The operators of Snowbowl are entitled to use recycled sewage to make snow on the San Francisco Peaks despite objections from several Native American tribes, the 9th U.S. Circuit Court of Appeals ruled Friday.
In a split decision, the court acknowledged arguments by the tribes that the use of artificial snow will decrease the "spiritual fulfillment" they get from practicing their religion on the mountain. And the land on which the ski resort is located is owned by the federal government.
But Judge Carlos Bea, writing for the majority, said that does not run afoul of the federal Religious Freedom Restoration Act.
"A government action which decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a 'substantial burden' - a term of art chosen by Congress to be defined by reference to Supreme Court precedent - on the free exercise of religion," he said.
And Bea said there is nothing in the decision of the Forest Service to allow the use of treated effluent that requires the tribes to act against their religion.
The ruling drew fire from Judge William Fletcher who wrote a dissent for himself and two other judges. He said the ruling "misunderstands the very nature of religion."
Friday's decision is significant beyond the future of the ski resort.
In overturning a contrary ruling by its own three-judge panel, the full court adopted a much more restrictive reading of the 1993 law that the tribes used in this case. That has implications for others hoping to use claims of religious freedom to block government action.
It is also a defeat for Howard Shanker, who argued the case for the tribes before the court - and who lists his earlier victory before the three-judge panel as one of his "triumphs" that voters should consider in his bid for Congress from the 1st District.
At issue is a plan by the current owners, who bought the resort in 1992, to build a 15-mile pipeline to carry up to 1.5 million gallons a day of treated effluent from Flagstaff to Humphreys Peak. Plans are to cover about 205 acres with artificial snow at the beginning of the season, with more as necessary.
Various tribes filed suit, citing the 1993 law that requires government agencies to use the "least restrictive" means of interfering with any religious practice when considering projects on federal land.
Shanker said the court got it wrong in concluding that the project does not place a substantial burden on the practices of the tribes he represents. "The court is being the arbiter of religious beliefs, which is not its role," he said.
"The court is supposed to determine whether the religious beliefs at issue are sincerely held, and that's it," Shanker noted. "Once they've made that determination it's not for the court to decide whether or not they agree with the testimony that was presented."
That contention was backed by Fletcher, who said the evidence shows the Indians do not merely require the continued existence of certain plants and shrines, including mountains, but that they be "spiritually pure, undesecrated by treated sewage effluent."
But Bea said the requirement to use the least restrictive means applies only when a government action places a "substantial burden" on religious freedom. He said that can occur in only one of two ways: Individuals are forced to choose between following the tenets of their religion to receive a government benefit, or they are coerced to act contrary to their beliefs under threat of sanctions.
He said neither applies to the tribes' argument that the use of treated effluent will spiritually "desecrate" a sacred mountain and decrease their spiritual fulfillment of practicing their religion on it.