Environment | Law

9th Circuit blocks snowmaking at sacred peaks

Monday, March 12, 2007

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)