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No. 08-846

 

In the Supreme Court of the United States

NAVAJO NATION, ET AL., PETITIONERS

v.

UNITED STATES FOREST SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
JOHN C. CRUDEN
Acting Assistant Attorney
General
ANDREW C. MERGEN
LANE N. MCFADDEN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in concluding that the use of recycled wastewater to make artificial snow on a mountain owned by the government and deemed sacred by petitioners does not "substantially burden" petitioners' exercise of religion under the Re ligious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb-1.

In the Supreme Court of the United States

No. 08-846

NAVAJO NATION, ET AL., PETITIONERS

v.

UNITED STATES FOREST SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a- 113a) is reported at 535 F.3d 1058. The opinion of the district court (Pet. App. 186a-267a) is reported at 408 F. Supp. 2d 866.

JURISDICTION

The judgment of the court of appeals was entered on August 8, 2008. On October 29, 2008, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including December 8, 2008. On November 20, 2008, Justice Kennedy further extended the time to January 5, 2009, and the petition was filed on that date. The jurisdiction of this Court is invoked un der 28 U.S.C. 1254(1).

STATEMENT

1. In Employment Division v. Smith, 494 U.S. 872 (1990), this Court held that the Free Exercise Clause of the First Amendment does not require neutral laws of general applicability to be justified by a compelling gov ernment interest, even if they substantially burden a religious practice. Id. at 882-890. In response, Con gress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq.

In RFRA, Congress sought to overcome the effect of Smith by "restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wis consin v. Yoder, 406 U.S. 205 (1972)" and "guar antee[ing] its application in all cases where free exer cise of religion is substantially burdened." 42 U.S.C. 2000bb(b)(1). Congress explained that the "compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental in terests." 42 U.S.C. 2000bb(a)(5). Congress therefore provided:

Government may substantially burden a person's exercise of religion only if it demonstrates that appli cation of the burden to the person-

(1) is in furtherance of a compelling govern mental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. 2000bb-1(b).

Although this Court invalidated RFRA as applied to the States and their subdivisions in City of Boerne v. Flores, 521 U.S. 507, 532-536 (1997), RFRA continues to apply to the federal government, see 42 U.S.C. 2000bb-3(a).

2. a. The San Francisco Peaks (Peaks) are a series of mountains located in the Coconino National Forest, just north of Flagstaff, Arizona. Pet. App. 8a. One per cent of the area of the Peaks is occupied by the Snow bowl ski resort area (Snowbowl). Id. at 8a, 216a. The United States Forest Service (Forest Service) desig nated the Snowbowl as a public recreation facility be cause the area "represent[s] an opportunity for the gen eral public to access and enjoy public lands in a manner that the Forest Service could not otherwise offer in the form of a major facility anywhere in Arizona." Id. at 8a (internal quotation marks and citation omitted).

The Snowbowl has been in operation as a ski resort area since the 1930s. Pet. App. 9a. The Snowbowl cur rently is operated by respondent Arizona Snowbowl Re sort Limited Partnership (ASR), pursuant to a special use permit issued by the Forest Service. Id. at 217a.

The Peaks have "long-standing religious and cultural significance to Indian tribes," including petitioners. Pet. App. 9a. Petitioners consider the Peaks to be a living entity. Id. at 9a, 224a. They conduct religious ceremo nies on the Peaks and collect plants, water, and other materials from the Peaks for use in medicinal bundles and healing ceremonies. Ibid. According to petitioners, the very presence of the Snowbowl desecrates the spiri tuality of the Peaks for them. Ibid.

b. Indian Tribes have previously challenged the op eration of the Snowbowl. In 1979, the Forest Service approved a number of upgrades for the Snowbowl, which included the installation of new lifts, trails, and facilities. Pet. App. 9a, 218a. Certain Tribes sued to halt the pro posed development and to remove all existing ski facili ties, contending, inter alia, that the proposed develop ment would violate their First Amendment right to the free exercise of religion. See Wilson v. Block, 708 F.2d 735, 739-740 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983), and 464 U.S. 1056 (1984). The Tribes argued that further "development of the Peaks would be a pro fane act" and would "seriously impair their ability to pray and conduct ceremonies upon the Peaks, and to gather from the Peaks the sacred objects * * * which are necessary to their religious practices." Id. at 740.

