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Appeals court rehears San Francisco Peaks case
Wednesday, December 12, 2007
Filed Under: Environment | Law | National

SAVE THE PEAKS RALLY:

• Photo Gallery (San Gabriel Valley Tribune)

The U.S. Forest Service faced skeptical questions from a federal appeals court on Tuesday about the use of reclaimed sewage in the sacred San Francisco Peaks in Arizona.

Under the Bush administration, the agency approved the expansion of a ski resort in the Coconino National Forest. The Arizona Snowbowl wants to use reclaimed wastewater to make snow and attract more visitors.

The Navajo Nation, the Hopi Tribe and other tribes in the Southwest are fighting the Forest Service's decision. They say the treated sewage will desecrate the peaks, where they go to pray, hold ceremonies and gather medicinal plants and herbs.

Some judges on the 9th Circuit Court of Appeals appeared sympathetic to the tribes' views. Their questions essentially accepted as fact that the use of the reclaimed wastewater will harm the sanctity of the peaks.

The key issue, then, is whether the Forest Service's action violates the Religious Freedom Restoration Act. The law was designed to protect Native and other practitioners from government actions that infringe on their religious rights.

"The dilemma we have is that the government does have ... some right to administer the forest," said Judge Johnnie B. Rawlinson. "That's what we're looking at -- the balance between the RFRA rights and the government's undisputed right to manage public land."

But some judges were most concerned about an issue not related to religious rights. In questions to the tribal plaintiffs and the federal government, they focused on the potential for children, and adult skiers, to ingest snow made from treated sewage.

The Forest Service's final environmental impact statement contained just a paragraph about this issue, said Howard Shankar, an attorney for the Navajo Navajo and other tribes. "It shows up in one place as a response to comments," he told the court.

Lane McFadden, an attorney from the Department of Justice, said the Forest Service will put up signs that warn against the ingestion of the snow. He argued that the EIS discussed the issue "at length" though one judge disputed this and called it just a single "sentence" in the massive document.

"What is missing here is what contact the users will have with this water when transformed into artificial snow, what frequency, what quantity and what consequence," Judge William A. Fletcher said. "I see nothing except, well, kids are going to be controlled by their parents, or maybe they won't even be controlled by their parents, but it's the responsibility of the parents whether they eat it or not."

A panel of 11 judges heard the case at the federal courthouse in Pasadena, California. The 9th Circuit ordered a rehearing at the request of the Bush administration and the operators of the Arizona Snowbowl.

Dozens of tribal leaders and members traveled to California to attend the hearing. Navajo Nation President Joe Shirley Jr. and Navajo Nation Council Speaker Lawrence T. Morgan were among the tribal dignitaries in the courtroom.

"The Navajo people are trying to do everything we can to save self, and the peaks is one of our strengths. It is our essence," said Shirley. "When you decide to contaminate it with reclaimed wastewater, with filth, to make snow, that doesn't help my way of life."

The Save the Peaks coalition held a march through the city to protest the use of sewage in the peaks. "Our cultural survival is in peril, as threats continue to destroy and challenge our sacred and majestic mountains," said Morgan in Pasadena.

Listen to Oral Arguments:
Navajo Nation v. USFS (December 11, 2007)

Relevant Documents:
Court Order on Rehearing | Petitions on Rehearing

Earlier Decisions:
9th Circuit Panel (March 12, 2007) | District Court (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