Save the Peaks Coalition

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9th Circuit Court of Appeals rehears case in en banc Procedure

Pasadena, CA – On Tuesday December 11, 2007, a coalition of Native American Nations and environmental justice groups worked together to defend their precedent-setting victory for religious freedom and public health. The Federal Appeals Court in Pasadena, California, heard oral arguments concerning religious freedom violations, environmental destruction and human health dangers associated with the use of treated sewage effluent for snowmaking in proposed ski area development on Arizona's San Francisco Peaks.

The case was argued before 11 Judges with arguments focused on Forest Service violations of the National Environmental Policy Act (NEPA) and substantial burden placed upon Native American religious freedom. This case is viewed as precedent-setting in establishing an interpretation for the Religious Freedom Restoration Act (RFRA), which was passed in 1993.

“We are hopeful that we get a majority of the judges to understand that this an important religious rights issue,” said Jack Trope of DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “This law was enacted by Congress to protect religious freedoms and should apply to Native Americans who have land-based religions and sacred sites in the same way that it applies to everyone else,” Trope said.

Howard Shanker, who argued the case on behalf of the Navajo Nation, the Yavapai-Apache Nation, the White Mountain Apache Tribe, the Havasupai Tribe, the Sierra Club, the Center for Biological Diversity and others, urged the court to adopt legal principles that would help protect the San Francisco Peaks and other sacred/holy sites across the country. "The case is now in the hands of the court. The bigger question that needs to be addressed is why we are forced to go to court to stop the federal government from defiling holy sites in the first place.” Shanker added, “This is an untenable situation that needs to be addressed in Congress."

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9th Circuit Court of Appeals reverses decision in en banc Procedure

August 8, 2008, Flagstaff, AZ -- The 9th Circuit Court of Appeals issued a long awaited ruling today in the case to protect the environmental and cultural integrity of Arizona's San Francisco Peaks. The split decision overturned a previous court ruling and has temporarily denied attempts by tribes and environmental groups to stop Arizona Snowbowl Ski Resort from expanding development and making fake snow from treated sewage effluent on the holy mountain.

"The cultural survival of more than 13 Indigenous Nations is directly intertwined with the environmental integrity of the holy San Francisco Peaks," said Jeneda Benally, a volunteer with the Save the Peaks Coalition. "Today's decision not only places these ways of life in peril but sets the stage for an ecological and public health catastrophe. We have no choice but to uphold our commitment to protect the holy San Francisco Peaks," continued Benally.

The United States Forest Service manages the San Francisco Peaks as public land and has faced multiple lawsuits by the Navajo Nation, Hopi, White Mountain Apache, Yavapai Apache, Hualapai, and Havasupai tribes, as well as the Sierra Club, Flagstaff Activist Network, Center of Biological Diversity, and others after it initially approved the proposed ski area development in 2005.

In the most recent ruling, 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. 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."

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9th Circuit Court of Appeals Case Filed

On September 14, 2006 the 9th Circuit Court of Appeals in San Francisco, California will hear arguments in a legal battle that may decide the future of American Indian religious freedom and the ecological integrity of the San Francisco Peaks, a mountain held sacred by over 13 Native American nations.

Tribes and environmental groups have unified to halt Arizona Snowbowl’s development plans to expand the current ski area and use treated sewage effluent to make artificial snow on the sacred Peaks.

Although the plan is backed by the US Forest Service and has been allowed to go forward in a decision issued by Judge Rosenblatt of the US District Court of Arizona on January 11th 2006, Snowbowl has been forced to delay their proposed development.

Howard Shanker, representing the Navajo Nation, the White Mountain Apache Tribe, the Yavapai-Apache Tribe, the Havasupai Tribe, Rex Tilousi, Dianna Uqualla, the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network will argue the case against the expansion plan and use of treated sewage effluent to make snow before a three judge panel in San Francisco, CA.

In addition, presenting their case will be lawyers representing the Hopi Tribe and DNA People's Legal Services Inc. representing the Hualapai Tribe, and other tribal individuals.

The major points of the case are as follows (from Shanker’s opening statements to 9th Circuit Court):