The D.C. Circuit held that the proposed Snowbowl upgrades did not impermissibly burden the Tribes' free exercise of religion. Wilson, 708 F.2d at 739-745. The court explained that the government "has not condi tioned any benefit upon conduct proscribed or mandated by plaintiffs' beliefs," "has not directly or indirectly pe nalized the plaintiffs for their beliefs," and has not "prevent[ed] them from engaging in any religious prac tices." Id. at 741-742, 745. Since Wilson, the Tribes have "continued to use the Peaks for religious purpos es." Pet. App. 218a.

c. In recent years, snowfall at the Snowbowl has been sporadic, threatening the ski resort's continued operation. Pet. App. 10a, 218a-219a. In 2002, ASR sub mitted a proposal to the Forest Service to upgrade its operations at the Snowbowl. Id. at 10a. ASR did not propose to expand the Snowbowl area on the Peaks, but only to upgrade existing facilities and infrastructure. Id. at 187a n.2, 222a. One aspect of the proposal is that, to maintain the continued viability of the Snowbowl, ASR plans to make artificial snow using recycled waste water. Id. at 10a-11a. The area proposed for snowmak ing constitutes "approximately one quarter of one per cent" of the Peaks. Id. at 222a.

The artificial snow would be made from recycled wastewater designated Class A+, which is the highest quality of recycled wastewater recognized by the Ari zona Department of Environmental Quality (ADEQ). Pet. App. 10a-11a. In order to obtain Class A+ status, the water would have to undergo advanced treatment, including tertiary treatment with disinfection, and it would be monitored and tested frequently to assure that any pathogens are successfully removed. Id. at 11a n.6. Class A+ water has been specifically approved by the ADEQ as safe for many purposes, including irrigating school grounds and food crops, fire protection, and, as relevant here, making artificial snow. Id. at 11a; see Ariz. Admin. Code R18-11-309 tbl. A (2003). The pro posal includes the use of recycled water, rather than fresh water, because of the scarcity of fresh water in Arizona. Pet. App. 253a.

In addition to using the recycled water for snow making, ARS also proposed to use it for a fire suppres sion system on the Peaks. Pet. App. 11a. The pipeline used to transport water to the Snowbowl would provide water for fire suppression in rural residential areas. Ibid. A reservoir of water would also be kept on the Snowbowl for fighting forest fires. Ibid.

Petitioners objected to the use of recycled water at the Snowbowl. In their view, use of the water would desecrate the Peaks and offend their religious beliefs. Pet. App. 6a-7a. Although "there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow," and petitioners would "continue to have virtually unlimited access to the moun tain," including the Snowbowl, "to pray, conduct their religious ceremonies, and collect plants for religious use," petitioners contended that the use of artificial snow would affect their "subjective spiritual experience" by "decreas[ing] the spiritual fulfillment [they] get from practicing their religion on the mountain." Id. at 6a-7a.

d. The Forest Service conducted an extensive review of the proposed project. Pet. App. 11a. As part of its review, it consulted with several Tribes to attempt to mitigate the effects of the proposed project on their reli gious activities. The Forest Service made over 500 con tacts with Tribes that could be affected by the proposal and held between 40 and 50 meetings with them. Ibid.; see id. at 208a n.11, 210a, 219a. The Forest Service al tered the proposed project in numerous respects to ac commodate concerns raised by the Tribes. For example, the Forest Service eliminated the part of the proposal calling for the installation of lights to permit night ski ing because some Tribes objected. Id. at 209a n.12. The Forest Service also signed a Memorandum of Agree ment formally stating that it would continue to allow the Tribes access to the Peaks for cultural and religious pur poses and to work with the Tribes to ensure that their religious activities on the Peaks would not be inter rupted. Id. at 12a, 250a-252a.

After completing its review, the Forest Service is sued an environmental impact statement and a record of decision authorizing a number of upgrades to the Snow bowl. Pet. App. 13a, 189a-190a. The Forest Service con cluded that, without the proposed upgrades, the Snow bowl would not continue to be economically viable in low-precipitation years. Id. at 193a-195a, 264a-265a.

Petitioners filed an administrative appeal of the For est Service's decision, which was denied. Pet. App. 13a. They then filed suit in federal district court, claiming that the proposed project violated a number of federal statutes, including RFRA. Ibid.1

3. The district court held an 11-day bench trial on petitioners' RFRA claim, and then granted summary judgment for the Forest Service on all claims. Pet. App. 186a-267a.

The district court made extensive findings of fact about the extent to which the Snowbowl expansion would affect petitioners' religious beliefs and practices. Pet. App. 224a-241a. It found no evidence that the pro ject would hinder the conduct of any religious ceremony, gathering, pilgrimage, or any other religious use of the Peaks. Id. at 228a, 231a-232a, 239a-240a, 259a, 261a. Instead, it found that the sole effect of the project would be on petitioners' subjective religious experience. Id. at 239a-240a. The court also observed that, because peti tioners consider almost a dozen mountains and numer ous other landscapes in the Coconino National Forest sacred, the "Forest Service would be hard pressed to satisfy the religious beliefs" of all of the petitioners. Id. at 243a-245a, 249a.

