Navajo Nation v. United States Forest Service

Opinion by Judge BEA; Dissent by Judge WILLIAM A. FLETCHER.

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.1 The Plaintiffs claim *1063the 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”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds.

Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion.2 They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that 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. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use.

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. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.

Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of *1064the right to use what is, by definition, land that belongs to everyone.

“[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government — let alone a government that presides over a nation with as many religions as the United States of America— could function were it required to do so. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 452, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).

I. Factual and Procedural Background3

The Snowbowl ski area (“the Snow-bowl”) is located on federally owned public land and operates under a special use permit issued by the United States Forest Service (“the Forest Service”). Navajo Nation v. U.S. Forest Serv., 408 F.Supp.2d 866, 883-84 (D.Ariz.2006). Specifically, the Snowbowl is situated on Humphrey’s Peak, the highest of the San Francisco Peaks (“the Peaks”), located within the Coconino National Forest in Northern Arizona. Id. at 869, 883. The Peaks cover about 74,000 acres. Id. at 883. The Snowbowl sits on 777 acres, or approximately one percent of the Peaks. Id. at 883-84.

The Forest Service designated the Snowbowl as a public recreation facility after finding the Snowbowl “represented an opportunity for the general 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 884. The Snowbowl has been in operation since the 1930s and is the only downhill ski area within the Coconino National Forest.4 Id.

The Peaks have long-standing religious and cultural significance to Indian tribes. The tribes believe the Peaks are a living entity. Id. at 887. They conduct religious ceremonies, such as the Navajo Blessing-way Ceremony, on the Peaks. Id. The tribes also collect plants, water, and other materials from the Peaks for medicinal bundles and tribal healing ceremonies. Id. According to the tribes, the presence of the Snowbowl desecrates for them the spirituality of the Peaks. Id. Certain Indian religious practitioners believe the desecration of the Peaks has caused many disasters, including the September 11, 2001 terrorist attacks, the Columbia Space Shuttle accident, and increases in natural disasters. Id.

This case is not the first time Indian tribes have challenged the operation of the Snowbowl. In 1981, before the enactment of RFRA, the tribes brought a challenge to the Forest Service’s approval of a number *1065of upgrades to the Snowbowl, including the installation of new lifts, slopes, and facilities. See Wilson v. Block, 708 F.2d 735, 739 (D.C.Cir.1983).5 The tribes asserted that the approved upgrades would “seriously impair their ability to pray and conduct ceremonies upon the Peaks” and to gather from the Peaks sacred objects necessary to their religious practices. Id. at 740. According to the tribes, this constituted an unconstitutional burden on the exercise of their religion under the Free Exercise Clause of the First Amendment. Id.

The D.C. Circuit in Wilson rejected the Indian tribes’ challenge to the upgrades. Id. at 739-45. Although the court noted that the proposed upgrades would cause the Indians “spiritual disquiet,” the upgrades did not impose a sufficient burden on the exercise of their religion: “Many government actions may offend religious believers, and may cast doubt upon the veracity of religious beliefs, but unless such actions penalize faith, they do not burden religion.” Id. at 741-42. The Indian tribes have continued to conduct religious activities on the Peaks ever since. Navajo Nation, 408 F.Supp.2d at 884.

With this brief background, we turn to the Plaintiffs’ challenge in this case. In 2002, the Snowbowl submitted a proposal to the Forest Service to upgrade its operations. Id. at 885. The proposal included a request for artificial snowmaking from recycled wastewater for use on the Snow-bowl. Id. The Snowbowl had suffered highly variable snowfall for several years; this resulted in operating losses that threatened its ski operation. Id. at 884-85, 907. Indeed, the district court found that artificial snowmaking is “needed to maintain the viability of the Snowbowl as a public recreational resource.” Id. at 907.

The recycled wastewater to be used for snowmaking is classified as “A+” by the Arizona Department of Environmental Quality (“ADEQ”).6 Id. at 887. A+ recycled wastewater is the highest quality of recycled wastewater recognized by Arizona law and may be safely and beneficially used for many purposes, including irrigating school ground landscapes and food crops. See Ariz. Admin. Code R18-11-309 tbl. A. Further, the ADEQ has specifically approved the use of recycled wastewater for snowmaking. Id.

