremonies that have been, and continue to be, the rence's comments as "all . . . variations of the same the peaks, as much of the information stems from oral histo- a range of research and discusses the growing scientific and mental quality ("adeq") requires that users take precautions shed analysis, the feis identifies as one of the cumulative of recycled sewage effluent to make artificial snow on the san process suggest, the balance of the administrative record suf- advances that interest. appellees provide no specific evidence upgrades at snowbowl to ensure that users of the national cantly affecting the quality of the human environment." id. hold that the navajo and the hopi have shown a substantial the snowbowl, and stabilizing employment levels we think is highly unlikely), continuing recreational activities the percentage of machine-produced snow within the health risks to downgradient users, it does not address the has "considered the relevant factors and articulated a rational cases" where the free exercise of religion is substantially bur- 4. the havasupai peaks, there are important commonalities. as the service has f.3d at 949 (quoting graham, 822 f.2d at 850-51). the impurity would disrupt the ceremony: these provisions of rfra were prompted by two supreme make artificial snow on the peaks would substantially burden "exercise of religion" with the broader definition quoted impacts of an agency's action and a candid acknowledgment effects to be analyzed the "potential long-term effects on the ern arizona ecosystems and waters with various societal substantial burden on the plaintiff's ability to practice freely that the forest service took actions that foreclosed the consid- water loss on the recharge of the regional aquifer; subchapter directly under the free exercise clause. as we discuss, supra, structure into balance with current use levels. based." 349 f.3d at 1160. the feis in that case evaluated respect to the risks of ingesting artificial snow. troubled family prays into an eagle feather for days, and the summary judgment. in subsection (b)." 42 u.s.c. 2000bb-1(a). "exercise of reli- appellants have not shown that the discussion was inadequate we focus our analysis on the peaks' significance to the hopi a project, they do not appeal this ruling. before: william a. fletcher and johnnie b. rawlinson, exercise clause. the net effect of these changes is that it is bowl would cover 205.3 acres of humphrey's peak with arti- appeal deciding office, regional light radiation. . . . water supplied for reuse is fur- law's primary effect was to advance religion by "impos[ing] years, we have abstained from applying the sherbert test (out- associated practices of song, worship, and prayer, that depend entity, the entire mountain would be contaminated even if the supai testified that the peaks are the most sacred religious site the peaks he would no longer be able to go on the pilgrimages unable to perform the sweat lodge ceremonies as a conse- id. at 1160. the agency received comments from multiple (2004) (plaintiffs' participation must " `alert[ ] the agency to arrival, prayer sticks and feathers are delivered to every mem- sonable. in justifying its elimination of the potable water use of freshwater instead of reclaimed water for snowmaking, of sausalito v. o'neill, 386 f.3d 1186, 1207 (9th cir. 2004) ther treated with a hypochlorite solution to assure case therefore erred by disregarding the amended definition ational opportunities, bringing terrain and infra- eration of a reasonable range of alternatives. however, have affected and will continue to negatively affect national forest; harv forsgren, from the system." ariz. admin. code r18-9-704(h) (2005). ing millions of gallons of treated sewage effluent -- often undermine the hopi faith in daily ceremonies and the season, depending on the amount of natural snow. many skiers. for example, in 1991-92, there were 360 inches under the free exercise clause of the first amendment, con- would use the term. rather, the contamination represents the fied environmental amenities and values may be given appro- (9th cir. 1996) (no substantial burden because prisoner was court, those compelling interests are: (1)"selecting the alterna- would then become contaminated. and that's what would stitutional as applied to the federal government). three years hopi and sung by the hopi in their everyday lives. one hopi reclaimed." he further testified that he objected to the current after failing to do more to bring the matter to the agency's conclusion that the alternative sources of water were not rea- navajo beliefs that, as testified by joe shirley, jr., president environmental impact of the diversion on the regional aquifer. human contact," including preventing "contact with drinking result in comparable environmental exposure as investigated dren -- will in fact ingest the artificial snow. address the issue. required the wholesale exclusion of non-indians from the land that although the constitution does not require a compelling rfra is whether there is a "substantial burden" on the exer- available" and could "easily be updated through future euphemistically called "reclaimed water" -- from the city of ous animals in experiments conducted by a northern arizona would be ingested and, if so, whether such ingestion would the court's decision in employment division, department of the hualapai also presented evidence that the proposed water for snowmaking represents a low risk of acute or ment authority including the national institute of nam's departure for the peaks. b. "burden" of any witness." nor do appellees dispute the sincerity of standard as to when this requirement has been met and we ditional compelling governmental interest test under the free ficial snow to build a base layer. the snowbowl would then zona law, the treated sewage effluent must be free of "detect- the dead induces "ghost sickness," which involves hallucina- v. methow valley citizens council, 490 u.s. 332, 349 (1989). volume 1 of 2 passes a thorough investigation into the environmental above. rluipa 7-8, 114 stat. at 806-07. under rluipa, have difficulty preparing for religious ceremonies, because we reverse the decision of the district court in part. we to this response, perhaps because the service recognizes its record of decision ("rod"). the rod approved "alterna- rfra provides stronger protection for free exercise than the decision the tribal leaders supported, this does not mean that stantial burden on their exercise of religion. this showing is have unlimited discretion to define the purpose and need for diversity, and the flagstaff activist network ("navajo american indians." id. to ensure a consistent and reliable operating sea- purity of the peaks' water, as an integral part of their religious ring to the need to guard against ingestion of "lower quality" 2890 navajo nation v. usfs imposed on that exercise of religion if the proposed expansion singing as they use the spring water to make steam; they ests. this is not the case. that because they believe the mountain is an indivisible living rfra invocation of such general interests, standing alone, is medicine man, testified that "like the western doctor has his plaintiffs, cv-05-01824-pgrv. cv-05-01914-pgr tribes discussed above -- the navajo, the hopi, the hualapai, used for many purposes. see id. r18-11-309 tbl. a (2005) he further testified that he was "concerned" that the water's includes "managing the public land for recreational uses such cv-05-01966-pgrnora rasure, in her official 2891navajo nation v. usfs sultations in detail). lishment clause violation. indeed, the forest service does not rex tilousi; dianna uqualla; water is in use and that no one should drink from the system." result of the 1981 lawsuit was a legal decision that navajo go on pilgrimages to the peaks to collect plants for peaks in their daily songs and prayers as a place of tranquility, visitors of the use of reclaimed water as a snowmak- must employ "application methods that reasonably preclude appellants. held that the constitution "affirmatively mandates accommo- government's general interest in enforcing the controlled exercise shall be considered to be religious exercise"). sub- rfra claim in this case in part because otherwise we cannot of class a reclaimed water for snowmaking were the snowbowl to make artificial snow from treated sewage see also dep't of transp. v. pub. citizen, 541 u.s. 752, 764 ultimately from the peaks, to which they pray daily. they a six-mile section of road connecting two pre-existing roads 2864 navajo nation v. usfs 93, 1997-98, and 2004-05. relying only on natural snowfall, havasupai have also done so. creation. and once the steam comes off and it comes navajo there's no words to say that that water can be plaintiffs-appellants are the navajo nation, the hopi tribe, dental contact that could potentially occur from use the grand canyon. the commanding presence of the peaks prayers. like the hopi and the navajo, the hualapai believe artificial snow made from treated sewage effluent, and appel- the treated sewage effluent snow is not supported by any evi- substantially burdened by government" and "to restore the "few exceptions" include snowmaking. hence the letter spe- grimages to the peaks since at least 1540, when they first time immemorial, they have relied on the peaks, and the sludge . . . . scum and odors are also removed . . . . ton (of the hopi tribe), norris nez (of the navajo nation), [6] the forest service and the snowbowl argue that even artificial snow meets adeq standards for what arizona calls [2] rfra protects "any exercise of religion, whether or not we hold that the forest service's approval of the proposed the eis" and "is provided as general information but will not exhaust appellants' administrative remedies. the forest ser- the adeq approved the use of treated sewage effluent for most sacred place of both the navajo and the hopi; that those 2839navajo nation v. usfs added). plaintiffs-appellant, cv-05-01824-pgrv. cv-05-01914-pgr tion to clear 120 acres of new ski runs and to do additional *the honorable thelton e. henderson, senior united states district they depend on the kachina to bring. 2848 navajo nation v. usfs environmental design arts in planning and in decisionmaking to improve safety, skiing conditions, and recre- would prevent them "from engaging in conduct or having a scientific conclusion that the birds were "habitat generalists." hualapai are today descended. later, one of the twins became university professor, dr. catherine propper. the feis com- forester, in his official capacity, christian confirmation or a jewish bat mitzvah. the cere- religious practices if they are imposed by laws of general side the unemployment compensation field) at all."); see, e.g., issue, drawing from existing literature and extensive consulta- does not comply with nepa. we affirm the grant of summary arizona supreme court decision holding that cities can sell plaintiffs, remanded. the parties shall bear their own costs on that the treated sewage effluent will be "diluted." the artifi- under the proposed action challenged in this case, up to 1.5 bowl was the subject of a bitter lawsuit in 1981. on the peaks, the fog or the steam that comes off is charged into flagstaff's sewers by households, businesses, [24] the feis discloses, discusses, and responds to the [17] appellants were among those who raised this issue, the hualapai creation story takes place on the peaks. the ties, as well as to extend its ski season in dry years, is a gov- havasupai tribe; rex tilousi; treated sewage that is undiluted with fresh water and people cause katsinam dance ceremonies to lose their religious human resources of oregon v. smith, 494 u.s. 872 (1990). rejuvenating medicine bundles, from making medicine, and components never addressed in wilson, thus implying that the nies and could lead to the end of the ceremonies. rex tilousi, amendments." id. at 1163 (alterations in original, quotation capacity as forest supervisor, vent use of the peaks by others. a developed commercial ski even if there is a substantial threat that the snowbowl will response contained in the memorandum: "once we accept the natural or physical environmental effects are interrelated, then ference." lynch, 465 u.s. at 673. would impose a burden on the religious exercise of all four effluent to make artificial snow on the peaks would be "far requirement is "the heart of the environmental impact state- on this mountain at any time. it's -- it's the holiest of shrines testified that he believes that the treated sewage effluent experienced still a mountain and peaks that were in court's grant of summary judgment on appellants' remaining mandate under the national forest management act," which vice responded to the risk at a very early stage. in october first amendment did under the pre-smith cases because "the snowbowl is there & isn't going away. flagstaff: religious experience which the faith mandates." 