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High court petitioned to protect sacredness, environmental integrity of San Francisco Peaks

WASHINGTON – The Navajo Nation and other interested parties have filed a petition with the U.S. Supreme Court seeking review of a precedent setting case to protect sacred sites and religious practices.

The Supreme Court is the last stop for Navajo Nation v. U.S. Forest Service, a case that began in 2002 when the service granted a special permit to the Arizona Snowbowl to expand its ski area and begin spraying up to 1.5 million gallons a day of treated sewage effluent as artificial snow on the slopes of the San Francisco Peaks.

The Peaks, a sacred mountain in northern Arizona, is revered by at least 13 American Indian tribes who consider the site “a home of spiritual beings; a place where significant mythological events occurred; a place where spirits of the dead went to be changed into bringers of rain; a personification of gods and goddesses; and a source of life,” according to the petition.

The Snowbowl is a private company that leases public land from the Forest Service. In addition to the nations’ interest in protecting their holy place, the case is a classic example of profit versus environmental integrity, public health and, as a lower court suggested, common sense.

The Navajo Nation, Havasupai Tribe, White Mountain Apache Nation, Yavapai-Apache Nation, the Hopi Tribe, the Hualapai Tribe, Rex Rilousi, Dianna Uqualla, the Flagstaff Activist Network, Norris Nez, and Bill Bucky Preston filed the petition Jan. 5.

The case has wended its way through district court to the high court. Following an unsuccessful administrative procedures appeal, the tribes and environmental partners sued the Forest Service in Arizona federal court. After an 11-day trial, that court ruled in the Forest Service’s favor, saying that spraying sewage water on the Peaks would not substantially burden the tribes’ exercise of religion.

The plaintiffs appealed to the 9th Circuit Court where a three-judge panel ruled in the tribes’ and groups’ favor, holding, first, that the waste water would make the tribes’ unable to perform ceremonial practices because the natural resources of the Peaks would be too physically and spiritually contaminated for sacramental use and, second, that expanding and improving the ski area’s facilities is not a governmental interest. The panel also ruled that the proper environmental analysis had not been conducted.

Last August, the full 11-member circuit court voted 8-3 to reverse the panel decision and allow the ski area to expand to 777 acres and use the recycled waste water on the holy mountain. The current petition asks the U.S. Supreme Court to review that decision.

Howard Shanker, of the Shanker Law Firm, who represents some of the plaintiff tribes and organizations, said the U.S. Supreme Court decision will be crucial to tribes’ religious rights and cultural preservation.

“From an Indian country perspective, as the law stands now Native Americans have no First Amendment rights when it comes to government land use decisions and there’s really no way for the tribes to substantively protect sacred sites or holy sites that are under the control of the federal government. In this case we use the law called the Religious Freedom Restoration Act, or RFRA, which under the current state of the law, may be the last best hope for tribes to be able to protect these sites.”

The RFRA, passed in 1993, prohibits the federal government from placing a “substantial burden” on a person’s exercise of religion unless the government’s action furthers a “compelling government interest” or “is the least restrictive means of furthering that compelling government interest.”

So, why hasn’t the RFRA been the standard for the lower courts?

“Well, you know what? These guys didn’t even know about RFRA. The Forest Service guys when they did their Environmental Impact Statement didn’t even know about it,” Shanker said.

Neither did the tribes, Shanker said.

“No one seemed to know about it. It never was really used in this way and, obviously, now a lot of other tribes have filed cases claiming RFRA. I don’t know (how they didn’t know about it), but depending on what happens with this one (in the U.S. Supreme court), RFRA could either be a very effective and useful tool or it could just be meaningless.”

The question being put before the high court is what constitutes a substantial burden on the exercise of religion?

“The three-judge panel said, ‘Use some common sense. This is a substantial burden.’ We put on elders and traditional practitioners to talk about what it meant to them to have reclaimed waste water on the peaks and it was clearly a substantial burden,” Shanker said.

But the en banc rejected the common sense and plain language argument, holding that the only effect of the wastewater snow “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.” In dismissing the case, the court called the plaintiffs’ religious objections mere “damaged spiritual feelings.”

Nine federal circuit courts have rendered rulings that are “deeply fractured” over the meaning of “substantial burden,” the petition says. This case presents “an ideal vehicle” to clarify the meaning.

“It is time for this court to step in,” the petition says. “RFRA is too important a statute to allow the lower courts to continue floundering in a state of confusion and disarray.”

Shanker said he expects the court to decide in April or May whether or not it will hear the case. Meanwhile, the Arizona Snowbowl is barred from expanding or using wastewater to make fake snow.

If the high court denies a review, the tribes have the option of seeking a legislative fix, Shanker said.