In addition to being used to make snow, the recycled wastewater also will be used for fire suppression on the Peaks. Navajo Nation, 408 F.Supp.2d at 886. The pipeline that will transport the recycled waste-water to the Snowbowl will be equipped with fire hydrants to provide water for fire suppression in rural residential areas and to fight forest fires. Id. Further, a reservoir of recycled wastewater will be kept on the Snowbowl for forest fire suppression. Id.

The Forest Service conducted an extensive review of the Snowbowl’s proposal. As part of its review, the Forest Service made more than 500 contacts with Indian *1066tribes, including between 40 and 50 meetings, to determine the potential impact of the proposal on the tribes.7 Id. at 885. In a December 2004 Memorandum of Agreement, the Forest Service committed to, among other things: (1) continue to allow the tribes access to the Peaks, including the Snowbowl, for cultural and religious purposes; and (2) work with the tribes periodically to inspect the conditions of the religious and cultural sites on the Peaks and ensure the tribes’ religious activities on the Peaks are uninterrupted. Id. at 900-01.

Following the review process, the Forest Supervisor approved the Snowbowl’s proposal, including the use of recycled wastewater to make artificial snow, and issued a Final Environmental Impact Statement and a Record of Decision in February 2005. Id. at 885-86. The Plaintiffs appealed the Forest Supervisor’s decision approving the Snowbowl’s proposal to an administrative appeal board within the Forest Service. Id. In June 2005, the Forest Service issued its final administrative decision and affirmed the Forest Supervisor’s approval of the proposed upgrades. Id. at 886.

After their unsuccessful administrative appeal, the Plaintiffs filed this action in federal district court. The Plaintiffs alleged that the Forest Service’s authorization of the use of recycled wastewater on the Snowbowl violates: (1) RFRA; (2) NEPA; (3) NHPA; (4) ESA; (5) the Grand Canyon National Park Enlargement Act (“GCEA”), 16 U.S.C. § 228i; and (6) the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600 et seq.8 Id. at 871. Following cross-motions for summary judgment, the district court denied the Plaintiffs’ motions for summary judgment and granted the Defendants’ motion for summary judgment on all claims, except the RFRA claim. Id. at 869, 908.

After an 11-day bench trial on the RFRA claim, the district court held that the proposed upgrades, including the use of recycled wastewater to make artificial snow on the Peaks, do not violate RFRA. Id. at 883, 907. The district court found that the upgrades did not bar the Plaintiffs’ “access, use, or ritual practice on any part of the Peaks.” Id. at 905. As a *1067result, the court held that the Plaintiffs had failed to demonstrate the Snowbowl upgrade “coerces them into violating their religious beliefs or penalizes their religious activity,” as required to establish a substantial burden on the exercise of their religion under RFRA. Id.

A three-judge panel of this court reversed the district court in part, holding that the use of recycled wastewater on the Snowbowl violates RFRA, and in one respect, that the Forest Service failed to comply with NEPA. See Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1029 (9th Cir.2007). The panel affirmed the grant of summary judgment to the Defendants on four of five NEPA claims and the NHPA claim. Id. We took the case en banc to revisit the panel’s decision and to clarify our circuit’s interpretation of “substantial burden” under RFRA.

II. Standard of Review

We review de novo the district court’s grant of summary judgment. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir.1999). We review the district court’s conclusions of law following a bench trial de novo and its findings of fact for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir.2004).

III. Religious Freedom Restoration Act of 1993

Plaintiffs contend the use of artificial snow, made from recycled wastewater, on the Snowbowl imposes a substantial burden on the free exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq. We hold that the Plaintiffs have failed to establish a RFRA violation. The presence of recycled waste-water on the Peaks does not coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, nor does it condition a governmental benefit upon conduct that would violate their religious beliefs, as required to establish a “substantial burden” on religious exercise under RFRA.9

RFRA was enacted in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).10 In Smith, the Supreme Court held that the Free Exercise Clause does not bar the government from burdening the free exercise of religion with a “valid and neutral law of general applicability.” Id. at 879, 110 S.Ct. 1595 (citation and internal quotation marks omitted). Applying that standard, the Smith Court rejected the Free Exercise Clause claims of the plaintiffs, who were denied state unemployment compensation after being discharged from their jobs for ingesting peyote for religious purposes. Id at 890, 110 S.Ct. 1595.

