Save the Peaks Coalition

Our view: We can dampen the polarization on snow making by acknowledging the case comes in many legal shades of gray

AZ Daily Sun | Wednesday, June 10, 2009

It came so far, but wound up far short of a definitive conclusion.

That's our take on the litigation surrounding snowmaking on the San Francisco Peaks. The case got right up to the doorstep of the U.S. Supreme Court, but the justices refused to let it in. That throws it back into the court of public opinion, which in Flagstaff and northern Arizona is bitterly divided. A ruling by the nation's highest court, however it came down, at least would have signaled how the nation's most experienced jurists weighed one of this country's most difficult problems: balancing religious freedom against government policies that must neither favor nor trample religious beliefs.

In other words, a high court decision would have brought closure, at least in a legal sense. The religious, environmental and economic questions raised by the case all could have benefited from one more vetting.

DIVIDED LEGAL RECORD

Now, however, the various parties are left with a divided legal record that ends with the 9th U.S. Circuit Court of Appeals. That court, in an 8-3 ruling, upheld a Coconino National Forest permit allowing Arizona Snowbowl to make artificial snow from reclaimed wastewater.

A three-judge panel of the circuit, however, had earlier denied the permit.

And before that, a federal judge in Arizona had ruled in favor of the permit.

Tribal opponents contended that the practice violated the sacred nature of the San Francisco Peaks. They cited the Religious Freedom Restoration Act, which sets out two tests that a public policy must meet when a religious practice or belief is affected ...

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.

The Associated Press
Tucson, Arizona | Published: 01.06.2009

American Indian tribes are asking the U.S. Supreme Court to review a lower court's decision that allows for snow-making on an Arizona peak the tribes consider sacred. In their petition filed Monday, the tribes contend the use of treated wastewater to make snow at Arizona Snowbowl violates the Religious Freedom Restoration Act and could contaminate natural resources.

The 9th U.S. Circuit Court of Appeals in San Francisco cleared the way for the snow-making last August after a years-long battle. The court also granted a request to delay any construction at the ski resort northwest of Flagstaff until the high court decides whether it will hear the tribes' appeal.

The Supreme Court takes only about 1 percent of the cases it receives.

The ski resort had planned to add a fifth chair lift, spray man-made snow and clear about 100 acres of forest to extend its ski season, which Snowbowl officials have said would be more predictable with snow-making.

indianz.com | Tuesday, October 21, 2008

With three Indian law cases already on the docket, this year's U.S. Supreme Court term could get see the addition of some high-profile religious rights disputes.

The cases are being watched closely in Indian Country, whose efforts to limit negative rulings by the court have largely succeeded in recent years. Since the disastrous 2000-2001 term, when tribal interests lost nearly every decision, the justices have heard fewer and fewer Indian law cases.

This year looks a lot different, with the court set to resolve disputes over land-into-trust, the federal trust responsibility and Native Hawaiian rights. In all three instances, the lower courts ruled in favor of Native interests, leading to fears that the victories will be overturned.

October 05, 2008, 8:45 p.m.
The Associate Press

FLAGSTAFF, Ariz. — A federal appeals court that approved a plan for snowmaking on an Arizona peak sacred to Indian tribes is giving opponents time to appeal to the U.S. Supreme Court.

The 9th U.S. Circuit Court of Appeals in San Francisco on Friday granted a request to delay any construction at the Arizona Snowbowl ski resort near Flagstaff until the high court can decide if it will hear the tribes' appeal.

Tribal lawyer Howard Shanker says the order preserves the status quo and protects the rights of the Indians opposed to resort's plan to make snow on the San Francisco Peaks.

The appeals court cleared the way for the snowmaking in August after a years long court battle. The Supreme Court only takes about one percent of the cases it receives.