1. Defendants Failed to Disclose and Discuss the Scientific Viewpoints Submitted by Dr. Paul Torrence
   Under NEPA, the agency is required to “disclose and discuss responsible opposing scientific viewpoints in the final statement itself.” Dr. Paul Torrence submitted an approximately 40 page treatise critical of the analysis of health and environmental impacts of using reclaimed sewer water for snowmaking included in the DEIS. The FS neither disclosed nor discussed Dr. Torrence’s viewpoints in the FEIS. The FS’s failure to “disclose and discuss” was without observance of the procedure required by law. It was also arbitrary, capricious, and/or not otherwise in accordance with law.
2. Defendants Failed to Consider the Fact That Children Might Eat Snow Made From Non-Potable Reclaimed Water
   The only time that the possibility of eating snow is directly addressed in the FEIS is in the FS response to comments, which provides, in pertinent part, that, “[t]here will be signs posted at Snowbowl informing visitors of the use of reclaimed water as a snowmaking water source. . . it is the responsibility of the visitor or the minor’s guardian to avoid consuming snow made with reclaimed water. . .” ER 52. Defendants’ failure to adequately consider this impact was without observance of the procedure required by law, arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.
3. Defendants Refused to Consider the Impacts Associated With Withdrawal of 1.5 Million Gallons a Day of Reclaimed Water That is Currently Used to Recharge the Regional Aquifer Near Flagstaff
   During the winter months, approximately 1.5 million gallons a day of effluent from the Rio de Flag treatment plant is currently introduced into the Rio de Flag River to recharge the regional aquifer in Flagstaff – where it is diluted with fresh water before it percolates into the underground aquifer. The FS refused to consider the impact of this diversion in its decision making process – noting that the City of Flagstaff was free to do whatever it wanted with its wastewater. This is an “indirect effect,” a “cumulative impact,” and/or a “connected action,” the impact of which should have been thoroughly considered in the FEIS. The FS’s refusal to consider this impact is without observance of the procedure required by law, arbitrary, capricious, and/or otherwise not in accordance with law.
4. Defendants’ Approval of This Project Violates RFRA
   In finding that defendants did not violate the Religious Freedom Restoration Act (RFRA), the lower court: (1) ignored the FS’s own findings and Ninth Circuit precedent on demonstrating a “substantial burden” in the context of a government land use decision; (2) improperly interpreted sincerely held religious beliefs; (3) improperly interpreted the requirement that RFRA decisions be made in “context;” (4) applied improper legal analyses to the “compelling interest” and “least restrictive means” components of the strict scrutiny test; and (5) made clear errors in many of its findings of fact.

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Coalition of tribes and environmental groups sue USFS

On June 23rd, 2005, a coalition of Tribes and environmental groups filed suit in Arizona District COurt to stop the use of Treated Sewage Effluent from being sprayed on to of the San Francisico Peaks for snowmaking purposes.

"America has a government policy of racial intolerance and perpetuates the slow murder of Native American cultures through its decision to allow the desecration of the Sacred San Francisco Peaks. We will not stand by and witness the destruction of our church for greed and recreation. We urge all those who value human rights to stand with us in this struggle for justice and respect," said Jeneda Benally of the Save the Peaks Coalition.

"To Native Americans, desecrating the San Francisco Peaks with wastewater is like flushing the Koran down the toilet,~ President Shirley said. "The federal government is ignoring the pleas and wishes of the Native people. We see other people go to war for their way of life, their essence. Here, though, the federal government is ignoring the pleas and wishes of the Native people. The Navajo Nation will do all it can to combat this latest decision."

"The water standards currently used by the Arizona Department of Environmental Quality do not address certain chemicals that break down into potentially dangerous successor chemicals when they interact with sunlight. Many of these chemicals have proven to mimic or inhibit hormone balance in the human body and could be a threat to the Flagstaff water supply," said Rudy Preston of Flagstaff Activist Network. "The environmental and health concern we have are valid and are the specific ways that tribal cultures will be destroyed."

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Coalition Comments Show Forest Service Failed to Meet its Legal and Moral Obligations

On Monday, April 12, 2004, a coalition of scientists, Native Americans, conservationists, skiers and community members submitted 108 pages of comments to the Coconino National Forest opposing the proposed action to expand development and implement snowmaking at Arizona Snowbowl. The comments submitted by the Sierra Club, Save the Peaks Coalition, Southwest Forest Alliance, Dineh Bidziil Coalition, Grand Canyon Wildlands Council, Flagstaff Activist Network, Center for Biological Diversity and others show that the Forest Service failed to meet its legal and moral obligations for “hard look” analysis and outreach and consultation to thirteen tribes and that the DEIS contains significant omissions, errors and bias.

Comments were developed through consultation with experts in hydrology, economics, geology, environmental justice, chemistry, water quality, forest health, environmental law, Native American culture and spiritual tradition, biology and environmental science. The comments contain a comprehensive critique of the Draft Environmental Impact Statement for Arizona Snowbowl Facilities Improvement and provide the basis for the Forest Service to choose Alternative 1, the No Action Alternative.

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Final Environmental Impact Statement for Arizona Snowbowl Facilities Improvement

These documents are available here only as Adobe Acrobat PDF files. (Adobe Acrobat Reader needed). The entire document is contained here in sections. Volumes One, Two, and the ROD were broken into smaller pieces to reduce file size to make it easier to view and print using the Internet. At the end of each section, bottom right corner of the last page in the section, there is a linked button to the next page.

You may click the link for the .pdf file below to go directly to a specific page. Attachments (Figures) are listed separately for ease in printing, but for viewing, the attachments are linked from the Table of Contents page within the document.

