The U.S. Supreme Court declines to hear a final appeal by tribes, clearing the way for Arizona Snowbowl to make snow with reclaimed wastewater
By HOWARD FISCHER
Capitol Media Services
Tuesday, June 09, 2009
The religious objections of Indian tribes can't stop the operators of Snowbowl from using recycled sewage to make snow on the San Francisco Peaks, the U.S. Supreme Court ruled by default Monday.
Without comment, the justices left intact a ruling by the full 9th Circuit Court of Appeals that rejected the claims of several tribes that the use of artificial snow will decrease the "spiritual fulfillment" they get from practicing their religion on the mountain. The tribes argued to the high court that the decision by the U.S. Forest Service, which owns the land, to permit snow to be made from treated sewage runs afoul of the federal Religious Freedom Restoration Act which governs activities on public lands. That 1993 law requires government agencies to use the "least restrictive" means of interfering with any religious practice when considering projects built on federal land.
But the justices, by leaving that 9th Circuit decision undisturbed, adopted the conclusion by that court that putting treated sewage on the mountain does not place a "substantial burden" on anyone's free exercise of religion, the test under that 1993 law to determine whether government plans must be modified. Specifically, the appellate court said nothing about putting the effluent on the mountain stops anyone from practicing his or her religion.
Attorney Howard Shanker who represents the tribes, said the decision of the 9th Circuit -- and the Supreme Court in letting it stand -- is flawed.
"Unfortunately, the court tended to take an ethnocentric point of view in dealing with the facts and issues, which is not what they're supposed to do," Shanker said.
"They're not supposed to become the arbiter of religion," he continued. "They're supposed to determine whether or not your religious practice is sincerely held."
And he said each tribe had witnesses testify to the fact that the plans would create a substantial burden on their exercise of religion.
"They see the peaks as a living being," Shanker said. And he said the fact the effluent would be confined only to the ski areas is irrelevant.
PROTECTION PRECLUDED
Shanker said Monday's decision is particularly significant because a 1988 U.S. Supreme Court decision said tribes cannot use First Amendment rights to challenge government land use decisions. That left the Religious Freedom Restoration Act as their only recourse.
"What this does as a practical matter from our perspective is it precludes Native Americans from being able to protect sacred or holy sites," he said. Shanker said that may leave only one option: Convince Congress to amend the law.
Tribal attorneys had argued that the tribes have relied on the purity of the water on the peaks and the use of recycled sewage would put a "substantial burden" on their ability to practice their religion. But in declining to disturb the ruling, the Supreme Court, in effect, agreed with the majority decision of the 9th Circuit, which said that phrase is not as broad as the tribes contend.
"A government action which decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a 'substantial burden' -- a term of art chosen by Congress to be defined by reference to Supreme Court precedent -- on the free exercise of religion," wrote Judge Carlos Bea for the appellate court. And he said there is nothing in the decision of the Forest Service to allow the use of treated effluent that requires the tribes to act contrary to their religion.
MISUNDERSTANDS RELIGION
Last year's appellate decision was not unanimous. Judge William Fletcher, writing a dissent for himself and two other judges, said the majority ruling "misunderstands the very nature of religion."
At issue is a plan by the current owners, who bought the resort in 1992, to build a 15-mile pipeline to carry up to 1.5 million gallons a day of treated effluent from Flagstaff to Humphrey's Peak. Plans are to cover about 205 acres with artificial snow at the beginning of the season, with more as necessary.
Various tribes filed suit, citing that 1993 law, which requires government agencies to use the "least restrictive" means of interfering with any religious practice when considering projects built on federal land.
In his dissent to last year's appellate court ruling, Fletcher questioned the resort's need for the artificial snow. He said the operation, first opened in 1938, always has relied on natural snowfall.
"The evidence in the record does not support a conclusion that the Snowbowl will necessarily go out of business if it is required to continue to rely on natural snow and remain a relatively small, low key resort," Fletcher wrote.
"The current owners may or may not decide to continue their ownership," the judge said. "But a sale by the current owners is not the same thing as the closure of the Snowbowl."
And Fletcher said even if there were some danger that the resort would close, "we are not convinced that there is a compelling governmental interest" in allowing the use of recycled sewage to prevent that from happening.
"We are struck by the fact that the Peaks are located in a desert," the judge explained. And he said it is predictable that some winters will be dry.
"The then owners of the Snowbowl knew this when they expanded the Snowbowl in 1979, and the current owners knew this when they purchased it in 1992," Fletcher wrote.
