indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Kill The Tobacco Master Settlement Agreement
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
9th Circuit blocks snowmaking at sacred peaks
Monday, March 12, 2007
Filed Under: Environment | Law

The Bush administration violated tribal religious rights by approving the use of reclaimed wastewater in the sacred San Francisco Peaks, a federal appeals court ruled on Monday.

In a unanimous decision, the 9th Circuit Court of Appeals said the treated sewage would harm the religious beliefs and practices of the Navajo Nation, the Hopi Tribe and others throughout the Southwest. The three-judge panel cited the testimony of spiritual elders who said the Peaks would be poisoned by the use of reclaimed wastewater.

"We conclude that [the tribes] have shown that the use of treated sewage effluent on the Peaks would impose a substantial burden on their exercise of religion," Judge William A. Fletcher wrote in the 64-page decision. "This showing is particularly strong for the Navajo and the Hopi."

The ruling was immediately embraced by the tribes, individual tribal members and environmental groups. They sued the U.S. Forest Service in 2005 to block the expansion of a ski area in the Coconino National Forest.

"I am really thankful and deeply appreciate the 9th Circuit Court's decision," said Bucky Preston, a member of the Hopi Tribe. "Some of the judges in the courts must have a good heart and looked deeply into themselves to realize that the Peaks are so sacred to us and they understood our beliefs."

Robert Tohe, a member of the Navajo Nation, called the decision a "wake up call" for the federal government and developers who target sacred sites. "We will not allow our voices to be ignored," said Tohe, the environmental justice organizer for the Sierra Club in Arizona.

The ruling is a major turnaround for the tribes and their supporters. In January 2006, a federal judge had dismissed their lawsuit, saying they hadn't proved the use of reclaimed wastewater at the Arizona Snowbowl would infringe on their beliefs.

"The decision does not coerce individuals into acting contrary to their religious beliefs nor does it penalize anyone for practicing his or her religion," U.S. District Judge Paul Rosenblatt wrote after a two-month trial that drew the testimony of spiritual leaders and elected tribal officials.

The 9th Circuit cited at length such testimony in overturning Rosenblatt. The court dedicated individual sections of the opinion to the spiritual beliefs and practices of the Navajo Nation, the Hopi Tribe, the Hualapai Tribe and the Havasupai Tribes.

The information was essential to the tribal claims under the Religious Freedom Restoration Act. The law was passed in response to a U.S. Supreme Court decision that allowed the state of Oregon to bring charges against Native American Church practitioners for using peyote, a hallucinogenic.

The 9th Circuit said the law bars the U.S. Forest Service from "substantially burden a person's exercise of religion" unless it can cite a "compelling governmental interest." Neither the agency, nor the Arizona Snowbowl, were able to demonstrate such an interest to the court.

"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,'" Fletcher wrote, citing another religious rights Supreme Court decision.

The judges also noted that potential economic losses to the ski area can't override the protection of religious rights. "We are struck by the obvious fact that the Peaks are located in a desert," the court said. "It is (and always has been) predictable that some winters will be dry."

In a second part of the decision, the court said the U.S. Forest Service violated the National Environmental Protection Act by failing to consider the human impacts of treated sewage At oral arguments last September, the judges were concerned, in particular, that children could eat the snow.

"We therefore hold that the FEIS does not satisfy NEPA with respect to the risks of ingesting artificial snow," the court said.

Other tribal claims related to NEPA and the National Historic Preservation Act, however, were rejected. The court said the Hopi Tribe was adequately consulted by the U.S. Forest Service.

As a result of the decision, the U.S. Forest Service will have to rewrite the environmental impact statement for the Snowbowl expansion. The court doesn't direct a final outcome but it appears unlikely that snowmaking could be approved, given the agency's own recognition of the importance of tribal religious beliefs.

The government and the Snowbowl could for a rehearing before the 9th Circuit or appeal to the Supreme Court, which considered a similar case when the federal government tried to block a small religious group from using a hallucinogenic tea. The 9th Circuit cited that ruling yesterday in favor of the tribes.

Court Decision:
Navajo Nation v. US Forest Service (March 12, 2007)

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

Related Stories:
Ruling awaited on snowmaking in sacred peaks (02/01)
Confrontation over ceremony at sacred peaks (1/31)
Southwest tribes to continue fight for sacred site (11/14)
Tribes hopeful after court hears sacred site case (09/19)
9th Circuit hears from tribes in sacred site case (9/15)
Tribes press sacred site case before 9th Circuit (9/14)
9th Circuit to hear sacred site case on Thursday (9/13)
Southwest tribes go to court for sacred site (9/6)
Navajo Nation appeals court ruling on snowmaking (02/28)
Tribal coalition to appeal ruling on sacred peaks (1/13)
Judge allows snowmaking in sacred Arizona peaks (1/12)
Babbitt under fire for role in sacred site case (12/12)
Navajo president testifies in sacred site trial (11/03)
Trial over snowmaking in sacred peaks begins (10/24)
Sacred Mountain Motorcycle Run this weekend (10/14)
Judge calls trial on snowmaking in sacred peaks (10/10)
U.S. argues against protecting sacred peaks in Arizona (10/7)
Hopi Chair: Ski area plan will destroy our culture (09/23)
Hopi Tribe joins lawsuit over snowmaking in peaks (07/08)
Bruce Babbitt fighting tribes on sacred site appeal (7/5)
Forest Service rejects tribal appeals on snowmaking (06/10)
Tribes await appeal on snowmaking plan (6/7)
Appeals filed to snowmaking plan in sacred peaks (04/26)
Navajo Nation considers appeal of snowmaking plan (03/15)
Editorial: Sacred peaks don't belong to tribes alone (3/14)
Tribes blast OK of snowmaking plan in sacred peaks (3/9)
Deadline nears on snowmaking in sacred peaks plan (04/09)
Hopi Tribe to protest against snowmaking plan (03/19)
Editorial: Ski area helped by snowmaking plan (02/20)
Navajo Nation not planning boycott for sacred site (2/20)
Coalition protests snowmaking in sacred peaks (2/18)
Tribes to fight snowmaking in sacred Ariz. peaks (02/03)
Forest Service delays report on ski area expansion (12/02)
Hopi Tribe opposing snowmaking in sacred peaks (11/20)
Ski area on sacred mountain expanding (10/15)

