Court backs tribes on Peaks
Use of recycled wastewater violates religious
freedom, appeals court rules
By Kathy Helms
Diné Bureau
WINDOW ROCK In a landmark decision for 13 Southwest
tribes, a federal appeals court held Monday that the use of recycled
sewage water to make artificial snow on the sacred San Francisco
Peaks violates their religious freedom.
The opinion by Judge William A. Fletcher of the 9th Circuit Court
of Appeals reversed a January 2006 ruling by U.S. District Court
Judge Paul G. Rosenblatt following arguments presented Sept. 14,
2006, in San Francisco.
The plaintiffs-appellants successfully argued that using treated
sewage water to make artificial snow at the Arizona Snowbowl Ski
Resort wouldpollute the mountain, significantly burden Southwest
tribal members' ability to practice their religions, and violate
the public's rights for environmental justice.
Judge Fletcher agreed, stating that the U.S. Forest Service's approval
of Snowbowl's use of recycled sewage effluent on the Peaks violates
the Religious Freedom Restoration Act, and that the Final Environmental
ImpactStatement does not comply with the National Environmental
Policy Act.
Howard Shanker of the Shanker Law Firm represented the Navajo Nation,
the Hopi Tribe, the Sierra Club, and others who sued the Forest
Service over its decision.
Shirley elated
As the news circulated, Navajos everywhere were overjoyed, according
to George Hardeen, spokesman for the Navajo Nation Office of the
President and Vice President.
Upon hearing the ruling, Navajo Nation President Joe Shirley Jr.,
said he was elated, and that he had never given up hope.
"Medicine people will feel the same way I do, happy,"
Shirley said in a press release. "The Religious Freedom Restoration
Act had never been tested. So I think this is a precedent-setting
decision.
"Now tribes out there have every means of protecting their
sacred sites, especially now that the law has been proven, and I
just really appreciate the judges' deciding in the way that they
have."
Shanker said the ruling is especially important because an earlier
case, Lyng v. Northwest Indian Cemetery Protective Assn., held that
Native Americans did not have First Amendment rights when it came
to federal government land-use decisions.
"Essentially, Native Americans have had no recourse challenging
government land-use decisions which often times impact sacred sites
and culturally significant sites," he said.
"What we've done here is under the Religious Freedom Restoration
Act we've created an avenue for tribes to protect those sites that
are sacred to them that impact their exercise of religion."
Shanker said this is the first case in which RFRA has been used
successfully in an appeal. "RFRA provides greater protection
for religious practices because it goes beyond the constitutional
language that forbids the 'prohibiting of the free exercise of religion
and uses the broader verb' burden," the Appeals Court said.
Wake-up call
"Tribes all over the country can benefit from this decision
and utilize it to protect sacred and religiously significant sites,"
according to Shanker. "This is a tremendous step forward in
preserving Native American cultural and religious beliefs."
Robert Tohe, an apprentice medicine man and Environmental Justice
organizer for the Sierra Club in Flagstaff, said, "This is
a national wake-up call for those that will try to desecrate sacred
mountains like the San Francisco Peaks. We will not allow our voices
to be ignored."
In addition to finding that the plan would have desecrated a sacred
area, Tohe said, "the court decided that the U.S. Forest Service
failed to fully disclose the risks posed by human ingestion of artificial
snow."
The San Francisco Peaks in the Coconino National Forest in northern
Arizona have long-standing religious significance to Southwest tribes.
The Snowbowl is located on Humphreys Peak, the highest and most
religiously significant of the Peaks.
Bucky Preston, one of the Hopi plaintiffs, said, "I am really
thankful and deeply appreciate the 9th Circuit Court's decision.
Some of the judges in the courts must have a good heart and looked
deeply into themselves to realize that the Peaks are so sacred to
us, and they understood our beliefs."
Read the full court decision at:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
64C37FB597BF2F848825729C0058BFE8/
$file/0615371.pdf?openelement
|
Tuesday
March 13, 2007
Selected
Stories:
Council welcomes
new members
Court
backs tribes on Peaks; Use of recycled wastewater violates religious
freedom, appeals court rules
Dog park to be
dedicated in April
Hitting the
Road; Bloodline set for major tour
Deaths
|