9th Circuit Court of Appeals rehears case in en banc Procedure
Pasadena, CA – On Tuesday December 11, 2007, a coalition of Native American Nations and environmental justice groups worked together to defend their precedent-setting victory for religious freedom and public health. The Federal Appeals Court in Pasadena, California, heard oral arguments concerning religious freedom violations, environmental destruction and human health dangers associated with the use of treated sewage effluent for snowmaking in proposed ski area development on Arizona's San Francisco Peaks.
The case was argued before 11 Judges with arguments focused on Forest Service violations of the National Environmental Policy Act (NEPA) and substantial burden placed upon Native American religious freedom. This case is viewed as precedent-setting in establishing an interpretation for the Religious Freedom Restoration Act (RFRA), which was passed in 1993.
“We are hopeful that we get a majority of the judges to understand that this an important religious rights issue,” said Jack Trope of DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “This law was enacted by Congress to protect religious freedoms and should apply to Native Americans who have land-based religions and sacred sites in the same way that it applies to everyone else,” Trope said.
Howard Shanker, who argued the case on behalf of the Navajo Nation, the Yavapai-Apache Nation, the White Mountain Apache Tribe, the Havasupai Tribe, the Sierra Club, the Center for Biological Diversity and others, urged the court to adopt legal principles that would help protect the San Francisco Peaks and other sacred/holy sites across the country. "The case is now in the hands of the court. The bigger question that needs to be addressed is why we are forced to go to court to stop the federal government from defiling holy sites in the first place.” Shanker added, “This is an untenable situation that needs to be addressed in Congress."
9th Circuit Court of Appeals reverses decision in en banc Procedure
August 8, 2008, Flagstaff, AZ -- The 9th Circuit Court of Appeals issued a long awaited ruling today in the case to protect the environmental and cultural integrity of Arizona's San Francisco Peaks. The split decision overturned a previous court ruling and has temporarily denied attempts by tribes and environmental groups to stop Arizona Snowbowl Ski Resort from expanding development and making fake snow from treated sewage effluent on the holy mountain.
"The cultural survival of more than 13 Indigenous Nations is directly intertwined with the environmental integrity of the holy San Francisco Peaks," said Jeneda Benally, a volunteer with the Save the Peaks Coalition. "Today's decision not only places these ways of life in peril but sets the stage for an ecological and public health catastrophe. We have no choice but to uphold our commitment to protect the holy San Francisco Peaks," continued Benally.
The United States Forest Service manages the San Francisco Peaks as public land and has faced multiple lawsuits by the Navajo Nation, Hopi, White Mountain Apache, Yavapai Apache, Hualapai, and Havasupai tribes, as well as the Sierra Club, Flagstaff Activist Network, Center of Biological Diversity, and others after it initially approved the proposed ski area development in 2005.
In the most recent ruling, the Court found that using reclaimed sewer water to make snow for skiing on an admittedly sacred site posed no 'substantial burden' on the Plaintiffs' exercise of religion in this case. According to the Court, the "only effect of the proposed upgrades is on the Plaintiffs' subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs' religious sensibilities…the diminishment of spiritual fulfillment – serious though it may be – is not a 'substantial burden' on the free exercise of religion." The Court dismissed Plaintiffs' religious beliefs as calling them mere "damaged spiritual feelings."