Copyright © Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Northern Cheyenne student receives top honor (5/22)
Lakota Country Times: Newspaper takes home a slew of awards (5/22)
James Davies: The new tactic is to pretend racism doesn't exist (5/22)
Thomas O'Rourke: Yurok Tribe is a leader in forest restoration (5/22)
Terese Marie Mailhot: Message to all young Native Americans (5/22)
Matt Remle: Tribal nations take a stand to protect Turtle Island (5/22)
DOJ proposes bill to improve access to voting in Indian Country (5/22)
Sisseton Wahpeton Oyate ready to exercise VAWA jurisdiction (5/22)
Grande Ronde Tribes await decision on flying flag at high school (5/22)
Cherokee Nation sues pharmaceutical firms over drug products (5/22)
Snoqualmie Tribe reports result of election for five council seats (5/22)
Law Article: Navajo Nation wages battle over 'Navajo' products (5/22)
Review: A son leads his father into the wild with 'Medicine Walk' (5/22)
Saginaw Chippewa Tribe to distribute $2.7M in gaming revenues (5/22)
Prairie Island Indian Community eyes $19M expansion at casino (5/22)
Creek Nation seeks Native workers for $329M casino expansion (5/22)
Eastern Shawnee Tribe to debut rodeo event at reopened casino (5/22)
Opinion: Poarch Creeks need state to protect gaming enterprise (5/22)
Native Sun News: North Dakota tribe hit with another brine spill (5/21)
Lakota Country Times: NAIHC presents honor for lifetime service (5/21)
Ivan Star: I'm finding it hard to stand for 'Star Spangled Banner' (5/21)
Senate Indian Affairs Committee holds field hearing in Oklahoma (5/21)
Haskell University announces cuts to troubled athletics program (5/21)
Crystal Echo Hawk: Indian Country still invisible to philanthropy (5/21)
Judge won't require school to allow eagle feather at graduation (5/21)
School apologizes for teaching song about brutal Indian mission (5/21)
Coquille Tribe hosts National Indian Timber Symposium in June (5/21)
Pokagon Band to file land-into-trust application at housing site (5/21)
St. Regis Mohawk Tribe to hold election for chief and sub-chief (5/21)
Keweenaw Bay Indian Community to honor Civil War veterans (5/21)
Yakama Nation woman sentenced to 10 years for child abuse (5/21)
Heroin blamed for crash near Saginaw Chippewa Tribe school (5/21)
Navajo Nation business opens tech data center in New Mexico (5/21)
Opinion: Indian Country left out of nation's economic recovery (5/21)
Review: 'Hoop Jumper' offers look at allotment era in Oklahoma (5/21)
Opinion: Putting a woman on $20 bill might not be an easy task (5/21)
Opinion: Today's Indian wars are being fought over new casinos (5/21)
Oneida Nation close to opening of new gaming facility on June 2 (5/21)
Tribes hail movement on bill for one more casino in Connecticut (5/21)
Mashpee Wampanoag Tribe hoping for casino decision this year (5/21)
Forest County Potawatomi Tribe buys properties next to casino (5/21)
Native Sun News: Cheyenne River elder cast in forthcoming film (5/20)
Lakota Country Times: Oglala Sioux fighter set for new matches (5/20)
Audio from Senate Indian Affairs Committee hearing on water (5/20)
NCAIED set to return to DC with Reservation Economic Summit (5/20)
Mary Pember: New allies in battle against Indian youth suicide (5/20)
Harlan McKosato: It's time to change school policy on feathers (5/20)
Bryan Newland: Important context on land-into-trust process (5/20)
Jay Daniels: Indian Country forced to choose among two evils (5/20)
Anthony Trujillo: A cultural ambassador with the Peace Corps (5/20)
Mark Rogers: Some truths of the ethnic experience in America (5/20)
Indian schools go without fixes while military schools see $5B (5/20)
Indian student in federal court over right to wear eagle feather (5/20)
Pascua Yaqui Tribe hosts Violence Against Women Act training (5/20)
Tribal traditions put to use for battle against substance abuse (5/20)
Apology sought for treatment of tribes at grizzly bear meeting (5/20)
SCOTUSBlog: DOJ urges denial of petition in tribal court dispute (5/20)
County board calls on NFL team to eliminate its racist mascot (5/20)
Native Sun News: Northern Cheyenne Tribe names casino hire (5/20)
Judge again refuses to stop Jamul Band from building casino (5/20)
Connecticut lawmakers weigh bill for one more tribal casino (5/20)
Judge dismisses gaming case filed by Cayuga Nation faction (5/20)
Native casino in Saskatchewan on track with expansion plan (5/20)
Native Sun News: Program helps offenders rebuild their lives (5/19)
Lakota Country Times: Oglala Sioux Tribe seeks water funding (5/19)
Native Sun News: Comments sought on North Dakota pipeline (5/19)
Mark Trahant: Indian Country finds success in diabetes battle (5/19)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.