On September 14, 2006 the 9th Circuit Court of Appeals in San Francisco, California will hear arguments in a legal battle that may decide the future of American Indian religious freedom and the ecological integrity of the San Francisco Peaks, a mountain held sacred by over 13 Native American nations.
Tribes and environmental groups have unified to halt Arizona Snowbowl’s development plans to expand the current ski area and use treated sewage effluent to make artificial snow on the sacred Peaks.
Although the plan is backed by the US Forest Service and has been allowed to go forward in a decision issued by Judge Rosenblatt of the US District Court of Arizona on January 11th 2006, Snowbowl has been forced to delay their proposed development.
Howard Shanker, representing the Navajo Nation, the White Mountain Apache Tribe, the Yavapai-Apache Tribe, the Havasupai Tribe, Rex Tilousi, Dianna Uqualla, the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network will argue the case against the expansion plan and use of treated sewage effluent to make snow before a three judge panel in San Francisco, CA.
In addition, presenting their case will be lawyers representing the Hopi Tribe and DNA People's Legal Services Inc. representing the Hualapai Tribe, and other tribal individuals.
The major points of the case are as follows (from Shanker’s opening statements to 9th Circuit Court):
Defendants Failed to Disclose and Discuss the Scientific Viewpoints
Submitted by Dr. Paul Torrence
Under NEPA, the agency is required to “disclose and discuss responsible opposing scientific viewpoints in the final statement itself.” Dr. Paul Torrence submitted an approximately 40 page treatise critical of the analysis of health and environmental impacts of using reclaimed sewer water for snowmaking included in the DEIS. The FS neither disclosed nor discussed Dr. Torrence’s viewpoints in the FEIS. The FS’s failure to “disclose and discuss” was without observance of the procedure required by law. It was also arbitrary, capricious, and/or not otherwise in accordance with law.
Defendants Failed to Consider the Fact That Children Might Eat Snow Made From Non-Potable Reclaimed Water
The only time that the possibility of eating snow is directly addressed in the FEIS is in the FS response to comments, which provides, in pertinent part, that, “[t]here will be signs posted at Snowbowl informing visitors of the use of reclaimed water as a snowmaking water source. . . it is the responsibility of the visitor or the minor’s guardian to avoid consuming snow made with reclaimed water. . .” ER 52. Defendants’ failure to adequately consider this impact was without observance of the procedure required by law, arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.
Defendants Refused to Consider the Impacts Associated With Withdrawal of 1.5 Million Gallons a Day of Reclaimed Water That is Currently Used to Recharge the Regional Aquifer Near Flagstaff
During the winter months, approximately 1.5 million gallons a day of effluent from the Rio de Flag treatment plant is currently introduced into the Rio de Flag River to recharge the regional aquifer in Flagstaff – where it is diluted with fresh water before it percolates into the underground aquifer. The FS refused to consider the impact of this diversion in its decision making process – noting that the City of Flagstaff was free to do whatever it wanted with its wastewater. This is an “indirect effect,” a “cumulative impact,” and/or a “connected action,” the impact of which should have been thoroughly considered in the FEIS. The FS’s refusal to consider this impact is without observance of the procedure required by law, arbitrary, capricious, and/or otherwise not in accordance with law.
Defendants’ Approval of This Project Violates RFRA
In finding that defendants did not violate the Religious Freedom Restoration Act (RFRA), the lower court: (1) ignored the FS’s own findings and Ninth Circuit precedent on demonstrating a “substantial burden” in the context of a government land use decision; (2) improperly interpreted sincerely held religious beliefs; (3) improperly interpreted the requirement that RFRA decisions be made in “context;” (4) applied improper legal analyses to the “compelling interest” and “least restrictive means” components of the strict scrutiny test; and (5) made clear errors in many of its findings of fact.