FLAGSTAFF, Ariz. - Arizona's sacred San Francisco Peaks and the neighboring tribal communities were denied environmental justice Friday in a split decision by the Ninth Circuit Court of Appeals, ruling in favor of the Arizona Snowbowl ski resort in its efforts to expand and contaminate the area.
"The court failed to consider the claims of the impacts to human health form 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, Arizona. "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 San Francisco Peaks, north of Flagstaff, Arizona, are sacred to 13 tribes and are important spiritual and geographic boundaries. The tribes had brought legal claims under the Religious Freedom Restoration Act (RFRA) and the National Environmental Policy Act against the U.S. Forest Service from implementing a snowmaking proposal using reclaimed water to make artificial snow on the Peaks.
Attorney Howard Shanker represented the tribes and the Sierra Club, and he said, "The opinion is unfortunate and, in my opinion wrong. 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 the Peaks are important to 13 of the Tribes in the southwestern United States and that using sewer water to make snow on them constitutes a significant burden on the Tribe's ability to practice their religion."
The Sierra Club agrees with the minority's dissention, which read, "In so holding, the majority misstates the evidence below, misstates the law under RFRA and misunderstands the very nature of religion." (from page 39 of decision). The Sierra Club will consult with co-plaintiffs to determine the next steps following this ruling.
"The Sierra Club will continue to support our tribal partners to bring as much protection to the Peaks as possible and will continue to educate the public about the importance of protecting sacred lands located on public lands, from irresponsible developments like artificial snowmaking," said Sierra Club Environmental Justice organizer Robert Tohe.
The preliminary March ruling was one of the most important in recent years under the Religious Freedom Restoration Act (RFRA). 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.
Tribes involved in the lawsuit include Navajo, Yavapai-Apache, White Mountain Apache, Hopi, Havasupai, and Hualapai.
Since the first major expansion of the Snowbowl ski areas occurred more than 28 years ago, tribes have been involved in court battles over the San Francisco Peaks.