408 f. supp. stat. 1488, 1488 (1993) (codified at 42 u.s.c. 2000bb(a)). forest service considered, the risk posed by endocrine disrup- snowplay by non-skiers who drive to the peaks and park and winter tourism within the local community. first amendment and nepa. the d.c. circuit upheld the cies must prepare an eis for "major federal actions signifi- diversity and the flagstaff activist network, as well as a and need" as follows: in rfra, enacted three years later, congress made formal appellees rely heavily on perceived similarities between ceremony. he explained: signals receptiveness to the snowbowl's proposal, it does not the snowbowl has been in operation since 1938, and it under- 2876 navajo nation v. usfs land. they refer to themselves as nochoka dine, which one four sentences long. it states that signs would be posted, but 1166 (quotation marks omitted). an agency preparing an eis 1185, and appellants are unable to point to substantial evi- from whom the navajo are descended. the navajo believe born of water. she washed again, and conceived another son. further, the navajo nation, the sierra club, the flagstaff only two major ski areas in arizona, where public demand for lic is informed that reclaimed water is in use and that no one -- for sacramental use; and (2) the inability to maintain daily must be "more than an `inconvenience,' " guerrero, 290 f.3d 2831navajo nation v. usfs in a healing ceremony, people seeking treatment drink from governmental interest" and "the least restrictive means of fur- kachina in english). hundreds of specific katsinam personify to perform a particular religious ceremony, because the cere- effluent to avoid that result. we are struck by the obvious fact to the efficacy of at least some religious practices [posed by healed. they give water to the dead to take with them on their on employers and employees an absolute duty to conform turbed "prayer seats" in the chimney rock area. id. at 443, and (3) how long it would take to see adverse effects on plants [9] third, approving the proposed action does not serve a snow using treated sewage effluent. treated sewage effluent should drink from the system." ariz. admin. code r18-9- in addition to directing our attention to the responses providing public recreation. even without the proposed marked in the center by the san francisco peaks, which were id. at 454. finally, the failure to build the six-mile segment of ply provides the necessary process' to ensure that federal eat artificial snow made from treated wastewater?" it contin- of the extensive human activity that now takes place on the closed all consideration of alternatives. among the five the twins and their mother in the hualapai creation story. the legitimate claims to the free exercise of religion." yoder, 406 cir. 1996) (plaintiffs failed to establish "a substantial burden proposal: "once we accept the proposal, we do support it -- appellants argue that another june 2002 talking points memo- fall. there has been heavy snowfall, particularly in 1991-91, 1992- generalist conclusion." id. at 1167. the standard that must be satisfied to justify a burden on the to numerous indian tribes of the american southwest. the the supreme court held rfra unconstitutional as applied to forest service has identified the peaks as eligible for inclu- where feasible, seeking agreement with them." 36 c.f.r. there has been no showing that approving the proposed action 42 u.s.c. 2000cc, 2000cc-1. in addition, rluipa justifying decisions already made." id. 1502.2(g). however, prayers; by praying to the peaks with a medicine bundle con- havasupai believe life began. although none of the three higher powers through prayers and songs focused on the religious exercise imposed by laws neutral toward religion," sary. is or is not a human health and safety concern would depend taining soil from the peaks, the prayer will be communicated agencies to prepare a detailed environmental impact statement (quoting worldwide church of god, 227 f.3d at 1121). the grounds, 490 u.s. 360 (1989). dation, not merely tolerance, of all religions, and forbids hos- human being. but if something is injected into my body that making." ments were addressed, and [the agency] provided thoughtful to include "appropriate mitigation measures" in the eis's the-sea v. u.s. dep't of transp., 123 f.3d 1142, 1155 (9th would not be pure anymore. and it would be a dev- sequences.' " ctr. for biological diversity v. u.s. forest appeal deciding office, regional reclaimed water is used, it is the responsibility of the gious ceremonies. frank mapatis, a hualapai practitioner and fountains, water coolers, or eating areas," and preventing the whether artificial snow made from treated sewage effluent on many factors . . . . poorly or partially treated wastewater inadequate because the feis states that the study area of the more profitable -- and the income stream more consistent -- the feis is a "reasonably thorough discussion" of the issue. amending rfra's definition of "exercise of religion." under for all "major federal actions significantly affecting the qual- areas," and preventing the treated effluent from "standing on which a two-stage anoxic/aerobic process removes of alternatives falls short because the forest service took general interest in ensuring public safety on federal lands, [19] "nepa `does not mandate particular results,' but `sim- united states court of appeals beliefs and practices are not uniform, the precise burdens on point" began with the question: "will my kids get sick if they snow." a member of the sierra club and the center for bio- higher powers, carrying prayers from the hopi villages to the the court). the court was willing to "assume that the threat that skiing at the snowbowl in its current state is unsafe. we brushing the water on their bodies with feathers. at the con- effluent and would only be "mixed and therefore diluted" is difficult to be precise in the analysis of the impact of the hualapai, havasupai, and paiute." the service has acknowl- a "reasonably thorough discussion" of any risks posed by quately to consider fresh water drilling as an alternative to the proposed action would prevent them from performing various trative appeals if the appeal, taken as a whole, provided suffi- of the proposal is within the scope of the 1979 decision -- the because that mountain would then become impure. it defendants-appellees, the navajo people,' their essence and their home. the whole on the merits, appellants claim that the feis inadequately the proposed action would prevent him from practicing as a 2895navajo nation v. usfs require that baptisms be carried out with "reclaimed water." treated sewage effluent would "ruin" his medicine, which he ambassadors of this [project] and need to provide the same proposed action on the human environment. the peaks and conduct ceremonies with medicine bundles. 2863navajo nation v. usfs leigh kuwanwisiwma, a hopi religious practitioner and eventually make its way back to the aquifer, but some water the feis and rod define the proposed action's "purpose results from a rule of general applicability, except as provided of justice, environment & natural resources division, wash- tions, using water touched with death in healing ceremonies free exercise case. and procedures . . . which will insure that presently unquanti- daily reclaimed water samples." ariz. admin. code r18- requirements of arizona law for "reclaimed water," the feis final environmental impact statement prepared in this case 2. merits o'lone v. estate of shabazz, 482 u.s. 342, 349 (1987) (not clusion of the healing ceremony, the other people present also navajo nation; hualapai tribe; populations that can be impacted by the "preferred commercial ski area in order to expand and improve its facili- after stating that the issue "extends well beyond the scope of norris nez; bill bucky preston; because the comments were undisputedly "responsible oppos- flagstaff activist network, days, and 173,862 skiers; and in 2004-05, there were 460 father, changing woman instructed them to offer prayers to nature. the katsinam are the spirits of hopi ancestors, and the receiving the hopi clans. so when you begin to human ingestion of artificial snow made from treated sewage of the significant aspects of the probable environmental con- paragraph in the letter: backbone of our ceremony" because it is performed at all cer- by a ban on a south american hallucinogenic plant. id. at such a discussion is unnecessary. the first response, objecting ment's free exercise clause does not prohibit burdens on plants, and animals from the peaks have spiritual and medici- tives from detailed study. 40 c.f.r. 1502.14(a). "the rule not enough." id. at 1225. "[s]trict scrutiny `at least requires torrence's comments all concern endocrine disruptors. ence." id. 1502.14(e). we have interpreted this regulation to 2865navajo nation v. usfs resort in the nation to make its snow entirely from undiluted mation concerning significant environmental impacts," and to rely on natural snow and to remain a relatively small, low- current owners expect that the resort would be substantially center for biological diversity, d.c. nos. health risks resulting from ingestion of the treated sewage into with the caretaker i refer to as ma'saw, the spir- feis that, in return for approval of the proposed action, the 2853navajo nation v. usfs appellants" or "appellants") claim that the feis failed to appellees. hualapai tribe objected in their administrative appeal: plaintiffs also testified that this negative effect on the wreck? finally, and perhaps most important, congress expanded the solids from the waste system. the waste sludge eral court rulings is a workable test for striking sensible bal- risks entailed in humans' direct exposure to, and possible proposal. 2847navajo nation v. usfs interest test in such a case, legislation could impose one. id. and that "the compelling interest test as set forth in prior fed- peak form a single large mountain commonly known as the treated sewage effluent is "something you can't get out of the district court found, and the evidence in the record sup- on the purity of the peaks, which is the source of rain and perform. the katsinam stay while the hopi plant their corn opinion the clans journeyed to the peaks (or nuvatukyaovi, "high in the blessingway ceremony, called by one witness "the "the least restrictive means of furthering that compelling gov- cess, of possible health risks from human ingestion of original) (quoting kern v. u.s. bureau of land mgmt., 284 2861navajo nation v. usfs "the stated goal of a project necessarily dictates the range of kling that water on the rocks, i'm going to always ation of the snowplay area are a compelling interest, we do 290 f.3d 1210, 1220-21 (9th cir. 2002) (holding rfra con- involving the peaks and the kachina -- from daily and chemicals. no data at all exist on the long-term administrative appeal, appellant preston argued that the feis that reclaimed water is in use and that no one should drink 1. administrative exhaustion and notice of claim he might be purified in four days, but if he touched a body, medicine bundles "our bible," because they have "embedded" peaks -- which is our bundle mountain, or sacred, contact," and "authorized for artificial snowmaking for skiing there are several problems with this response. first, the feis "all substantive comments . . . whether or not the com- id. 2000cc-5(7)(b) (further specifying that "[t]he use, build- undermined by the contamination. equate with respect to its discussion of the risks posed by pos- hopi tribe, d.c. nos. informed decision-making and informed public participation." tinguish the plaintiffs' claim from one that would have filtered through the ground. exposure to the snow would be sufficient to make a person ill; herbs, to do offerings." after the requisite preparation, the forester, in his official capacity, that the letter shows that the proposal ultimately approved in the regulations further provide that "[a]gencies shall not however, appellees contend that the very survival of the tion of treated sewage effluent. robertson, 490 u.s. at 350 (stating that nepa requires envi- interest in promoting public health and safety . . . , but under with the fifty-five mitigation measures catalogued in a table in several ways, rfra provides greater protection for reli- ther, "the use of reclaimed water is believed by the tribes to a medicine bundle -- described by one witness as "a living contact with particular plants or ceremonial areas. to them, dence indicating that the forest service impermissibly "com- happen to the mountain." in nez's words, "all of it is holy. the way they think about the peaks, the kachina and sina, it affects the hopi people. it affects the hopi interference with a tenet or belief that is central to religious the feis, the forest service reiterates, "the city has the legal standard consists of "a pragmatic judgment whether the eis's the mountains being in their purest form. they didn't appeal from the united states district court although the subchapter reasonably discusses the human ruptors are significantly lower in the rio de flag water than ritually suffocated; the skin cannot be pierced by a weapon. forest ski area have a safe experience"; and (3) complying the medicine bundle is placed to the west, facing the peaks. whether signs would be posted to warn that "reclaimed water" the peaks, undermine their sweat lodge purification ceremo- of treated sewage effluent on the peaks would impose a sub- 1503.4(b). however, if comments have been "exceptionally noted, many of these tribes share beliefs that water, soil, steam is the breath of our ancestors. and the rocks burden on their religious exercise is "substantial." the burden meates every part and every day of the individual's the placenta to the peaks so that the child will be strong like amendment. further, the test for a prima facie case under description of the proposal and its alternatives). the mea- ning. at least from the standpoint of public relations, the ser- and annual religious practices comprising an entire way of appellants claim that the use of treated sewage effluent to reclaimed water for snowmaking, but it has specifically disap- before treatment, the raw sewage consists of waste dis- black bag with needles and other medicine, this bundle has in in which they hold the mountain." to have had adverse human health effects. that response does affected tribes before proceeding. see 16 u.s.c. 1977, the then-owner of the snowbowl requested authoriza- by undisturbed naturalness.' " id. at 453 (emphasis added by 2829 arizona snowbowl resort 2867navajo nation v. usfs fer caused by diverting the effluent from the rio de flag. although the treated sewage effluent would satisfy the snowbowl's studies on the feasibility of water alternatives water, and the hualapai put a young girl on a log so that she ground, a process the feis estimates may result in "an order nature. and we go to all of the sacred mountains for the mountain. so that any thing that interrupts this perception, the katsina that reside in the peaks started out with that he would be unable to perform the fundamental blessing- from the sites used by contemporary indians for specific spiri- practitioner compared these songs to sermons, which children does not support the conclusion that the snowbowl will nec- four other respects challenged. rather by non-skiers who have stopped along the road. the court has long recognized that the government may (and age effluent to make artificial snow, violates rfra. second, be little or no natural snow with which to "dilute" the treated (permitting its use for, inter alia, irrigating food crops and reclaimed water, the answer implies (incorrectly) that the arti- ance of a compelling governmental interest" and constitutes jurisprudence rfra purported to codify." 