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August 08, 2008

Arizona Snowbowl Snowmaking Ruling From 9th Circuit

I am reading the ruling from the 9th Circuit right now. Will update. Preliminary is that Snowbowl won and District Court decision was reaffirmed.

Updates forthcoming.


In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this government approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (“RFRA”), the National Environmental Policy Act of 1969 (“NEPA”), and the National Historic Preservation Act (“NHPA”). We hold that it does not, and affirm the district court’s denial of relief on all grounds.

Take that. Still reading...


Thus, the sole effect of the artificial snow is on the plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden”—a term of art chosen by Congress to be defined by reference to Supreme Court precedent —on the free exercise of religion.



We live in a society with multiple competing versions of what is spiritually important for folks. For instance, folks in Texas believe that the only way to achieve Celestial Glory is to marry multiple wives. Others believe that sacrificing animals is a spiritual experience. Some folks do funky piercings of flesh for their spirituality. And while the Hopi and Navajo belief structure is rather prominent and mainstream, it should be afforded no more or less rights than any other denomination.

I can imagine that if an airport is built near my church or a runway extended or additional flight traffic approved, it would decrease my subjective religious experience. But because it might degrade my subjective religious experience, it certainly should not prohibit any soft of progress or expansion simply out of my desire to not have my subjective religious experience change.

And at the end of the day, that is what this is about--Hopis and Navajos wanting to maintain their subjective experience on the Peaks... wait, that is not what this is about. This is about racism. Hundreds of years of anger and bitterness about racism. And an opportunity to drive a stake into the ground and take some land from the White Man for once. Take away their ski resorts. Stick it to them. And make it over religion in doing it. But it is not even about that. It is about the Sierra Club and the WMA tribe wanting to shut down their competition or to stop new development.

Regardless of which of these explanations you want to choose as the motivation for the above parties, all of their reasons lack sufficient reasoning to stop the development. And short of the SCOTUS taking the issue on, and by all means send it to Roberts and Alito and Thomas and Scalia to decide, I think this is over. A SCOTUS decision would actually be even more harmful to the Environmental movement because it would codify this decision where it cannot be overturned even among the Liberal 9th Circuit.

Posted by Justin at August 8, 2008 02:58 PM