The district court explained that, to make out a prima facie claim under RFRA, petitioners were re quired to demonstrate that the proposed project "sub stantially burdens [their] ability to freely exercise [their] religion." Pet. App. 255a (citing 42 U.S.C. 2000bb-1(b) and Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002)). If that showing is made, the court stated, the burden would shift to the government to demonstrate that the project furthers a compelling gov ernmental interest using the least restrictive means available. Id. at 255a-256a.

The district court concluded that petitioners had failed to demonstrate a substantial burden on their reli gious exercise. Pet. App. 256a-261a. The court ex plained that "[t]he subjective views and beliefs pre sented at trial, although sincerely held, are not sufficient for the proposed project to constitute a substantial bur den," because the project "does not coerce individuals into acting contrary to their religious beliefs" or "penal ize anyone for practicing his or her religion." Id. at 260a-261a.

Citing this Court's decision in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988), the district court explained that "[a]llowing such a sub jective definition of substantial burden would open the door to the imposition of 'religious servitudes' over large portions of federal land" and make it nearly impossible for the Forest Service to manage the "millions of acres of public lands in Arizona, and elsewhere, that are con sidered sacred to Native American tribes." Pet. App. 258a-260a. The district court also concluded that, even if there were a substantial burden on petitioners' reli gious beliefs, the government demonstrated that the proposed project was narrowly tailored to further a sub stantial government interest. Id. at 241a-255a, 261a- 265a.

4. A three-judge panel of the court of appeals re versed. Pet. App. 116a-185a. The court of appeals then granted en banc review and affirmed the district court's grant of summary judgment to the Forest Service. Id. at 1a-42a.

The en banc court of appeals explained that, "[w]ith the enactment of RFRA, Congress created a cause of action for persons whose exercise of religion is substan tially burdened by a government action." Pet. App. 16a (citing 42 U.S.C. 2000bb-1). Noting that the government did not question whether petitioners' religious beliefs are sincere or whether petitioners' activities on the Peaks constitute an exercise of religion, id. at 17a, the court turned to the question whether the proposal would substantially burden petitioners' exercise of religion. Id. at 17a-35a.

The court explained that, under RFRA, that question is to be answered by reference to this Court's pre-Smith Free Exercise Clause precedents. Congress expressly stated in RFRA that its intention was to "restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)," based on its determination that that test "is a workable test for striking sensible balances between religious liberty and competing prior govern mental interests." Pet. App. 17a-18a (quoting 42 U.S.C. 2000bb(a)(5) and (b)(1)). The court therefore reviewed this Court's decisions in Sherbert, Yoder, and their prog eny to determine what constitutes a substantial burden on the exercise of religion.

After reviewing this Court's pre-Smith precedents in detail, the court of appeals concluded that a government action generally constitutes a substantial burden on reli gion if "individuals are forced to choose between follow ing the tenets of their religion and receiving a govern mental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder)." Pet. App. 20a. "Were it otherwise, any action the federal government were to take, includ ing action on its own land, would be subject to the per sonalized oversight of millions of citizens." Ibid.

Applying those principles to the facts found by the district court (which petitioners did not challenge on appeal), the court concluded that petitioners failed to demonstrate a substantial burden on their exercise of religion. Pet. App. 21a-35a. The court observed that "[t]he only effect of the proposed upgrades is on [peti tioners'] subjective, emotional religious experience"; they claim the project would "decrease the spiritual ful fillment they get from practicing their religion on the mountain." Id. at 21a. The court determined that, un der this Court's precedents, "the diminishment of spiri tual fulfillment-serious though it may be-is not a 'sub stantial burden' on the free exercise of religion." Ibid.

The court of appeals determined that this Court's decision in Lyng is "on point." Pet. App. 22a. In Lyng, the Court rejected several Tribes' claim that construc tion of a logging road through a national forest would substantially burden their exercise of religion. 485 U.S. at 441-442. The Court explained that the Tribes' claim that the project would "diminish the sacredness" of the land did not impose a burden "heavy enough" to violate the Free Exercise Clause. Id. at 447-449. The court of appeals explained that, "[l]ike the Indians in Lyng, [peti tioners] here challenge a government-sanctioned pro ject, conducted on the government's own land, on the basis that the project will diminish their spiritual fulfill ment," and, like the challengers in Lyng, they failed to demonstrate a substantial burden. Pet. App. 25a.

Three judges dissented, contending that the use of artificial snow on the peaks would substantially bur den petitioners' religious exercise. Pet. App. 43a-113a (W. Fletcher, J., dissenting).

ARGUMENT

Petitioners seek review of the court of appeals' deci sion that the diminishment of spiritual fulfillment does not constitute a substantial burden on the exercise of their religion under RFRA. Pet. i. The decision below is correct. In determining that petitioners failed to dem onstrate a substantial burden, the court of appeals fol lowed settled law, including this Court's decision in Lyng, which squarely rejected a claim that is indistin guishable from the one petitioners now make. More over, contrary to petitioners' contention, the courts of appeals have not divided on the question of what consti tutes a substantial burden under RFRA. And even if there were disagreement in the circuits, this case would be an inappropriate vehicle for resolving that disagree ment, because petitioners cannot prevail under any of the suggested standards. Further review of petitioners' fact-bound claim is therefore unwarranted.

