'Humble victory' in Peaks decision

By Kathy Helms
Staff Writer

KYKOTSMOVI — The Hopi Tribe has breathed a collective sigh of relief after learning of Monday's opinion from the 9th U.S. Circuit Court of Appeals ruling against the use of reclaimed wastewater on "Nuvatukya'ovi," the San Francisco Peaks.

The tribe and the Hopi people consider Nuvatukya'ovi essential to their religion and culture.

"We acknowledge the decision of the court with humility," said newly elected Chairman Benjamin Nuvamsa. "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," Nuvamsa said.

The Hopi Tribe has opposed expansion of the Arizona Snowbowl's use of its permit area on the Peaks since 1979 when it filed suit to stop Coconino National Forest from increasing its permit acreage, arguing unsuccessfully that further development would violate Hopi First Amendment rights.

Extended season
The tribe said that starting 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 thus extend its ski season.

The Hopi Tribe, the Navajo Nation, Sierra Club and other appellants challenged the Snowbowl plan, which would have sprayed up to 1.5 million gallons of reclaimed water on the mountain from November through February to build a base layer of artificial snow over 205.3 acres of Humphrey's Peak, the highest and most sacred Peak in the mountain chain.

The plan also includes a reservoir covering 1.9 surface acres to hold 10 million gallons of treated effluent, which would allow snowmaking to continue after Flagstaff cuts off the supply at the end of February.

Arizona Department of Environmental Quality approved use of the effluent for snowmaking in 2001, noting that four other states already permitted its use for that purpose. However, the Snowbowl would be the first ski resort in the nation to make its snow entirely from undiluted treated sewage effluent.

Undiluted effluent
The Snowbowl general manager testified in U.S. District Court that no other resort in the country currently makes its artificial snow "exclusively" out of undiluted sewage effluent, the Appeals Court noted.

The Hopi Tribe said that other ski resorts combine the wastewater with potable water. Appellants claimed that use of the treated sewage effluent would substantially burden their exercise of religion.

The court said that because appellants' religious beliefs and practices are not uniform, the precise burdens on religious exercise vary, but fall roughly in two categories:

The inability to perform a particular religious ceremony because it requires collecting natural resources from the Peaks that would be too contaminated for sacramental use; and,

The inability to maintain daily and annual religious practices because they require belief in the mountain's purity, or a spiritual connection to the mountain that would be undermined by the contamination.

Hopi, Navajo and other tribes vehemently opposed the Snowbowl's proposal all the way through the National Environmental Policy Act 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.

Challenge
The Hopi challenged the Forest Service's decision under NEPA, the National Historic Preservation Act, and the Religious Freedom Restoration Act.

At the bench trial in U.S. District Court, Professor Emory Sekaquaptewa, a Hopi tribal member and research anthropologist, testified that desecration of the mountain would cause the Katsinam dance ceremonies the central Hopi religious dances to lose their religious value, rendering them simply "a performance for performance sake," rather than a religious effort.

At a press conference Monday in Flagstaff when the 9th Circuit decision was announced, Hopi Chairman Nuvamsa 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, which worked collaboratively in preparing the tribe's case.

Nuvamsa said he is hopeful that Coconino National Forest Service and the U.S. Department of Justice will respect the 9th Circuit decision, and that the Forest Service 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," 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."