Court OKs use of sewage water on sacred mountain

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SAN FRANCISCO – The 9th Circuit Court of Appeals in Pasadena has overturned a previous court ruling preventing an Arizona ski resort from expanding and making fake snow from treated sewage on a mountain that 13 Native nations hold sacred.

It ruled instead in favor of the U.S. Forest Service and the Arizona Snowbowl Resort, which had challenged the previous court ruling regarding the San Francisco Peaks. The case was reheard last December at the Pasadena Court of Appeals, a little more than five hours south of San Francisco.

In an 8 – 3 decision issued Aug. 8, the court overturned the previous ruling and temporarily denied attempts by tribes and environmental groups to stop the ski resort’s plans to expand development on the mountain. It said the tribes had failed to establish a violation of the Religious Freedom Restoration Act “because the presence of recycled wastewater on the ski area would not coerce the tribes to act contrary to their religious beliefs.”

The “decision not only places these ways of life in peril, but sets the stage for an ecological and public health catastrophe,” said Jeneda Benally, member of the Save the Peaks Coalition, in a release.

The U.S. Forest Service manages the San Francisco Peaks as public land and has faced multiple lawsuits since it approved the site for development in 2005 from the Navajo Nation and the Hopi, White Mountain Apache, Yavapai Apache, Hualapai and Havasupai tribes, and such environmental groups as Sierra Club, Flagstaff Activist Network and Center of Biological Diversity, the release stated.

Tribes had argued religious rights under the RFRA. But in the court’s recent ruling, eight of 11 justices found that using reclaimed sewer water to make snow on the sacred site posed no “substantial burden” on the plaintiffs’ exercise of religion.

The “only effect of the proposed upgrades is on the plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the plaintiffs’ religious sensibilities … the diminishment of spiritual fulfillment – serious though it may be – is not a ‘substantial burden’ on the free exercise of religion,” the justices said.

“The opinion is unfortunate and, in my opinion, wrong,” said attorney Howard Shanker, who represented several of the plaintiffs in the case and is also a candidate for Congress in Arizona’s Congressional District 1.

Shanker said the court placed itself in the improper role of judging the legitimacy of Native beliefs and said that using sewage water “constitutes a significant burden” on tribes’ abilities to practice their religion.

“In this country, Native Americans have no First Amendment rights when it comes to government land use decisions,” Shanker said in a press release. “This case was the last, best chance for the tribes to be able to provide some legal protection to those lands.”

Shanker said the plaintiffs plan to petition the U.S. Supreme Court to review the decision. Francis Tso of the Save the Peaks Coalition added the ruling sets a “negative precedent” that impacts the future of Native religious practice. He said the plaintiffs would also seek a reversal of the ruling.

The three dissenting judges from the en banc court argued that RFRA was passed to protect the exercise of all religions and that if Natives’ land-based exercise of religion was not protected by RFRA in this case, they could not imagine a case in which it would be. “I am truly sorry that the majority has effectively read American Indians out of RFRA,” one judge wrote.

Environmental groups also argued that the Forest Service violated the Environmental Policy Act.

“Eight of 11 judges decided to completely ignore the issue of what happens if a child were to eat this snow,” said plaintiff Rudy Preston of the Flagstaff Activist Network in a release.

Taylor McKinnon, public lands director at the Center for Biological Diversity, said environmental groups would also appeal the decision.