On January 11, United States District Court Judge Paul G. Rosenblatt issued his decision in Navajo Nation v. U.S. Forest Service, ruling against six Native American tribes that had sued to stop the expansion of a Forest Service ski area on Arizona’s San Francisco Peaks.
The plan would produce snow from water reclaimed by a Flagstaff sewage treatment facility and was the final step in a larger expansion scheme approved in a 1979 court decision.
"This ruling is a devastating tragedy for all those who value environmental health, culture, and religious freedom," said Klee Benally, Navajo of the Save the Peaks Coalition. "This is a miscarriage of justice. This is a defeat for those who have faith that the justice system is unbiased and indiscriminate, and all of us, native or not, will pay the price."
The tribes, which included the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai Apache Nation, and the White Mountain Apache Nation, all consider the peaks a sacred site and argued that the snowmaking plan would violate their rights under the Religious Freedom Restoration Act. They also claimed that using treated sewage water would have negative environmental effects.
But Rosenblatt rejected those claims. Because the earlier court decision had already approved the work on the ski area, the Forest Service in this case had only to show that it had given due consideration to the snowmaking plan’s environmental and religious consequences and that it had examined alternative approaches.
Rosenblatt found that that the service had, indeed, met that relatively low standard.
The court did give special attention to the tribes’ claims in regard to the Religious Freedom Restoration Act, but the act’s narrow definitions doomed those claims from the start.
Under the act, the snowmaking plan would only be disallowed if it limited the tribes’ access to the mountain or prevented them from practicing their religion. Rosenblatt interpreted religious practice to be defined only by specific ceremonial sites or access to plants and animals used in ceremonies, and since the ski area did not contain any specific ceremonial sites or unique species, he found that the plan did not violate the act.
This reasoning reached its apotheosis in the case of one individual plaintiff, a Hopi religious leader named Bill Bucky Preston.
In rejecting Preston’s claims under the Religious Freedom act, Rosenblatt explained, apparently without irony, that "Plaintiff Preston does not conduct any religious activities within the [ski] area. Plaintiff Preston testified that the Snowbowl’s presence on the peaks prevents him from doing so."
Howard Shaker, a lawyer representing several of the tribes, summarized the judge’s decision: "The federal government felt, and the court affirmed, that the economic viability of the Arizona Snowbowl Resorts Limited Partnership was more of a priority than the beliefs of hundreds of thousands of Native Americans."
The tribes said that they would appeal the judge’s ruling and would seek an injunction.
"This is not the end," said Bucky Preston. "We have to continue to go forward in a peaceful way, until we let the mountain know that we’re not going to give up."
