“A federal agency is pressing the city of Flagstaff to offer potable water for snowmaking at Arizona Snowbowl that does not come directly from reclaimed wastewater. In addition, Snowbowl could get government aid to cover the $11 million in higher costs for the water over 20 winters. Arizona’s two U.S. senators are blasting the plan as a waste of taxpayer money and a violation of court decisions in favor of making snow at Snowbowl with treated effluent. The proposal comes in response to tribal concerns that making snow with reclaimed wastewater desecrates the San Francisco Peaks, which they hold sacred.”

Naturally John McCain is all for spraying the mountain with wastewater, which isn’t particularly surprising, what is surprising is that some of the tribes seem to have been kept completely out of the loop.

“Among the litigants opposed to the project was the Hopi tribe, which feared snowmaking with any kind of water could interfere with the home of spiritual beings and ancestors responsible for creating snow on the San Francisco Peaks and the rain on Hopi farmlands. Hopi Chairman Le Roy Shingoitewa had heard nothing of the new proposal as of Monday.”

So what, exactly, is the proposed compromise? To use “stored” water, that is, untreated well-water that comes from natural sources (rain, snow, ground) instead of wastewater from the sewer system (opposed by the tribes), or potable freshwater (which would face opposition from local residents). There’s no word as to if the tribal nations are OK with such a compromise, or who was included in the “private negotiations with regional tribes”. But now that the cat’s out of the bag, and Arizona’s Senators are vowing to block any compromise, it remains to be seen if some sort of deal can be reached.

Meanwhile, the Save the Peaks Coalition hasn’t exactly been idle, a new lawsuit has been filed to force the federal government (the ski resort is on forestry service land) to study and divulge the potential effects of ingesting snow made from treated sewage effluent.

“According to Arizona Department of Environmental Quality regulations, treated sewer water can be graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from treated sewage effluent.”

No doubt the Obama Administration were hoping to effect a compromise that would mollify the tribes, allow for expansion on the mountain, and make the new lawsuit moot, but that may all fall apart now. So far Snowbowl owners and Flagstaff officials seem cautiously optimistic that some sort of compromise can still be made, but it remains to be seen what public reaction to these secret dealings will be among the activists and tribal nations fighting this battle.

To catch up on this story, you can read all my previous posts on this matter, here.

“The U.S. Supreme Court today denied certiorari in Navajo Nation v. Forest Service, (Docket No. 08-846). (Order List.) The 9th Circuit in the case held in an 8-3 en banc decision, that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona’s Snowbowl ski resort, which operates on federal land.”

The Save the Peaks coalition have released a statement on the decision.

“The Supreme Court’s denial of certiorari in the Navajo Nation case is unfortunate to say the least.” Stated Jack Trope of the Association on American Indian Affairs who is working together with DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “It means that the San Francisco Peaks, sacred to so many tribes, will continue to be at great risk from the development approved by the Forest Service that allows treated sewage water to be used for snowmaking. It also means that the Ninth Circuit’s narrow interpretation of the Religious Freedom Restoration Act (RFRA) – an interpretation which in practice will make that law virtually unavailable to protect sacred lands in the states covered by the Ninth Circuit – will stand.”

This is a big deal. It means that questions of how we approach issues of religious freedom and religious rights on land that is a traditional cultural property under U.S. law are dramatically altered (within 9th Circuit jurisdiction). Perhaps the Forest Service have been intentionally dragging their feet in getting the San Francisco Peaks on the National Register because they didn’t want tribal considerations interfering with their sweetheart deals involving the Snowbowl resort?

“The San Francisco Peaks are recognized as a Traditional Cultural Property, although the Forest Service began the designation process several years ago, it has not yet been finished. The Peaks have also been determined eligible for listing on the National Register of Historic Places, yet the FS has done nothing to finish the process.”

At this point, nothing short of direct intervention from the Obama administration can halt the planned development (which includes clear-cutting 74 acres of rare alpine ecosystem & creating a 14.8 mile long pipeline up the San Francisco Peaks to a 10 million gallon storage pond). In the meantime, there is a chance this issue could come to SCOTUS again, due to different Federal Circuit Courts having different interpretations on the limits of the the Religious Freedom Restoration Act.

“This is a setback, but it is not the end. The Obama Administration still has the authority to stop this development and develop policies to ensure that future decisions are more respectful of sacred sites.” stated Jack F. Trope, Executive Director, Association on American Indian Affairs. “Moreover, other circuits like the Tenth Circuit have interpreted RFRA more broadly and efforts to use that law to protect other sacred places will continue. Finally, the struggle over the San Francisco Peaks and the failure of RFRA to protect this sacred place ought to send the message to Congress that it is time for the lawmakers to approve legislation that would strengthen applicable law so that it will better protect Native American sacred places across the country.”