1. a. RFRA provides that the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the government demonstrates that the application of the burden "is in furtherance of a com pelling governmental interest" and "is the least restric tive means of furthering that compelling governmental interest." 42 U.S.C. 2000bb-1. As this Court noted in City of Boerne, 521 U.S. at 512-513, Congress enacted RFRA in "direct response" to the Court's decision in Smith, which held that neutral laws of general applica bility that impose a substantial burden on religious exer cise need not be justified by a compelling governmental interest. See 494 U.S. at 885. Congress sought to over come the holding of Smith and directed courts to apply the compelling interest test to "all cases where free ex ercise of religion is substantially burdened." 42 U.S.C. 2000bb(b)(1). RFRA specifically points the courts to "Federal court rulings" prior to Smith to assess whether a governmental action places an impermissible burden on religion. 42 U.S.C. 2000bb(a)(5).

b. The court of appeals correctly explained that, because Congress's purpose in RFRA was to restore the state of the law prior to Smith, this Court's pre-Smith Free Exercise Clause cases should be used to determine whether the government's use of artificial snow at the Snowbowl would substantially burden their exercise of religion, thus triggering the compelling interest test. Pet. App. 15a-28a, 38a. The court noted that this Court generally has recognized a substantial burden only when "individuals are forced to choose between following the tenets of their religion and receiving a government bene fit" or are "coerced to act contrary to their religious be liefs by the threat of civil or criminal sanctions." Id. at 20a.

An example of the first category of cases is Sherbert v. Verner, 374 U.S. 398 (1963), where the Court ex plained that a State could not deny a person unemploy ment benefits because she refused to work on the Sab bath, because such a rule would substantially burden her religious exercise by forcing her to "choose between following the precepts of her religion and forfeiting ben efits, on the one hand, and abandoning one of the pre cepts of her religion * * * on the other." Id. at 404. An example of the latter category is Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court struck down appli cation of a compulsory education law to Amish children, explaining that such a law would "unduly burden[]" the religious exercise of the children's parents by "affirma tively compel[ling] them, under threat of criminal sanc tion, to perform acts undeniably at odds with fundamen tal tenets of their religious beliefs." Id. at 218, 220. In later cases, the Court continued to adhere to the view that a burden on religion is "substantial" when the gov ernment puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981); see Hobbie v. Unemployment Ap peals Comm'n, 480 U.S. 136, 141 (1987) (same).

At the same time, this Court rejected the view that religious offense or distress resulting from the govern ment's management of its own programs or property could constitute a substantial burden. In Bowen v. Roy, 476 U.S. 693 (1986), two applicants for welfare benefits challenged a federal statute requiring them to supply a Social Security number, contending that using a Social Security number to identify their 2-year-old daughter would "rob [her] spirit" and "prevent her from attaining greater spiritual power." Id. at 696. This Court held that the claimed injury was not a sufficient burden un der the Free Exercise Clause, explaining that the Free Exercise Clause "affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures." Id. at 700.

That principle was later reaffirmed in the specific context presented by this case-the government's man agement of federal lands for the public good. In Lyng, this Court considered three Tribes' challenges to gov ernment plans to permit timber harvesting in, and con struction of a road through, a national forest tradition ally used for religious practice by members of the Tribes. 485 U.S. at 442. The Tribes objected to the pro ject, contending that the national forest area in question was an "indispensable part of Indian religious conceptu alization and practice" and that the proposed project "would cause serious and irreparable damage to the sa cred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples." Ibid.

The Court held that the alleged interference with the Tribes' "ability to pursue spiritual fulfillment according to their own religious beliefs" was not a substantial bur den on religion that must be justified with a compelling governmental interest. Lyng, 485 U.S. at 448-450. Re lying on Roy, the Court explained that, although the planned road construction would "interfere significantly with [the Tribes'] ability to pursue spiritual fulfillment according to their own religious beliefs," it would not "coerce[]" them "into violating their religious beliefs" or "penalize religious activity by denying [them] an equal share of the rights, benefits, and privileges enjoyed by other citizens." Id. at 449. The court concluded that "incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs," do not sufficiently burden religion so as to "require government to bring forward a compelling justification for its otherwise law ful actions." Id. at 450-451. The Court therefore re jected the Tribes' "proposed extension of Sherbert" and instead found the case controlled by Roy. Id. at 452.

c. The court of appeals correctly applied that settled law in holding that the proposed project does not "sub stantially burden" petitioners' religious exercise. Pet. App. 15a-35a. As the court explained, "[t]he only effect of the proposed upgrades is on [petitioners'] subjective, emotional religious experience," and under cases such as Sherbert, Yoder, Roy, and Lyng, "the diminishment of spiritual fulfillment * * * is not a 'substantial burden' on the free exercise of religion." Id. at 21a. The court determined that Lyng is dispositive of petitioners' claims, because in Lyng, as here, the Tribes "contended the construction would interfere with their free exercise of religion by disturbing a sacred area," and the Court concluded that the Tribes had not shown a "burden 'heavy enough' to violate the Free Exercise Clause." Id. at 23a (quoting Lyng, 485 U.S. at 447).

