SAN FRANCISCO (CN) – The Federal Energy Regulatory Commission’s renewal of a hydroelectric permit at Snoqualmie Falls near Seattle did not impose a “substantial burden” on the Snoqualmie Tribe’s religious practices, the 9th Circuit ruled.
The court had waited on submitting a decision until publication of its Navajo Nation v. Forest Service opinion, regarding the use of wastewater snow at a peak sacred to numerous Arizona tribes.
The Snoqualmie Tribe claimed that Puget Sound Energy’s hydroelectric project at Snoqualmie Falls violated the Religious Freedom Restoration Act by limiting access to the falls for religious experiences, eliminating the holy mist believed to connect the earth to the heavens and altering the “ancient sacred cycle of water flowing over the falls.”
In determining that the hydroelectric license renewal did not burden the tribe’s religious practice, the 9th Circuit reiterated the standard it had established in Navajo Nation v. Forest Service, in which it defined “substantial burden” as coercing an individual to act contrary to their religious beliefs under the threat of sanction or conditioning a governmental benefit on actions that would violate religious beliefs.
“Under Supreme Court precedent, the diminishment of spiritual fulfillment – serious though it may be – is not a ‘substantial burden,'” Judge Tallman wrote.
The court addressed several other issues, saying FERC’s application of the wrong standard for “substantial burden” was “harmless,” because the court viewed the commission’s erroneously applied benchmark as more generous. The appeals court also clarified that since the Snoqualmie Tribe was not officially recognized until 1999 – two years after closure of the consultation record under the National Historic Protection Act – the commission was not required to consult with the tribe on a government-to-government basis.
Puget Sound Energy had allegedly misapplied Washington’s beneficial-use policy when the commission selected a permit renewal alternative that increased water flow over the falls to pre-project conditions during the months of May and June.
The court pointed out that because hydroelectric power is not listed as a “beneficial use” under state law, the production of more mist, considered sacred by the tribe, would enhance beneficial use. The court also concluded that the $458,000 loss to nearly $11 million annually, due to decreased water diversion for energy production, was justified to produce the sacred mist.
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