Say Anything Blog

This article crossposted from ski-blog.com.

The Wall Street Journal has an article on Arizona Snowbowl that presents a pretty balanced summary of the ruling.  This is probably the most balanced and complete piece that I have read:

But in March, a three-judge panel of the Ninth Circuit Court of Appeals killed the scheme. The reason: The mountaintops are sacred to the Navajo and 12 other tribes, even though the land is not part of their reservations…

At issue is the interpretation of the Religious Freedom Restoration Act, or RFRA, which Congress passed in 1993 with almost unanimous support after the Supreme Court upheld a government decision to deny unemployment benefits to two Native Americans fired for using illegal drugs in a religious ceremony. In the past, courts denied that the First Amendment’s religious-freedom protections extend to American Indians who challenge federal land-use decisions. RFRA changed that by requiring the government to demonstrate a compelling interest when considering any action that would substantially burden a religious practice. The Snowbowl case is the first to successfully apply the law to a sacred site, says Howard Shanker, the Flagstaff attorney who represented several of the tribes before the court.

It is important to note that the 9th Circuit is delving into new territory here with their ruling.  Note that the RFRA has never been interpreted to apply the law to American Indians challenging federal land use decisions.  The 9th Circuit went out on a huge limb here.  The scary part is that the 9th Circuit set a precedence that other tribes are now using:

Since the March ruling, the Quechan Tribe in Yuma, Ariz., has sued to stop a public land swap for a new oil refinery, the first to be constructed in the U.S. in more than 30 years. The tribe says the land is culturally significant. The ruling could also boost the Snoqualmie Tribe’s long-standing bid to block the permit renewal for Puget Sound Energy’s 109-year-old hydroelectric power plant at the Snoqualmie Falls, the tribe’s most sacred site.

Tribe members hail the 9th Circuit decision as a major victory.  But is it really a long lasting victory?  The 9th Circuit has some ominous numbers on appeal to the Supreme Court:

From time to time these columns have noted the out-of-step jurisprudence of the Ninth U.S. Circuit Court of Appeals. The Circuit, with headquarters in San Francisco and jurisdiction over nine Western states, is heavy on Democratic appointees: Of its 27 currently active judges, three were appointed by President Carter and 13 by President Clinton. They are frequently overruled by the Supreme Court, but this term may set a record.

So far the Justices have reviewed eight Ninth Circuit decisions, and the Circuit is 0-8. The High Court has reversed four decisions and vacated four more. In Ayers v. Belmontes, a 5-4 Court reinstated a death sentence that the Ninth Circuit had overturned. In U.S. v. Resendiz-Ponce, a criminal procedure case, Justice Antonin Scalia cast a lone dissenting vote in favor of the Circuit’s position.

The six other cases were all unanimous. That means—for those keeping score—that the cumulative vote against the Ninth Circuit in Supreme Court reviews since October is 67-5. Keep in mind that this is an appellate court that is supposed to heed Supreme Court precedent.

Snowbowl is in the process of appealing the decision now along with the US Department of Agriculture that controls the US Forest Service.  In reality, all the 9th Circuit ruling did is delay the snowmaking at Snowbowl for another season or two and further inconvenience the skiers of Arizona.