Congress found that in Smith, the “Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” 42 U.S.C. *1068§ 2000bb(a)(4). Congress further found that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Id. § 2000bb(a)(2). With the enactment of RFRA, Congress created a cause of action for persons whose exercise of religion is substantially burdened by a government action, regardless of whether the burden results from a neutral law of general applicability. See id. § 2000bb-l. RFRA states, in relevant part:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

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

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

Id.

To establish a prima facie RFRA claim, a plaintiff must present evidence sufficient to allow a trier of fact rationally to find the existence of two elements. First, the activities the plaintiff claims are burdened by the government action must be an “exercise of religion.” See id. § 2000bb-l(a). Second, the government action must “substantially burden” the plaintiffs exercise of religion. See id. If the plaintiff cannot prove either element, his RFRA claim fails. Conversely, should the plaintiff establish a substantial burden on his exercise of religion, the burden of persuasion shifts to the government to prove that the challenged government action is in furtherance of a “compelling governmental interest” and is implemented by “the least restrictive means.” See id. § 2000bb-l(b). If the government cannot so prove, the court must find a RFRA violation.

We now turn to the application of these principles to the facts of this case. The first question is whether the activities Plaintiffs claim are burdened by the use of recycled wastewater on the Snowbowl constitute an “exercise of religion.” RFRA defines “exercise of religion” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A). The Defendants do not contest the district court’s holding that the Plaintiffs’ religious beliefs are sincere and the Plaintiffs’ religious activities on the Peaks constitute an “exercise of religion” within the meaning of RFRA.

The crux of this case, then, is whether the use of recycled wastewater on the Snowbowl imposes a “substantial burden” on the exercise of the Plaintiffs’ religion. RFRA does not specifically define “substantial burden.” Fortunately, we are not required to interpret the term by our own lights. Rather, we are guided by the express language of RFRA and decades of Supreme Court precedent.

A.

Our interpretation begins, as it must, with the statutory language. RFRA’s stated purpose is to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(l). RFRA further states “the compelling interest test as set forth in ... Federal court rulings [prior to Smith ] is a workable test for striking sensible balances between religious liberty *1069and competing prior governmental interests.” Id. § 2000bb(a)(5).

Of course, the “compelling interest test” cited in the above-quoted RFRA provisions applies only if there is a substantial burden on the free exercise of religion. That is, the government is not required to prove a compelling interest for its action or that its action involves the least restrictive means to achieve its purpose, unless the plaintiff first proves the government action substantially burdens his exercise of religion. The same cases that set forth the compelling interest test also define what kind or level of burden on the exercise of religion is sufficient to invoke the compelling interest test. See Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (noting the “free exercise inquiry asks whether government has placed a substantial burden” on the free exercise of religion (citing Yoder and other -pre-Smith decisions)). Therefore, the cases that RFRA expressly adopted and restored — Sherbert, Yoder, and federal court rulings prior to Smith — also control the “substantial burden” inquiry.

It is to those decisions we now turn.

B.

In Sherbert, a Seventh-day Adventist was fired by her South Carolina employer because she refused to work on Saturdays, her faith’s day of rest. Sherbert, 374 U.S. at 399, 83 S.Ct. 1790. Sherbert filed a claim for unemployment compensation benefits with the South Carolina Employment Security Commission, which denied her claim, finding she had failed to accept work without good cause. Id. at 399-401, 83 S.Ct. 1790. The Supreme Court held South Carolina could not, under the Free Exercise Clause, condition unemployment compensation so as to deny benefits to Sherbert because of the exercise of her faith. Such a condition unconstitutionally forced Sherbert “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404, 83 S.Ct. 1790.11