521 u.s. at 535. mony sometimes involves water especially collected from the properties, and that he travels monthly to the peaks to collect if i was to take the water to sprinkle the rocks to "categorical" or general assertion of a compelling interest is -- has been acknowledged and described at length by the for- edged that the peaks are sacred to at least thirteen formally dure 8(a)(2) with respect to the risk of ingesting snow, and the no principled basis for distinguishing the plaintiffs' suit from medicine man. he told the district court that the presence of appellant navajo medicine man norris nez testified that 2869navajo nation v. usfs (alteration and internal punctuation omitted). on the peaks, where she survived on water from the peaks' entitled to have in mind a preferred course of action in a case-by-case determination of the question, sensitive to the peaks are the only place to collect water with those medicinal that the changing woman's kinaalda gave them life genera- [10] we therefore hold that appellees have not demon- interest; and (2) is the least restrictive means of furthering that ing the winter when there is little demand for "reclaimed ciently analyzed the risk of ingestion -- particularly by chil- "sewage-free natural environment," notes that groundwater state to demonstrate a compelling interest and show that it has humphrey's peak, agassiz peak, doyle peak, and fremont issues, garbage, and sanitation problems." id. at 899. the est service. the feis summarizes: "snowmaking and expan- schoolyards; flushing toilets; fire protection; certain commer- organized skiing has existed at the arizona snowbowl supreme court struck down a statute allowing all sabbath life, or "beliefway," is largely based on the idea that the peaks of trails would be re-contoured; a three-acre beginner's area nation, the white mountain apache nation, bill bucky pres- sive and time-consuming litigation. however, the input on "how the interests and concerns of the hopi people contributing to children's declining health status": "if con- must consider exhaustion arguments on a case-by-case basis." into our being, it purifies and cleanses us and we go spiritual leader who visits the peaks approximately once a f.3d at 1071 (quoting block, 690 f.2d at 761). mandates" and are therefore insufficient on their own to meet iv. national environmental policy act actions that foreclosed considering other alternatives, and 2856 navajo nation v. usfs cv-05-01949-pgrunited states forest service; by the snowbowl's expansion. the current dangerous condi- cient to put the forest service on notice of the claim and to messages." age effluent would prevent practitioners from making or and snowbowl now wishes to complete the development, appellants also argue that the forest service failed ade- religious land use and institutionalized persons act of 2000 lenge the snowbowl's studies. they further argue that the rather must uphold the agency decision as long as the agency with respect to governmental interests of the highest order, a burden a person's exercise of religion even if the burden demonstrate that the forest service failed to meaningfully 11-303(b)(2)(a). the feis acknowledges that the treated according to the hopi, the snowbowl upgrades will or not compelled by, or central to, a system of religious burden on their exercise of religion, we need not reach the ingestion of artificial snow made from treated sewage efflu- undermining appellants' religious faith, practices, and way of wastewater is then gravity-fed for secondary treat- 2882 navajo nation v. usfs forest service argues that the first two interests are compel- affected and we will have nothing to use eventually." lentini v. cal. ctr. for the arts, 370 f.3d 837, 843 (9th cir. 2879navajo nation v. usfs 877. they assert that dr. torrence's comments raise a broader sanctity, and purity. defendant-intervenor-appellee. ceedings as required by the apa, 5 u.s.c. 704, and that improvement proposal to the forest service. in february [13] second, the facts in lyng were materially different ment and identify such alternative in the final statement "relevant mitigation measures" to which they refer, the only authorize the use of treated sewage effluent on the peaks does ("shining on top," referring to its snow), and that the creator est. place of snow") to receive instructions from a spiritual pres- procedure required by law." 5 u.s.c. 706(2)(a), (d). of their actions." muckleshoot indian tribe v. u.s. forest 2898 navajo nation v. usfs the evidence proffered by the hopi appellants does not claims under the administrative procedure act ("apa"), at 42 u.s.c. 2000bb-2(4) (1994) (repealed)). appellees direct our attention to five responses to com- (9th cir. 2002). "the plaintiffs have exhausted their adminis- of four sacred mountains. one navajo practitioner called the the peaks play a role in every navajo religious ceremony. the wastewater diversion. they point to two portions of the key resort. the current owners may or may not decide to con- the parties' position and contentions,' in order to allow the the issue during the comment period or in their administrative sion of facilities, especially the use of reclaimed water, would opinion, could be water that's reclaimed through sewage, the purity of nature, including the peaks, plays an impor- the peaks every day and fasts before visiting to perform the rachael dougan, lane mcfadden, united states department and thereby leaving the two existing segments of road to focuses on the "hydrogeologic setting" and on the effect of d. "compelling governmental interest" and rfra's compelling interest test. 126 s. ct. at 1220. appel- the location where the treatment plant discharges the treated they object, however, that the forest service relied on the app. comm'n of fla., 480 u.s. 136, 144-45 (1987) ("this to the peaks that are necessary to rejuvenate the medicine christian beliefs and practices -- and the imposition that because the service failed to consider the alternative of drill- ment -- a requirement that was not used in the pre-smith posed action to go forward, contamination by the treated sew- demanding than the standard under the free exercise clause. cooling or misting." id. r18-9-704(g)(2). life, because the practices require belief in the mountain's hualapai spiritual leaders travel to the peaks to deliver berger, 475 u.s. 503, 506-07 (1986) (not applicable to mili- drink the water. a hualapai tribal member who conducts ment on the scripted "key messages" contained in the forest church, with the area within the mountains as the part of the describing the parameters of the "study area" for the water- imbalance -- there would not be a place among the in northern arizona have long-standing religious significance filed march 12, 2007 but their own from sacred areas of the public lands," id. at itself, because that ceremony requires water from the peaks, unobstructed view, and the practitioner must be surrounded ment." 40 c.f.r. 1502.14. `reasonable' alternatives and an agency cannot define its age effluent. emonies' conclusion, the navajo pray to the peaks by name. treated sewage effluent to make artificial snow serves several our role in reviewing the feis under the apa is not to not a compelling interest that can justify the burden imposed cine, testified that the use of treated sewage effluent would is required to take a "hard look" that "[a]t the least . . . encom- sekaquaptewa, a hopi tribal member and research anthropol- believe that the creator put them between four sacred moun- mately 40 congregations, or kiva, among the twelve hopi vil- purpose #2: not sufficient. in gonzales v. o centro espirita beneficente, 2846 navajo nation v. usfs court decisions. rfra was originally adopted in response to the alternatives including the proposed action." id. 1502.13. posal, with a few exceptions, is within the concept 2838 navajo nation v. usfs the development this time, we can all avoid expen- question whether signs would prevent children from eating the forest supervisor; harv forsgren, the regional forester; e. lyng v. northwest indian cemetery protection dianna uqualla, the sierra club, the center for biological the draft eis and in their administrative appeals, and that they middle of the northern arizona desert, and that the relatively to treat illnesses of "high parts" of the body like the eyes, service argues that this claim was not exhausted in the admin- ence' we have said was never intended by the establishment 470a(d)(6), 470f; 36 c.f.r. 800.1 et seq. under nhpa that residual disinfection is maintained . . . . 66 new acres of skiable terrain would be developed; 50 acres second, as the supreme court noted in city of boerne, the forest service insisted in the negotiations leading to the likelihood that children or adults would accidentally or inten- 2857navajo nation v. usfs ent. they point to the district court's statement that "the evi- a hualapai religious law forbids mixing the living and the effluent is the least restrictive means of furthering that inter- peaks. after preparing an environmental impact statement, prompted revisions in the body, [the agency] discussed in the limited partnership, logical diversity. the comments of dr. torrence alleged by 2001-02, when there were 87 inches of snow, 4 skiable days, celebrated as a gift of new life. following this celebration, tively," to respond to the comments, and to state its responses play area at the snowbowl have become linked only because in the feis. 40 c.f.r. 1503.4(a). although the agency need alternative, the forest service cited "logistical and economic arizona snowbowl resort applicable to prison regulations); bowen v. roy, 476 u.s. 693, bility question posed; the response also fails to address the see how the government could have been more solicitous." and even adults who indulge in the winter tradition of eating the burdens fall roughly into two categories: (1) the inability these were the twin warriors or war gods, from whom the the district court, "the peaks are where the hopi direct their exercise," those cases are no longer good law. see, e.g., bry- sewage effluent into the rio de flag. therefore, they argue, found in nearly every navajo household. the medicine bun- impacts of the proposal in comparative form, "[r]igorously cv-05-01966-pgrnora rasure, in her official must employ "application methods that reasonably preclude even after rluipa, rfra plaintiffs must prove that the open access areas during normal periods of use." id. r18-9- pai beliefs and traditions, even though the peaks themselves currently makes its artificial snow "exclusively" out of undi- impact on the regional aquifer. the feis states that, due to an "environmental and political issues." appellants have not ling. the snowbowl argues that all three are compelling. we 453. in their words, " `prayer seats are oriented so there is an process from return activated sludge, and separate appellants' testimony concerning their religious beliefs and the director of the tribe's cultural preservation office, in other waste water also measured in the study, and that "the argued and submitted 2002, even before the draft eis was published, the service 2830 navajo nation v. usfs sewage effluent from flagstaff's regional aquifer. the forest katsinam live on the peaks. in sixteen days of ceremonies and on a central tenet of their religion"). the district court in this the snowbowl, because the use of artificial snow will allow ("rluipa"). pub. l. no. 106-274, 114 stat. 803 (codified at 2859navajo nation v. usfs there will be signs posted at snowbowl informing would the burden be "substantial"? (4) if there would be a years, by replacing the ingredients with others gathered on millions of gallons of treated sewage effluent are put onto may reasonably be seen as part of a continuing course of for biological diversity; the ters (cfu/100 ml) in untreated wastewater. advanced waste- 2881navajo nation v. usfs and animals downstream. the response to these questions is stances, an agency's response to a comment need not be given multiple alternatives to using the treated sewage effluent. and the construction of a number of facilities. the leniently because "[r]equiring more might unduly burden the "irretrievable impact" the proposal would likely have on service and is therefore not within the jurisdictional purview vice was obviously aware, from the outset of the nepa pro- ingestion of, undiluted treated sewage effluent that has not yet this response does not address the risk that children or adults . . . . tary regulations). church where the people sit, and the peaks as "our altar to the responsible officer, coconino those beliefs and practices. the forest service has thus satis- sacred mountains. we would not be able to go there the establishment clause. the supreme court has repeatedly because the forest service "refused" to consider the impact of 2866 navajo nation v. usfs compelled by, or central to, a system of religious belief." 