Court reverses decision protecting San Francisco Peaks

Court reverses decision protecting San Francisco Peaks

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John Ahni Schertow
August 11, 2008
 

The 9th Circuit Court of Appeals has issued its long awaited ruling surrounding Arizona’s San Francisco Peaks, and the religious freedoms of 13 Indigenous Nations who hold the Peaks sacred.

In a split decision, the court decided to reverse the previous March 2007 ruling that opposed the Arizona Snowbowl’s plan to add fake snow made from treated sewage wastewater on to the Peaks so their resort can play host to an extended Ski season.

“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,” explains a recent press release from the Save the Peaks Coalition.

“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,'” the release continues.

“The opinion is unfortunate and, in my opinion wrong,” says Howard Shanker, the lawyer representing the Navajo Nation, Havasupai Tribe, White Mountain Apache Nation, Yavapai-Apache Nation, the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network. “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 significant burden on the Tribe’s ability to practice their religion.”

Three of the Judges, however, fully agreed with Shanker, stating that “Religious exercise, invariably, and centrally, involves a ‘subjective’ spiritual experience;” and that “The majority’s misunderstanding of the nature of religious beliefs and exercise as merely ‘”subjective’ is an excuse for refusing to accept the Indians’ religion as worthy of protection under [the Religious Freedom Restoration Act] RFRA,” which, one judge explained, “was passed to protect the exercise of all religions, including the religions of American Indians. If Indians’ land-based exercise of religion is not protected by RFRA in this case, I cannot imagine a case in which it will be. I am truly sorry that the majority has effectively read American Indians out of RFRA.”

As to the environmental sanctity of the San Fransisco Peaks, “Eight of eleven judges decided to completely ignore the issue of ‘What happens if a child were to eat this snow?'” said Rudy Preston from the Flagstaff Activist Network, who’s a plaintiff in the case. “The court dismissed the whole health issue on a procedural error thereby refusing to comment on the true health impacts of this fake snow, which has been proven to contain harmful pharmaceuticals and personal care productions, on our children.”

In fact, a study known as the “Endocrine Disruptor Screening Project,” completed by Dr. Catherine Propper from the Northern Arizona University (NAU), and the US Geological Survey, found the presence of numerous substances in the water, including Human and veterinary antibiotics, antihistamines, codeine, oral contraceptives and other hormones, steroids, anti-seizure medication, solvents, disinfectants, flame retardants, wood preservatives, antifreeze, and pesticide.

This toxic concoction of “reclaimed” waste also poses a threat to the environment. A report by Amy Corbin on the Sacred Lands website points out that, “the snow made from wastewater would cover 205 acres and use 180 million gallons of ‘reclaimed wastewater,'” which will be applied every year, while the melted snow travels through the Mountain and into the pure water it holds. “The project also requires laying 14 miles of pipeline to deliver the water. Sending sewage water throughout the mountains to mix with pure water is a desecration of a place of worship,” Corbin adds, “especially in a land where water itself is sacred. To pollute what the Navajo Nation calls the “Holy house of our sacred deities whom we pray to and give our offerings” is to attack the cultural and spiritual traditions of virtually all of the local tribes.”

For more news and background, or to learn what you can do to help, please visit www.savethepeaks.org

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