Source: Photo by Rebecca Kennison
In Navajo Nation v. US Forest Service (2007) (pdf file), the 9th Circuit held that a proposed project to use treated sewage effluent on the San Francisco Peaks violated the religious rights of 13 Indian Tribes under the Religious Freedom Restoration Act (RFRA). This victory is exciting because it is the first case to apply RFRA to protect sacred sites of Native Americans. Environmental laws have not stopped the degradation of natural resources interconnected with traditional religious and ceremonial practices. Our government and corporations have desecrated tribal lands generally with impunity. Well, the times may be A-Changin' as this case develops progeny.
Credit: Calvin Johnson Wagoner
The San Francisco Peaks (Peaks) are located in the Coconino National Forest in northern Arizona and have long-standing religious significance to numerous Indian tribes. The Snowbowl ski resort is located on Humphrey's Peak, which is the "highest and most religiously significant" of the Peaks.
The Forest Service approved a proposed project by the ski resort to create artificial snow from recycled sewage effluent so that it could cease its reliance on real snow. Historically, the ski resort depended on natural snowfall, but is now worried about dry years that result in a shorter season of operation and reduced profits. In 2001-02, there were only 4 skiable days as compared to 130 skiable days during wet years in the 1990's.
Under this project proposal, Flagstaff would transfer 1.5 million gallons per day of its treated sewage effluent from November through February. The transfer would be accomplished by the construction of a 14.8 mile pipeline between the city and Snowbowl. The project also included the construction of a reservoir with a surface area of 1.9 acres to hold 10 million gallons of treated sewage effluent. The ski resort would then cover 205.3 acres of Humphrey's Peak with artificial snow of treated sewage effluent to build a snow base. Additional artificial snow would be added as needed. If natural snowfall is not sufficient, the ski resort could deposit "substantially more than 100 million gallons of effluent ... over the course of the winter ski season."
Credit: Photo by Curtis & Kristin Ryan
Treated sewage effluent is often euphemistically called "reclaimed water," which simply glosses over the reality that this sewage effluent is the raw sewage that homes, businesses and industries discharge into sewers. Reclaimed water is safe for some beneficial uses which may assist conservation of potable water, such as irrigating crops, flushing toilets, fire protection.
However, even state policies may require that "users take precautions to avoid human ingestion." Signs are posted to notify the public to not drink the reclaimed water and irrigation users are warned to use application methods that prevent human contact with the reclaimed water.
The treatment process creates reclaimed water, which is not the pure water required for religious purposes. The treatment removes scum and odors but does not remove all fecal coliform bacteria and the "resulting effluent has detectable levels of enteric bacteria, viruses, and protozoa, including Cryptosporidium and Giardia."
According to Arizona law, the treated sewage effluent must be free of "detectable fecal coliform organisms" in only "four of the last seven daily reclaimed water samples." The FEIS acknowledges that the treated sewage effluent also contains "many unidentified and unregulated residual organic contaminants."
While 4 other states have approved treated sewage effluent for snowmaking, the "Snowbowl would be the first ski resort in the nation to make its snow entirely from undiluted treated sewage effluent." In addition to the issues raised by the tribes, the public should be wondering: How do you stop children from eating snow? How do you stop physical contact with any person who tumbles while skiing or playing in the snow?
The heart of this case is the deposit of treated sewage effluent on the sacred lands of the Peaks. While this case was pending, many Christians could not understand why tribes objected to the dumping of sewage effluent on the Peaks. The court addressed this issue, providing a clue on its ultimate ruling:
The record in this case establishes the religious importance of the Peaks to the Appellant tribes who live around it. From time immemorial, they have relied on the Peaks, and the purity of the Peaks' water, as an integral part of their religious beliefs. The Forest Service and the Snowbowl now propose to put treated sewage effluent on the Peaks. 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."