42 62. rather, the feis merely acknowledged in a summary of the risks that those impacts entail." nat'l audubon soc'y v. tions of using treated sewage effluent in subchapter 3h, "wa- any event have traversed areas having ritualistic value to the forest service's consultation process was substantively is holding medicine and things to make us well and healthy. the kachina peaks wilderness. arizona wilderness act of more serious." he explained, "i can live with a scar as a ("nhpa") requires the federal agency to consult with the ever, given that the feis does not address as an would be lost to sublimation and evaporation. the feis con- there are signs posted to warn against consump- -- and more in particularly with the san francisco since 1938. the original lodge was destroyed by fire in 1952. service took actions that foreclosed the consideration of a rea- fit and is the responsible entity to determine the most suitable springs and founded the tribe. gious practices than did the supreme court's pre-smith free (9th cir. 1999). appellants bring their nepa and nhpa life." 408 f. supp. 2d at 889. considering the mountain "like ments on the draft eis, contained in the second volume of the ries and a deep, underlying belief system of the indigenous including cryptosporidium and giardia." according to ari- gious] conduct or having a religious experience," bryant, 46 thering that compelling governmental interest"? we address for reuse then passes through the final sand and proposal, we do support it . . . ." further, they point to a note defines the hopi universe and serves as the home of the may ingest snow." although appellees do not specify the forester, in his official capacity, ered as one of the three main alternatives in the feis and is placed in the west signify where our ancestors go, on the ground that the agency failed to consider matters free exercise clause is written in terms of what the govern- action would prevent them from performing particular reli- est service's letter. the letter indicates that most but not all the main body of the feis addresses the health implica- opportunity for the tribes to participate in the process," but bly accidentally swallowing some. not to speak of children "[k]ids and skiers will be getting a mouthful of [the water]." lyzes the social and cultural impacts of the proposed action on tives to recommended courses of action in any proposal which tural properties (rev. ed. 1998), available at http:// of implications of endocrine disruptors." 408 f. supp.2d at and went through puberty there, an event which the people "assess and consider comments both individually and collec- dep't of the navy, 422 f.3d 174, 185 (4th cir. 2005) (citing other spirit beings; that tribal members can communicate with the hopi people. nepa requires agencies to "utilize a system- the contamination is not literal in the sense that a scientist contaminate the natural resources needed to perform the quately address the cumulative impact on the aquifer caused rfra adds a "least restrictive means" requirement to the tra- responsible officer, coconino proposed, including: an area for snow play and snow tubing use of treated sewage effluent on the san francisco peaks the katsinam teach children and remind adults of the moral age reduction in groundwater recharge to the regional aquifer -- we live in the blessingway, in harmony. we try need" section, which briefly specifies "the underlying pur- is wastewater discharged by households, businesses, and if the expansion were allowed to proceed. but the evidence in entific opposition to the conclusion upon which it [was] [21] nepa provides that an eis must contain a discussion would seep into the ground and into the spring below the even assuming that the safety concerns motivating the cre- allows the development of the arizona snowbowl staff has not measured thirteen of the regulated contaminants installed in 1958, and a chair lift was installed in 1962. in why he loves the mountain as his mother, he testified, "she (9th cir. 1987)); stefanow v. mcfadden, 103 f.3d 1466, 1471 a second response purports to answer a question about who the owner of the snowbowl is working on a draft proposal, as their name suggests, medicine bundles are also used in treated to meet standards for potable water. the feis then 2843navajo nation v. usfs public (e.g., golfers and farm workers) in the hot desert dianna uqualla; sierra club; 2870 navajo nation v. usfs ceded by a four-day purification process for the medicine man have any real intrusion by humanity. the proposed development of the arizona snow- if appellants have shown a substantial burden on their reli- adopted the least restrictive means of achieving that interest 1506.1. an eis "shall serve as the means of assessing the v. brought suit under, inter alia, the free exercise clause of the indivisible living entity; that the peaks are home to deities and exercise of religion under rfra is significantly more mother." nez testified that he collects many different plants human activity but their own from sacred areas of the public 872-80. this appeal followed as to all three claims. objectives in unreasonably narrow terms." city of carmel-by- the spirits of plants, animals, people, tribes, and forces of [5] we conclude that appellants have shown that the use not absolutely vindicate appellants' interests. rather, such a we suckle from her and get well when we consider her our probably accounts for the peaks being central to the havasu- to the west of the snowbowl. the water there has particular will necessarily go out of business if it is required to continue fundamentally undermine their entire system of belief and the forest service failed to respond openly in the feis. appel- katsinam serve as intermediaries between the hopi and the 2840 navajo nation v. usfs involved in the development of this proposal, and asks for we already know you [tribes] don't approve of it, but [8] second, although the forest service undoubtedly has a ass'n of pub. agency customers, inc. v. bonneville power needed to maintain the viability of the snowbowl as a public to the san francisco peaks and the impact of the proposed certain songs before you even dwell for a little bit to gather summarizing the hopi's testimony, the district court wrote: idaho sporting cong., inc. v. rittenhouse, 305 f.3d 957, 965 that their religious practices require pure natural resources 2858 navajo nation v. usfs with ma'saw to take care of the land, before they migrated and intervenor arizona snowbowl resort limited partnership the fecal coliform bacteria; however, the resulting effluent has and the environment. the feis also discloses and discusses explained the connection between contaminating the peaks terence m. gurley, dna people's legal services, window wastewater, "the authority of the city to provide reclaimed and (b) are important in maintaining the continuing cultural lengthy analysis submitted by the sierra club. appellants' gious] conduct or having a religious experience." bryant, 46 put treated sewage effluent on the peaks. to get some sense snowbowl? if so, how will that keep children technically and economically feasible to treat wastewater to detectable levels of enteric bacteria, viruses, and protazoa, peoples involved." nevertheless, the feis makes clear that the analysis fails to consider the impact on the regional aqui- treated sewage effluent, addresses only the impact on the test to a claim brought solely under the free exercise clause. believe that the steam is the breath of their ancestors, and that in 1997, in city of boerne v. flores, 521 u.s. 507 (1997), ted area. sewage effluent also contains "many unidentified and unregu- third, rfra provides broader protection for free exercise tershed resources." much of the subchapter's analysis "exercise of religion" is defined to include "any exercise of the right place, a state they attempt to reach through prayers in the havasu creek that they use in their sweat lodges comes hualapai tribe; norris nez; bill ments." ore. natural res. council v. marsh, 832 f.2d 1489, interfere. far from "seek[ing] to exclude all human activity its operation to that which can be sustained by natural snow- the hopi believe that pleasing the katsinam on the peaks lants were among those who gave the service reason to they purchased it in 1992. the current owners now propose section (b) of 2000bb-1 qualifies the ban on substantially the source of the danger, to develop a snowplay area as a quid hualapai believe that at one time the world was deluged by and even though they begin with kind of a fantasy notion, "touched with death." because contact between the living and id. at 881-82, 885-86. the court acknowledged, however, direct response to the comment, it should be realized that would be too contaminated -- physically, spiritually, or both hualapai also grind up ponderosa pine needles from the peaks inches of snow, 139 skiable days, and 191,317 skiers. cir. 1983)), the forest service had no discretion to disapprove total annual water production." ultimately, the feis con- fied that the proposed upgrades to the snowbowl the hopi appellants' interpretation misconstrues the for- and no. 06-15436 the forest service never asked for interagency con- 1160-61. the alternatives evaluated were all based upon the and navajo, and to a lesser extent on the hualapai and hava- reference to matters that `ought to be' considered and then, who will be falling in great frozen piles of the stuff and proba- drug users, including indians who used peyote in religious court refused to apply the "compelling government interest" million gallons per day of treated sewage effluent would be the second burden the proposed action would impose -- treated sewage effluent would in their view contaminate the 2d at 904 (quoting worldwide church of god, inc. v. phila- prayer feather ceremony. in the prayer feather ceremony, a however, the analysis of environmental impacts is plainly not industry that has been treated for certain kinds of reuse. under c. disclosure of scientific viewpoints paul g. rosenblatt, district judge, presiding lants object to the district court's characterization of dr. tor- a suit in which tribal members "might seek to exclude all the proposed road] is extremely grave." id. at 451. the court cial snow would itself be made entirely from treated sewage the forest service conducted an extensive analysis of the necessary for the performance of certain religious ceremonies hold that the forest service's approval of the snowbowl's use record. the hopi presented evidence that the presence of governmental interest by the least restrictive means. (emphasis added.) be harmful. second, the forest service's assumption that the inadequacy. the questions and response are: presented evidence in the district court that, were the pro- in their administrative appeal, the havasupai protested that proposed action also involves constructing a reservoir on the a proper nepa analysis will "foster both informed decision- ington, d.c.; janice m. schneider, bruce babbitt, latham & recognized indian tribes, and that this religious significance is claims and their nhpa claim. ued with a scripted answer: "[t]his question is really one that of reason guides both the choice of alternatives as well as the claim in this case, we are unable to see how any native amer- brief treatment in the feis was therefore inadequate. thus, ances between religious liberty and competing prior "taken as a whole," their appeal "provided sufficient notice to development. in 1979, after preparing an environmental tate a more conservative approach." 2850 navajo nation v. usfs adeq's approval means the snow must be safe for ingestion foster testified that if treated sewage effluent were used on "a place where everything is supposed to be pure." emory and technical considerations." id. 4332(2)(b). finally, agen- nies as well as their faith in the blessings of life that would bear liability for illnesses caused by the treated sewage pared by one witness to the virgin mary, resided on the peaks the amended definition -- "any exercise of religion, whether although the forest service's discussion was indeed brief, (1984). "anything less would require the `callous indiffer- service "sought tribal consultation on the religious and cul- treated sewage effluent. the snowbowl's general manager basket" -- is made. the making of a medicine bundle is pre- tually useless. (apparently referring to wilson v. block, 708 f.2d 735 (d.c. posed plans would be inadequate. id. at 1162-63. the agency family," the navajo greet the peaks daily with prayer songs, gious ceremonies revolve around water, and they believe the navajo appellants claim that the feis inadequately tainted by effluent in southern california has not been shown wastewater, comes from mortuaries, hospitals, there could be the purity of the spirits, as best we can acknowl- we begin by addressing appellees' argument that we the forest service to the tribe. the hopi appellants contend national forest; harv forsgren, days and few skiers. the driest year in recent memory was to rluipa depended on a narrower definition of "religious appeal. voluminous," summaries suffice. id. under some circum- that basis. wilson v. block, 708 f.2d 735, 739-45 (d.c. cir. watersheds and aquifers. that analysis assesses the treated sewage effluent wastewater from the aquifer. currently, dur- the forest service and the snowbowl argued successfully with both the forest plan for the coconino national forest and tion after generation. young women today still celebrate their cussing, and considering the views of other participants, and, accommodation that, in our view, falls far short of an estab- ceremonies. larry foster, a navajo practitioner who is train- nation; the flagstaff activist by diverting the water. first, they argue that the analysis is 707 (1986) (burger, j., for plurality) (not applicable in enforc- substantial burden, can the "application of the burden" to the is the most demanding test known to constitutional law." city making a final decision." 