Forest Service, Snowbowl win right to use fake snow
Money wins out over religion, some say
By S.J. Wilson, Navajo-Hopi
Observer, AUGUST 12, 2008
Ariz. - Just one day after Indian Country registered its
shock over the settlement in Cobell v. Kempthorne - $455.6
million rather than the $58 billion sought - 13 Arizona
tribes learned that they had lost their bid to protect
the sacred San Francisco Peaks from desecration by the
use of treated wastewater to make artificial snow at the
Arizona Snowbowl ski resort.
Ninth Circuit Court of Appeals justices filed a split
decision in Pasadena, Calif. on August 8, with seven
justices joining Judge Bea in affirming the district
court's denial of relief on all grounds. Judge Fletcher
penned the dissent, joined by two justices.
Attorney Howard Shanker, who represents
the Navajo Nation, White Mountain Apache, Yavapai Apache,
Havasupai, the Sierra Club and other plaintiff-appellants,
said that the Ninth Circuit en banc hearing was the
last best chance for tribes to have legal protection
"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 using sewer water to make snow constitutes
a significant burden on the tribes' ability to practice
their religion," Shanker said.
"The judges felt that the use of
reclaimed water would not impact or affect the tribes'
religious practice, and that any harm would be merely
subjective," Shanker said. "When President
Shirley of the Navajo Nation testified that making artificial
snow on the Peaks was like raping his mother - for a
judge to say that it's not that bad is clearly wrong."
"This decision closes the coffin
on tribes' rights to protect their sacred sites,"
Shanker denied that the court battle
was merely a war of semantics.
"This is a question of law,"
Shanker said. "If the plaintiffs say that this
is a burden on their religious practice, this Court
should not say it's not. Short of having God testify
in court on whether the damages are subjective, the
Court should not make this determination."
As a Congressional candidate for District
One, Shanker said that if elected, he would continue
to represent Native American religious rights, and that
there was precedence that would allow him to argue a
Supreme Court case on behalf of his current plaintiffs
Hopi Tribal Chairman Ben Nuvamsa expressed
his tribe's disappointment in the ruling.
"We had hoped that the opinion
would be favorable," Nuvamsa said. "I am sure
I echo the sentiment of our tribal council, and we will
be considering moving forward to appeal the case to
the U.S. Supreme Court.
"I think this case is important
not only to the Hopi Tribe and other Arizona plaintiffs,
but to all of Indian Country. This decision will damage
all other instances where tribes protect areas they
hold sacred," Nuvamsa continued. "Once again
the interest of money over sacred sites has come out
The irony that the economic contribution
of the region's Native tribes greatly outweighs that
of the Snowbowl was not lost on Nuvamsa.
"The Peaks are very sacred to the
Hopi people," Nuvamsa continued. "They are
the sacred home of the Katsinam, who are responsible
for bringing water to the [region].
"The Court failed to consider the
claims of the impacts to human health from coming into
contact with the treated waste from reclaimed water
and did not take seriously the tribes' legal claims
because of a court technicality," said Andy Bessler
with the Sierra Club in Flagstaff. "The decision
leaves unaddressed water quality issues, since the Court
failed to decide if using reclaimed water on the Peaks
was safe for the environment or for human health."
"The preliminary March ruling was
one of the most important in recent years under [the
Religious Freedom Restoration Act] (RFRA)," said
Sierra Club Environmental Justice organizer Robert Tohe.
"In addition to finding that the snowmaking plan
would have desecrated this sacred area, the court decided
that the U.S. Forest Service failed to fully disclose
the risks posed by human ingestion of artificial snow.
The Court summarized Navajo Nation,
et al. v. United States Forest Service, et al. as "American
Indians asking us to prohibit the federal government
from allowing the use of artificial snow for skiing
on a portion of a public mountain sacred in their religion.
At the heart of their claim is the planned use of recycled
wastewater, which contains 0.0001 [percent] human waste,
to make artificial snow. The Plaintiffs claim the use
of such snow on a sacred mountain desecrates the entire
mountain, deprecates their religious ceremonies, and
injures their religious sensibilities...We hold that
it does not."
Though the Court found the plaintiffs'
beliefs "to be sincere," it went on to conclude
that "there are no plants, springs, natural resources,
shrines with religious significance, or religious ceremonies
that would be physically affected by the use of such
artificial snow. No plants would be destroyed or stunted;
no springs polluted; no places of worship made inaccessible,
or liturgy modified. The Plaintiffs continue to have
virtually unlimited access to the mountain, including
the ski area, for religious and cultural purposes, and
that any effects would be on "subjective spiritual
experience," which would be "offensive,"
but placed no burden on the practice of religion.
The Court minimized the effects, stating
the Snowbowl represents about 1 percent of the Sacred
Peaks, and that other uses, including camping, hunting,
timber harvesting, grazing, the presence of electric
lines, water and gas pipelines, already exist.
The Court stated that the Forest Service
is burdened by between 40 to 50 thousand prehistoric
sites in the region, that one tribe in particular holds
the entire Colorado River sacred, and that new sacred
areas are being recognized by the plaintiffs on an ongoing
The dissent accused the majority of
contending that "the Indians consider virtually
everything sacred...The majority implies that if we
hold...that there has been a substantial burden in this
case, there is no stopping place." Further, testimony
from witnesses clearly established that though indeed,
Native Americans consider everything sacred, there are
"degrees of sacred," and the San Francisco
Peaks is extremely sacred. Further, belief that the
Peaks are a living thing, and that what desecrates one
small piece desecrates all clearly places a substantial
burden on tribal members.
The RFRA states that, in general, "Government
shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general
applicability, except where the Government can demonstrate
a furtherance of a compelling governmental interest
and is the least restrictive means of furthering that
compelling government interest.
The Court summarized that under RFRA,
a "substantial burden" is imposed only when
individuals are forced to choose between following the
tenets of their religion and receiving governmental
benefit, or coerced to act contrary to their religious
beliefs by the threat of civil or criminal sanction
- and that the use of recycled wastewater on a ski area
does not force the Plaintiffs does neither.
"The majority misstates the law
under RFRA in three ways," Fletcher wrote in the
dissent. "In the hands of the majority that test
is extremely restrictive, allowing a finding of 'substantial
burden' only according to the dissenting opinion.
"The majority's narrow definition
of 'substantial burden' conflicts with RFRA's text and
purpose," Fletcher said, an approach conflicting
with the circuit's prior application of the act.
The majority found that "the only
effect of the proposed upgrades is on the Plaintiffs'
subjective, emotional religious experience," and
not a "substantial burden."
Dissenting justices disagreed, and that
the majority "misstates the evidence...misstates
the law under RFRA and misunderstands the very nature
of religion...The majority characterizes the Indians'
religious belief and exercise as merely a 'subjective
spiritual experience...Contrary to what the majority
writes, and appears to think, religious exercise invariable,
and centrally, involves a 'subjective spiritual experience."
Further, the dissent pointed out that
government could substantially burden the exercise of
religion in the furtherance of a compelling governmental
interest, by the least restrictive means of furthering
that interest and snowmaking did neither.
"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," Fletcher concluded.