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Bush administration appeals sacred site case

Native activists from the Southwest plan to hold a demonstration in Arizona today to protest the Bush administration's decision to appeal a sacred site case.

The Save the Peaks Coalition has been fighting the proposed expansion of a ski area in the Coconino National Forest. The group says the use of reclaimed wastewater will desecrate the San Francisco Peaks, a site important to more than a dozen tribes.

The 9th Circuit Court of Appeals agreed this past March. In a unanimous decision, a three-judge panel said the U.S. Forest Service violated Native religious rights by approving the expansion plan.

The ruling now faces a reversal as the Department of Justice, along with the operators of the Snowbowl ski area, want the 9th Circuit to rehear the case. Briefs filed last week claim the tribes haven't proven how the reclaimed wastewater will harm their religious practices.

"Plaintiffs provided no evidence that the decision would impact any religious ceremony, gathering, pilgrimage, shrine, or any other religious use of the Peaks," the petition for an en banc hearing stated.

The move drew an outcry from coalition members. They plan to meet today at the Coconino National Forest Service office in Flagstaff to call attention to their cause.

"We always knew that this would be a long and difficult struggle," said Jeneda Benally, a member of the Navajo Nation. "The fight for human rights and religious freedom has always been a challenge in this country."

At issue is 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 a federal agency from taking actions that "substantially burden a person's exercise of religion" unless the agency can cite a "compelling governmental interest." Neither the U.S. Forest Service, nor the Arizona Snowbowl, were able to demonstrate such an interest to the satisfaction of 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. Judge William A. Fletcher wrote in the 64-page decision

The ruling also struck down a part of the environmental impact statement for the expansion. The court said the U.S. Forest Service failed to consider the human impacts of treated sewage -- at oral arguments last September, the judges were concerned that children could eat the snow.

There is no guarantee the 9th Circuit will rehear the case. If the petition is rejected, the Bush administration could ask the Supreme Court to take the case.

"We must at some point stop trying to fake the world and realize that our actions as humans have created a world in peril," said Rudy Preston, a member of the Hopi Tribe. "The Native cultural perspective that is protected by this court decision is in fact a road map to once again creating a world in balance."

Court Decision:
Navajo 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] | Reply Brief [Word DOC]

Lower Court Decision:
Navajo Nation v. US Forest Service (January 11, 2006)

Approval Documents:
Final Environmental Impact Statement for Arizona Snowbowl Facilities Improvement | Forest Service Approves Snowmaking at Arizona Snowbowl

Relevant Links:
Save the Peaks Coalition -
Coconino National Forest - Arizona Snowbowl -