Source: The San Francisco Peaks, with Wupatki National Monument
The court described in detail how the Peaks were crucial to the religious practices of the tribes. For example, since at least 1540, the Hopi have been making pilgrimages to the Peaks, which are the focal point of religious life:
"The Peaks are where the Hopi direct their prayers and thoughts, a point in the physical world that defines the Hopi universe and serves as the home of the Kachinas, who bring water, snow and life to the Hopi people...."
The Hopi believe that when they emerged into this world, the clans journeyed to the Peaks (or Nuvatukyaovi, "high place of snow") to receive instructions from a spiritual presence, Ma'saw. At the Peaks, they entered a spiritual covenant with Ma'saw to take care of the land, before they migrated down to the Hopi villages. The Hopi re-enact their emergence from the Peaks annually, and Hopi practitioners look to the Peaks in their daily songs and prayers as a place of tranquility, sanctity, and purity.
The Peaks are also the primary home of the powerful spiritual beings called Katsinam (Hopi plural of Katsina, or Kachina in English). Hundreds of specific Katsinam personify the spirits of plants, animals, people, tribes, and forces of nature. The Katsinam are the spirits of Hopi ancestors, and the Hopi believe that when they die, their spirits will join the Katsinam on the Peaks. As spiritual teachers of "the Hopi way," the Katsinam teach children and remind adults of the moral principles by which they must live. These principles are embodied in traditional songs given by the Katsinam to the Hopi and sung by the Hopi in their everyday lives. One Hopi practitioner compared these songs to sermons, which children understand simplistically but which adults come to understand more profoundly. Many of these songs focus on the Peaks.
Katsinam serve as intermediaries between the Hopi and the higher powers, carrying prayers from the Hopi villages to the Peaks on an annual cycle. From July through January, the Katsinam live on the Peaks. In sixteen days of ceremonies and prayers at the winter solstice, the Hopi pray and prepare for the Katsinam's visits to the villages. In February or March, the Katsinam begin to arrive, and the Hopi celebrate with nightly dances at which the Katsinam appear in costume and perform. The Katsinam stay while the Hopi plant their corn and it germinates. Then, in July, the Hopi mark the Katsinam's departure for the Peaks.
The Hopi believe that pleasing the Katsinam on the Peaks is crucial to their livelihood. Appearing in the form of clouds, the Katsinam are responsible for bringing rain to the Hopi villages from the Peaks. The Katsinam must be treated with respect, lest they refuse to bring the rains from the Peaks to nourish the corn crop. In preparation for the Katsinam 's arrival, prayer sticks and feathers are delivered to every member of the village, which they then deposit in traditional locations, praying for the spiritual purity to receive the Katsinam. The Katsinam will not arrive until the peoples' hearts are in the right place, a state they attempt to reach through prayers directed at the spirits on the Peaks.
The Hopi have at least fourteen shrines on the Peaks. Every year, religious leaders select members of each of the approximately 40 congregations, or kiva, among the twelve Hopi villages to make a pilgrimage to the Peaks. They gather from the Peaks both water for their ceremonies and boughs of Douglas fir worn by the Katsinam in their visits to the villages.
One more example is a brief description of the beliefs and practices of the Navajo:
The Peaks are also of fundamental importance to the religious beliefs and practices of the Navajo. The district court found, "[T]he Peaks are considered . . . to be the 'Mother of the Navajo People,' their essence and their home. The whole of the Peaks is the holiest of shrines in the Navajo way of life." Considering the mountain "like family," the Navajo greet the Peaks daily with prayer songs, of which there are more than one hundred relating to the four mountains sacred to the Navajo. Witnesses described the Peaks as "our leader" and "very much an integral part of our life, our daily lives."
The Navajo creation story revolves around the Peaks. The mother of humanity, called the Changing Woman and compared by one witness to the Virgin Mary, resided on the Peaks and went through puberty there, an event which the people celebrated as a gift of new life. Following this celebration, called the kinaalda, the Changing Woman gave birth to twins, from whom the Navajo are descended. The Navajo believe that the Changing Woman's kinaalda gave them life generation after generation. Young women today still celebrate their own kinaalda with a ceremony one witness compared to a Christian confirmation or a Jewish bat mitzvah. The ceremony sometimes involves water especially collected from the Peaks because of the Peaks' religious significance.
