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Law
Tribes hopeful after court hears sacred site case


Tribal leaders and Native advocates expressed optimism last week after a federal appeals court heard their pleas to protect a sacred site in Arizona.

Hundreds of people traveled to San Francisco, California, on Thursday to attend a hearing before the 9th Circuit Court of Appeals. At issue is a proposal to expand a ski resort in the sacred San Francisco Peaks.

Tribes say the use of reclaimed wastewater to make snow will desecrate an important part of their religious beliefs. More than a dozen tribes in the Southwest consider the peaks to be a living, spiritual being.

"The world needs to know that we need to defend our way of life," said Navajo Nation President Joe Shirley Jr., one of several tribal leaders in attendance and one of many who made the trip to San Francisco to support the cause.

Shirley and others emerged hopeful based on some of the questions posed during the 72-minute hearing. The judges on the panel appeared receptive to the belief that use of reclaimed wastewater infringes on the religious rights of Native people.

"I think we have a good chance and hopefully this will be one of those days that what's right and what's moral is the same as what's legal and, unfortunately, that doesn't always happen but hopefully this will be one of those cases," Shirley added.

The U.S. Forest Service authorized the expansion of the Arizona Snowbowl resort in March 2005. Part of the plan calls for treated wastewater to be used to make snow in the peaks.

The tribes immediately filed an administrative appeal, but it was rejected. So too was their lawsuit before U.S. District Judge Paul Rosenblatt, who said the expansion "does not coerce individuals into acting contrary to their religious beliefs nor does it penalize anyone for practicing his or her religion."

Attorneys for the Navajo, Hopi, Hualapai, Apache and other tribes took issue with the finding, based on documents from the Forest Service. The agency cited "potentially irreversible" impacts to Native religion.

The attorneys also cited the "uncontradicted" testimony of spiritual leaders who said the use of wastewater destroys the entire peaks even though snowmaking would take place during a few months of the year.

Using the reclaimed water is like "putting a contaminated needle into your arm with poison," said attorney Jack Trope of DNA Legal Services, a nonprofit law that provides services to Navajo tribal members.

In addition to being receptive to the religious argument, the judges on the 9th Circuit expressed concerns about the impact of wastewater on non-Indian skiers. Citing potential ingestion by children, they asked whether the U.S. Forest Service properly analyzed the impacts under the National Environmental Policy Act.

"Telling kids not to eat snow doesn't meet the needs of NEPA," attorney Howard Shanker said, citing the agency's decision to post signs that warn of the wastewater.

The tribes argue that the Forest Service and the Snowbowl can continue to operate without expanding the facility. The resort has said it needs to make more snow in order to improve its business.

During the defense side of the case, an attorney for the Forest Service was quickly forced by the court to admit the government has a "financial interest" in the expansion because it receives royalties from skiers who pay entrance fees to the Snowbowl.

It's not clear when the 9th Circuit will issue a decision. It could take several months for the panel to make the ruling, which could be appealed to the U.S. Supreme Court.

Listen to Oral Arguments:
Navajo Nation v. Forest Service (September 14, 2006)

Appeals Court Documents:
Opening Brief [Word DOC] | Reply Brief [Word DOC]

Lower Court Decision:
Navajo Nation v. US Forest Service (January 11, 2006)

Approval Documents:
Final Environmental Impact Statement for Arizona Snowbowl Facilities Improvement | Forest Service Approves Snowmaking at Arizona Snowbowl

Relevant Links:
Save the Peaks Coalition - http://www.savethepeaks.org
Coconino National Forest - http://www.fs.fed.us/r3/coconino/index.shtml