 

RECORD OF DECISION

Arizona Snowbowl Facilities Improvements FEIS and Forest Plan Amendment #21 - USDA Forest Service - Peaks Ranger District, Coconino National Forest Coconino County, Arizona

• Record of Decision (40 pages -1003 kb .pdf)
  • Figure ROD 1 Location Map - Linked from Page 2 (1 page - 60 kb .pdf)
  • Figure ROD 3 Selected Alternative - Linked from Page 18 (1 page - 396 kb .pdf)

Volume One:

• Cover Pages (4 pages 533 kb .pdf)
• Snowbowl Executive Summary (9 pages 536 kb .pdf)
• Table of Contents (12 pages 646 kb .pdf)
• Chapter One (25 pages 716 kb .pdf)
  • Figure 1-1 (303 kb .pdf)
• Chapter Two (63 pages 1203 kb .pdf)
  • Figure 2-1 - Linked from Page 2-4 (834 kb .pdf)
  • Figure 2-2 - Linked from Page 2-12 (861 kb .pdf)
  • Figure 2-3 - Linked from Page 2-13 (838 kb .pdf)
  • Figure 2-4 - Linked from Page 2-14 (392 kb .pdf)
  • Figure 2-5 - Linked from Page 2-15(865 kb .pdf)
  • Figure 2-6 - Linked from Page 2-16 (805 kb .pdf)
  • Figure 2-7 - Linked from Page 2-18 (842 kb .pdf)
  • Figure 2-8 - Linked from Page 2-19 (847 kb .pdf)
  • Figure 2-9 - Linked from Page 2-20 (769 kb .pdf)
  • Figure 2-10 - Linked from Page 2-39 (405 kb. pdf)
• Chapter Three, Section 1 (46 pages, Contents and pages 3-1 through 3-45 - 1024 kb .pdf)
• Chapter Three, Section 2 (46 pages, pages 3-46 through 3-91 - 843 kb .pdf)
  • Figure 3D-1 (481 kb .pdf)
  • Figure 3D-2 (341 kb .pdf)
  • Figure 3D-3 (430 kb .pdf)
  • Figure 3D-4 (245 kb .pdf)
• Chapter Three, Section 3 (46 pages, pages 3-92 through 3-137 - 945 kb .pdf)
• Chapter Three, Section 4 (46 pages, pages 3-138 through 3-183 - 1716 kb .pdf)
  • Figure 3H-1 (3068 kb .pdf)
  • Figure 3H-2 (1749 kb .pdf)
  • Figure 3H-3 (430 kb .pdf)
  • Figure 3H-4 (2051 kb .pdf)
• Chapter Three, Section 5 (46 pages, pages 3-184 through 3-229 - 1399 kb .pdf)
  • Figure 3I-1 (282 kb .pdf)
• Chapter Three, Section 6 (46 pages, pages 3-230 through 3-275 - 1736 kb .pdf)
  • Figure 3I-2 (252 kb .pdf)
• Chapter Three, Section 7 (46 pages, pages 3-276 through 3-321 - 842 kb .pdf)
• Chapter Three, Section 8 (50 pages , pages 3-322 through 3-372 - 529 kb .pdf)
  • Figure 3L-1 (451 kb .pdf)
• Chapters Four and Five, Section 1 (20 pages, PREPARERS AND CONTRIBUTORS, pages 4-1 and 4-2, AGENCIES, ORGANIZATIONS, TRIBAL GOVERNMENTS, AND PERSONS RECEIVING COPIES OF THE FEIS, pages 5-1 through 5-16 - 1531 kb .pdf)
• Chapter Five, Section 2 (29 pages, pages 5-17 through 5-45 - 2068 kb .pdf)
• Chapters Six, Seven and Eight (47 pages, REFERENCES, pages 6-1 through 6-24, GLOSSARY of TERMS, 7-1 through 7-16, INDEX, pages 8-1 through 8-4 - 1040 kb .pdf)
• Appendices (18 pages, pages A-1 through A-6, B-1 through B-3, C-1 through C-7, D-1 - 1180 kb .pdf)
• Memorandum of Agreement, Section 1 (6 pages, MOA 1 through MOA 6 - 500 kb .pdf)
• Memorandum of Agreement, Section 2 (6 pages, MOA 6 through MOA 12 - 143 kb .pdf)

Volume Two:

Final EIS For The Arizona Snowbowl Facilities Improvements Proposal, Volume 2, Response To Comments On The Draft EIS

• Section 1a (134 pages, Cover, Cover Sheet, Table of Contents, pages 1 through 131 - 1413 kb .pdf)
• Section 1b (134 pages, pages 132 through 265 - 1091 kb .pdf)
• Section 2a - Response to Comments (20 pages, pages A-1 through A-19 - 1359 kb .pdf)
• Section 2b - Response to Comments (20 pages, A-20 through A-39 - 1173 kb .pdf)
• Section 2c - Response to Comments(20 pages, A-40 through A-59 - 1163 kb .pdf)
• Section 2d - Response to Comments (20 pages, A-60 through A-79 - 1161 kb .pdf)
• Section 2e - Response to Comments and Comment Letters Received (20 pages, A-80 through A-90, B-1 through B-9 - 1167 kb .pdf)
• Section 2f - Comment Letters Received (20 pages, B-10 through B-29 - 1287 kb .pdf)
• Section 2g - Comment Letters Received (17 pages, B-30 through B-46 - 1149 kb .pdf)
• Section 2h - Comment Letters Received (21 pages, B-47 through B-67 - 1260 kb .pdf)

 

Three .zip files of the above

1. Record of Decision
2. Volume 1
3. Volume 2