FLAGSTAFF-Robert Tohe was at his desk Oct. 17 when he opened the e-mail revealing that the battle over the San Francisco Peaks is not over. As the Environmental Justice Coordinator for the Sierra Club for the Flagstaff Environmental Justice Office, Tohe, like Native American rights activists throughout the Southwest-and indeed the world-was surprised when the 9th Circuit Court granted a rehearing of its ruling against the use of reclaimed wastewater on the San Francisco Peaks.
The March 7 decision that stopped the U.S. Forest Service and the Arizona Snowbowl's plans to proceed with the making of artificial snow ruled that the Forest Service had violated the National Environmental Protection Act in providing scientific evidence that wastewater is not harmful to human ingestion and contact, and further, its plans to use "recycled sewage effluent" was in violation of the Religious Freedom Restoration Act.
"The Court felt that the tribes had met the benchmarks under the Religious Freedom Restoration Act to show that wastewater use on the mountain should not occur," Tohe said. "The tribes showed compelling evidence that Alternative 2 placed substantial burden on their ability to practice their faith, and that there was no compelling reasons for the Forest Service to advance that plan," Tohe continued. "The Forest Service was trying to elevate the private business profitable of one person to a level of compelling government interest to go forward with the plan.
"When I read the news, I thought to myself, 'Well, it's true-the sacred peaks still need protection.' I was surprised at the news, but I was not surprised at how long it took for the 9th Circuit to say it would be rehearing the case."
Tohe believes that this decision was fueled by fear.
"I think that people are very afraid-we've heard the level of fear repeated in the court testimony against the tribes," Tohe said. "One fear is that the federal control over public lands will be eroded."
Tohe's assertion is demonstrated by the March 12 statement issued by Snowbowl general partner Eric Borowsky that fed the fire burning between snowmaking proponents and opponents.
"Unfortuantely, once again, the NEPA process has been abused and the taxpayers of our country held for ransom by a small group of activists who believe that they personally own our nation's public lands," Borowsky wrote. "If this ruling is allowed to stand, then our national policy and congressionally mandated multiple use doctrine on public lands is dead for all practical purposes."
This assertion is unfounded, Tohe said.
"The Forest Service and the Arizona Snowbowl has built this level of fear," Tohe said. "This might have caused the Ninth Circuit to rethink what they've decided. They've been told that the March decision promotes religious servitude, and they don't want to have to deal with that in the equation"
"Over the years, tribal use of most of the sites out there have been limited or restrained," Tohe continued. "The tribes have lost the rights to lands that have fallen under the control of federal agencies such as the U.S. Forest Service.
"This struggle is more than an access issue-this is about the totality of the Peaks, that the entire site is sacred, not just a percent of it," Tohe said. "The truth is that the laws that the tribes depend on are so narrow and restrictive, they really can't do the things that the snowmaking supporters are claiming would happen if the tribes do prevail in this case."
The tribes originally believed the Peaks would be protected under the American Indian Religious Freedom Act, Tohe said, but that didn't happen. Regardless, he continued, tribes do have legitimate religious practices and beliefs.
"While case law has been building to support religious freedom, the bottom line is that the tribes really do not have relief or the First Amendment rights that other faiths and religious groups enjoy," Tohe said. "This announcement sends the message that there will be no special places left.
"Proponents of snowmaking are using the argument that Flagstaff will benefit from this, and we as opponents are saying totally the opposite-that snowmaking does threaten these places. They don't seem to understand that this can undermine our cultural integrity and our values, our identity as a people here."
Howard Shanker, who represents the plaintiffs in the appeal-including the Navajo Nation, White Mountain Apache, Yavapai-Apache, Havasupai Tribe and the Sierra Club-was also surprised.
"Their decision came as a complete surprise," Shanker said in an interview on Oct. 18. "The federal appellate court rehears only one or two percent of its petitions each year. It is stated in the court rules that seeking review is not favored-and such requests are generally granted rarely."
Shanker allowed that he had no idea when the review would take place-so once again more than 13 tribes that hold the Peaks sacred are playing a waiting game.
"The decision of the Ninth Circuit to rehear this case is regrettable" Shanker said in a press release. "It means that the Court will reconsider the case-not that it has reversed any decision at this point. It is, however, even more regrettable that our federal government seems to place the profitability of a privately owned, non-destination ski area, that operates on federal land, over the deeply held religious and cultural convictions of hundreds of thousands of Native Americans living in the southwestern United States."
Shanker, a candidate for Arizona Congressional District One, also said, "this situation is indicative of the fact that we need better laws and lawmakers who are willing to stand up and be counted in the face of this type of injustice. The continued pursuit of reclaimed wastewater to make snow on the San Francisco Peaks should be an affront to all people of conscious everywhere."
Though Rudy Preston of the Flagstaff Activist Network expressed confidence that a hearing en banc by the Ninth Circuit Court would only make the March ruling stronger, others fear that the Court may once again decide that the Forest Service's Final Environmental Impact Statement violated the National Environmental Protection Act through the use of "recycled sewage effluent" while removing the victory that strengthens the Religious Freedom Restoration Act.
In a press release posted on the Arizona Snowbowl Web site dated Oct. 17, the owners of the Snowbowl interpreted the ruling to "mean that a majority of judges agreed that there is a problem with the decision reached in March and a review is in order."
Further, the release contends that the Snowbowl "has always believed that recreation has a place on public lands" and serves as "an example of multiple-use for the benefit of everyone."
"Why in 2007 do we as America's First People have no guarantee for protection of our religious freedom?" asked Jeneda Benally a volunteer with the Save the Peaks Coalition. "The case to protect the sacred San Francisco Peaks demonstrates the need for further protection of Native American religious freedom and rights in this country. We will continue our dedication to save the Peaks until we have our human rights fully upheld."