The court of appeals also explained that here, as in Lyng, a contrary holding would significantly interfere with the government's ability to manage its own land: "[G]overnment simply could not operate if it were re quired to satisfy every citizen's religious needs and de sires," because "[a] broad range of governmental activi ties * * * will always be considered essential" to the spiritual well-being of some citizens and "deeply offen sive" to others. Pet. App. 24a-25a (quoting Lyng, 485 U.S. at 452). The court of appeals thus correctly con cluded that petitioners failed to demonstrate a substan tial burden on their religious exercise in light of this Court's pre-Smith precedents, especially Lyng.

d. The government has never challenged the sincer ity of the beliefs espoused by petitioners in this case, nor does it question the sincerity of the petitioners' descrip tion of the impact of the Snowbowl project on their reli gious experience. And the government recognizes the importance of sensitivity to religious beliefs and prac tices. The government has endeavored to "accommo dat[e] religious practices like those engaged in by" peti tioners and to "minimize the impact [of the proposed project] on [petitioners'] religious activities." Lyng, 485 U.S. at 454. Although the government desires to accom modate religious activities to the extent practicable, Lyng makes clear that the government was not required to do more in this case.

2. Petitioners provide a variety of arguments (Pet. 24-31) for why the court of appeals erred, none of which is persuasive.

a. First, petitioners suggest (Pet. 24-28) that the court ignored the "plain language" of RFRA by turning to this Court's pre-Smith precedent rather than using dictionary definitions of "substantial" and "burden." But, as the court of appeals explained, petitioners' pro posed approach is directly contrary to Congress's ex press direction to courts to look to Sherbert, Yoder, and this Court's other pre-Smith Free Exercise Clause pre cedents to determine when the government must justify its actions with a compelling governmental interest. Pet. App. 29a-30a (citing 42 U.S.C. 2000bb(a)(4)-(5) and (b)(1)). Because "Congress incorporated into RFRA a term of art-substantial burden-previously used in numerous Supreme Court cases," the court of appeals appropriately determined that it should not "invent a new definition for 'substantial burden' by reference to a dictionary." Id. at 30a. Congress expected that "the courts will look to free exercise cases decided prior to Smith for guidance in determining whether the exercise of religion has been substantially burdened." S. Rep. No. 111, 103d Cong., 1st Sess. 8 (1993) (1993 Senate Re port). Moreover, contrary to petitioners' contention (Pet. 2-3, 28-29), Congress did not intend RFRA's com pelling interest test to apply to any incidental effects on religious exercise; Congress created a cause of action for any individual only "where free exercise of religion is substantially burdened." 42 U.S.C. 2000bb(b)(1) (em phasis added).

b. Petitioners also contend (Pet. 26-28) that cases such as Sherbert, Yoder, and Lyng do not address what constitutes a substantial burden on religious exercise. They are mistaken. The relevant inquiry in each of those cases was whether the claimed interference with religious practice was sufficiently severe to require the government to justify its actions with a compelling gov ernmental interest under the Free Exercise Clause. See, e.g., Sherbert, 374 U.S. at 403 (holding that there was a sufficient "burden" on religious exercise to re quire the government to show a compelling governmen tal interest); Yoder, 406 U.S. at 220 (finding an "undu[e] burden[]" that required the State to show a compelling interest); Lyng, 485 U.S. at 447 (concluding that Tribes failed to show that "the burden on their religious prac tices [wa]s heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a com pelling need to complete the" project at issue); see also Pet. App. 17a-28a, 30a n.17. And Congress specifically noted that Roy and Lyng would apply in cases such as this one: "[P]re-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government's own property or resources." 1993 Senate Report 9 (citing Roy and Lyng).

c. Petitioners attempt to rewrite the holding of Lyng, contending that "[b]y any reasonable understand ing of the English language * * * this Court accepted that the governmental action in Lyng would substan tially burden tribal members' exercise of religion." Pet. 28. That is incorrect. This Court squarely rejected the contention that "the burden on [the Tribes'] religious practices is heavy enough" to require the government to demonstrate that the proposed project was justified by a compelling governmental interest. Lyng, 485 U.S. at 447.

d. Petitioners likewise are wrong to suggest that the Lyng Court "held that the Free Exercise Clause sub jects governmental action to strict scrutiny only when the action actually 'prohibit[s]' religious expression." Pet. 28. The Lyng Court made clear that there would be a substantial burden on religion if individuals were "co erced by the Government's action into violating their religious beliefs" or the government "penalize[d] reli gious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citi zens," even if their religious exercise was not prohibited. 485 U.S. at 449. The court of appeals thus correctly con cluded that this case is indistinguishable from Lyng.