40 c.f.r. 1502.2(f); see also id. although they do not travel to the peaks to collect water, exercise cases. first, as we have previously noted, rfra "thoroughly answered in the nepa analysis process." and industry. the feis describes the treatment performed by consequences." ctr. for biological diversity, 349 f.3d at snowbowl where he collects his sacred water, so that the beside the road. the district court found that such snowplay ceremonial and medicinal use. powerless to perform the healing ceremony for ghost sickness migrations and later coming to the hopi villages, we [15] the court in lyng denied the free exercise claim in dards. however, the feis does not go on to discuss either the the aquifer. the national environmental protection act requires federal 2836 navajo nation v. usfs the peaks are represented in the navajo medicine bundles supai. hualapai and the havasupai perceive the world as flat, in another hualapai religious ceremony, when a baby has the katsinam will not arrive until the peoples' hearts are in ("rfra"), the federal government may not "substantially themselves when preparing for any religious activity amendment is whether free exercise is "prohibited." finally, responsible officer, coconino opinion tual beings called katsinam (hopi plural of katsina, or protection. we go on a pilgrimage similar to mus- snow from recycled sewage effluent. plaintiffs challenged the in 1984, congress designated 18,960 acres of the peaks as difficulties are questionable given the exorbitantly high costs menting arizona's drinking water supply. source substitution, artificial snow made from treated sewage effluent. exercise challenge to the 1979 expansion of the snowbowl on and it is important to stress that the scope of the pro- gious freedom restoration act ("rfra"), 42 u.s.c. mitted its use for that purpose. 7 ariz. admin. reg. 880 (feb. the relationship of people with that environment," and note toric properties to which indian tribes attach religious and cul- ing, or conversion of real property for the purpose of religious or the reuse of reclaimed water to replace potable water that lengthy discussions of the relationship of the hopi and others compelling governmental interest in avoiding conflict with action to go forward, contamination by the effluent would 2892 navajo nation v. usfs the katsinam are responsible for bringing rain to the hopi vil- antone honanie, a hopi practitioner, testified that he would ers remove the by-products generated by this biolog- tinue to enjoy many recreational activities on the peaks. such the district court's characterization is accurate because dr. [14] by contrast, appellants in this case do not seek to pre- regulations, "[c]onsultation means the process of seeking, dis- birds were not habitat generalists, and that therefore the pro- 2893navajo nation v. usfs could give rise to infectious disease. on the other hand, it is ernmental interest." 42 u.s.c. 2000bb-1(b). "requiring a the tribes brought an unsuccessful first amendment free of equivalence, it may be useful to imagine the effect on istrative process. we disagree. several comments raised the a difficult birth, a hualapai spiritual leader brings a portion of life from birth to death. . . . the hopi plaintiffs testi- response does not assess the risk that children will eat the arti- claim that the forest service failed to consider a reasonable of magnitude decrease in concentration of solutes." thus, and it germinates. then, in july, the hopi mark the katsi- toric preservation act ("nhpa"), 16 u.s.c. 470 et seq. est serv., 408 f. supp. 2d 866, 907 (d. ariz. 2006). at the cir. 1997). federal agencies must present the environmental [3] to establish a prima facie case under rfra, a plaintiff pai, as the forest service has acknowledged in the feis: "the appellants failed to raise it in the district court. we conclude to discuss and consider adequately the scientific viewpoint of analysis of the extent of the likely "exposure," including the governmental concern about their effects on wildlife, humans, from those in this case. in lyng, the court was unable to dis- of "alternatives to the proposed action," and that federal agen- that the peaks are so sacred that one has to prepare oneself under 40 c.f.r. 1502.14(a). congress declared that the purposes of rfra were "to pro- be specifically considered in selecting an alternative," the proposed action a foregone conclusion." 2899navajo nation v. usfs hopi believe that when they die, their spirits will join the kat- forest service's approval of the expansion under the reli- either "arbitrary, capricious, an abuse of discretion, or other- of snow, 134 skiable days, and 173,000 skiers; in 1992-93, operation of the snowbowl -- an option that was not consid- spiritual leader delivers it to the peaks; the spirit of the eagle water is central to the religious practices of the havasupai. zukosky, dna people's legal services, flagstaff, arizona; sinam on the peaks. as spiritual teachers of "the hopi way," mitigation measure mentioned in the feis is the requirement as in hopi religious practice, the peaks are so sacred in howard m. shanker, tempe, arizona; william curtis in smith, an oregon statute denied unemployment benefits to individual tribal members, challenged the proposed road chemicals, then perhaps concerns for child health might dic- ply at the end of february. and 2,857 skiers. another dry year was 1995-96, when there that the hualapai presented in their argument discussed above alternative two also included a proposal to make artificial intrude on that in a manner that is really disrespect- 800.16(f). to the level of trance. . . . it's going to impact men- francisco peaks violates rfra, and that in one respect the francisco peaks? (2) what "burden," if any, would be the hopi have at least fourteen shrines on the peaks. every tify a preferred course of action before completing an eis." practitioners' frames of mind due to the continued additional tribal concerns we don't already know about." the tive that best achieves [the forest service's] multiple-use 953-54 (9th cir. 2003) (quoting wash. crab producers, inc. dead-end in the middle of a national forest, it is difficult to person -- (1) is in furtherance of a compelling governmental explains that the signs are required under arizona law: "in that's why we want your input now so hopefully we can have rather, the hualapai appellants argue that certain pre- snowbowl agrees to create a snowplay area for non-skiers. and beneficial use of reclaimed water." we employ a " `rule of reason [standard] to determine 2894 navajo nation v. usfs doctrine" (quoting graham v. comm'r, 822 f.2d 844, 850-51 2842 navajo nation v. usfs 4332(2)(a). agencies must "identify and develop methods burden must prevent the plaintiff "from engaging in [reli- the water and briefly summarizes a study of its effect on vari- dence in the feis (or elsewhere in the administrative record). discussed include "aesthetic, historic, cultural, economic, cerns about wildlife and adult human health are not sufficient the hualapai collect water from the peaks. hualapai reli- 2889navajo nation v. usfs whole reservation is sacred to the navajo, the mountains are purposes throughout the entire peaks, as the whole mountain called the kinaalda, the changing woman gave birth to twins, way in which it is presented, we conclude that the analysis in guine view of the risk than does dr. torrence, the main body echoed the forest service's assessment in describing how the has been used to make the artificial snow; (2) how much tices. they perform sweat lodge ceremonies, praying and burden falls most heavily on the navajo and the hopi. the commit resources prejudicing selection of alternatives before lims going to mecca. and we do this with so much posed action was predetermined, quoting part of the scripted refused to apply the compelling interest analysis in various phrey's peak. the snowbowl would then spray more as nec- broader verb `burden': a government may burden religion fact that the adeq has specifically disapproved human inges- 8. how can you help us make it work ??? treated effluent from "standing on open access areas during that "[a]lthough the consultation process did not end with a 1498-99 (9th cir. 1987) (as amended), rev'd on other skiers; in 1997-98, there were 330 inches of snow, 115 skiable maintain signage . . . so the public is informed that reclaimed project alternatives derive from an eis's "purpose and by adeq." not only does the response fail to answer the lia- might also think the snow may be ingested. further, in refer- effluent. 2. the navajo network, cates that the forest service had not settled on any particular the hopi appellants argue that the forest service did not considers the environmental impact of diverting the treated for the district of arizona was inadequate because it failed "to disclose responsible sci- "the least restrictive means for achieving [the government's] services, tuba city, arizona; anthony s. canty, lynelle addressing the tribes' rfra claim we must answer the fol- the core of appellants' claim is that the feis has insuffi- cludes that the cumulative impact is "negligible for overall cies must "study, develop, and describe appropriate alterna- environmental impact of proposed agency actions, rather than chased the snowbowl in 1992 for $4 million and now seek we conclude that the feis does not contain a reasonably tains unregulated contaminants in amounts not ordinarily tity that we left a long time ago was still there. counsel, who may frame their claims in non-legal terms." first of them merits reversal. we consider each in turn. compelling governmental interests. in the words of the district particularly strong for the navajo and the hopi. because we 6. upgrade can't be done without snowmaking at 1222 (quoting worldwide church of god, 227 f.3d at 534-35. the court did not, however, invalidate rfra as ganic chemical constituents that have been measured in the guidelines for evaluating and documenting traditional cul- pilgrimages to the peaks and three other sacred mountains. a. "exercise of religion" ill, and the other collected plants and water from the peaks, ment to the constitution." id. 5, 107 stat. at 1489 (codified the risks posed by the possibility of human ingestion of artifi- 2000bb et seq., the national environmental protection act lyng would be abandoning the ski area altogether. the equiv- is not warranted." id. for $4 million. in september 2002, asr submitted a facilities appeal. the record contradicts the forest service. in his f.3d 1062, 1071 (9th cir. 2002)). in reviewing an eis, a court forest service need not accept the proposal. this implication related activities such as cross-country skiing, snowshoeing, in our way of life. you have to sacrifice. you have to sing purpose #1 then carries the prayer up the mountain and to the creator. the snowbowl. these conditions are not caused by skiers, but the hopi believe that when they emerged into this world, issued a final environmental impact statement ("feis") and the united states forest service approved a proposed expan- and sacred." in begay's words, "all things that occur on the tending that their religious practices required use of undis- bert, 374 u.s. at 412 (douglas, j., concurring))). 1983). in appellants' view, the proposed action, including the found in drinking water, including prescription drugs and purposes."). however, the arizona department of environ- and undermining the hopi religion: or not compelled by, or central to, a system of religious snowpack. because adeq approved the use of tally my spirituality. every time i think about sprin- approving the proposal despite the risks posed by endocrine- admin., 126 f.3d 1158, 1185 (9th cir. 1997). gious beliefs and practices of the navajo. the district court available resources." 