The Bush administration violated tribal religious rights
by approving the use of reclaimed wastewater in the sacred San
Francisco Peaks, a federal appeals
court ruled on Monday.
In a unanimous decision, the 9th Circuit Court of Appeals
said the treated sewage would harm the religious beliefs
and practices of the Navajo Nation, the Hopi Tribe
and others throughout the Southwest. The three-judge panel
cited the testimony of spiritual elders
who said the Peaks would be poisoned by the use of
"We conclude that [the tribes] have shown that the use
of treated sewage effluent on the Peaks would impose a
substantial burden on their exercise of religion," Judge
William A. Fletcher wrote in the 64-page decision. "This showing is
particularly strong for the Navajo and the Hopi."
The ruling was immediately embraced by the tribes,
individual tribal members and environmental groups.
They sued the U.S. Forest Service in 2005 to block the expansion
of a ski area in the Coconino National Forest.
"I am really thankful and deeply appreciate the 9th Circuit Court's
decision," said Bucky Preston, a member of the Hopi Tribe.
"Some of the judges in the courts must have a good heart and looked
deeply into themselves to realize that the Peaks are so sacred to
us and they understood our beliefs."
Robert Tohe, a member of the Navajo Nation, called
the decision a "wake up call" for the federal government
and developers who target sacred sites.
"We will not allow our voices to be ignored," said Tohe,
the environmental justice organizer for the Sierra Club
The ruling is a major turnaround for the tribes and their
supporters. In January 2006, a federal judge had dismissed
their lawsuit, saying they hadn't proved the use of
reclaimed wastewater at the Arizona Snowbowl would infringe
on their beliefs.
"The decision does not coerce individuals into acting contrary to their
religious beliefs nor does it penalize anyone for practicing his or her
religion," U.S. District Judge Paul Rosenblatt wrote after a two-month
trial that drew the testimony of spiritual leaders and elected tribal
The 9th Circuit cited at length such testimony in overturning
Rosenblatt. The court dedicated individual sections of the opinion
to the spiritual beliefs and practices of the Navajo Nation,
the Hopi Tribe, the Hualapai Tribe and the Havasupai Tribes.
The information was essential to the tribal claims under the
Religious Freedom Restoration Act. The law was passed in
response to a U.S. Supreme Court decision that allowed the
state of Oregon to bring charges against Native American
Church practitioners for using peyote, a hallucinogenic.
The 9th Circuit said the law bars
the U.S. Forest Service from "substantially
burden a person's exercise of religion" unless it
can cite a "compelling governmental interest."
Neither the agency, nor the Arizona Snowbowl, were
able to demonstrate such an interest to the court.
"We are unwilling to hold that
authorizing the use of artificial snow at an already functioning
commercial ski area in order to expand and improve its
facilities, as well as to extend its ski season in dry years, is a governmental
interest 'of the highest order,'" Fletcher wrote, citing
another religious rights Supreme Court decision.
The judges also noted that potential economic losses
to the ski area can't override the protection of religious rights.
"We are struck by the obvious fact that the Peaks are located in a desert,"
the court said. "It is (and always has
been) predictable that some winters will be dry."
In a second part of the decision, the court said the
U.S. Forest Service violated the
National Environmental Protection Act by failing to consider
the human impacts of treated sewage
At oral arguments last September, the judges were concerned,
in particular, that children could eat the snow.
"We therefore hold that the FEIS does not satisfy NEPA with
respect to the risks of ingesting artificial snow," the
Other tribal claims related to NEPA and the National Historic
Preservation Act, however, were rejected. The court
said the Hopi Tribe was adequately consulted by the U.S. Forest
As a result of the decision, the U.S. Forest
Service will have to rewrite
the environmental impact statement for the Snowbowl expansion.
The court doesn't direct a final outcome but it appears unlikely
that snowmaking could be approved, given the agency's own recognition
of the importance of tribal religious beliefs.
The government and the Snowbowl could for a rehearing
before the 9th Circuit or appeal to the Supreme Court,
which considered a similar case when the federal government
tried to block a small religious group from
using a hallucinogenic tea. The 9th Circuit cited
that ruling yesterday in favor of the tribes.
Nation v. US Forest Service
(March 12, 2007)
Listen to Oral Arguments:Navajo
Nation v. Forest Service
(September 14, 2006)
Appeals Court Documents:Opening
Brief [Word DOC]
Brief [Word DOC]
Lower Court Decision:Navajo
Nation v. US Forest Service
(January 11, 2006)
Environmental Impact Statement for Arizona Snowbowl Facilities Improvement
Service Approves Snowmaking at Arizona Snowbowl
Save the Peaks Coalition - http://www.savethepeaks.org
National Forest - http://www.fs.fed.us/r3/coconino/index.shtml
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