3. Contrary to petitioners' contention (Pet. 12-20), there is no disagreement in the circuits on the question of what constitutes a substantial burden under RFRA that warrants this Court's review.

a. As an initial matter, a great number of the cases petitioners cite as evidence of a circuit conflict are inap posite. Several of them were either abrogated by or va cated in light of this Court's decision in City of Boerne.2 Other cases address not RFRA but the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq.3 Although both RLUIPA and RFRA provide that the government may not substantially burden religious exercise absent a compelling governmental interest, there are textual dif ferences between the two statutes, such as RLUIPA's statement that it should be "construed in favor of a broad protection of religious exercise," 42 U.S.C. 2000cc-3(g), a sentiment not echoed in RFRA. In light of the fact that there are very few precedential cases that interpret the RFRA provisions at issue here, this Court's review is not warranted.

b. In any event, there is no conflict in the lower courts, even considering the full range of cases petition ers cite. In each of the cited cases, the court of appeals took the same approach as the court below, which was to look to this Court's pre-Smith Free Exercise Clause cases to determine when religious exercise has been substantially burdened. See pp. 21-25, infra. That is not surprising, because Congress made clear in enacting RFRA that what constitutes a substantial burden would be governed by this Court's pre-Smith precedents. See 42 U.S.C. 2000bb(a)(5) and (b)(1). Petitioners have not identified any court of appeals that has cast aside those precedents and looked solely to dictionary definitions to answer that question.

In applying this Court's pre-Smith Free Exercise Clause precedent, the courts of appeals have all adopted essentially the same conception of what government activities substantially burden religious exercise. They have asked whether the government action in question coerces an individual to engage in or to forgo engaging in religious exercise. See pp. 21-25, infra. And they have understood that inquiry to follow directly from this Court's decisions in Sherbert, Yoder, and their progeny. See Washington v. Klem, 497 F.3d 272, 279 (3d Cir. 2007) (the courts of appeals "have adopted some form of the Sherbert/Thomas formulation").

Although the courts of appeals have sometimes used different language to explain what constitutes a "sub stantial burden," those differences do not evidence any divergence in legal approach that warrants this Court's review. Instead, they are a reflection of the courts' ap plication of the test for what constitutes a substantial burden to the facts of individual cases. Importantly, the courts of appeals themselves have not identified a legal disagreement. Instead, the few courts that have identi fied semantic differences among the circuits have ob served that those differences probably "come to nothing in practice." Mack v. O'Leary, 80 F.3d 1175, 1178 (7th Cir. 1996), vacated (in light of City of Boerne), 522 U.S. 801 (1997); see Klem, 497 F.3d at 279-280 (in RLUIPA context, noting "minor variations" in various courts' def initions of "substantial burden," but questioning whe ther those "semantic differences in definition result in any meaningful differences in application"). Because the courts of appeals have hewed closely to this Court's pre cedents in assessing whether a plaintiff has demon strated a substantial burden on his religious exercise, there is no need for this Court's intervention.

c. An examination of the particular cases petitioners cite confirms that there is no disagreement in the courts of appeals on the question presented. In the decision below, the court of appeals reviewed this Court's pre- Smith Free Exercise Clause cases and then summarized their holdings by stating: "[A] 'substantial burden' is imposed only when individuals are forced to choose be tween following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act con trary to their religious beliefs by the threat of civil or criminal sanctions (Yoder)." Pet. App. 20a. As petition ers acknowledge (Pet. 13), the Fourth Circuit and D.C. Circuit have stated the inquiry in the same way, asking whether the government action at issue "forces [the plaintiffs] to engage in conduct that their religion for bids or * * * prevents them from engaging in conduct their religion requires." Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001), cert. denied, 535 U.S. 986 (2002); see Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 172-173 (4th Cir. 1995) (plaintiffs "have neither been compelled to engage in conduct proscribed by their religious beliefs, nor have they been forced to abstain from any action that their religion mandates that they take"), cert. denied, 516 U.S. 1046 (1996), abrogated by City of Boerne, supra. That inquiry follows directly from this Court's decision in Thomas, which stated that there is a substantial burden "[w]here the state condi tions receipt of an important benefit upon conduct pro scribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." 450 U.S. at 717-718; see Pet. App. 19a; Henderson, 253 F.3d at 16; Goodall, 60 F.3d at 172.