From a moral and religious standpoint, the question remains, how much responsibility does the Federal government have towards protecting and maintaining sacred lands they have seized from Native tribes? It is an issue we need to wrestle with, because if the government and courts rejects pantheist religious views as valid when considering development, we may lose the right to protect other places from desecration in the future. As for the San Francisco Peaks issue, don’t expect the tribes to go quietly now that judicial recourse has been denied them.

“Our way of life is in peril. We will continue to pray and struggle to safeguard mother earth for our cultural survival.”

I doubt this will be the last time I’ll have to report on this matter.

“It is worth remembering that our government took the Peaks from petitioner tribes. It placed the tribes on reservations and pledged to respect their cultures and traditions. It is hardly implausible that Congress passed a law in 1993 providing under these rare circumstances that the tribes’ religious liberty should be respected.”

So far, lawyers and judges haven’t been very respectful towards the tribes opposed to pumping wastewater onto sacred land just so a single ski resort can stay open longer. A Ninth Circuit judge said is was merely a case of “damaged spiritual feelings”, while government lawyers have been outright insulting towards Native belief systems.

“Courtroom observers were dismayed by the lack of cultural sensitivity on the part of government lawyers. After a witness described how the spraying of wastewater to make artificial snow would defile the sanctity of medicinal plants gathered on the mountain, a government lawyer asked if the medicine man knew he could purchase herbs at health food stores. A government lawyer also questioned a witness by going down a long list of sacred sites one by one and asking if a particular site was on federal land. In each case, the witness, a Hopi man, humbly replied, “I don’t know.” Eventually, the witness told the lawyer that his culture doesn’t view land in that way, that there is no concept of land ownership. The lawyer did not acknowledge his statement in any way, but instead went back to the list, unapologetically asking the same questions in the same manner.”

You have to wonder if Barack “Black Eagle” Obama of the Crow Nation knows and approves of what Elena Kagan and the Department of Justice are doing in his administration’s name. Will it damage his popularity among Native American Indians, many of whom supported him in the 2008 elections? If SCOTUS decides to hear the appeal, will it be on a Supreme Court that includes Sonia Sotomayor, a judge who is a seeming advocate for the rights of minority religions?

In 1994, Judge Sotomayor ruled in favor of two prisoners who claimed to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo, saying that “distinctions between ‘traditional’ and ‘non-traditional’ religions” are “intolerable.”

Whether SCOTUS decides to hear the appeal or not, it could have lasting implications regarding the application of the Religious Freedom Restoration Act, and questions of how we approach issues of religious freedom and religious rights when the land itself is sacred and holy. I’m hoping SCOTUS doesn’t decide to punt on this one, and allows the case to be heard. If not, I guess “screw your sacred land, we want to ski” will be the rallying cry of our government and court system. For more information on this case, check out the round-up of official documents regarding this case at the SCOTUS Blog. You may also want to peruse the official Save The Peaks site.

American Indian tribes are asking the U.S. Supreme Court to review a lower court’s decision that allows for snow-making on an Arizona peak the tribes consider sacred. In their petition filed Monday, the tribes contend the use of treated wastewater to make snow at Arizona Snowbowl violates the Religious Freedom Restoration Act and could contaminate natural resources.

In the most recent ruling, the Court found that using reclaimed sewer water to make snow for skiing on an admittedly sacred site posed no ’substantial burden’ on the Plaintiffs’ exercise of religion in this case. According to the Court, the “only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities…the diminishment of spiritual fulfillment – serious though it may be – is not a ’substantial burden’ on the free exercise of religion.” The Court dismissed Plaintiffs’ religious beliefs as calling them mere “damaged spiritual feelings.”

“A federal appeals court has ruled that a ski resort’s plan to use recycled wastewater for making snow would not violate the religious freedom of Indian groups who had claimed that the practice would be blasphemous to a mountain they hold sacred. The United States Court of Appeals for the Ninth Circuit, ruling in a lawsuit against the Arizona Snowbowl near Flagstaff that was filed by 13 tribes and the Sierra Club, overturned a ruling by a smaller panel of the court that said the plan would violate the Religious Freedom Restoration Act.”

The Appeals Court showed a sadly typical attitude of indifference and lack of understanding in this case, claiming that the only thing being damaged were the Indian’s “feelings”.

