Act Locally » September 30, 2008
Wastewater Ski Slopes
A battle over sacred lands could be heading to the U.S. Supreme Court
'The court is placing itself in the position of judging the legitimacy of Native American beliefs,' says attorney Howard Shanker. 'It becomes the arbiter of religion, which is not the proper role for the courts.'
A legal battle over the fate of the San Francisco Peaks, one of the southwest’s most ecologically diverse and sacred mountains, could be heading to the U.S. Supreme Court.
A coalition of six Native American tribes and three environmental organizations says it intends to file an appeal after an Aug. 8 ruling by the 9th U.S. Circuit Court of Appeals favored Arizona Snowbowl Ski Resort, permitting the company to expand development and make snow from reclaimed sewage wastewater on a mountain that 13 tribes consider sacred.
The decision is the latest in a three-year legal battle – between the U.S. Forest Service and Arizona Snowbowl, and the Save the Peaks Coalition – over the 12,000-foot-high mountain range, seven miles north of Flagstaff, Ariz.
Proponents of making snow out of wastewater applaud the decision and claim it upholds the government’s right to manage public lands for multiple uses.
But Native tribes equate the decision to cultural genocide, and environmental groups argue the ecological and human health hazards associated with introducing wastewater on the mountain have not been properly investigated.
“The decision is a serious blow to Native Americans, the environment and the Peaks,” says Andy Bessler, southwest representative of the Sierra Club, one of the plaintiffs in the case. “It further goes to show that Native Americans don’t have a fair shake under the Constitution.”
Because of unpredictable winter snowfall – which has resulted in ski seasons as short as four days – Arizona Snowbowl argued that without snowmaking, the ski resort would have to shut down.
In 2002, the company proposed snowmaking with reclaimed wastewater sold by the city of Flagstaff. In 2005, the Forest Service approved the resort’s proposal, prompting the coalition of tribes and environmental organizations to file a lawsuit seeking corrective action for alleged violations of the 1993 Religious Freedom Restoration Act (RFRA) and the 1969 National Environmental Protection Act (NEPA).
In January 2006, a federal district court initially ruled against the coalition on all claims. But in March 2007, a three-judge panel of the 9th Circuit Court sided with the coalition on two claims and ruled the Forest Service’s decision violated the RFRA and the NEPA.
The recent 8-3 decision by the en banc court – an 11-judge panel of the 9th Circuit Court that re-heard the appeal – overturned the previous three-judge court ruling.
In the majority opinion, Judge Carlos T. Bea stated that Native American tribes failed to prove that the presence of wastewater on the mountain created a “substantial burden” on the practice of their religion and that the only effect of the proposed upgrades is on the plaintiffs’ “subjective, emotional religious experience.”
“The opinion is unfortunate and, in my opinion, wrong,” says attorney Howard Shanker, who represents the coalition of tribes and environmental organizations in the case. “The court is placing itself in the position of judging the legitimacy of Native American beliefs. It becomes the arbiter of religion, which is not the proper role for the courts.”
In an Aug. 8 press release, Jeneda Benally, a volunteer with Save the Peaks, said, “The cultural survival of more than 13 Indigenous Nations is directly intertwined with the environmental integrity of the holy San Francisco Peaks. [The court’s decision] not only places these ways of life in peril but sets the stage for an ecological and public health catastrophe.”
Although the previous court had sided with the plaintiffs on the NEPA claim, the en banc dismissed it because it said the claim was improperly filed at the district court level.
In his dissenting opinion, Judge William Fletcher argued that the majority opinion misinterpreted the law and that the claim should have been heard.
“The question at hand concerning the NEPA claim is: What happens if a child eats the snow?” says Rudy Preston, a member of the Flagstaff Activist Network, also a plaintiff in the case. “It is the question we raised from the very beginning. It was never answered and that is the reason we sued.”
Environmental groups argue that by throwing out the claim, the en banc court failed to uphold its responsibility to protect public health.
The Arizona Department of Environmental Quality has graded the reclaimed wastewater A+, which they have determined to be suitable for snowmaking.
But Preston argues the department is contradicting itself; it typically cautions people against contact with reclaimed wastewater because of known trace elements of chemicals dangerous to human health.
Attorney Shanker says the reasons why the NEPA claim was thrown out were not clear to him, although, he adds, “It is better than them ruling against it.” He says he is discussing with clients the possibility of re-filing that claim at the district level, in addition to the appeal to the U.S. Supreme Court.
J.R. Murray, Arizona Snowbowl general manager, says supporters of Snowbowl were pleased with the recent decision. Barring a Supreme Court hearing, he says Snowbowl plans to revise its plans and priorities for developing the resort this winter.
“Other than that,” he says, “we’re hoping for another great ski season.”
Sam Stoker is a freelance reporter based in Chicago.