In Yoder, defendants, who were members of the Amish religion, were convicted of violating a Wisconsin law that required their children to attend school until the children reached the age of sixteen, under the threat of criminal sanctions for the parents. Yoder, 406 U.S. at 207-08, 92 S.Ct. 1526. The defendants sincerely believed their children’s attendance in high school was “contrary to the Amish religion and way of life.” Id. at 209, 92 S.Ct. 1526. The Supreme Court reversed the defendants’ convictions, holding the application of the compulsory school-attendance law to the defendants “unduly burden[ed]” the exercise of their religion, in violation of the Free Exercise Clause. Id. at 207, 220, 92 S.Ct. 1526. According to the Court, the Wisconsin law “affirmatively compelled the defendants], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218, 92 S.Ct. 1526.

The Supreme Court’s decisions in Sherbert and Yoder, relied upon and incorporated by Congress into RFRA, lead to the following conclusion: Under RFRA, a *1070“substantial burden” is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder). Any burden imposed on the exercise of religion short of that described by Sherbert and Yoder is not a “substantial burden” within the meaning of RFRA, and does not require the application of the compelling interest test set forth in those two cases.

Applying Sherbert and Yoder, there is no “substantial burden” on the Plaintiffs’ exercise of religion in this case. The use of recycled wastewater on a ski area that covers one percent of the Peaks does not force the Plaintiffs to choose between following the tenets of their religion and receiving a governmental benefit, as in Sherbert. The use of recycled wastewater to make artificial snow also does not coerce the Plaintiffs to act contrary to their religion under the threat of civil or criminal sanctions, as in Yoder. The Plaintiffs are not fined or penalized in any way for practicing their religion on the Peaks or on the Snowbowl. Quite the contrary: the Forest Service “has guaranteed that religious practitioners would still have access to the Snowbowl” and the rest of the Peaks for religious purposes. Navajo Nation, 408 F.Supp.2d at 905.

The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment — serious though it may be — is not a “substantial burden” on the free exercise of religion.12

*1071The Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), is on point. In Lyng, Indian tribes challenged the Forest Service’s approval of plans to construct a logging road in the Chimney Rock area of the Six Rivers National Forest in California. Id. at 442, 108 S.Ct. 1319. The tribes contended the construction would interfere with their free exercise of religion by disturbing a sacred area. Id. at 442-43, 108 S.Ct. 1319. The area was an “integral and indispensable part” of the tribes’ religious practices, and a Forest Service study concluded the construction “would cause serious and irreparable damage to the sacred areas.” Id. at 442, 108 S.Ct. 1319 (eita-tions and internal quotation marks omitted).

The Supreme Court rejected the Indian tribes’ Free Exercise Clause challenge.13 The Court held the government plan, which would “diminish the sacredness” of the land to Indians and “interfere significantly” with their ability to practice their religion, did not impose a burden “heavy enough” to violate the Free Exercise Clause. Id. at 447-49, 108 S.Ct. 1319.14 The plaintiffs were not “coerced by the Government’s action into violating their religious beliefs” (as in Yoder) nor did the “governmental action penalize religious activity by denying [the plaintiffs] an equal share of the rights, benefits, and privileges *1072enjoyed by other citizens” (as in Sherbert). See id. at 449, 108 S.Ct. 1319.

The Lyng Court, with language equally applicable to this case, further stated:

The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices.

Even if we assume that ... the [logging] road will “virtually destroy the ... Indians’ ability to practice their religion,” the Constitution simply does not provide a principle that could justify upholding [the plaintiffs’] legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities— from social welfare programs to foreign aid to conservation projects — will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion.

* * *

No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property.

* * *

The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.

Id. at 451-53, 108 S.Ct. 1319 (citation omitted) (last emphasis added).

Like the Indians in Lyng, the Plaintiffs here challenge a government-sanctioned project, conducted on the government’s own land, on the basis that the project will diminish their spiritual fulfillment. Even were we to assume, as did the Supreme Court in Lyng, that the government action in this case will “virtually destroy the ... Indians’ ability to practice their religion,” there is nothing to distinguish the road-building project in Lyng from the use of recycled wastewater on the Peaks. We simply cannot uphold the Plaintiffs’ claims of interference with their faith and, at the same time, remain faithful to Lyng’s dictates.

