An Arizona ski resort's plan to make snow from sewage effluent would desecrate the “purity” of a mountain range that is sacred to Indian tribes, the 9th U.S. Circuit Court of Appeals has ruled in a groundbreaking religious freedom decision.

The San Francisco Peaks near Flagstaff have “long-standing religious significance” to the Hopi, Navajo and other tribes of the Southwest, the court found, and allowing the snow-making plan at the Arizona Snowbowl to proceed “would impose a substantial burden on their exercise of religion.”

“To get some sense of equivalence, it may be useful to imagine the effect on Christian beliefs and practices -— and the imposition that Christians would experience —- if the government were to require that baptisms be carried out with 'reclaimed water,'” the opinion said.

The 9th Circuit reversed U.S. District Judge Paul G. Rosenblatt, who disregarded what he called “subjective views and beliefs” in denying the challenge of 13 tribes to the Snowbowl project in January 2006.

The tribes sued under the Religious Freedom Restoration Act, which had never before been applied to Native American sacred sites. Rosenblatt ruled they had not shown through “objective evidence” how snow-making would specifically "interfere with or inhibit any religious practice."

But Judge William A. Fletcher, writing for the 9th Circuit, quoted the testimony of tribal medicine men extensively. To three Navajo practitioners, he said,

the contamination [of the Peaks] is not literal in the sense that a scientist would use the term. Rather, the contamination represents the poisoning of a living being.

The trial judge also bought into the government's argument that federal control over other land which tribes consider sacred, including the Grand Canyon and Mt. Rushmore, could be imperiled if the plaintiffs prevailed.

Government lawyers cited Lyng v. Northwest Indian Cemetery Assn., 485 U.S. 439 (1988), in which the Supreme Court warned that a challenge by California tribal members to a road-construction project might lead to the exclusion of “all human activity but their own from sacred areas of the public lands.”

That case was not applicable to the Snowbowl project, Fletcher said, in part because the tribes which hold the San Francisco Peaks sacred were only objecting to an expansion of an existing human activity. If the tribes, he concluded,

do not have a valid RFRA claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred.

Rosenblatt's opinion made On Point's list of the Ten Worst Judicial Decisions of 2006. The 9th Circuit's reversal may well appear on this year's list of the Ten Best Decisions.

By Matthew Heller
3/12/07