RFRA and Artificial Snow

[Marty Lederman]

Really interesting new RFRA decision from the Ninth Circuit:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/64C37FB597BF2F848825729C0058BFE8/$file/0615371.pdf?openelement
The issue in a nutshell:  

  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.  

The government's principal defense apparently was that "approving the proposed action serves the . . . compelling interest in providing skiing at the Snowbowl, because the use of artificial snow will allow a more 'reliable and consistent operating season' at one of the only two major ski areas in Arizona, where public demand for skiing and snowplay is strong."

The court's response to this cynical argument was predictable:  "We are unwilling to hold that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities, as well as to extend its ski season in dry years, is a governmental interest 'of the highest order.'"

But there are at least two other very interesting, and much more difficult, issues in the case, I think:

First, the court sort of breezes right past the substantial burden question.  But how is it that the federal government imposes the burden here?  After all, they aren't the ones deciding to make the articificial snow.  The gist of the claim, then, must be that the Forest Service's failure to limit the private snow-creation under other federal laws imposes a substantial burden, i.e., that a failure by government to limit conduct of private parties on their own property imposes a burden on other parties' religion.  It's not clear to me that it's the government that here imposed the burden, in a RFRA sense, although I'd have to think much more about the baseline question.

And that hints at the second big question, which the court does discuss, but not very thoroughly:  If RFRA does require the Snowbowl owners to forego profits in order to accommodate the Native Amercians' religion, why isn't that an Establishment Clause violation, in that it imposes a significant burden on some private parties in order to facilitate the religious exercise of others (cf. Thornton; Hardison)?  (DOJ apparently argued that there would be a serious EC problem -- I'd like to see that brief.)

Of course, there may be a lot of very interesting "baseline" questions here, since presumably this property once belonged to the tribes, and now belongs to the Snowbowl only by virtue of government coercion . . . 
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