Appeals court to rehear sacred site case

Thursday, October 18, 2007  

A federal appeals court dealt a setback to a coalition of tribes on Wednesday when it agreed to rehear a sacred site case.

In March, the 9th Circuit Court of Appeals blocked a ski resort from using treated sewage to make snow in the sacred San Francisco Peaks. The ruling said the Bush administration violated the religious rights of tribes by approving the project.

But the victory is in doubt now that a full panel of the appeals court will hear the case all over again. The U.S. Forest Service and the Arizona Snowbowl resort asked for a rehearing, which was granted in a short order yesterday.

Tribal advocates expressed hope that the court will upheld their rights a second time. "Why in 2007 do we as America's first people have no guarantee for protection of our religious freedom?" said Jeneda Benally, a member of the Navajo Nation who volunteers for the Save the Peaks Coalition.

The coalition's efforts are backed by the Navajo Nation, the Hopi Tribe, the Hualapai Tribe, the White Mountain Apache Tribe, the Yavapai-Apache Tribe and environmental groups. They say the use of reclaimed wastewater violates the sanctity of the San Francisco Peaks.

The peaks are home to spiritual beings and are used to gather important plants and medicinal herbs. In court testimony, tribal elders were able to show that their religious practices would be harmed by the ski resort's plans

"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 that was issued in March. "This showing is particularly strong for the Navajo and the Hopi."

Howard Shanker, an attorney for some of the plaintiffs, said it was "regrettable" that the court has decided to rehear the case. But he placed the blame on the Bush administration and the operators of the ski resort.

"[O]ur federal government seems to place the profitability of a privately owned, non-destination ski area, that operates on federal land, over the deeply held religious and cultural convictions of hundreds of thousands of Native Americans living in the southwestern United States," said Shanker, who is running for Congress to represent a district that includes the peaks and parts of the Navajo Nation and some Apache reservations.

The case centers over the interpretation of 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 law bars government agencies from taking actions that "substantially" burden a person's exercise of religion without a "compelling governmental interest." Agencies must further demonstrate that they are taking such action by the "least restrictive means" possible.

The Forest Service and the Arizona Snowbowl have defended the plan to create snow. They say the treated sewage will not harm the areas used by tribal medicine men and will only affect a small part of the entire peaks.

Navajo, Hopi and Hualapai elders testified to the contrary and said the reclaimed wastewater would "ruin" their medicine and violate the sanctity of the spiritual beings who live in the peaks. The evidence was cited extensively in the 9th Circuit's earlier opinion.

Sacred sites have been litigated several times in the 9th Circuit over the past several years and every case has gone in favor of tribal interests. The court has upheld a policy in Arizona that prevents the state from buying material that were mined from a sacred site.

In another case, the court said the Hoopa Valley Tribe of California has the authority to block a non-Indian from logging near a sacred site. The 9th Circuit heard the case twice before siding with the tribe.

Court Order:
Navajo Nation v. US Forest Service (October 17, 2007)

Earlier 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