According to the Plaintiffs, Lyng is not controlling in this RFRA case because the Lyng Court refused to apply the Sherbert test that was expressly adopted in RFRA. Hopi Br. at 40. In support, the Plaintiffs cite the Supreme Court’s statement in Smith that Lyng “declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes.” Smith, 494 U.S. at 883, 110 S.Ct. 1595. This contention is unpersuasive.

“The Sherbert analysis” to which the Supreme Court referred in the quoted sentence from Smith is the Sherbert “compelling interest” test. See id. (noting that in recent cases, including Lyng, the Court had upheld the application of a valid and neutral law “regardless of whether it was necessary to effectuate a compelling interest” under Sherbert). But the Sherbert *1073compelling interest test is triggered only when there is a cognizable burden on the free exercise of religion. Lyng declined to apply the compelling interest test from Sherbert, not because Lyng purported to overrule or reject Sherbert’s analysis, but because the burden on the exercise of religion that was present in Sherbert was missing in Lyng.

The Lyng Court held the government’s road-building project in that case, unlike in Sherbert, did not deny the Plaintiffs “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449, 108 S.Ct. 1319. In Sherbert, the plaintiff could not get unemployment compensation, available to all other South Carolinians. In Lyng, all park users, including the Indians, could use the new road and the lands to which it led. Because the government action did not “burden” the exercise of the Indians’ religion, the Lyng Court had no occasion to require the government to present a compelling interest for its road-building. Thus, Lyng is consistent with the Sherbert standard codified in RFRA and forecloses the Plaintiffs’ RFRA claims in this case.

Finally, the Supreme Court’s pre-Smith decision in Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), is also on point. In Bowen, the parents of an American Indian child brought a Free Exercise Clause challenge to the statutory requirement to obtain a Social Security Number for their daughter in order to receive certain welfare benefits. Id. at 695-96, 106 S.Ct. 2147. The plaintiffs believed the government’s use of a Social Security Number would “ ‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.” Id. at 696, 106 S.Ct. 2147. The Bowen Court rejected the plaintiffs’ Free Exercise Clause claims and stated:

Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the plaintiffs] engage in any set form of religious observance, so [the plaintiffs] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.”

Id. at 699-700, 106 S.Ct. 2147 (quoting Sherbert, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, J., concurring)) (emphasis in original).

The plaintiffs in Bowen could not force the government to alter its internal management procedures to identify their daughter by her name, even though they believed the use of a Social Security Number would prevent her from attaining greater spiritual power. It necessarily follows that the Plaintiffs in this case, despite their sincere belief that the use of recycled wastewater on the Peaks will spiritually desecrate a sacred mountain, cannot dictate the decisions that the government makes in managing “what is, after all, its land.” See Lyng, 485 U.S. at 453, 108 S.Ct. 1319 (emphasis in original).15

*1074C.

For six principal reasons, the Plaintiffs and the dissent would have us depart from the Supreme Court’s pr e-Smith jurisprudence in interpreting RFRA. We decline to do so and will address each of their contentions in turn.

First, the dissent asserts our interpretation of “substantial burden” is inconsistent with the dictionary definition of that term. Dissent at 1086-87. According to the dissent, “[bjecause Congress did not define ‘substantial burden,’ either directly or by reference to pr e-Smith case law, we should define ... that term according to its ordinary meaning.” Id. at 1088.

But here, Congress expressly referred to and restored a body of Supreme Court case law that defines what constitutes a substantial burden on the exercise of religion (i.e., Sherbert, Yoder, and other pre-Smith cases). See 42 U.S.C. §§ 2000bb(a)(4)-(5); 2000bb(b)(l).16 Thus, we must look to those cases in interpreting the meaning of “substantial burden.” Further, the dissent’s approach overlooks a well-established canon of statutory interpretation. Where a statute does not expressly define a term of settled meaning, “courts interpreting the statute must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of th[at] ter[m].” See NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 94, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995) (citations and internal quotation marks omitted) (alterations in original). Here, Congress incorporated into RFRA a term of art — substantial burden — previously used in numerous Supreme Court cases in applying the Free Exercise *1075Clause. The dissent would have us ignore this Supreme Court precedent and, instead, invent a new definition for “substantial burden” by reference to a dictionary. Dissent at 1086-87. This we cannot do. Rather, we must presume Congress meant to incorporate into RFRA the definition of “substantial burden” used by the Supreme Court.