The Peaks are represented in the Navajo medicine bundles found in nearly every Navajo household. The medicine bundles are composed of stones, shells, herbs, and soil from each of four sacred mountains. One Navajo practitioner called the medicine bundles "our Bible," because they have "embedded" within them "the unwritten way of life for us, our songs, our ceremonies." The practitioner traced their origin to the Changing Woman: When her twins wanted to find their father, Changing Woman instructed them to offer prayers to the Peaks and conduct ceremonies with medicine bundles. The Navajo believe that the medicine bundles are conduits for prayers; by praying to the Peaks with a medicine bundle containing soil from the Peaks, the prayer will be communicated to the mountain.
As their name suggests, medicine bundles are also used in Navajo healing ceremonies, as is medicine made with plants collected from the Peaks. Appellant Norris Nez, a Navajo medicine man, testified that "like the western doctor has his black bag with needles and other medicine, this bundle has in there the things to apply medicine to a patient." Explaining why he loves the mountain as his mother, he testified, "She is holding medicine and things to make us well and healthy. We suckle from her and get well when we consider her our Mother." Nez testified that he collects many different plants from the Peaks to make medicine.
The Peaks play a role in every Navajo religious ceremony. The medicine bundle is placed to the west, facing the Peaks. In the Blessingway ceremony, called by one witness "the backbone of our ceremony" because it is performed at all ceremonies' conclusion, the Navajo pray to the Peaks by name.
The purity of nature, including the Peaks, plays an important part in Navajo beliefs. Among other things, it affects how a medicine bundle -- described by one witness as "a living basket" -- is made. The making of a medicine bundle is preceded by a four-day purification process for the medicine man and the keeper of the bundle. By Navajo tradition, the medicine bundle should be made with leather from a buck that is ritually suffocated; the skin cannot be pierced by a weapon. Medicine bundles are "rejuvenated" regularly, every few years, by replacing the ingredients with others gathered on pilgrimages to the Peaks and three other sacred mountains.
The Navajo believe their role on earth is to take care of the land. They refer to themselves as nochoka dine, which one witness translated as "people of the earth" or "people put on the surface of the earth to take care of the lands." They believe that the Creator put them between four sacred mountains of which the westernmost is the Peaks, or Do'ok'oos-liid ("shining on top," referring to its snow), and that the Creator instructed them never to leave this homeland. Although the whole reservation is sacred to the Navajo, the mountains are the most sacred part. One witness drew an analogy to a church, with the area within the mountains as the part of the church where the people sit, and the Peaks as "our altar to the west."
As in Hopi religious practice, the Peaks are so sacred in Navajo beliefs that, as testified by Joe Shirley, Jr., President of the Navajo Nation, a person "cannot just voluntarily go up on this mountain at any time. It's -- it's the holiest of shrines in our way of life. You have to sacrifice. You have to sing certain songs before you even dwell for a little bit to gather herbs, to do offerings." After the requisite preparation, the Navajo go on pilgrimages to the Peaks to collect plants for ceremonial and medicinal use.
One key to the success of this case is that a RFRA action is easier than the constitutional Free Exercise Clause because it provides greater protection for religious practices. In 2000, Congress expanded the statutory protection for religious exercise by amending the definition of "exercise of religion" in RFRA to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Thus, RFRA now "protects a broader range of religious conduct than the Supreme Court's interpretation of "exercise of religion" under the First Amendment." Under RFRA, the federal government may not "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." The "government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person -- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
Source: Inner Basin of San Francisco Peaks
The court held that the Peaks and uncontaminated water are significant to the religious beliefs and practices of the tribes and that the reclaimed water snow plan would substantially burden the exercise of religion by preventing the performance of religious ceremonies and practices that comprised an entire way of life.
