(This article was originally published in
the Navajo-Hopi Observer)

FLAGSTAFF, Ariz. — Arizona's sacred
San Francisco Peaks and the neighboring
tribal communities were denied environmental
justice in early August in a split decision
by the Ninth Circuit Court of Appeals, ruling
in favor of the Arizona Snowbowl ski resort
in its efforts to expand and contaminate the
area.
    "The court failed to consider the claims
of the impacts to human health from coming
into contact with the treated waste from
reclaimed water and did not take seriously the
tribes' legal claims because of a court technicality,"
said Andy Bessler with the Sierra
Club in Flagstaff, Ariz. "The decision leaves
unaddressed water quality issues, since the
court failed to decide if using reclaimed water
on the Peaks was safe for the environment or
for human health."
    The San Francisco Peaks, north of Flagstaff,
are sacred to 13 tribes and are important
spiritual and geographic boundaries.
The tribes had brought legal claims
under the Religious Freedom Restoration
Act and the National Environmental Policy
Act against the U.S. Forest Service from
implementing a snowmaking proposal using
reclaimed water to make artificial snow on
the Peaks.
Attorney Howard Shanker represented the
tribes and the Sierra Club.
    Shanker said, "The opinion is unfortunate
and, in my opinion, wrong. The court places
itself in the position of judging the legitimacy
of Native American beliefs and practices. It
becomes the arbiter of religion, which is not
the proper role for the courts. The evidence
clearly shows that the Peaks are important to
13 of the Tribes in the southwestern United
States and that using sewer water to make
snow on them constitutes a signifi cant burden
on the Tribe's ability to practice their
religion."
    The Sierra Club agrees with the minority's
dissention, which read, "In so holding, the
majority misstates the evidence below, misstates
the law under RFRA and misunderstands
the very nature of religion" (from Page
39 of decision). The Sierra Club will consult
with co-plaintiffs to determine the next steps
following this ruling.
    "The Sierra Club will continue to support
our tribal partners to bring as much protection
to the Peaks as possible and will continue to
educate the public about the importance of
protecting sacred lands located on public
lands, from irresponsible developments like
artificial snowmaking," said Sierra Club Environmental
Justice organizer Robert Tohe.
    The preliminary March ruling was one
of the most important in recent years under
the Religious Freedom Restoration Act. In
addition to finding that the snowmaking plan
would have desecrated this sacred area, the
court decided that the U.S. Forest Service
failed to fully disclose the risks posed by human
ingestion of artificial snow.
    Tribes involved in the lawsuit include
Navajo, Yavapai-Apache, White Mountain
Apache, Hopi, Havasupai and Hualapai. The
San Francisco Peaks are held sacred to tribes
spanning throughout New Mexico, Utah and
beyond.
    Since the first major expansion of the
Snowbowl ski areas occurred more than 28
years ago, tribes have been involved in court
battles over the San Francisco Peaks.

NOTE: To share your ideas concerning the
decision, e-mail Silve Scene Editor Rebecca
Jacobs at rjacobs@cybermesa.com.