Second, the dissent asserts that our definition of “substantial burden” is “restrictive” and cannot be found in Sherbert, Yoder, or any other pre-Smith case. Dissent at 1088.17 The dissent contends it is “clear that RFRA protects against burdens that, while imposed by a different mechanism than those in Sherbert and Yo-der, are also ‘substantial.’ ” Id. at 1090.

For this purportedly “clear” proposition, the dissent cites no authority. That is, the dissent cannot point to a single Supreme Court case where the Court found a substantial burden on the free exercise of religion outside the Sherbert/Yoder framework. The reason is simple: There is none. In the pr e-Smith cases adopted in RFRA, the Supreme Court has found a substantial burden on the exercise of religion only when the burden fell within the Sherbert/Yoder framework. See Sherbert, 374 U.S. at 403-06, 83 S.Ct. 1790; Yoder, 406 U.S. at 207, 220, 92 S.Ct. 1526; Thomas, 450 U.S. at 717-18, 101 S.Ct. 1425 (applying Sherbert); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 140-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (applying Sherbert); Frazee v. Ill. Dept of Employment Sec., 489 U.S. 829, 832-35, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989) (applying Sherbert). Because Congress expressly restored pre-Smith cases in RFRA, we cannot conclude RFRA’s “substantial burden” standard expands beyond the pr e-Smith cases to cover government actions never recognized by the Supreme Court to constitute a substantial burden on religious exercise.18

Third, the Plaintiffs assert RFRA’s compelling interest test includes a “least restrictive means” requirement, which “ ‘was not used in the pr e-Smith jurisprudence *1076RFRA purported to codify.’ ” Hopi Br. at 31 (quoting City of Boerne, 521 U.S. at 535, 117 S.Ct. 2157); see also Dissent at 1084-85. The Plaintiffs note that, whereas the government must establish only a compelling interest to withstand a Free Exercise Clause challenge, the government must establish both a compelling interest and the least restrictive means to withstand a RFRA challenge. That is true enough, but it puts the cart before the horse. The additional statutory requirement of a least restrictive means is triggered only by a finding that a substantial burden exists; that is the sole and threshold issue in this case. Absent a substantial burden, the government need not establish a compelling interest, much less prove it has adopted the least restrictive means.

Fourth, the Plaintiffs contend RFRA goes beyond the constitutional language that “forbids the ‘prohibiting’ of the free exercise of religion and uses the broader verb ‘burden’: a government may burden religion only on the terms set out by the new statute.” Hopi Br. at 31-32 (quoting United States v. Bauer, 84 F.3d 1549, 1558 (9th Cir.1996)); see also Dissent at 1084. This contention ignores the Supreme Court’s repeated practice of concluding a government action “prohibits” the free exercise of religion by determining whether the action places a “burden” on the exercise of religion.19 Thus, the difference in the language of the Free Exercise Clause (“prohibit”) and the language of RFRA (“burden”) does not affect what constitutes a “burden” on the exercise of religion, under the very cases cited by RFRA as embodying the congressionally desired rule of decision.

Fifth, the Plaintiffs assert Congress expanded RFRA’s definition of “exercise of religion” with the enactment of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. Navajo Br. at 29; see also Dissent at 1084-85. Prior to RLUI-PA’s enactment, “exercise of religion” under RFRA meant “the exercise of religion under the First Amendment to the Constitution.” 42 U.S.C. § 2000bb-2(4) (1994). The Free Exercise Clause of the First Amendment protects only “the observation of a central religious belief or practice.” Hernandez, 490 U.S. at 699, 109 S.Ct. 2136 (emphasis added).20 RLUIPA, however, amended RFRA’s definition of “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A).

