A plan to spread treated sewage on the San Francisco Peaks, which are sacred to 13 indigenous nations in the southwestern United States, cannot go forward, according to a March 12 ruling by the Ninth Circuit Court of Appeals.
The plan called for using sewage from the city of Flagstaff, Arizona, to make artificial snow for the Snowbowl ski resort in the Coconino National Forest, but the court unanimously ruled that it violates the Religious Freedom Restoration Act.
The appeal was brought by Hopi, Havasupai, Hualapai, Yavapai-Apache, White Mountain Apache, along with the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network in response to a decision from a US District Court in early 2006 that ruled in favor of the U.S. Forest service and the Arizona Snowbowl Resort.
"I am really thankful, and I deeply appreciate the Ninth Circuit Court’s decision," said Bucky Preston, one of the Hopi plaintiffs. "Some of the judges in the courts must have a good heart and looked deeply into themselves to realize that the peaks are so sacred to us, and they understood our beliefs."
Witnesses from the Hopi, Navajo, Havasupai, and Hualapai testified at length about how contamination of the peaks by sewage effluent would hinder their entire belief systems, along with specific cultural practices. The tribes’ religious creation stories begin at the peaks, which also are home to the plants and soil they use for healing and the pure water that is necessary for special ceremonies.
Writing for the court, Judge William A. Fletcher described the testimony of one Navajo practitioner who is training to become a medicine man: "Water is tainted if water comes from mortuaries or hospitals; for Navajo there’s no word to say that that water can be reclaimed."
Recycled sewage effluent is suitable for a variety of water-conservation measures. In the city of Flagstaff, it is used for flushing toilets, watering green spaces, putting out fires, and washing cars. But it is not fit for human consumption, as the water is impure. According to a Federal Environmental Impact Study, in addition to a variety of bacteria, viruses, and protozoa, sewage effluent contains "many unidentified and unregulated residual organic contaminants."
Since 1938, the Snowbowl resort has relied on natural snow. In dry years, the ski season is short; artificial snowmaking would increase the number of days the slopes are open. The proposed expansion of the resort would pump up to 1.5 million gallons per day of recycled sewage effluent onto over 200 acres of trails from November to February. Plans also call for creating a reservoir of recycled effluent to use after the city of Flagstaff stops pumping in February.
Despite the fact that the peaks are sacred to 13 tribes, including 250,000 Navajo, Eric Borowsky, the general partner of Arizona Snowbowl, said in a public statement, "Unfortunately, once again, the NEPA process has been abused and the taxpayers of our country held for ransom by a small group of activists who believe that they personally own our nation’s public lands."
"I hope that this case will have tremendous impact," said Howard Shanker, lawyer for the plaintiffs. He said Native Americans have no First Amendment rights in government land-use decisions because of the precedent of Lyng vs. Northwest in 1988. The Supreme Court held in that case that the First Amendment applies to all citizens, and that no group could halt public programs that don’t overtly prohibit the free exercise of religion. Now, he said, "Hopefully there will be an avenue to protect sacred sites."
He said, however, that he expects that this case to be appealed by the Forest Service and the Snowbowl Resort and that it will eventually go to the Supreme Court.
In the meantime, the Save the Peaks Coalition of tribal nations, individuals, and community organizations is celebrating. Navajo Nation President Joe Shirley Jr. said, "This goes towards preserving our way of life, preserving my prayer, my sacred song, my sacred sites, my mother: the San Francisco Peaks. Years have been added to my life. I can’t express how happy I am. As a people, we’re elated."