The use of treated sewage effluent to create artificial snow on the Peaks would have substantially burdened the exercise of religion by preventing the tribes from performing or maintaining:
(1) [A] particular religious ceremony, because the ceremony requires collecting natural resources from the Peaks that would be too contaminated -- physically, spiritually, or both -- for sacramental use; and
(2) [D]aily and annual religious practices comprising an entire way of life, because the practices require belief in the mountain's purity or a spiritual connection to the mountain that would be undermined by the contamination.
In addition to the detailed evidence presented by the tribes of the religious significance of the Peaks and how treated sewage effluent impacted those practices and beliefs, the Forest Service was forced to admit in the environmental documents facts which established the burdens. The Forest Service admitted the first burden, stating that the use of treated sewage effluent would "contaminate the natural resources needed to perform the required ceremonies that have been, and continue to be, the basis for the cultural identity for many of these tribes." In addition, "the use of reclaimed water is believed by the tribes to be impure and would have an irretrievable impact on the use of the soil, plants, and animals for medicinal and ceremonial purposes throughout the entire Peaks, as the whole mountain is regarded as a single, living entity."
The Forest Service also admitted that the Peaks were a traditional cultural property, which is defined as one "associat[ed] with cultural practices or beliefs of a living community that (a) are rooted in that community's history, and (b) are important in maintaining the continuing cultural identity of the community." And, the Forest Service admitted that the Peaks have been sacred to at least 13 Indian tribes for centuries:
The Forest Service has described the Peaks as "a landmark upon the horizon, as viewed from the traditional or ancestral lands of the Hopi, Zuni, Acoma, Navajo, Apache, Yavapai, Hualapai, Havasupai, and Paiute." The Service has acknowledged that the Peaks are sacred to at least thirteen formally recognized Indian tribes, and that this religious significance is of centuries' duration. Though there are differences among these tribes' religious beliefs and practices associated with the Peaks, there are important commonalities. As the Service has noted, many of these tribes share beliefs that water, soil, plants, and animals from the Peaks have spiritual and medicinal properties; that the Peaks and everything on them form an indivisible living entity; that the Peaks are home to deities and other spirit beings; that tribal members can communicate with higher powers through prayers and songs focused on the Peaks; and that the tribes have a duty to protect the Peaks.
As the ski resort watched its case sink, it whipped out the typical corporate argument that has prevailed in the past. The ski resort whined about how it and the community would lose money if it could not degrade the Peaks with treated sewage effluent, which was necessary in order to reduce the company's dependence on natural snow fall that is not so plentiful when the ski resort is located in a desert! The court indicated that compelling government interests do not include business convenience or the maximizing of profits:
"It is clear that the current owners expect that the resort would be substantially more profitable -- and the income stream more consistent -- if the expansion were allowed to proceed... . Even if there is a substantial threat that the Snowbowl will close entirely as a commercial ski area, we are not convinced that there is a compelling governmental interest in allowing the Snowbowl to make artificial snow from treated sewage effluent to avoid that result. We are struck by the obvious fact that the Peaks are located in a desert. It is (and always has been) 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. The current owners now propose to change these natural conditions by adding treated sewage effluent. Under some circumstances, such a proposal might be permissible or even desirable. But in this case, we cannot conclude that authorizing the proposed use of treated sewage effluent is justified by a compelling governmental interest in providing public recreation.
What if the government agency which is approving corporate projects that will degrade our environment is at the state or local level? While RFRA applies to the federal government, a similar law, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), prohibits state and local governments from imposing substantial burdens on the exercise of religion through prisoner or land-use regulations.
No doubt the ruling will be appealed to the Supremes, which presents a pickle for Bush because religious groups and institutions want protection from government interference. Moreover, the Justice Dept. cited RFRA as authority for its policy that religious charities or faith-based organizations providing services with federal funds may restrict employment to people of their own faith and thus be exempt from employment nondiscrimination rules that attach to some federal grants.
For more information about this case, please watch this trailer from the documentary, "The Snowbowl Effect."
The full documentary is very good. I just love when the fake snow advocate backs away from drinking some "reclaimed water" that he says is all so good!