The Plaintiffs’ assertion conflates two distinct questions under RFRA: (1) what constitutes an “exercise of religion” and (2) what amounts to a “substantial burden” on the exercise of that religion. The first question, that the Plaintiffs’ activities *1077are an “exercise of religion,” is undisputed in this case. Of course, that question has no bearing on the second, “substantial burden,” question. RFRA’s amended definition of “exercise of religion” merely expands the scope of what may not be substantially burdened from “central tenets” of a religion to “any exercise of religion.” It does not change what level or kind of interference constitutes a “substantial burden” upon such religious exercise.

Finally, the dissent attempts to justify its expansive interpretation of RFRA on the basis that RFRA applies “in all cases” where the free exercise of religion is burdened, whereas pr e-Smith jurisprudence excluded entire classes of cases from scrutiny under the compelling interest test, e.g., prison and military regulations. Dissent at 1085. But no one disputes that RFRA applies here; it is not an issue. That RFRA applies to classes of cases in which the First Amendment’s compelling interest test is inapplicable is irrelevant. This observation does not define what constitutes a “substantial burden” and, therefore, does not speak to the threshold question whether a “substantial burden” exists.

In sum, Congress’s statutory command in RFRA to restore the Supreme Court’s pr e-Smith jurisprudence is crystal clear, and neither the dissent nor the Plaintiffs have offered any valid reason for departing from that jurisprudence in interpreting RFRA.

D.

In support of their RFRA claims, the Plaintiffs rely on two of our RLUIPA decisions. For two reasons, RLUIPA is inapplicable to this case. First, RLUIPA, by its terms, prohibits only state and local governments from applying regulations that govern land use or institutionalized persons to impose a “substantial burden” on the exercise of religion. See 42 U.S.C. §§ 2000cc; 2000cc-l; 2000cc-5(4)(A). Subject to two exceptions not relevant here,21 RLUIPA does not apply to a federal government action, which is the only issue in this case. See id. § 2000cc-5(4). Second, even for state and local governments, RLUIPA applies only to government land-use regulations of private land — such as zoning laws — not to the government’s management of its own land. See id. § 2000ce-5(5).22 Nonetheless, even were we to assume the same “substantial burden” standard applies in RLUIPA and RFRA actions, the two RLUIPA cases cited by the Plaintiffs do not support their RFRA claims.23

First, in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.2005), an American Indian inmate brought a RLUIPA challenge against a prison policy requiring all male inmates to maintain their hair no longer than three inches. Id. at 991-92. Warsol-dier refused to comply with the policy because of his “sincere religious belief that he may cut his hair only upon the death of a loved one,” and was punished by confinement to his cell, the imposition of additional duty hours, and revocation of certain privileges. Id. at 991-92. We held the prison policy imposed a substantial burden on Warsoldier’s exercise of his religion because it coerced him to violate his religious beliefs under the threat of punishment. Id. at 995-96.

*1078Warsoldier is a straightforward application of the Supreme Court’s decisions in Sherbert and Yoder. As in Sherbert and Yoder, Warsoldier was coerced to act contrary to his religious beliefs by the threat of sanctions (i.e., confinement to his cell and the imposition of additional duty hours), and forced to choose between following the tenets of his religion and receiving a governmental benefit (i.e., by the revocation of certain privileges in prison). In contrast, and as analyzed above, the Plaintiffs in this case cannot show the use of recycled wastewater coerces them to violate their religious beliefs under the threat of sanctions, or conditions a government benefit upon conduct that would violate their religious beliefs.

Second, the Plaintiffs rely on our statement in San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir.2004), that, under RLUIPA, a “substantial burden” on a religious exercise must be “a significantly great restriction or onus upon such exercise.” Id. at 1034. The Plaintiffs contend the use of recycled wastewa-ter on the Peaks imposes a “significantly great restriction or onus” on the exercise of their religion.