Contrary to petitioners' contention, the Eighth and Tenth Circuits have not adopted a "much broader con ception of 'substantial burden.'" Pet. 13. Instead, like the court below, those courts have looked to this Court's pre-Smith Free Exercise Clause precedents for guid ance and focused on whether the government action in question coerces a person to engage in religious activity or forgo engaging in religious activity. See In re Young, 82 F.3d 1407, 1417-1419 (8th Cir. 1996), vacated (in light of City of Boerne) sub nom. Christians v. Crystal Evan gelical Free Church, 521 U.S. 1114 (1997); Werner v. McCotter, 49 F.3d 1476, 1479-1480 & n.1 (10th Cir.), cert. denied, 515 U.S. 1166 (1995), abrogated by City of Boerne, supra. In Werner, the Tenth Circuit tailored that inquiry to the particular factual context of state prisons, asking whether the prison regulations at issue "significantly inhibit[ed] or constrain[ed] conduct or expression that manifests some central tenet of a pris oner's individual beliefs," "meaningfully curtail[ed] a prisoner's ability to express adherence to his or her faith," or "den[ied] a prisoner reasonable opportunities to engage in those activities that are fundamental to a prisoner's religion." 49 F.3d at 1480. The Eighth Cir cuit used the same inquiry in the state prison context in Weir v. Nix, 114 F.3d 817, 820 (1997), and then also uti lized it to evaluate a law permitting a bankruptcy trustee to void a transfer of funds debtors had tithed to their church, see In re Young, 82 F.3d at 1418. In none of those cases did the court suggest that it viewed its inquiry as conflicting with the approach of the Fourth, Ninth, and D.C. Circuits. Indeed, the courts have uti lized one another's explanations of what constitutes a substantial burden, evidencing their belief that their approaches are interchangeable. See, e.g., Henderson, 253 F.3d at 16 (considering, inter alia, whether the gov ernment action at issue "significantly inhibit[ed] or constrain[ed] conduct or expression that manifests some tenet of [the plaintiff's] individual beliefs," the same in quiry undertaken by the Eighth and Tenth Circuits) (quoting Werner, 49 F.3d at 1480).

There is likewise no basis for concluding that the Third, Fifth, Seventh, or Eleventh Circuit has adopted an approach that conflicts with the decision below. Again, each of those courts has looked to this Court's pre-Smith Free Exercise Clause cases to determine whether a challenged government action substantially burdens religious exercise, albeit in the context of RLUIPA, rather than RFRA. See, e.g., Klem, 497 F.3d at 278-279; Adkins v. Kaspar, 393 F.3d 559, 569-570 (5th Cir. 2004), cert. denied, 545 U.S. 1104 (2005); Midrash Shepardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226- 1227 (11th Cir. 2004), cert. denied, 543 U.S. 1146 (2005); Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 760-761 (7th Cir. 2003), cert. denied, 541 U.S. 1096 (2004). For example, the Fifth Circuit has asked whether the government action at issue "truly pressures the adherent to significantly modify his religious behav ior and significantly violate his religious beliefs" by "influenc[ing] the adherent to act in a way that violates his religious beliefs" or "forc[ing] the adherent to choose between * * * enjoying some generally available, non- trivial benefit, and * * * following his religious be liefs." Adkins, 393 F.3d at 570; see Longoria v. Dretke, 507 F.3d 898, 903 (5th Cir. 2007) (per curiam). The Third Circuit utilized that same inquiry in Klem, 497 F.3d at 280 & n.7. That inquiry tracks this Court's deci sion in Sherbert, see 374 U.S. at 404, and Thomas, see 450 U.S. at 717-718, and it is wholly consistent with the court of appeals' approach below, see Pet. App. 20a (ask ing whether "individuals are forced to choose between following the tenets of their religion and receiving a gov ernmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder)").

Similarly, the Eleventh Circuit has focused on the coercive effect of the challenged government action, ask ing whether the government has exerted "significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly," such as "pressure that tends to force adherents to forgo reli gious precepts" or "pressure that mandates religious conduct." Midrash Shapardi, Inc., 366 F.3d at 1227. The Eleventh Circuit used that language as a shorthand for the rules announced by this Court in Sherbert, Thomas, Hobbie, and Lyng, id. at 1226-1227, and that language reflects essentially the same approach as used by the court below.

