Court
backs tribes on Peaks
Use of recycled wastewater violates
religious freedom, appeals court rules
By Kathy Helms
Diné Bureau, Gallup
Independent
WINDOW ROCK — In a landmark decision
for 13 Southwest tribes, a federal appeals court held
Monday that the use of recycled sewage water to make
artificial snow on the sacred San Francisco Peaks violates
their religious freedom.
The opinion by Judge William A. Fletcher
of the 9th Circuit Court of Appeals reversed a January
2006 ruling by U.S. District Court Judge Paul G. Rosenblatt
following arguments presented Sept. 14, 2006, in San
Francisco.
The plaintiffs-appellants successfully
argued that using treated sewage water to make artificial
snow at the Arizona Snowbowl Ski Resort would pollute
the mountain, significantly burden Southwest tribal
members' ability to practice their religions, and violate
the public's rights for environmental justice.
Judge Fletcher agreed, stating that
the U.S. Forest Service's approval of Snowbowl's use
of recycled sewage effluent on the Peaks violates the
Religious Freedom Restoration Act, and that the Final
Environmental Impact Statement does not comply with
the National Environmental Policy Act.
Howard Shanker of the Shanker Law Firm
represented the Navajo Nation, the Hopi Tribe, the Sierra
Club, and others who sued the Forest Service over its
decision.
Shirley elated
As the news circulated, Navajos everywhere were overjoyed,
according to George Hardeen, spokesman for the Navajo
Nation Office of the President and Vice President.
Upon hearing the ruling, Navajo Nation
President Joe Shirley Jr., said he was elated, and that
he had never given up hope.
"Medicine people will feel the
same way I do, happy," Shirley said in a press
release. "The Religious Freedom Restoration Act
had never been tested. So I think this is a precedent-setting
decision.
"Now tribes out there have every
means of protecting their sacred sites, especially now
that the law has been proven, and I just really appreciate
the judges' deciding in the way that they have."
Shanker said the ruling is especially
important because an earlier case, Lyng v. Northwest
Indian Cemetery Protective Assn., held that Native Americans
did not have First Amendment rights when it came to
federal government land-use decisions.
"Essentially, Native Americans
have had no recourse challenging government land-use
decisions which often times impact sacred sites and
culturally significant sites," he said.
"What we've done here is under
the Religious Freedom Restoration Act we've created
an avenue for tribes to protect those sites that are
sacred to them that impact their exercise of religion."
Shanker said this is the first case
in which RFRA has been used successfully in an appeal.
"RFRA provides greater protection for religious
practices because it goes beyond the constitutional
language that forbids the 'prohibiting of the free exercise
of religion and uses the broader verb' burden,"
the Appeals Court said.
Wake-up call
"Tribes all over the country can benefit from this
decision and utilize it to protect sacred and religiously
significant sites," according to Shanker. "This
is a tremendous step forward in preserving Native American
cultural and religious beliefs."
Robert Tohe, an apprentice medicine
man and Environmental Justice organizer for the Sierra
Club in Flagstaff, said, "This is a national wake-up
call for those that will try to desecrate sacred mountains
like the San Francisco Peaks. We will not allow our
voices to be ignored."
In addition to finding that the plan
would have desecrated a sacred area, Tohe said, "the
court decided that the U.S. Forest Service failed to
fully disclose the risks posed by human ingestion of
artificial snow."
The San Francisco Peaks in the Coconino
National Forest in northern Arizona have long-standing
religious significance to Southwest tribes. The Snowbowl
is located on Humphreys Peak, the highest and most religiously
significant of the Peaks.
Bucky Preston, one of the Hopi plaintiffs,
said, "I am really thankful and deeply appreciate
the 9th Circuit Court's decision. 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."
Read the full court decision at:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
64C37FB597BF2F848825729C0058BFE8/
$file/0615371.pdf?openelement
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