KYKOTSMOVI-Hopis reacted with overwhelming gratitude to the 9th U. S. Circuit Court of Appeals' ruling last Monday against the proposal by Arizona Snowbowl to use treated effluent to make artificial snow on Nuvatukya'ovi - the San Francisco Peaks. The Hopi tribe and the Hopi people, who consider Nuvatukya'ovi essential to their religion and culture, breathed a collective sigh of relief.
Newly elected Chairman Benjamin Nuvamsa voiced the sentiments of his constituents by stating, "We acknowledge the decision of the Court with humility. This is a humble victory for the Hopi people for it was their resolve and commitment that enabled the Hopi Tribal Council to proceed in asking for legal relief. This decision reflects, I believe, a sincere recognition by the Appeals Court of basic human rights and the rights of Hopi people, which deserve protection."
Since 1979, the Hopi Tribe has opposed expansion of Arizona Snowbowl's permit area on the Peaks when it filed a lawsuit to stop Coconino National Forest from allowing an increase in its permit acreage, arguing that further development would violate Hopi First Amendment rights. Those earlier suits were unsuccessful.
Around 1998, the Arizona Snowbowl proposed further expansion of its operations on the mountain, including the use of 100 percent sewage effluent to make artificial snow and thereby extend their ski operation season. As was recognized by the Ninth Circuit, the Snowbowl's proposal to use only sewage effluent to make artificial snow for skiing, if approved, would have been the first of its kind. Other ski resorts that make artificial snow with reclaimed waste water combine that use with potable water sources.
Hopi and other tribes clearly and vehemently opposed the Snowbowl's proposal all the way through the National Environmental Policy Act (NEPA) process engaged in by the Coconino National Forest.
The Hopi argued that the use of any water to produce artificial snow was contrary to the Tribe's religious practice, but the use of sewage effluent to make snow on the sacred Nuvatukya'ovi would irreparably damage the Tribe's and the Hopi people's religion, culture and tradition.
The Hopi challenged the Forest Service's decision to approve the proposal, bringing NEPA, National Historic Preservation Act (NHPA), and Religious Freedom Restoration Act (RFRA) claims against the Forest.
As stated by Professor Emory Sekaquaptewa at the bench trial held before the District Court on the Tribe's claims in 2005, the desecration of the mountain that would be caused by Snowbowl's proposal would cause the Katsinam dances - the central Hopi religious dance - to lose their religious value, rendering them simply, "a performance for performance sake." The Hopi's deeply held belief system involving the Peaks and the Katchina were recognized by the Ninth Circuit, which quoted Professor Sekaquaptewa's and other Hopi's testimony at trial and found that," We uphold the RFRA claim in this case in part because otherwise we cannot see a starting place. If [the Tribes] do not have a valid RFRA claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred."
On the day the Ninth Circuit's decision was announced, Chairman Nuvamsa at a press conference expressed his gratitude to the many people who came forward to support the Hopi Tribe's effort, including Hopi religious leaders, clan leaders, the Cultural Resources Advisory Task Team, the Hopi Tribal Council members, the Offices of the General Counsel and the Hopi Cultural Preservation Office who worked collaboratively in preparing the Tribe's case.
Chairman Nuvamsa is hopeful that the Coconino National Forest and the United States Department of Justice will respect the decision of the Ninth Circuit Court of Appeals, and that the Forest will work toward mending its relationship with the Hopi Tribe and the Hopi people.
"We have much of mutual interest as far as the management of resources within the Forest" Chairman Nuvamsa said. "I believe the U. S. Forest Service should demonstrate a clear commitment in respecting tribal values so that the Hopi people's interests are genuinely reflected in their decisions. Coconino's decision to allow the use of recycled wastewater to produce artificial snow to simply guarantee a 'consistent ski season' for the Arizona Snowbowl was not a wise decision and caused enormous rift between us," he said. "We need to work toward a respectful relationship and learn from this unfortunate experience."