“In the most recent ruling, the Court found that using reclaimed sewer water to make snow for skiing on an admittedly sacred site posed no ’substantial burden’ on the Plaintiffs’ exercise of religion in this case. According to the Court, the “only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities…the diminishment of spiritual fulfillment – serious though it may be – is not a ’substantial burden’ on the free exercise of religion.” The Court dismissed Plaintiffs’ religious beliefs as calling them mere ‘damaged spiritual feelings.’”

But defiling a sacred mountain so people can ski more often is more than about “damaged spiritual feelings”, it throws entire religious systems into turmoil.

“In a time when the Hopi Katsina Spirits have answered our prayers for rain and happiness, Coconino [National Forest] has placed a dagger in the Hopis’ spirituality,” – Leigh Kuwanwisiwma, director of the Hopi Cultural Preservation Office

“The San Francisco Peaks is the essence of who we are… and is the Holy House of our sacred deities whom we pray to and give our offerings,” – Joe Shirley Jr., President, Navajo Nation

“It’s like putting death on the mountain … I won’t be able to practice my religion.” – Frank Mapatis, Hualapai spiritual leader

But hey, screw their religion and culture, Snowbowl wants more snow! Needless to say, lawyers for the tribes and the Sierra Club plan on appealing this decision to the Supreme Court. We can only hope that thousands of years of tradition and faith (not to mention good environmental judgment) overcome the desire for one business to make some more money.
]]> http://wildhunt.org/blog/2008/08/appeals-court-says-wastewater-fine-for.html/feed 6 http://wildhunt.org/blog/2007/04/sacred-lands-safe-once-more.html http://wildhunt.org/blog/2007/04/sacred-lands-safe-once-more.html#comments Wed, 04 Apr 2007 05:01:00 +0000 Jason http://wildhunt.org/blog/2007/04/sacred-lands-safe-once-more.html Back in October of 2005 I posted about a story concerning a coalition of 13 Native American Tribes who were trying to stop a ski resort on the San Francisco Peaks (a mountain range that is deeply sacred to the indigenous peoples from that area) from pumping recycled (non-potable) waste-water onto the mountain for snow production. At the time I summed up the issue as “Screw Your Religion! We Want To Ski!” due to the attitudes taken by park officials and the owners of the resort.

“Nora B. Rasure, the supervisor of the Coconino National Forest, wrote this year in the report that the resort “has and continues to provide a valuable recreational experience to many people, and that in order to continue providing that experience in today’s physical and business environment, changes are needed.”

In January of 2006, the U.S. District Court ruled against the coalition and for the U.S. Forest Service and Arizona Snowbowl. The Coalition vowed to appeal the decision to a higher court.

“Regrettably, there is often a rift between what is legal and what is right. We will pursue all legal means to stop this project … Snowbowl is not a destination ski area. People do not travel from across the Country and around the world to ski at Snowbowl. Indeed, many of the press reports on this issue have overstated the economic contribution that Snowbowl makes to the Flagstaff economy – which is marginal. People do, however, travel from around the world to the Flagstaff region to experience the ways of, especially the Navajo and Hopi Tribes. Other than to preserve the economic viability of a private entity, there is no adequate justification for this project.” – Howard Shanker, lawyer for the Navajo Nation

Now it seem that the coalition has finally triumphed. On March 11th 2007, the 9th Circuit Court of Appeals unanimously ruled against the pumping of waste water onto the sacred mountain for the purpose of recreation.

“We reverse the decision of the district court in part. We hold that the Forest Service’s approval of the Snowbowl’s use of recycled sewage effluent to make artificial snow on the San Francisco Peaks violates [Religious Freedom Restoration Act] RFRA, and that in one respect the Final Environmental Impact Statement prepared in this case does not comply with NEPA [National Environmental Policy Act]…If Appellants do not have a valid RFRA claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred.”

Members of the coalition celebrate their victory.
Photo by Chuck Seiverd

If this ruling stands, it could revolutionize the struggle for the preservation of sacred lands by tribal communities, and bring forth more legal challenges under the RFRA.

“This is a national wake up call for those that will try to desecrate sacred mountains like the San Francisco Peaks. We will not allow our voices to be ignored.” – Robert Tohe, apprentice medicine man and Environmental Justice Organizer for the Sierra Club in Flagstaff, Arizona.

I personally feel that justice has been done in this case, and I am happy that the sacred land for several indigenous peoples were not carelessly desecrated for the profits of a single business. Congratulations to the Save the Peaks coalition.
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