Post by hushasha40 on Mar 15, 2007 19:21:54 GMT 1
Court backs tribes on Peaks
Use of recycled wastewater violates religious freedom, appeals court rules
By Kathy Helms
Diné Bureau
WINDOW ROCK, ARIZONA, USA — In a landmark decision for 13 Southwest tribes, a federal appeals court held Monday that the use of recycled sewage water to make artificial snow on the sacred San Francisco Peaks violates their religious freedom.
The opinion by Judge William A. Fletcher of the 9th Circuit Court of Appeals reversed a January 2006 ruling by U.S. District Court Judge Paul G. Rosenblatt following arguments presented Sept. 14, 2006, in San Francisco.
The plaintiffs-appellants successfully argued that using treated sewage water to make artificial snow at the Arizona Snowbowl Ski Resort wouldpollute the mountain, significantly burden Southwest tribal members' ability to practice their religions, and violate the public's rights for environmental justice.
Judge Fletcher agreed, stating that the U.S. Forest Service's approval of Snowbowl's use of recycled sewage effluent on the Peaks violates the Religious Freedom Restoration Act, and that the Final Environmental ImpactStatement does not comply with the National Environmental Policy Act.
Howard Shanker of the Shanker Law Firm represented the Navajo Nation, the Hopi Tribe, the Sierra Club, and others who sued the Forest Service over its decision.
Shirley elated
As the news circulated, Navajos everywhere were overjoyed, according to George Hardeen, spokesman for the Navajo Nation Office of the President and Vice President.
Upon hearing the ruling, Navajo Nation President Joe Shirley Jr., said he was elated, and that he had never given up hope.
"Medicine people will feel the same way I do, happy," Shirley said in a press release. "The Religious Freedom Restoration Act had never been tested. So I think this is a precedent-setting decision.
"Now tribes out there have every means of protecting their sacred sites, especially now that the law has been proven, and I just really appreciate the judges' deciding in the way that they have."
Shanker said the ruling is especially important because an earlier case, Lyng v. Northwest Indian Cemetery Protective Assn., held that Native Americans did not have First Amendment rights when it came to federal government land-use decisions.
"Essentially, Native Americans have had no recourse challenging government land-use decisions which often times impact sacred sites and culturally significant sites," he said.
"What we've done here is under the Religious Freedom Restoration Act we've created an avenue for tribes to protect those sites that are sacred to them that impact their exercise of religion."
Shanker said this is the first case in which RFRA has been used successfully in an appeal. "RFRA provides greater protection for religious practices because it goes beyond the constitutional language that forbids the 'prohibiting of the free exercise of religion and uses the broader verb' burden," the Appeals Court said.
Wake-up call
"Tribes all over the country can benefit from this decision and utilize it to protect sacred and religiously significant sites," according to Shanker. "This is a tremendous step forward in preserving Native American cultural and religious beliefs."
Robert Tohe, an apprentice medicine man and Environmental Justice organizer for the Sierra Club in Flagstaff, said, "This is a national wake-up call for those that will try to desecrate sacred mountains like the San Francisco Peaks. We will not allow our voices to be ignored."
In addition to finding that the plan would have desecrated a sacred area, Tohe said, "the court decided that the U.S. Forest Service failed to fully disclose the risks posed by human ingestion of artificial snow."
The San Francisco Peaks in the Coconino National Forest in northern Arizona have long-standing religious significance to Southwest tribes. The Snowbowl is located on Humphreys Peak, the highest and most religiously significant of the Peaks.
Bucky Preston, one of the Hopi plaintiffs, said, "I am really thankful and deeply appreciate the 9th Circuit Court's decision. 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."
Read the full court decision at:
www.ca9.uscourts.gov/ca9/newopinions.nsf/
[www.gallupindependent.com/2007/march/031307kh_courtbackstribe.html]
Use of recycled wastewater violates religious freedom, appeals court rules
By Kathy Helms
Diné Bureau
WINDOW ROCK, ARIZONA, USA — In a landmark decision for 13 Southwest tribes, a federal appeals court held Monday that the use of recycled sewage water to make artificial snow on the sacred San Francisco Peaks violates their religious freedom.
The opinion by Judge William A. Fletcher of the 9th Circuit Court of Appeals reversed a January 2006 ruling by U.S. District Court Judge Paul G. Rosenblatt following arguments presented Sept. 14, 2006, in San Francisco.
The plaintiffs-appellants successfully argued that using treated sewage water to make artificial snow at the Arizona Snowbowl Ski Resort wouldpollute the mountain, significantly burden Southwest tribal members' ability to practice their religions, and violate the public's rights for environmental justice.
Judge Fletcher agreed, stating that the U.S. Forest Service's approval of Snowbowl's use of recycled sewage effluent on the Peaks violates the Religious Freedom Restoration Act, and that the Final Environmental ImpactStatement does not comply with the National Environmental Policy Act.
Howard Shanker of the Shanker Law Firm represented the Navajo Nation, the Hopi Tribe, the Sierra Club, and others who sued the Forest Service over its decision.
Shirley elated
As the news circulated, Navajos everywhere were overjoyed, according to George Hardeen, spokesman for the Navajo Nation Office of the President and Vice President.
Upon hearing the ruling, Navajo Nation President Joe Shirley Jr., said he was elated, and that he had never given up hope.
"Medicine people will feel the same way I do, happy," Shirley said in a press release. "The Religious Freedom Restoration Act had never been tested. So I think this is a precedent-setting decision.
"Now tribes out there have every means of protecting their sacred sites, especially now that the law has been proven, and I just really appreciate the judges' deciding in the way that they have."
Shanker said the ruling is especially important because an earlier case, Lyng v. Northwest Indian Cemetery Protective Assn., held that Native Americans did not have First Amendment rights when it came to federal government land-use decisions.
"Essentially, Native Americans have had no recourse challenging government land-use decisions which often times impact sacred sites and culturally significant sites," he said.
"What we've done here is under the Religious Freedom Restoration Act we've created an avenue for tribes to protect those sites that are sacred to them that impact their exercise of religion."
Shanker said this is the first case in which RFRA has been used successfully in an appeal. "RFRA provides greater protection for religious practices because it goes beyond the constitutional language that forbids the 'prohibiting of the free exercise of religion and uses the broader verb' burden," the Appeals Court said.
Wake-up call
"Tribes all over the country can benefit from this decision and utilize it to protect sacred and religiously significant sites," according to Shanker. "This is a tremendous step forward in preserving Native American cultural and religious beliefs."
Robert Tohe, an apprentice medicine man and Environmental Justice organizer for the Sierra Club in Flagstaff, said, "This is a national wake-up call for those that will try to desecrate sacred mountains like the San Francisco Peaks. We will not allow our voices to be ignored."
In addition to finding that the plan would have desecrated a sacred area, Tohe said, "the court decided that the U.S. Forest Service failed to fully disclose the risks posed by human ingestion of artificial snow."
The San Francisco Peaks in the Coconino National Forest in northern Arizona have long-standing religious significance to Southwest tribes. The Snowbowl is located on Humphreys Peak, the highest and most religiously significant of the Peaks.
Bucky Preston, one of the Hopi plaintiffs, said, "I am really thankful and deeply appreciate the 9th Circuit Court's decision. 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."
Read the full court decision at:
www.ca9.uscourts.gov/ca9/newopinions.nsf/
[www.gallupindependent.com/2007/march/031307kh_courtbackstribe.html]