PASADENA, Calif.-On Tuesday, Dec. 11, a coalition of Native American nations and environmental justice groups worked together to defend their precedent-setting victory for religious freedom and public health. The Federal Appeals Court in Pasadena heard oral arguments concerning religious freedom violations, environmental destruction and human health dangers associated with the use of treated sewage effluent for snowmaking in proposed ski area development on Arizona's San Francisco Peaks.
The case was argued before 11 judges with arguments focused on Forest Service violations of the National Environmental Policy Act (NEPA) and substantial burden placed upon Native American religious freedom. This case is viewed as precedent-setting in establishing an interpretation for the Religious Freedom Restoration Act (RFRA), which was passed in 1993.
"We are hopeful that we get a majority of the judges to understand that this is an important religious rights issue," said Jack Trope of DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston.
"This law was enacted by Congress to protect religious freedoms and should apply to Native Americans who have land-based religions and sacred sites in the same way that it applies to everyone else," Trope said.
Howard Shanker, who argued the case on behalf of the Navajo Nation, the Yavapai-Apache Nation, the White Mountain Apache Tribe, the Havasupai Tribe, the Sierra Club, Center for Biological Diversity and others, urged the court to adopt legal principles that would help protect the San Francisco Peaks and other sacred/holy sites across the country.
"The case is now in the hands of the court. The bigger question that needs to be addressed is why we are forced to go to court to stop the federal government from defiling holy sites in the first place," Shanker said. "This is an untenable situation that needs to be addressed in Congress."
Ben Nuvamsa, Chairman of the Hopi Tribe, explained his view of the Peaks battle.
"We hold the San Francisco Peaks very sacred and by allowing this small ski resort to expand and use the reclaimed water to make snow will have a detrimental and lasting impact on the sanctity of Nuva'tukiyaovi (San Francisco Peaks) and on our ceremonies," he stated. "Our rights under RFRA need to be acknowledged as Native people."
Lawrence T. Morgan, Speaker for the Navajo Nation Council said, "The Federal Government and the courts must provide Native Americans with guaranteed protection for our religious freedom as afforded to all other Americans. Our cultural survival is in peril-as threats continue to destroy and challenge our sacred and majestic mountains."
"It's pretty clear that the Forest Service did not do an adequate job of the NEPA [National Environmental Policy Act] process and did not adequately address the mitigation of health hazards that are going to be coming from the reclaimed effluent water," Hopi Chairman Ben Nuvamsa added.
A judge on the panel noted that although the Arizona Department of Environmental Quality approved the sewer water for snowmaking, it "... did not specifically approve sewer water for skiing or playing." Another judge stated that, "nowhere in the EIS [Environmental Impact Statement] does it analyze the likelihood of children ingesting the snow."
When the attorney for the Arizona ski resort stated that she would drink the sewer water, one of the judges responded, "You would probably swallow a sword to help your cause."
Rudy Preston of the Flagstaff Activist Network, a plaintiff in the case, noted, "The courtroom was overflowing with our supporters, including some who have traveled from across the country. We came here to support the original ... decision by the Ninth Circuit Court that created sane, responsible case law, which is just a small step in bringing humanity back in balance with ... Mother Earth."
The court gave no indication when a decision would be made.
"There is no way to know," Trope stated. "It could be two months or it could be a year. There are no time limits."
About 300 Save the Peaks Coalition members and community supporters marched two miles from All Saints Church in Pasadena to the federal courthouse to witness the court proceedings and lend their strength to the tribal dignitaries, religious leaders and environmental groups.
Reverend Wilma Jakobsen from All Saints Church offered a prayer of support recognizing that the implications of this case extend beyond Native American religious freedom.
"We believe that we are stewards of the land, the land belongs to God, we are caretakers ... of it while were here on earth," Jakobsen said.
"We are at a pivotal point in history," said Jeneda Benally of the Flagstaff-based Save the Peaks Coalition. "The decision that will be made in this case has farther reaching impacts than most people recognize; religious freedom, environmental destruction and our public health are at stake."
"It's time that America goes beyond the belief that the land's only purpose is for development," Shanker said. "The cultures that I represent in court have religious beliefs that are intricately tied to the Earth and up until the Ninth Circuit Court victory, they had no First Amendment Rights with regard to the federal land that they hold sacred."
"The federal government is charged with protecting Native rights and beliefs," Bess Bennett, a volunteer with the Save the Peaks Coalition, said. "The government also has a responsibility to protect human health. This proposed development would ... harm both. Developers and government agencies such as the Forest Service act in spite of laws such as the American Indian Religious Freedom Act of 1978, Native American Graves Protection and Repatriation Act, and most recently, the United Nation's Declaration for the Rights of Indigenous Peoples. These laws are supposed to ensure the protection of human rights." Bennett said, "Sacred sites and sacred burial sites continue to be desecrated at an alarming rate. This is a tragedy that ... scars America's cultural and natural heritage."
Megan Buchanan, a Save the Peaks Coalition volunteer who made the drive to Pasadena to join the march with her family, stated, "The judges' ruling last spring in San Francisco was sensible and respectful. How is government subsidizing of a tiny ski operation in the high desert a 'compelling government interest?' As a mother, I cannot imagine allowing my daughter or any child to play or ski on snow made from treated sewage water. In court the Snowbowl and Forest Service lawyers said they would drink the sewer water and allow their kids to play in snow made from treated sewage effluent. Statements such as those are irresponsible and dangerous. As parents and stewards of our environment, we need to do all we can to keep children safe. I hope the judges will agree."
Snowbowl ski area has made claims that their business contributes an unverified $10 million to the economy of Flagstaff, which has an agreement to sell the sewer water for snowmaking purposes.
The city of Flagstaff's financial records, however, contradict Snowbowl's claims. City records show that more money is spent in Flagstaff when the roads are clear and that Snowbowl is not a significant driver of Flagstaff's winter economy. Relying only on natural snow, the Snowbowl ski area opened Dec. 13.
Nuvamsa stated, "I'm not sure if 10 million ... is an accurate figure. It's very optimistic, especially given the global warming and how the inadequate snowfall pretty much determines the success of any ski season. What is more stable economically to the Flagstaff area is what Native peoples bring to the town. I want to encourage everybody to continue to practice their religion, their culture, continue to pray, continue to visit these sacred areas, because that is what sustains us, spiritually, emotionally, and also physically. That's who we are."
"Lets all come and put our prayers together so that in the end the right decision is made."