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Religious Freedom and Restoration Act tested

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FLAGSTAFF, Ariz. -- In a stunning Jan. 11 opinion, U.S. District Court
Judge Paul Rosenblatt rejected every argument American Indians presented to
prevent further desecration of the San Francisco Peaks in northern Arizona.
The Peaks, sacred to 13 tribes, are federal lands managed by the U.S.
Forest Service. Despite decades of protests, a ski resort has operated
there since 1938.

"This is another slap in the face," said Rex Tilousi, tribal council member
and former chairman of the Havasupai Tribe, who testified during the trial
on religious freedom issues raised by the lawsuit.

The suit, brought against the Forest Service by six tribes and three
environmental groups, was filed in June 2005 after the Forest Service
approved Arizona Snowbowl owners' 2002 application to make changes at the
ski resort. The most controversial is a plan to use recycled wastewater to
make snow.

The application triggered an Environmental Impact Statement under
provisions of the National Environmental Policy Act. In February 2005,
Coconino National Forest Supervisor Nora Rasure approved snowmaking and the
construction of related infrastructure. Tribes filed an appeal, and
Southwestern Regional Officer Harv Forsgren affirmed Rasure's decision.

Nine days later, the tribes filed suit.

The judge consolidated the lawsuits and ordered an October bench trial to
hear arguments on the matters related to the Religious Freedom and
Restoration Act of 1993.

The six tribal plaintiffs -- Navajo, White Mountain Apache, Yavapai-Apache,
Havasupai, Hualapai, and Hopi -- were joined by plaintiffs Norris Nez,
Navajo, Bill "Bucky" Preston, Hopi, Rex Tilousi, Havasupai, Dianna Uqualla,
Havasupai, and three environmental groups.

Defendents were the Forest Service, Rasure and Forsgren. Rosenblatt allowed
Snowbowl's current owner and operator to intervene. Attorney and former
Secretary of the Interior Bruce Babbitt represented the owners.

The case is one of the first legal challenges to RFRA and as such has set
an important precedent.

Yavapai-Apache Nation Tribal Chairman Jamie Fullmer and Apache Historian
Vincent Randall said in a Jan. 12 statement: "Recent history has shown the
federal courts are not supportive of Native American sensibilities and
traditions when it comes to issues concerning the landscape and spiritual
health of our People."

The plaintiffs argued that the EIS was based on an "impermissibly narrow"
premise -- "to ensure a consistent and reliable operating season, thereby
maintaining the economic viability of the Snowbowl."

Rosenblatt disagreed: "The Court concludes that the Forest Service's
statement of purpose ... is not unreasonable ... [T]he goal of providing a
reliable ski season is consistent with the Forest Service's multiple-use

Once this premise was accepted, other arguments fell by the wayside.

Phoenix attorney Howard Shanker, who represented the Navajo, Yavapai-Apache
and White Mountain Apache tribes and the environmental groups, said in a
statement Jan. 12: "[T]he federal government felt, and the court affirmed,
that the economic viability of the Arizona Snowbowl Resorts Limited
Partnership was more of a priority than the beliefs of hundreds of
thousands of Native Americans."

NEPA requires that federal agencies consult with tribes on projects that
could impact them. According to the judge, the Forest Service fulfilled
that obligation:

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"[T]he Forest Service made over 200 phone calls, held 41 meetings, and
exchanged 245 letters with tribal representatives. Although the
consultation process did not end with a decision the tribal leaders
supported, this does not mean that the Forest Service's consultation
process was substantively and procedurally inadequate."

This conclusion jives with what Heather Cooper (now Heather Provencio) said
in 2002: that there was no provision in NEPA by which a tribe could state
an adverse effect serious enough so that the Forest Service supervisor
would be required to deny an application.

The most far-reaching element of this case is the challenge to RFRA. At
issue is whether RFRA protects American Indians' religious rights as they
themselves define those rights and the necessary circumstances for
practicing their religions, or whether it simply extends to American
Indians the right to practice their religion in a way and to an extent that
the federal government deems appropriate and adequate.

Rosenblatt's opinion strongly favored the federal government, though tribal
leaders and religious practitioners testified at length about how the use
of reclaimed wastewater to make snow would negatively impact the very
foundations of their religious beliefs.

Hopi Cultural Preservation Office Director Leigh Kuwanwisiwma testified for
seven hours on Oct. 17, 2005. "[The proposal] violates the basic principle
of what the mountain stands for in the spiritual life of the Hopi people.
To make snow on the mountain does not just desecrate the mountain; it
defiles it."

Under RFRA, the government may not impose a "substantial burden" on the
practice of religion without a compelling reason to do so. So two issues
must be decided -- whether a substantial burden exists and, if it does,
whether the government has an interest sufficient to allow imposition of
such a burden.

After the Native witnesses testified, two Forest Service archaeologists,
Judith Propper and Heather Provencio, were asked to evaluate whether tribes
would suffer a substantial burden.

Read the opinion, "Propper testified that although practitioners sincerely
felt that the Forest Service decision would impact their beliefs and
exercise of religion, the impacts did not amount to a substantial burden."

Speaker of the Navajo Nation Council Lawrence T. Morgan said in a
statement, "The sanctity of our cultural and spiritual relevance has been
violated. The U.S. District Court has now seemingly underscored this
without hesitation."

"This is a devastating tragedy for all those who value environmental
health, culture and religious freedom." said Save the Peaks Coalition's
Klee Benally in a press release.

"The tribe is devastated," said Alicia LaCounte, an attorney for the
Havasupai Tribe, on Jan. 13. "The San Francisco Peaks are part of every
religious ceremony the Havasupai perform. Every aspect of my clients'
religion is related to that mountain. It is the equivalent of the Garden of
Eden in the Judeo-Christian tradition."

Shanker said in a statement, "This decision further eviscerates the rights
of Native Americans to protect sacred lands that are essential to their
belief systems."

He continued, "It seems to me that requiring 'objective' proof that
something is sacred makes no sense. Short of producing God at the trial, it
is not clear how this could be accomplished ... Based on the reasoning by
the court, no substantial burden can ever be demonstrated by Native
American practitioners under similar circumstances."

According to Shanker, Navajo Nation President Joe Shirley Jr. has said,
"[The] Navajo Nation will do whatever it takes to try to stop the use of
reclaimed sewer water to make artificial snow on the sacred San Francisco

Kuwanwisiwma said on Jan. 16 that he had been assured the Hopi Tribe would