Jeneda Benally, Save the Peaks Coalition
August 8, 2008, Flagstaff, AZ — The
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
tribes and environmental groups to stop Arizona Snowbowl Ski Resort
expanding development and making fake snow from treated sewage effluent
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
"Today’s decision not only places these ways of life in peril but sets
stage for an ecological and . We have no
to uphold our commitment to protect the holy San Francisco Peaks,"
The United States Forest Service manages the San Francisco Peaks as
land and has faced multiple lawsuits by the , Hopi, White
Mountain Apache, Yavapai Apache, Hualapai, and Havasupai tribes, as
the Sierra Club, Flagstaff Activist Network, Center of Biological
and others after it initially approved the proposed ski area
In the most recent ruling, the Court found that using reclaimed sewer
to make snow for skiing on an admittedly sacred site posed no
burden’ on the Plaintiffs’ exercise of religion in this case.
the Court, the "only effect of the proposed upgrades is on the
subjective, emotional religious experience. That is, the presence of
recycled wastewater on the Peaks is offensive to the Plaintiffs’
sensibilities…the diminishment of spiritual fulfillment – serious
may be – is not a ‘substantial burden’ on the free exercise of
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
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, , Sierra Club, Center for
Diversity, and the Flagstaff Activist Network. "The Court places itself
the position of judging the legitimacy of Native American beliefs and
practices. It becomes the arbiter of religion which is not the proper
for the courts. The evidence clearly shows that the Peaks are important
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
ability to practice their religion."
"In this country Native Americans have no First Amendment rights when
comes to government land use decisions," stated Howard Shanker, who is
running for Congress in Arizona‘s Congressional District 1. "The
government likely holds thousands of acres of land that Tribes hold
This case was the last, best chance for the Tribes to be able to
some legal protection to those lands. In a nation that prides itself on
religious liberty, it is unconscionable that Native American beliefs
respected under the law or the Constitution. We anticipate petitioning
for review of this matter," said Shanker.
"This ruling sets a negative precedent that impacts the future of
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,
exercise, invariably, and centrally, involves a ‘subjective’ spiritual
experience." The dissenting judges further provided that, "The
misunderstanding of the nature of religious beliefs and exercise as
"subjective" is an excuse for refusing to accept the Indians’ religion
worthy of protection under RFRA." As noted by the dissent, "RFRA was
to protect the exercise of all religions, including the religions of
. If Indians’ land-based exercise of religion is not
protected by RFRA in this case, I cannot imagine a case in which it
I am truly sorry that the majority has effectively read American
"This decision is a painful affirmation of the lack of protection for
religious freedom," said Alberta Nells with the Youth of the Peaks.
continued, "It is a bitter reminder that not all citizens are equal in
country, but just as the civil rights movement did not give up when
delivered blow after blow, we will not give up until our rights are
upheld. We, the youth, will continue to stand up for our cultural
"Federal land management policies are inconsistent when addressing
American religious practice relating to sacred places. This case
the fact that we need legislative action to guarantee protection for
held holy by Native American tribes", stated Klee Benally of the Save
Peaks Coalition. "The deeply held religious beliefs of hundreds of
of citizens of this country have been trumped by a single for profit
business operating on public lands. What I keep wondering is ‘How is
considered justice?’" continued Benally.
Environmental groups argued that the Forest Service violated the
Environmental Policy Act. "Eight of eleven judges decided to completely
ignore the issue of ‘What happens if a child were to eat this snow?’"
Rudy Preston of the Flagstaff Activist Network and a plaintiff in the
Preston continued saying that, "The court dismissed the whole health
on a procedural error thereby refusing to comment on the true health
of this fake snow, which has been proven to contain harmful
and personal care productions, on our children. The court has obviously
off this responsibility, and we will continue to demand accountability
our children and the land."
Environmental groups are concerned with the health hazards of using
sewage effluent to make this snow, and are committed to continuing to
challenge this ruling. "We obviously disagree with
sewage is still plainly a bad idea," said Taylor McKinnon, Public
Director with the Center for Biological Diversity, "We’ll keep
along side our partners. This ruling only emboldens our resolve."
The Save the Peaks Coalition will continue their commitment to unify
environmentalists, and all people who care about religious freedom, the
health of our communities, and the natural environment.