Appeals court reverses course on sacred site in Arizona

Environment | Law

Monday, August 11, 2008

A lawsuit over a sacred site in Arizona appears to be headed towards the U.S. Supreme Court after tribes and Indian activists lost a major decision on Friday.

More than a dozen tribes in the Southwest are suing the Bush administration to stop the expansion of a ski resort in the sacred San Francisco Peaks. The tribes say the use of recycled sewage to make snow at the resort infringes on their religious beliefs.

The 9th Circuit Court of Appeals, however, said the tribes failed to show how their rights are being violated under the Religious Freedom Restoration Act (RFRA). The presence of artificial snow does not impose a "substantial burden" on tribal religious practices, Judge Carlos T. Bea, a nominee of President Bush, wrote for the 8-3 majority.

According to the majority, RFRA comes into play when the government forces people to violate their beliefs under the threat of punishment. The law also comes into play when people are forced to choose between following the tenets of their religions or receiving a government benefit, the court said.

Neither condition was demonstrated by the tribes, according to the decision. Tribes can continue to access the San Francisco Peaks for prayers, ceremonies and other activities despite the presence of recycled snow, the court said.

According to the court, the artificial snow merely impacts the tribes' "feelings" about their religion and the "fervor" in which tribal members practice their religion. A footnote in the 37-page majority opinion was particularly frank in its description of the dispute.

"For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater can only be expressed by the plaintiffs as damaged spiritual feelings," Bea wrote in a footnote. "Under Supreme Court precedent, government action that diminishes subjective spiritual fulfillment does not 'substantially burden' religion."

The decision drew a swift reaction in Indian Country and talk immediately centered on an appeal to the Supreme Court. The justices haven't taken on a tribal religious rights case since 1990, when a negative ruling against practitioners of the Native American Church prompted Congress to write the RFRA.

"This ruling sets a negative precedent that impacts the future of Native American religious practice," said Francis Tso, a member of the Navajo Nation who is part of the Save the Peaks Coalition, an activist group whose members are part of the lawsuit. "We will seek to reverse this appalling decision."

Leaders of the Navajo Nation, one of the tribal plaintiffs, also spoke about an appeal. The tribe considers the San Francisco Peaks to be a living being, comparable to a parent or a grandparent.

"The Navajo people are trying to do everything we can to save self, and the Peaks is one of our strengths," said President Joe Shirley Jr. "When you contaminate it with reclaimed wastewater, with filth, to make snow, that doesn't help Native people's way of life."

But the Arizona Snowbowl, the operators of the ski resort, welcomed the decision, describing it as "great news" for the 71-year-old operation. The resort is located on public land within the Coconino National Forest.

"We are very excited the court ruled in favor for Snowbowl and the multiple use of public land," said general manager J.R. Murray. "This ensures the future of skiing in Arizona."

Given the controversial nature of the case and the three dissenting judges on the 9th Circuit, an appeal is likely to be accepted by the Supreme Court. The justices considered a significant religious rights case during their 2005-2006 session and ruled against the government in Gonzales v. UDV.

In March 2007, a three-judge panel of the 9th Circuit cited UDV in ruling against the government in the San Francisco Peaks case. Judge William A. Fletcher, a nominee of former President Bill Clinton, wrote the unanimous opinion at the time and wrote the dissenting opinion on Friday that disputed the majority's interpretation of the RFRA.

"The San Francisco Peaks have been at the center of religious beliefs and practices of Indian tribes of the Southwest since time out of mind," Fletcher wrote. "Humphrey’s Peak, the holiest of the San Francisco Peaks, will from this time forward be desecrated and spiritually impure."

"The United States government took this land from the Indians by force," Fletcher continued. "The majority now uses that forcible deprivation as a justification for spraying treated sewage effluent on the holiest of the Indians' holy mountains, and for refusing to recognize that this action constitutes a substantial burden on the Indians’ exercise of their religion."

Only two judges joined Fletcher's dissent but counting the other two judges who sided with him in March 2007, the split over the RFRA appears to be much closer than the 8-3 vote suggested.

Of the eight judges who were part of the majority on Friday, seven were nominated by Republican presidents. All three of the dissenting judges were nominated by Democratic presidents.

9th Circuit Decision:
Navajo Nation v. US Forest Service (August 8, 2008)

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)