42 u.s.c. 4332(2)(c)(iii), (e). this it from indian springs, which is lower on the mountain and christians would experience -- if the government were to the navajo nation, the white mountain apache tribe, the basis for the cultural identity for many of these tribes." fur- and to guarantee its application in all cases where free exer- which provides that courts shall "hold unlawful and set aside san francisco peaks, or simply the peaks. the peaks tower as we discuss below, the question was not subsequently not represent an undisclosed opposing viewpoint to which the ficial snow would be made of potable water. people, because as clans left and embarked on their of the snowbowl went forward? (3) if there is a burden, more particularized compelling interest in providing skiing at tate that the mountain be viewed as a whole living being, the the statutory protection for religious exercise in 2000 by feis contains a subsection on endocrine disruptors that cites responded to the comments directly via letter, but did not dis- thereby healing his brother. from this story comes the huala- 2896 navajo nation v. usfs second, appellants argue that the feis is inadequate, encountered europeans, and probably long before that. to a commenter's use of the word "sewage" in advocating a the peaks are similarly central to the beliefs of the havasu- water treatment may remove as much as 99.9999+ percent of 1. we [the forest service] think it's a good idea, and that "[w]hen an [eis] is prepared and economic or social and potential of ingestion," and "evaporative cooling or misting" second-guess a determination by the forest service about service (but not the snowbowl) argues that the doctrine of spiritually to visit. a spiritual leader testified that he prays to the katsinam's visits to the villages. in february or march, easier for a plaintiff to prevail in a rfra case than in a pure 1220-21. the court stated that it did not "doubt the general randum also supports the notion that the adoption of the pro- despite what these scripted responses written early in the local governments from imposing substantial burdens on the expansion of the snowbowl, members of the public will con- serv., 177 f.3d 800, 814 (9th cir. 1999) (quoting robertson, ceremonies." the practitioner traced their origin to the one "associat[ed] with cultural practices or beliefs of a living whatever day they designate as their sabbath," because the by reference the submissions of these organizations. thus, environmental impacts "in proportion to their significance." effluent proposed for use in this case. the feis contains a water" for irrigation and other uses, the treated sewage efflu- not violate rfra. in lyng, the forest service sought to build identity of the community." national register bulletin 38: mountain with a surface area of 1.9 acres to hold 10 million treated sewage effluent. one table gives a partial comparison capacity as forest supervisor, next to the road has caused "injuries, traffic management to put treated sewage effluent on a sacred mountain is an kym hartway, the hopi tribe, kykotsmovi, arizona, for the son, jennings strouss & salmon, phoenix, arizona, for the 14.8-mile pipeline would be built between flagstaff and the disagree. we take the proffered interests in turn. the feis in this case is unlike the feis in center for bio- should not reach the merits of this claim. appellees argue that ing ceremonies with the sacred water from the peaks. mapatis ranging from 105 to 107 colony-forming units per 100 millili- in areas where reclaimed water is presently used, priate consideration in decisionmaking along with economic dead. in testimony in the district court, a spiritual leader gave essary depending on the amount of natural snowfall. the of flagstaff's monitoring data on the treated sewage effluent in "unjustified obstructionism by making cryptic and obscure cise of religion, whereas the traditional test under the first from performing the blessingway and healing ceremonies. to make artificial snow at a commercial ski area is "in further- in sacred water from the peaks to aid women in childbirth. effluent, or the likelihood that humans -- either adults or chil- ican plaintiff can ever have a successful rfra claim based notice pleading requirement of federal rule of civil proce- prior cases striking down generally applicable laws as "hy- strated that approving the proposed action serves a compelling 2880 navajo nation v. usfs making a final decision." 40 c.f.r. 1502.2(f) (emphasis same time, the district court granted summary judgment to the tains tables listing the amounts of various organic and inor- the peaks are also the primary home of the powerful spiri- the appellants' complaint in the district court satisfied the a more "reliable and consistent operating season" at one of the u.s.c. 2000bb-2(4), 2000cc-5(7)(a), the burden "must be the peaks are also of fundamental importance to the reli- united states forest service; individual can exact from the government.' " (quoting sher- to note that all facilities will stay within the permit- to walk in harmony, be in harmony with all of federal and state agencies citing studies indicating that the counsel affirmed in part, reversed in part, and the hopi appellants argue that the feis inadequately ana- is foreign, a foreign object -- and reclaimed water, in my human contact with reclaimed water," including preventing isms or the chemicals that may come off the steam." fir worn by the katsinam in their visits to the villages. of religion" under the first amendment. see guru nanak sikh determine whether the treated sewage effluent meets the stan- mance['s] sake" rather than "a religious effort": "hopi people ports, that appellants believe that "the presence of the snow- be deposited over the course of the winter ski season. agencies shall also "[i]dentify the agency's preferred alterna- ("nepa"), 42 u.s.c. 4321 et seq., and the national his- bundles, which are, in turn, a part of every navajo healing substantially more than 100 million gallons of effluent could gations under nepa because it neither reasonably discusses skiing and snowplay is strong. we are unwilling to hold that also gather rocks from the peaks to use for making steam. lands of the hopi, zuni, acoma, navajo, apache, yavapai, might best be addressed" before the forest service accepts the die out altogether, if tribal members fear "breathing the organ- fully considered. den on religious exercise imposed on a small religious group havasupai tribal members testified that they believe the water at 890. 16, 2001). however, the snowbowl would be the first ski its risks to human health are not well known because it con- over the desert landscape of the colorado plateau in northern snowmaking in 2001, noting that four other states already per- rock, arizona; laura lynn berglan, dna people's legal be. it then summarizes the treatment the sewage would month to collect water for ceremonies and plants for medi- bundle mountain, were to be poisoned or given for- sure to, and possible ingestion of, snow made from undiluted soc'y v. county of sutter, 456 f.3d 978, 995 n.21 (9th cir. 5(7)(a). does not go forward. as we noted above, there were two very ctr. for biological diversity, 349 f.3d at 1166. to the national drinking water standards, showing that flag- approval for another substantial expansion. it is clear that the been) predictable that some winters will be dry. the then- finally, the forest service's answer is misleading in stating they assert that those consultations were meaningless because mountains sacred to the navajo. witnesses described the broadly under rfra than "free exercise" under the first apache nation; yavapai-apache from the peaks; and that, because their religious beliefs dic- dry years in 1995-96 and 2001-02. but in other recent years [22] appellants concede that the feis briefly addresses e. social and cultural impacts of the peaks is the holiest of shrines in the navajo way of religion, whether or not compelled by, or central to, a system lated residual organic contaminants." regions that might otherwise believe the water is potable." where biological digestion of waste occurs . . . . in 1984, pub. l. no. 98-406, 101(a)(22), 98 stat. 1485. the navajo nation; havasupai tribe; 490 u.s. at 350). regulations require that an eis discuss itual person and the other d[ei]ties that reside -- and risk to children was specifically briefed in the district court at foreign matter that's not natural." year, religious leaders select members of each of the approxi- the navajo creation story revolves around the peaks. the own kinaalda with a ceremony one witness compared to a purity or a spiritual connection to the mountain that would be 4332(2)(c). the regulations define "human environment" because it applies sherbert's compelling interest test "in all the third response is to a question about why warning signs effluent. under some circumstances, such a proposal might be rex tilousi (of the havasupai tribe), dianna uqualla (of the ple." 408 f. supp. 2d at 894. the hopi have been making pil- it would require a month. of the coconino national forest. ical process, recycle microorganisms back into the has not provided a "candid acknowledgment" of any such that the snowmaking would "result in an estimated net aver- and under rfra after its amendment by rluipa in 2000, u.s. 398 (1963) and wisconsin v. yoder, 406 u.s. 205 (1972) significance to the hualapai because the tribe's archaeological and increased desecration of the home of the kachi- making and informed public participation." churchill, 276 2004, the forest service issued a draft environmental impact their sacred mountain." 408 f. supp. 2d at 888 (emphasis the water. in the water, she conceived a son, who was a man evant mitigation measures" to "the possibility that someone use of the peaks as a ski area, but that using treated sewage to obtain herbs or medicines to do our ceremonies, defendants on the plaintiffs' nepa and nhpa claims. id. at journey, and they use it to make medicines. the havasupai stated that it was not "challenging the honest religious beliefs perceived impurity might cause the sweat lodge ceremony to authority under 5 of the fourteenth amendment. id. at 529, sonable range of alternatives. they largely base their argu- way ceremony, because "all [medicine] bundles will be these tribes' religious beliefs and practices associated with the tainted and if water comes from mortuaries or hospitals, for diversity, and the flagstaff activist network. defendants- mean that "an agency can formulate a proposal or even iden- part of the snowbowl complex. id. but this safety concern is mother of humanity, called the changing woman and com- tors. action on those relationships. the feis acknowledges that "it pro quo for approval of the resort's use of treated sewage responsive answer. while it may be true that "it is technically prevent adherent "from engaging in conduct or having a reli- be impure and would have an irretrievable impact on the use involves unresolved conflicts concerning alternative uses of burden need not concern a religious practice that is "com- state and local governments because it exceeded congress's pose and need to which the agency is responding in proposing ficiently demonstrates that the forest service had not fore- 2862 navajo nation v. usfs chemicals from personal care products. the subchapter con- 1. the hopi atic, interdisciplinary approach which will insure the inte- sewage effluent. we hold that the feis was adequate in the 2837navajo nation v. usfs unless another law prohibits the expression of such a prefer- in november and december, the snowbowl would use it to conduct than the supreme court's interpretation of "exercise snow made with reclaimed water. it is important to in the state. the peaks are located within the 1.8 million acres shown that a fresh water alternative was reasonable in the peaks because of the peaks' religious significance. to avoid human ingestion. for example, users must "place and not address the risk posed by this project: that is, direct expo- this case. first, the plaintiffs' challenge in lyng was brought issue of diverting water that would have gone into the ments that the concentrations of the suspected endocrine dis- the hopi appellants specifically object to the following stories teach that the water in havasu creek, which they use was not adequately discussed in the draft statement." 40 pelled by, or central to, a system of religious belief," 42 delphia church of god, inc., 227 f.3d 1110, 1121 (9th cir. social, or health" effects, "whether direct, indirect, or cumula- the district court upheld this statement of purpose and need found, "[t]he peaks are considered . . . to be the `mother of 704(f). arizona law prohibits uses involving "full-immersion change in aquifer recharge." despite the odd and backhanded value. they would "simply be a performance for perfor- feis that do, indeed, disclaim responsibility for analyzing the this continues to grow into a more deeper spiritual sense of the court wrote, "except for abandoning its project entirely, broadly to "include the natural and physical environment and sion of rfra, adopted in 1993, congress defined "exercise ent is pumped into the rio de flag, where it is diluted with lants argue that approving the proposed action serves the regional aquifer, including a comment by the center for bio- [16] for the foregoing reasons, we conclude that appel- sinuses, mouth, throat, and brain, including tumors, meningi- make additional artificial snow as necessary during the rest of sewage effluent from november through february. a new forest service provides a quantitative analysis concluding the ski season, during november and december, the snow- the spiritual covenant that the hopi clans entered the snowbowl. even if the snowbowl were to close (which the record in this case establishes the religious importance in a separate "comments and responses" section. those cir- cise of religion is substantially burdened." id. 2(b), 107 stat. use of treated sewage effluent for snowmaking. the forest is crucial to their livelihood. appearing in the form of clouds, of the navajo nation, a person "cannot just voluntarily go up in the feis. cf. 40 c.f.r. 1502.14 (f) (requiring agencies note that machine-produced snow would be mixed are necessary if the reclaimed water is not harmful. the feis treated sewage effluent this risk was evident to the forest service from the begin- ronment." 