Navajo Nation v. US Forest Service, Part I

The San Francisco Peaks, — named by Spanish settlers after St. Francis of Assisi in 1629, a century and half before the City of San Francisco was also named after him — rise out of the Arizona Sonoran desert about two hours north of Phoenix and an hour south of the Grand Canyon. They are, if you accept modern science, the eroded remains of a stratovolcano which began erupting about 6 million years ago and last erupted about 1,000 years ago.

Of course, if you accept that view of modern science, you may accept also that the Dome of the Rock is just another old building and Golgotha just a nondescript little geologic hill outside the old city of Jerusalem.

But if you are a religious Navajo or Hopi or Havasupai or Hualapai, you don’t accept it. To you, the San Francisco Peaks (The Peaks)are not only sacred; they are holy. They are as holy as the Dome of the Rock is to a Jew or a Moslem and Golgotha is to a Christian.

But to eight judges on the supposedly “liberal” 9th Circuit Court of Appeals and to a few Gringos stupid enough to pay $4 million to buy a ski resort in the middle of the Sonoran Desert, the San Francisco Peaks are just mountains and the Indian tribes of the Southwest have a silly religion which must not stand in the way of the true religion: Commerce.

Snowbowl Ski and Commerce Area

If you are an citizen of the United States, you own the San Francisco Peaks and the land where the ski area squats. Over the vehement objections of the citizens of Flagstaff, Presidents William McKinley and Theodore Roosevelt placed the peaks in a national forest. Your United States Forest Service, guardian of the “multiple use” concept, issued a Special Use Permit to the operators of the ski area way back in the 1930s. The current owners still have that permit to operate a ski area.

But now they want to make artificial snow from Flagstaff’s treated sewage. The plan is to build a pipeline up the mountain to carry the treated sewage water up to the ski area which will turn it into artificial snow.

The San Francisco Peaks, also called Sierra sin Agua, (“Mountains without water”) get more moisture than the surrounding desert. 11,000 feet higher than Phoenix, only 120 miles to the South, they stand in a direct line of the Pacific storms that make it over the Sierra in central California which results in some snow. At the Snowbowl ski area in a good year they can get up to 460 inches of snow. But in a bad year, say 2001-02, they may get as little as 87 inches, which can make a huge difference in how much money the owners take in. In the bad years they may get fewer than 3000 skiers, but in a good one, may get 200,000. The ski area, until now anyway, relied solely on natural snow. Not enough water is available to make artificial snow.

After learning of the plan to make artificial snow from sewage, the Native Americans of the region, to whom the mountains and the water which flows from them are holy, sued to stop it. They asked the federal courts to forbid the federal government from allowing the ski area owners to use treated sewage to make artificial snow.

The legal issue in the case is whether using sewage to make snow on a holy mountain “substantially burdens” the free exercise of religion. Suppose, said the Indians, you are a Christian and your church is required by the federal government to use treated effluent in its baptismal font; you might feel that your free exercise of your religion was burdened.

But that self-evident proposition did not sway eight members of the U.S. 9th Circuit Court of Appeals. Conceding that the Indians’ arguments accurately reflected sincere religious beliefs, the court wrote:

. . . [T]he sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain.

Those have to be the two strangest sentences ever uttered by a court in the United States of America. We’ll discuss why next time.

Tags: Flagstaff, Havasupai Nation, Sewage, Snow, Snowbowl Ski Area, U.S. Forest Service