avatar
U.S. Court of Appeals denies protection to the holy San Fransisco Peaks from the use of reclaimed effluent water in favor of corporate bail out


Jeneda Benally, Save the Peaks Coalition
[email protected]
(928) 380-8014 www.savethepeaks.org

August 8, 2008, Flagstaff, AZ — The 9th Circuit Court of Appeals
issued a
long awaited ruling today in the case to protect the environmental and
cultural integrity of Arizona’s San Francisco Peaks. The split decision

overturned a previous court ruling and has temporarily denied attempts
by
tribes and environmental groups to stop Arizona Snowbowl Ski Resort
from
expanding development and making fake snow from treated sewage effluent
on
the holy mountain.

"The cultural survival of more than 13 Indigenous Nations is directly
intertwined with the environmental integrity of the holy San Francisco
Peaks
," said Jeneda Benally, a volunteer with the Save the Peaks
Coalition.
"Today’s decision not only places these ways of life in peril but sets
the
stage for an ecological and public health catastrophe. We have no
choice but
to uphold our commitment to protect the holy San Francisco Peaks,"
continued
Benally.

The United States Forest Service manages the San Francisco Peaks as
public
land and has faced multiple lawsuits by the Navajo Nation, Hopi, White
Mountain Apache, Yavapai Apache, Hualapai, and Havasupai tribes, as
well as
the Sierra Club, Flagstaff Activist Network, Center of Biological
Diversity,
and others after it initially approved the proposed ski area
development in
2005.

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."

Tribes’ primary arguments focused on religious issues by utilizing the
Religious Freedom Restoration Act (RFRA), which they had hoped would
provide
the necessary legal protection where other laws such as the American
Religious Freedom Act have failed.

"The opinion is unfortunate and, in my opinion wrong," stated Howard
Shanker, who represents Navajo Nation, Havasupai Tribe, White Mountain
Apache Nation, Yavapai-Apache Nation, Sierra Club, Center for
Biological
Diversity, and the Flagstaff Activist Network. "The Court places itself
in
the position of judging the legitimacy of Native American beliefs and
practices. It becomes the arbiter of religion which is not the proper
role
for the courts. The evidence clearly shows that the Peaks are important
to
13 of the Tribes in the southwestern United States and that using sewer

water to make snow on them constitutes a significant burden on the
Tribe’s
ability to practice their religion."

"In this country Native Americans have no First Amendment rights when
it
comes to government land use decisions," stated Howard Shanker, who is
also
running for Congress in Arizona‘s Congressional District 1. "The
federal
government likely holds thousands of acres of land that Tribes hold
sacred.
This case was the last, best chance for the Tribes to be able to
provide
some legal protection to those lands. In a nation that prides itself on

religious liberty, it is unconscionable that Native American beliefs
are not
respected under the law or the Constitution. We anticipate petitioning
the
U.S. Supreme Court for review of this matter," said Shanker.

"This ruling sets a negative precedent that impacts the future of
Native
American religious practice," said Francis Tso of the Save the Peaks
Coalition. "We will seek to reverse this appalling decision."

The three dissenting Judges from the en banc Court argued that,
"Religious
exercise, invariably, and centrally, involves a ‘subjective’ spiritual
experience." The dissenting judges further provided that, "The
majority’s
misunderstanding of the nature of religious beliefs and exercise as
merely
"subjective" is an excuse for refusing to accept the Indians’ religion
as
worthy of protection under RFRA." As noted by the dissent, "RFRA was
passed
to protect the exercise of all religions, including the religions of
American Indians. If Indians’ land-based exercise of religion is not
protected by RFRA in this case, I cannot imagine a case in which it
will be.
I am truly sorry that the majority has effectively read American
Indians
out
of RFRA."

"This decision is a painful affirmation of the lack of protection for
our
religious freedom," said Alberta Nells with the Youth of the Peaks.
Nells
continued, "It is a bitter reminder that not all citizens are equal in
this
country, but just as the civil rights movement did not give up when
courts
delivered blow after blow, we will not give up until our rights are
fully
upheld. We, the youth, will continue to stand up for our cultural
survival."

"Federal land management policies are inconsistent when addressing
Native
American religious practice relating to sacred places. This case
underscores
the fact that we need legislative action to guarantee protection for
places
held holy by Native American tribes", stated Klee Benally of the Save
the
Peaks Coalition. "The deeply held religious beliefs of hundreds of
thousands
of citizens of this country have been trumped by a single for profit
private
business operating on public lands. What I keep wondering is ‘How is
that
considered justice?’" continued Benally.

Environmental groups argued that the Forest Service violated the
National
Environmental Policy Act
. "Eight of eleven judges decided to completely

ignore the issue of ‘What happens if a child were to eat this snow?’"
said
Rudy Preston of the Flagstaff Activist Network and a plaintiff in the
case.
Preston continued saying that, "The court dismissed the whole health
issue
on a procedural error thereby refusing to comment on the true health
impacts
of this fake snow, which has been proven to contain harmful
pharmaceuticals
and personal care productions, on our children. The court has obviously
cast
off this responsibility, and we will continue to demand accountability
for
our children and the land."

Environmental groups are concerned with the health hazards of using
treated
sewage effluent to make this snow, and are committed to continuing to
challenge this ruling. "We obviously disagree with
ruling—snowmaking with
sewage is still plainly a bad idea," said Taylor McKinnon, Public
Lands
Director with the Center for Biological Diversity, "We’ll keep
fighting
along side our partners. This ruling only emboldens our resolve."

The Save the Peaks Coalition will continue their commitment to unify
tribes,
environmentalists, and all people who care about religious freedom, the

health of our communities, and the natural environment.

###

Leave a comment