Plaintiffs in Peaks case considering appeal
By Cindy Yurth, Tséyi' Bureau,
Times , AUGUST 21, 2008
- Following a reversal of fortune in the courts, eight
plaintiffs in the lawsuit to prevent the use of treated
wastewater to make snow on the San Francisco Peaks are
considering whether to take the case to the U.S. Supreme
Court, according to spokesmen for President Joe Shirley
Jr. and the Sierra Club.
an en banc ruling published Aug. 8, the U.S. 9th Circuit
Court of Appeals overturned a previous ruling by a three-judge
panel that would have prevented the snowmaking scheme
at the Arizona Snowbowl ski area.
Among the appellants were the Navajo
Nation and three other tribes who claim the use of reclaimed
sewage effluent, even if cleaned up enough to meet federal
drinking water standards, would defile a sacred mountain,
render the area's medicinal plants unusable, and nullify
some of their ceremonies.
Other plaintiffs in the appeal were
two individuals, along with the Flagstaff Activist Network
and the Sierra Club. The original complaint, dismissed
by a U.S. District Court in 2006, included 13 plaintiffs,
mostly other area tribes.
"We're still reviewing the opinion
and obviously consulting with Howard (Shanker), our
attorney," said Andy Bessler, tribal partnerships
coordinator for the Sierra Club. "We do plan to
consult with the other plaintiffs before we decide what
to do. Folks are very concerned about this."
In an earlier interview, Robert Tohe,
the Sierra Club's environmental justice coordinator,
predicted the Natives, at least, will press for an appeal.
"The tribes will go to the mat
on this one," he said.
The court's 100-page decision was split,
with eight of the 11 judges holding that the snowmaking
scheme would not violate the tribes' rights under the
Religious Freedom and Restoration Act of 1993.
Writing for the majority, Judge Carlos
T. Bea maintained that while the use of wastewater on
the mountain would affect the tribes' "subjective
spiritual experience," it would not place a "substantial
burden" on their ability to practice their religions
by gathering plants from the mountains or conducting
ceremonies on it.
Judges William Fletcher, Harry Pregerson
and Raymond G. Fisher sided with the tribes.
Fletcher for the minority, "Contrary to what the
majority writes and apparently thinks, religious exercise
invariably, and centrally, involves a 'subjective spiritual
The court refused to consider the Sierra
Club's contention that the wastewater, which could contain
up to 0.0001 percent human waste, could pose a health
risk if people ate the manmade snow.
Bea wrote that the claim was not part
of the plaintiffs' original complaint and thus could
not be reviewed as part of the appeal.
"Rather than consider our position
on its merits, they threw it out on a technicality,"
said Bessler. "One thing we'll definitely review
with Howard is whether there's some way we can bring
that NEPA (National Environmental Protection Act) claim
Shirley and the Sierra Club immediately
denounced the ruling.
"We witness the erosion of our
way of life and our culture daily with the continual
encroachment of the dominant society into our homeland,"
Shirley was quoted as saying in a press release.
"Again, with this decision, the
federal government misses an opportunity to help us
continue with our way of life in order to benefit skiers
In a Snowbowl press release, the ski
resort's general manager called the ruling a victory
for "multiple use of public land" (the Snowbowl
is located in the Coconino National Forest).
"This ensures the future of skiing
in Arizona," stated J.R. Murray.
Because natural snowfall levels are
seldom sufficient to enable the Snowbowl to operate
throughout ski season, Murray has contended the ski
area will go under if it's not allowed to manufacture