40 c.f.r. 1508.14. the "effects" that should be added; three existing lifts would be relocated and upgraded; 2006) (noting same). to the extent that our rfra cases prior set of issues that the feis fails to disclose and discuss. yet tive or alternatives, if one or more exists, in the draft state- cause a condition that was translated into english as "the of religious belief." 42 u.s.c. 2000bb-2(4), 2000cc- nated the requirement that the government justify burdens on and the keeper of the bundle. by navajo tradition, the medi- the road in lyng by carefully choosing its location would be respect, lest they refuse to bring the rains from the peaks to the employee by enforcing observance of the sabbath the permissible or even desirable. but in this case, we cannot con- in the chimney rock area of the six rivers national forest for the ninth circuit natural resources throughout the peaks. navajo appellants chronic adverse environmental impact to plants, wildlife, and the peaks figure centrally in the beliefs of the hualapai. ernmental interest "of the highest order." yoder, 406 u.s. at mountain are a part of the mountain, and so they will have words of the court in o centro espirita, "broadly formulated gious exercise, approving the use of treated sewage effluent by dr. propper." thus, although the feis takes a more san- anthracite filters prior to disinfection by ultraviolet within them "the unwritten way of life for us, our songs, our in the primary treatment stage, solids settle out as there are many sites in arizona where a lower quality of 2004). not "set forth at full length the views with which it disagrees," hopefully by involving the hopi tribe in planning avoid a court battle. thus, while the forest service's letter snow, nor addresses whether ingesting artificial snow would with the establishment clause. 408 f. supp. 2d at 906. the from adults to drugs and pollutants. moreover, dif- [4] the record supports the conclusion that the proposed instructed them never to leave this homeland. although the watkins, washington, d.c.; philip a. robbins, paul g. john- explains that the treatment does not produce pure water: table listing the amounts of suspected disruptors measured in 126 s. ct. 1211 (2006), the court held under rfra that the forest service's decision. wilson v. block, 708 f.2d 735 morning prayers to the regular calendar of religious not now sought by appellants. in our view, declining to judgment to appellees on four of appellants' five nepa four nepa claims and on their nhpa claim. to change these natural conditions by adding treated sewage and therefore diluted with natural snow decreasing testified in the district court that no other resort in the country bowl desecrates the mountain," regardless of the use of full sentence from the other talking points memorandum indi- tion with the affected tribes. the feis describes at length the and requiring appellants to prove that the proposed action changing woman: when her twins wanted to find their the forest service's multiple-use mandate. 408 f. supp. 2d at eign materials that were not pure, it would create an governmental interests." pub. l. no. 103-141, 2(a), 107 dened. 42 u.s.c. 2000bb(b). prior to smith, the court had hopi religious practices center on the peaks. as stated by ful to the peaks and to the spiritual home of the kat- lowing questions: (1) what is the "exercise of religion" in highest and most religiously significant of the san francisco the navajo appellants claim that the forest service failed stance, and they do not use tap water in their religious prac- dles are composed of stones, shells, herbs, and soil from each we have interpreted the nepa exhaustion requirements compelling interest test as set forth in sherbert v. verner, 374 religious exercise vary among the appellants. nevertheless, their exercise of religion. because appellants' religious the development proposed by the snowbowl, thus making the drew a comparison to noah's ark. as in biblical parables and effluent. the response states that the treated sewage effluent bucky preston, part because it could not see a stopping place. we uphold the arizona snowbowl is a ski area on humphrey's peak, the snowbowl with up to 1.5 million gallons per day of its treated with moral principles. under arizona law that the snowbowl post signs "so the pub- the fourth response follows three combined questions: (1) process and the implementation of that decision." robertson makes from plants collected from the peaks. he also testified cifically notes that the snowbowl intends to introduce new u.s.c. 2000bb-2(4), 2000cc-5(7)(a). the district court equivalent in this case to "abandoning the project entirely" in watershed analysis is limited to the hart prairie watershed f.3d at 949 (quoting graham, 822 f.2d at 850-51). thus, in in sum, we reverse the district court on two grounds. first, clude that authorizing the proposed use of treated sewage we therefore hold that the feis does not satisfy nepa with cemetery protective ass'n, 485 u.s. 439, 451 (1988) ("the body all of the environmental problems to which the com- locations [where the water is used] so the public is informed volume 2 of 2 2886 navajo nation v. usfs ant v. gomez, 46 f.3d 948, 949 (9th cir. 1995) (burden must thorough discussion of the risks posed by possible human tis, forgetfulness, and sleepwalking. he testified that the and has not measured five of them with sufficient precision to of 50 of the 120 requested acres, the construction of a new bring the breath of our ancestors -- we believe the tural significance of the peaks, and provided a reasonable somewhat closer question of whether the hualapai and the the treated sewage effluent proposed for use in making dr. paul torrence. dr. torrence criticized the draft eis for sprayed on the mountain from november through february. impact statement, the forest service authorized the clearing 2844 navajo nation v. usfs disrupting chemicals present in treated sewage effluent. only one area of the peaks. according to foster, nez, and later, in response to city of boerne, congress enacted the the havasupai presented evidence that the presence of with its current operation. there are many other recreational mental interests and that approving the proposed action was cv-05-01949-pgrunited states forest service; see also id. at 879-80 & n.11 (describing the scope of the con- spring water would be "contaminated" by having been peaks on an annual cycle. from july through january, the september 14, 2006--san francisco, california it does not say how numerous or how large the signs would would be re-contoured and developed; an existing lodge mony requires collecting natural resources from the peaks that c.f.r. 1502.9(b). ordinarily, the agency must attach to the activities include the downhill skiing that is now available at 2883navajo nation v. usfs right to put the reclaimed water to any reasonable use they see sites are nearby. appellants assert five nepa claims. we hold that only the [18] these comments and appeals were more than suffi- as skiing"; (2) protecting public safety by "authorizing forest service's "assertions regarding economic and technical the [eis] will discuss all of these effects on the human envi- believe that spring water is a living, life-giving, pure sub- findings that the court's decision in smith "virtually elimi- f. conclusion in northern california. id. at 442. this area had historically 3h, the only part of the feis to discuss the characteristics of owners of the snowbowl knew this when they expanded the circuit judges, and thelton e. henderson,* district judge. audience that may also play a role in both the decisionmaking highest order and those not otherwise served can overbalance 2860 navajo nation v. usfs grated use of the natural and social sciences and the statement. a year later, in february 2005, the forest service consider adequately the risks posed by human ingestion of considerations and water availability research," as well as [7] first, the forest service's interests in managing the for- gion" is defined to include "any exercise of religion, whether essarily cease to exist as a ski area if the proposed expansion snowbowl to carry the treated effluent. at the beginning of like hallucinations. ent, roland manakaja, a traditional practitioner, testified that burdening the free exercise of religion. it provides, "govern- the navajo believe that the medicine bundles are conduits for brid" decisions invoking multiple constitutional interests, the are all prohibited. id. r18-9-704(g)(2). irrigation users native ecosystems council v. dombeck, 304 f.3d 886, 900 2845navajo nation v. usfs the snowbowl has always depended on natural snowfall. tribal members be justified as "in furtherance of a compelling by taking it into themselves they are purified, cleansed, and limited to the designated "study area." immediately after and well-reasoned responses to most of the critical com- the forest service in this case, we agree with the district court would be developed; a new high-speed ski lift would be sometimes must) accommodate religious practices and that it users of reclaimed water to "place and maintain signage at ments. the forest service in its brief does not call attention it is like a body. it is like our body. every part of it is holy nas will undermine the hopi faith and the hopi way. c. "substantial burden" on the "exercise of religion" the peaks where the effluent would not come into physical logical diversity noted that "various disturbing trends have a. human ingestion of snow made from havasupai witnesses stated that they would be completely snowbowl in 1979, and the current owners knew this when humans." the response does not answer the specific and prevent him from performing hualapai sweat lodge and heal- appellants' religious beliefs and practices over all other inter- sion in the national register of historic places and as a "tra- mit[ted] resources prejudicing selection of alternatives before the administration of welfare programs"); goldman v. wein- is sent to [a different plant] for treatment. the water pai belief that the mountain and its water and plants are sacred more than an `inconvenience,' " guerrero, 290 f.3d at 1222 appellants norris nez, bill "bucky" preston, and the lants prevail on their rfra claim. his or her religion. guerrero, 290 f.3d at 1222. although the ical and chemical water quality, the proposed use of reclaimed ment may substantially burden a person's exercise of religion hopi appellants presented evidence that, were the proposed after a bench trial, the district court held that the proposed and economically feasible" to treat wastewater to the point national forest; harv forsgren, cumstances arise when "many of the critical comments ence, ma'saw. at the peaks, they entered a spiritual covenant crucial word in the constitutional text is `prohibit': `for the the most sacred part. one witness drew an analogy to a visible from all parts of the havasupai territory except inside plaintiffs-appellants, cient notice to the [agency] to afford it the opportunity to fornia v. block, 690 f.2d 753, 761 (9th cir. 1982)). son, thereby maintaining the economic viability of of religion" as "exercise of religion under the first amend- tion of the water. will these signs be posted at the w. fletcher, circuit judge: from a forest service meeting in august 2002, before the selkirk conservation alliance v. forsgren, 336 f.3d 944, and procedurally inadequate." 408 f. supp. 2d at 879 n.11; connection to it. we don't separate the mountain." beliefs. the forest service and the snowbowl now propose to [26] the feis addresses the "human environment" through proposed use of reclaimed water for snowmaking . . . will not were to get a prick or whatever from a contaminated needle, states that the forest service believes the hopi should be sierra club; white mountain expansion did not violate rfra. navajo nation v. u.s. for- 215. [23] regulations require an agency preparing an feis to ter describing the treated sewage effluent acknowledges that cine bundle should be made with leather from a buck that is tural significance, the national historic preservation act land management decision." id. at 907. before this court, the problem by creating an off-road managed snowplay area as tionally ingest the snow made from non-potable treated sew- such heightened scrutiny. smith, 494 u.s. at 883 ("in recent threaten human health. we are charged, rather, with evaluat- only on the terms set out by the new statute." united states several years using the best information and scientific review the supreme court has recently emphasized that, even havasupai tribe), the sierra club, the center for biological being able to make artificial snow with treated sewage efflu- because it responds to documented needs and because it fits ronmental costs to be "adequately identified and evaluated")). not prevented from "engaging in any practices mandated by arizona. at 12,633 feet, humphrey's peak is the highest point they argue that this letter "informed [them] at the outset that, chairman of the havasupai, testified that havasupai religious nal properties; that the peaks and everything on them form an states, hypothetically: "the extent to which reclaimed water the artificial snow once it has melted. the part of the subchap- ber of the village, which they then deposit in traditional loca- ("asr"), the owner of the snowbowl. nonetheless held that building the proposed road did not vio- allow snowmaking to continue after flagstaff cuts off the sup- of the feis discloses to the public, and makes clear that the yavapai-apache nation; center peaks both water for their ceremonies and boughs of douglas medicine bundles are "rejuvenated" regularly, every few their purest form as a place of worship to go to, to principles by which they must live. these principles are 542-53, appellants in this case are not seeking to exclude any [12] for two reasons, lyng does not control the result in quality sources of water for human consumption and domestic stand and rule on the issue raised, but there is no bright-line area already exists, and appellants do not seek to interfere observers "an absolute and unqualified right not to work on of the havasupai: "that is where life began." the havasupai would be upgraded; and a new lodge would be built. proposed standards and guidelines for the . . . northern gos- declining to allow a commercial ski resort in a national forest `prohibiting' of the free exercise of religion and uses the washes); 7 ariz. admin. reg. 876 (feb. 16, 2001) ("water 2884 navajo nation v. usfs ghost sickness." the leader testified that purification after yavapai-apache tribe, the havasupai tribe, rex tilousi, to disclose and respond to the comments in the feis itself, to justify prudence in the further contamination of the north- in the district court from putting snow in there [sic] mouths or acci- there should be "enough discussion to show why more study compelling governmental interest." with a layer of natural snow. during a dry winter, there may the san francisco peaks in the coconino national forest rejected because they would have required the acquisition of applicability, such as the oregon statute. characterizing its both in comments on the draft eis and in administrative 494 u.s. at 899 (o'connor, j., concurring in the judgment)). tive." id. 1508.8. clause." id. (citations omitted); see also hobbie v. unemp. reclaimed water is used for irrigation. the law protects the 704(h) (2005). this "mitigation measure" is not listed along support their claim. their primary evidence is a letter from allegation: that the agency failed to fully consider the range serv., 349 f.3d 1157, 1166 (9th cir. 2003) (first alteration in build a base layer of artificial snow over 205.3 acres of hum- recreational resource." 408 f. supp. 2d at 907. the record tual activities." id. at 443. "alternative routes . . . were will be thoroughly answered in the nepa analysis process." ($19,733,000) and the technical difficulty of the selected in support of its argument, the snowbowl cites estate of v. mosbacher, 924 f.2d 1438, 1441 (9th cir. 1990)). this designed to prevent human ingestion. third, the assumption of the peaks to the appellant tribes who live around it. from hualapai tribe ("hualapai appellants" or "appellants") tions caused by snowplay do not result from the operation of administrative appeal explicitly incorporated and reasserted vide a claim or defense to persons whose religious exercise is substance of dr. torrence's comments. the main body of the tinue their ownership. but a sale by the current owners is not of this analysis." in the comments and responses portion of attention, seeking to have that agency determination vacated think about this sewer that they're using to recharge wrote what it called a "strategic talking point." the "talking 2851navajo nation v. usfs were 113 inches of snow, 25 skiable days, and 20,312 skiers. the forest service prejudged the matter. shoot indian tribe v. u.s. forest serv., 177 f.3d 800, 804 effects of reclaimed water pollutants on two major 42 u.s.c. 2000cc et seq.). rluipa prohibits state and in question. further, the government had made significant ficial snow. stating that it is the parents' responsibility to pre- asr, the current owner, purchased the snowbowl in 1992 effluent is justified by a compelling governmental interest in astation for our people. we review de novo a grant of summary judgment. muckle- development begun in 1938 and continued in 1979. the 485 u.s. 439 (1988), to argue that the proposed action does defendant-intervenor-appellee. appellants to have been inadequately treated in the feis do there were 460 inches of snow, 130 skiable days, and 180,062 ate points in the [feis] any responsible opposing view which 2887navajo nation v. usfs of which there are more than one hundred relating to the four ity of the human environment." 42 u.s.c. 4332(2)(c). this ferent genetic make-ups respond differently to drugs use of treated sewage effluent, would only "further desecrate it doesn't matter what the percentage is, your whole body v. bauer, 84 f.3d 1549, 1558 (9th cir. 1996) (as amended). from the peaks to make medicine. community that (a) are rooted in that community's history, there the things to apply medicine to a patient." explaining the first burden -- the contamination of natural resources is regarded as a single, living entity." tility toward any." lynch v. donnelly, 465 u.s. 668, 673 1121), and must prevent the plaintiff "from engaging in [reli- ariz. admin. code r18-9-704(h) (2005). irrigation users studies done on endocrine disruptors in the treated sewage dances that occur throughout the year. . . . the hopi ideas on possible mitigating measures" and "are there any the havasupai tribe, the hualapai tribe, the yavapai-apache upon the horizon, as viewed from the traditional or ancestral love, commitment and respect. and if one mountain tains extensive analysis on the question of the impact of this without disclosing sufficient information to the public to chal- undergo. the final sentence asserts: "in terms of microbiolog- in dry years, the operating season is short, with few skiable dren -- of artificial snow made from treated sewage effluent. facts of each particular claim.' " id. at 1221 (quoting smith, a replacement lodge was built in 1956. a poma lift was the forest service has described the peaks as "a landmark fied its obligations under nepa to discuss the effects of the collected from the peaks. appellant norris nez, a navajo "goes beyond the constitutional language that forbids the to reduce as much as possible its auditory and visual impacts. peaks as "our leader" and "very much an integral part of our that there is a compelling governmental interest in allowing matter] from the wastewater. the secondary clarifi- able fecal coliform organisms" in only "four of the last seven exhaustion bars this claim because appellants did not raise service's june 2002 "tribal consultation plan": those who pursue administrative appeals unrepresented by properly raised it in the district court. for the foregoing reasons, we hold that the feis was inad- no. 06-15455 most importantly, "exercise of religion" is defined more religious beliefs and practices of the hopi and the navajo and treated sewage effluent on the peaks would, by contaminating ently willing to incur such costs supports the forest service's three navajo practitioners' testimony at the bench trial cial snow made from treated sewage effluent nor articulates www.cr.nps.gov/nr/publications/bulletins/nrb38/. hibiting the free exercise [of religion]."); lyng v. nw. indian [11] plaintiffs, including an indian organization and several f. conclusion down to the hopi villages. the hopi re-enact their emergence the navajo believe their role on earth is to take care of the bucky preston; hopi tribe; no. 06-15371 lands." id. at 452-53. rectify the violations that the plaintiffs alleged." id. at 899; ing whether the feis contains "a reasonably thorough discus- ment is thought to merit individual discussion." id. prayers and thoughts, a point in the physical world that white mountain apache nation; private land, had serious soil stability problems, and would in to other water, and pour it onto heated rocks to make steam. without conducting sufficient independent investigation and requirement "ensures that the agency, in reaching its decision, 408 f. supp.2d at 894-95. agency to give the issue meaningful consideration" (quoting more profoundly. many of these songs focus on the peaks. staff activist network commented that "we'll be dealing with 2871navajo nation v. usfs expansion would enable the snowbowl to make artificial undermine the hopi faith in their kachina ceremo- court further found that the proposed action would address the form, content and preparation foster both informed decision- sible human ingestion of artificial snow made from treated of . . . . slightly less than two percent of the city of flagstaff's range of alternatives in the feis. they claim that the range prayers at the winter solstice, the hopi pray and prepare for advance, see ass'n of pub. agency customers, 126 f.3d at why such discussion is unnecessary. we affirm the district 304 f.3d at 899. "fecal coliform bacteria, which are used as an indicator of was inadequate because "an alternative was suggested for the v. national historic preservation act 2868 navajo nation v. usfs gious experience which the faith mandates" and must be "an agencies take a `hard look' at the environmental consequences the deceased. . . . once the steam rises, like it does environmental impact the risk to human health from the possi- the example of washing a baby or planting corn immediately close or respond to them specifically in the feis. id. at 1161- belief." 42 u.s.c. 2000bb-2(4), 2000cc-5(7)(a); see also expansion of the snowbowl, including the use of treated sew- extent to which the eis must discuss each alternative." city understand simplistically but which adults come to understand edge the spiritual domain, we feel were content in artificial snow is safe? nor does the response provide any limited partnership, ing "facially neutral and uniformly applicable requirement for directed at the spirits on the peaks. (d.c. cir. 1983). ment through the aeration/denitrification process, wise not in accordance with law," or "without observance of all other interests would require shutting down the existing block, 690 f.2d at 773, the agency must "discuss at appropri- iii. religious freedom restoration act bowl. under alternative two, a number of changes were will have available, and will carefully consider, detailed infor- 3. the hualapai that the peaks are located in a desert. it is (and always has he had just touched the dead person's clothes or belongings, "contact with drinking fountains, water coolers, or eating is "very strictly controlled," "acceptable for unrestricted body 40 c.f.r. 1502.2(b). for impacts discussed only briefly, in the main body of the feis and may instead be contained 2841navajo nation v. usfs of the soil, plants, and animals for medicinal and ceremonial foster, nez, and navajo practitioner steven begay testified snowbowl's proposed expansion and the creation of a snow- 2878 navajo nation v. usfs water activity with a potential of ingestion," and "evaporative of centuries' duration. though there are differences among responded that "[t]he guidelines have been developed over dence adduced at trial demonstrates that snowmaking is i. background these questions in turn. tant part in navajo beliefs. among other things, it affects how horseback riding, hiking and camping," as well as other snow- nevertheless, appellants argue that the feis does not ade- 7. recycled water is clean, disease-free. agency action, findings, and conclusions of law" that are district court concluded that all three were compelling govern- as they hold it, would tend to undermine the -- the integrity based on its incorrect reading of an earlier court decision "least restrictive means" to the mountain. . . . . the snowbowl makes that argument. treated sewage effluent may be safely and beneficially considers the environmental impact of diverting the treated sion of the significant aspects of the probable environmental efforts to reduce the burden, locating the planned road so as must show that the government's proposed action imposes a peaks. the currently proposed expansion of the snowbowl nitrogen, suspended solids, and [digestible organic substances act was insufficient to justify the substantial bur- association whether the [eis] contains a reasonably thorough discussion sion of the snowbowl's facilities. one component of the their livelihoods and the home of the katsinam spirits. sure's omission from the feis table is hardly surprising, how- scoping memoranda and notes demonstrate that the forest ent, and does not articulate why such discussion is unneces- tains of which the westernmost is the peaks, or do'ok'oos-liid close entirely as a commercial ski area, we are not convinced the surface of the earth to take care of the lands." they undermine all of their religious practices because their way of your mind when you're sitting there praying" to the mountain, are raised in this belief that the mountains are a revered place. "would be like malpractice." further, mapatis would become [1] under the religious freedom restoration act of 1993 appeal deciding office, regional which the tribal members engage with respect to the san ment cannot do to the individual, not in terms of what the and the agassiz subwatershed, an area that does not include the [agency] to afford it the opportunity to rectify the viola- 3h, discussed above, is largely devoted to the subject. sewage effluent. is that the treated sewage effluent proposed for use is not forest service itself wrote in the feis that the peaks are the his religion"); goehring v. brophy, 94 f.3d 1294, 1299 (9th tion ceremony, the hualapai add sacred water from the peaks the feis was preordained. the letter informs the hopi that judge for the northern district of california, sitting by designation. that appellants sufficiently raised the claim in comments on quence of the impurity introduced by the treated sewage efflu- alternative two, the city of flagstaff would provide the tions that the plaintiffs alleged." native ecosystems council,


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