San Jose Christian College’s statement of the “substantial burden” test does not support the Plaintiffs’ RFRA claims in this case. That “substantial burden” means a “significantly great restriction or onus” says nothing about what kind or level of restriction is “significantly great.”24 Instead, the “substantial burden” question must be answered by reference to the Supreme Court’s pre-Smith jurisprudence, including Sherbert and Yoder, that RFRA expressly adopted. Under that precedent, the Plaintiffs have failed to show a “substantial burden” on the exercise of their religion, and thus failed to establish a pri-ma facie RFRA claim. Accordingly, we affirm the district court’s entry of judgment for the Defendants on the RFRA claim.25

*1079IV. National Environmental Policy Act of 1969

Plaintiffs contend the district court erred in granting summary judgment to the Defendants on five claims under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 el seq. We adopt the parts of the original three-judge panel opinion affirming the district court’s grant of summary judgment to the Defendants on the following four NEPA claims: (1) the Final Environmental Impact Statement (“FEIS”) failed to consider a reasonable range of alternatives to the use of recycled wastewater; (2) the FEIS failed to discuss and consider the scientific viewpoint of Dr. Paul Tor-rence; (3) the FEIS failed adequately to consider the environmental impact of diverting the recycled wastewater from Flagstaff's regional aquifer; and (4) the FEIS failed adequately to consider the social and cultural impacts of the Snow-bowl upgrades on the Hopi people. See Navajo Nation, 479 F.3d at 1054-59.

The remaining NEPA claim, which is raised only by the Navajo Plaintiffs, is that the FEIS failed adequately to consider the risks posed by human ingestion of artificial snow. The Navajo Plaintiffs’ complaint did not include this NEPA claim or the factual allegations upon which the claim rests. The Navajo Plaintiffs raised this claim for the first time in their motion for summary judgment. In their opposition to the Navajo Plaintiffs’ summary judgment motion, the Defendants contended the Navajo Plaintiffs had failed to raise this NEPA claim in their complaint. In response, the Navajo Plaintiffs moved to amend their complaint to add a distinct and new NEPA cause of action claiming for the first time that the FEIS failed to consider the risks posed by human ingestion of artificial snow. The district court denied the Navajo Plaintiffs’ motion to amend and did not address this NEPA claim on the merits. Navajo Nation, 408 F.Supp.2d at 908. The Navajo Plaintiffs failed to appeal the district court’s denial of their motion to amend, and therefore, the district court’s denial of said motion is not before us.

Further, on this appeal, the Navajo Plaintiffs do not explain why their complaint is otherwise sufficient to state this NEPA claim — despite the Defendants’ assertions that the Navajo Plaintiffs failed to plead this NEPA claim.26 Indeed, the Na*1080vajo Plaintiffs concede “the specific allegations at issue were not included” in their complaint. Navajo Reply Br. at 23-24. Rather, the Navajo Plaintiffs assert this NEPA claim was adequately presented to the district court because the claim “was briefed at summary judgment by all parties and presented at oral argument [to the district court].” Id. at 24. Nevertheless, our precedents make clear that where, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court. See, e.g., Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir.2006) (“ ‘Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.’”); Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968-69 (9th Cir.2006) (holding that the complaint did not satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a) because the complaint “gave the [defendants] no notice of the specific factual allegations presented for the first time in [the plaintiffs] opposition to summary judgment”).27 Because the Navajo Plaintiffs failed sufficiently to present this NEPA claim to the district court and also failed to appeal the district court’s denial of their motion to amend the complaint to add this NEPA claim, the claim is waived on appeal. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n. 3 (9th Cir.2007).

Accordingly, we affirm the district court’s grant of summary judgment to the Defendants on all NEPA claims.

Y. National Historic Preservation Act

Finally, the Plaintiffs contend the district court erred in granting summary judgment to the Defendants on their claim under the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We adopt the part of the original three-judge panel opinion affirming the district court’s grant of summary judgment to the Defendants on the NHPA claim. See Navajo Nation, 479 F.3d at 1059-60.

VI. Conclusion

We affirm the district court’s entry of judgment in favor of the Defendants on the RFRA claim, and the district court’s grant of summary judgment to the Defendants on the NEPA and the NHPA claims.

AFFIRMED.