Navajo Nation v. U.S. Forest Service

479 F.3d 1024

NAVAJO NATION; Havasupai Tribe; Rex Tilousi; Dianna Uqualla; Sierra Club; White Mountain Apache Nation; Yavapai-Apache Nation; The Flagstaff Activist Network, Plaintiffs-Appellants, and Hualapai Tribe; Norris Nez; Bill Bucky Preston; Hopi Tribe; Center for Biological Diversity, Plaintiffs, v. UNITED STATES FOREST SERVICE; Nora Rasure, in her official capacity as Forest Supervisor, Responsible Officer, Coconino National Forest; Harv Forsgren, appeal deciding office, Regional Forester, in his official capacity, Defendants-Appellees, Arizona Snowbowl Resort Limited Partnership, Defendant-intervenor-Appellee.

Navajo Nation; Hualapai Tribe; Norris Nez; Bill Bucky Preston; Havasupai Tribe; Rex Tilousi; Dianna Uqualla; Sierra Club; White Mountain Apache Nation; Yavapai-Apache Nation; Center For Biological Diversity; The Flagstaff Activist Network, Plaintiffs, and Hopi Tribe, Plaintiffs-Appellant, v. United States Forest Service; Nora Rasure, in her official capacity as Forest Supervisor, Responsible Officer, Coconino National Forest; Harv Forsgren, appeal deciding office, Regional Forester, in his official capacity, Defendants-Appellees, Arizona Snowbowl Resort Limited Partnership, Defendant-intervenor-Appellee.

Hualapai Tribe; Norris Nez; Bill Bucky Preston, Plaintiffs-Appellants, v. United States Forest Service; Nora Rasure, in her official capacity as Forest Supervisor, Responsible Officer, Coconino National Forest; Harv Forsgren, appeal deciding office, Regional Forester, in his official capacity, Defendants-Appellees.

No. 06-15371.

No. 06-15436.

No. 06-15455.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2006.

Filed March 12, 2007.

Howard M. Shanker, Laura Lynn Berglan, The Shanker Law Firm, PLC, Flagstaff, AZ; William Curtis Zukosky, DNA People's Legal Services, Flagstaff, AZ; Terence M. Gurley and Zackeree Kelin, DNA People's Legal Services, Window Rock, AZ; Anthony S. Canty, Lynelle Kym Hartway, The Hopi Tribe, Kykotsmovi, AZ; Jack F. Trope, Association on American Indian Affairs, Rockville, MD, for the appellants.

Rachael Dougan, Lane McFadden, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Janice M. Schneider, Bruce Babbitt, Latham & Watkins, Washington, D.C.; Philip A. Robbins, Paul G. Johnson, Jennings Strouss & Salmon, Phoenix, AZ, for the appellees.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. Nos. CV-05-01824-PGR, CV-05-01914-PGR, CV-05-01949-PGR, CV-05-01966-PGR.

Before W. FLETCHER and RAWLINSON, Circuit Judges, and THELTON E. HENDERSON,^* District Judge.

WILLIAM A. FLETCHER, Circuit Judge.

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.

I. Background

Humphrey's Peak, Agassiz Peak, Doyle Peak, and Fremont Peak form a single large mountain commonly known as the San Francisco Peaks, or simply the Peaks. The Peaks tower over the desert landscape of the Colorado Plateau in northern Arizona. At 12,633 feet, Humphrey's Peak is the highest point in the state. The Peaks are located within the 1.8 million acres of the Coconino National Forest.

In 1984, Congress designated 18,960 acres of the Peaks as the Kachina Peaks Wilderness. Arizona Wilderness Act of 1984, Pub.L. No. 98-406, § 101(a)(22), 98 Stat. 1485. The Forest Service has identified the Peaks as eligible for inclusion in the National Register of Historic Places and as a "traditional cultural property." A traditional cultural property is one "associat[ed] with cultural practices or beliefs of a living community that (a) are rooted in that community's history, and (b) are important in maintaining the continuing cultural identity of the community." National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties (rev. ed.1998), available at http://www.cr.nps.gov/nr/publications/ bulletins/nrb38/.

The Forest Service has described the Peaks as "a landmark upon the horizon, as viewed from the traditional or ancestral lands of the Hopi, Zuni, Acoma, Navajo, Apache, Yavapai, Hualapai, Havasupai, and Paiute." The Service has acknowledged that the Peaks are sacred to at least thirteen formally recognized Indian tribes, and that this religious significance is of centuries' duration. Though there are differences among these tribes' religious beliefs and practices associated with the Peaks, there are important commonalities. As the Service has noted, many of these tribes share beliefs that water, soil, plants, and animals from the Peaks have spiritual and medicinal properties; that the Peaks and everything on them form an indivisible living entity; that the Peaks are home to deities and other spirit beings; that tribal members can communicate with higher powers through prayers and songs focused on the Peaks; and that the tribes have a duty to protect the Peaks.

Organized skiing has existed at the Arizona Snowbowl since 1938. The original lodge was destroyed by fire in 1952. A replacement lodge was built in 1956. A poma lift was installed in 1958, and a chair lift was installed in 1962. In 1977, the then-owner of the Snowbowl requested authorization to clear 120 acres of new ski runs and to do additional development. In 1979, after preparing an Environmental Impact Statement, the Forest Service authorized the clearing of 50 of the 120 requested acres, the construction of a new lodge, and some other development. An association of Navajo medicine men, the Hopi tribe, and two nearby ranch owners brought suit under, inter alia, the Free Exercise Clause of the First Amendment and NEPA. The D.C. Circuit upheld the Forest Service's decision. Wilson v. Block, 708 F.2d 735 (D.C.Cir.1983).

The Snowbowl has always depended on natural snowfall. In dry years, the operating season is short, with few skiable days and few skiers. The driest year in recent memory was 2001-02, when there were 87 inches of snow, 4 skiable days, and 2,857 skiers. Another dry year was 1995-96, when there were 113 inches of snow, 25 skiable days, and 20,312 skiers. By contrast, in wet years, there are many skiable days and many skiers. For example, in 1991-92, there were 360 inches of snow, 134 skiable days, and 173,000 skiers; in 1992-93, there were 460 inches of snow, 130 skiable days, and 180,062 skiers; in 1997-98, there were 330 inches of snow, 115 skiable days, and 173,862 skiers; and in 2004-05, there were 460 inches of snow, 139 skiable days, and 191,317 skiers.

ASR, the current owner, purchased the Snowbowl in 1992 for $4 million. In September 2002, ASR submitted a facilities improvement proposal to the Forest Service. In February 2004, the Forest Service issued a Draft Environmental Impact Statement. A year later, in February 2005, the Forest Service issued a Final Environmental Impact Statement ("FEIS") and Record of Decision ("ROD"). The ROD approved "Alternative Two" of the FEIS, the alternative preferred by the Snowbowl. Under Alternative Two, a number of changes were proposed, including: an area for snowplay and snow tubing would be developed; a new high-speed ski lift would be added; three existing lifts would be relocated and upgraded; 66 new acres of skiable terrain would be developed; 50 acres of trails would be re-contoured; a three-acre beginner's area would be re-contoured and developed; an existing lodge would be upgraded; and a new lodge would be built.

Alternative Two also included a proposal to make artificial snow using treated sewage effluent. Treated sewage effluent is waste-water discharged by households, businesses, and industry that has been treated for certain kinds of reuse. Under Alternative Two, the City of Flagstaff would...