Finally, petitioners cite (Pet. 16) the Seventh Cir cuit's decision in Civil Liberties for Urban Believers v. City of Chicago, supra (CLUB), as evidence of a circuit conflict. CLUB addressed only a RLUIPA claim, not a RFRA claim, and the court of appeals defined substan tial burden only in the particular context of land-use regulations, stating: "[A] land-use regulation that im poses a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise * * * effectively impracticable." 342 F.3d at 761. The court of appeals did not purport to define substantial burdens in other contexts, and it recognized that whether a govern ment action imposes a substantial burden on religious exercise should be decided by applying this Court's pre- Smith precedents. See id. at 760-761. Moreover, as the Seventh Circuit had recognized in an earlier case, its approach to identifying substantial burdens in the RFRA context is consistent with that of other courts, because it too asks whether the challenged governmen tal action coerces a person to engage in or forgo engag ing in religious exercise. See Mack, 80 F.3d at 1178- 1179. Although there are "verbal differences" among the circuits in defining substantial burdens under RFRA, the court explained, there is no reason to believe that those differences are meaningful or that any of the courts' holdings are inconsistent. Id. at 1178. There is, accordingly, no division in the circuits warranting this Court's review.

d. Review is particularly unwarranted in this case because petitioners' particular claim is foreclosed by this Court's pre-Smith precedent in Lyng, as incorpo rated into RFRA, and petitioners could not prevail un der any circuit's standard. The courts of appeals have uniformly looked to this Court's precedents to define substantial burdens under RFRA. As explained, Lyng makes clear that diminished spiritual fulfillment, the injury petitioners allege, does not qualify. See Lyng, 485 U.S. at 447-448 (Tribes' belief that the plans to build a logging road would "diminish the sacredness" of the land did not impose a burden "heavy enough" to violate the Free Exercise Clause.); see pp. 13-15, supra. As the court of appeals recognized, a contrary rule would make any federal government land-use decision "subject to the personalized oversight of millions of citizens," where "[e]ach citizen would hold an individual veto to prohibit the government action solely because it offends his reli gious beliefs," even though the land at issue "is, by defi nition, land that belongs to everyone." Pet. App. 7a. As the Lyng Court recognized, the government "simply could not operate" under those circumstances. 485 U.S. at 451-453.

Petitioners have not identified any circuit that has held that the type of injury they identify constitutes a substantial burden on religious exercise under RFRA. Indeed, only one cited court of appeals decision consid ered a challenge to a federal government land-use deci sion, and it squarely rejected that claim. See Hender son, 253 F.3d at 16-17. Further, there is no reason to believe that any court of appeals would recognize such a claim, because the courts have generally asked whe ther the government action in question coerces an indi vidual to engage in or to forgo engaging in religious ex ercise, and petitioners have acknowledged that the use of recycled water to make snow at the Snowbowl will not coerce them to change the conduct of their religious practices. The record in fact establishes that there would be no effect on those practices. See, e.g., Pet. App. 6a ("there are no plants, springs, natural re sources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow" and petitioners would "continue to have virtually unlimited access to the mountain" for "pray[er], conduct[ing] their religious ceremonies, and collect[ing] plants for religious use"). Therefore, even if there were a disagreement in legal approach warranting this Court's review, this case would be a poor vehicle in which to consider it, because petitioners' claim is fore closed by this Court's pre-Smith precedent in Lyng and because petitioners have not demonstrated that they could prevail under any circuit's standard.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
JOHN C. CRUDEN
Acting Assistant Attorney
General
ANDREW C. MERGEN
LANE N. MCFADDEN
Attorneys

MAY 2009

1 The only claim that petitioners continue to press before this Court is the claim that the proposed project violates RFRA. See Pet. App. 13a n.8 (noting that on appeal petitioners abandoned their claims under the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., Grand Can yon National Park Enlargement Act, 16 U.S.C. 228a et seq., and Nation al Forest Management Act of 1976, 16 U.S.C. 1600 et seq.); id. at 39a- 42a (rejecting petitioners' claims under the National Environmental Policy Act of 1969, 16 U.S.C. 4321 et seq., and National Historic Preser vation Act, 42 U.S.C. 470 et seq.).

2 See, e.g., Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996), vacated (in light of City of Boerne), 522 U.S. 801 (1997); In re Young, 82 F.3d 1407 (8th Cir. 1996), vacated (in light of City of Boerne) sub nom. Christians v. Crystal Evangelical Free Church, 521 U.S. 1114 (1997); Goodall v. Stafford County Sch. Bd., 60 F.3d 168 (4th Cir. 1995), cert. denied, 516 U.S. 1046 (1996), abrogated by City of Boerne, supra; Werner v. McCotter, 49 F.3d 1476 (10th Cir.), cert. denied, 515 U.S. 1166 (1995), abrogated by City of Boerne, supra.

3 See, e.g., Longoria v. Dretke, 507 F.3d 898 (5th Cir. 2007) (per curi am); Washington v. Klem, 497 F.3d 272 (3d Cir. 2007); Adkins v. Kas par, 393 F.3d 559 (5th Cir. 2004), cert. denied, 545 U.S. 1104 (2005); Midrash Shepardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), cert. denied, 543 U.S. 1146 (2006); Civil Liberties for Urban Be lievers v. City of Chi., 342 F.3d 752 (7th Cir. 2003), cert. denied, 541 U.S. 1096 (2004).