San Francisco Peaks

From many places in northern Arizona, the horizon is dramatically marked by three 12,000-foot volcanic peaks that rise out of the Colorado Plateau south of the Grand Canyon and north of Flagstaff. The San Francisco Peaks are sacred to 13 tribes. For the Navajo, the Peaks are the sacred mountain of the west, Doko’oo’sliid, “Shining On Top,” a key boundary marker and a place where medicine men collect herbs for healing ceremonies. To the Hopi, the Peaks are Nuvatukaovi, “The Place of Snow on the Very Top,” home for half of the year to the ancestral kachina spirits who live among the clouds around the summit. When properly honored through song and ceremony, the kachinas bring gentle rains to thirsty corn plants. The peaks are one of the “sacred places where the earth brushes up against the unseen world,” in the words of Yavapai-Apache Chairman Vincent Randall. However, it is the U.S. Forest Service, not the tribes, that determines what activities can take place on the Peaks, and they have permitted a ski resort since 1979. In 2009, the resort received legal clearance to use reclaimed wastewater to make additional snow — a desecration of the sacred slopes and a threat to the pure drinking water supplied by the mountain aquifer.

History

The San Francisco Peaks, part of the Coconino National Forest, have long been the source of land-use conflicts. Starting in the late 1800s, the area was extensively logged and grazed. At the same time, the area’s dramatic beauty attracted tourists and the clamor for recreational use continues. The area is under the domain of the U.S. Forest Service, which has a mandate to allow multiple uses on its lands. Consequently, the Forest Service allowed the construction of a ski lodge and access road on its northern slopes in the 1930s. Full-scale development — with shops, restaurants and lodges — was first proposed in 1969, but the opposition of several tribes and community groups prevented this major expansion.

However, in 1979, the Forest Service approved a new lodge, a paved road, additional parking, four new lifts and 50 acres of trails to be added to the existing ski area, which soon grew to 777 acres. The native people in the area protested that this invasion imperiled their religious freedom. Many Navajo and Hopi pray in the mountains. Navajos collect sacred herbs from the slopes of the Peaks and bury the umbilical cords of their children there. As the chairman of the Hopi Tribe warned, “If the ski resort remains or is expanded, our people will not accept the view that this is the sacred home of the kachinas. The basis of our existence will become a mere fairy tale.” Despite Hopi and Navajo protests, the Forest Service regional supervisor in 1980 approved the paving of an access road into the Peaks. The Hopi and Navajo filed separate lawsuits to stop the development, while the Forest Service argued that religious rights would be unimpeded, and even facilitated, by the ski lifts. Three years later (the suits having been consolidated into one case, Wilson v. Block), the Hopi and Navajo were unable to convince the District of Columbia Circuit Court that the Peaks were “indispensable” to their religions, and the suit was denied. According to the judge, permitting the Snowbowl ski area expansion may have “offended” their beliefs, but the Forest Service had faithfully met all the provisions of the American Indian Religious Freedom Act of 1978.

Wilson_v._Block

In the 1980s, the fashion for “stone-washed” denim jeans added another layer to the jumble of land-use claims on the San Francisco Peaks. The White Vulcan Pumice Mine, 7,500 feet up on the eastern slope of the mountain, supplied pumice used to create the “stone-washed” denim effect and also used in cement and agriculture. Pumice mining is a destructive process that involves completely removing all vegetation and topsoil. The 90-acre mine was operated by Tufflite until Aug. 28, 2000, when the federal government brokered an agreement with the company. The conflict was spurred by Tufflite’s proposal to expand the mine and a Forest Service lawsuit alleging violations of the Clean Water Act and destruction or damage of archaeological sites. President Clinton’s Secretary of the Interior Bruce Babbitt was a key player in the process, advocating for the closure of the mine. Tufflite agreed to shut the mine and restore the site within five years. The company also gave up its other 49 mining claims and its effort to sell some of the mine to a private buyer. In return the government dropped the lawsuit and paid Tufflite $1 million in the fall of 2000.

The Forest Service went further when it recommended to Babbitt that 74,000 acres of the Peaks be protected from all new mining claims for 20 years. The Forest Service has also petitioned to have the area designated a Traditional Cultural Property under Section 106 of the National Historic Preservation Act. As a Traditional Cultural Property, the San Francisco Peaks would be permanently protected from mining.

Threat

While both the Forest Service and Babbitt recognized that the Peaks should be off limits to mining, they seemed to have no problem with a ski resort. The present-day Arizona Snowbowl resort hosts 30,000 to 180,000 visitors per year. Visitor numbers fluctuate according to snowfall and in recent years the Snowbowl has been in difficult financial straits because of a drought. Hence, the resort has sought to manufacture extra snow using wastewater from the city of Flagstaff. Once again, area tribes and community members attempted to fight this proposal. Because the natural melting snow goes into an aquifer within the mountain that is then piped to provide water for Flagstaff, they fear the wastewater in the manufactured snow will pollute the pure mountain water.

The snow made from wastewater would cover 205 acres and use 180 million gallons of “reclaimed wastewater” annually. The project also requires laying 14 miles of pipeline to deliver the water. Sending sewage water throughout the mountains to mix with pure water is a desecration of a place of worship, especially in a land where water itself is sacred. To pollute what the Navajo Nation calls the “Holy house of our sacred deities whom we pray to and give our offerings” is to attack the cultural and spiritual traditions of virtually all of the local tribes. In addition, the proposal poses serious questions about the presence of chemicals — pharmaceuticals and personal care products — in the water that people will be drinking.

The Snowbowl also stated in 1997 that it wanted to add another 66 acres of trails, conduct a major upgrade of existing ski runs, and expand the existing facilities to full buildout, relying on the precedent of the 1979 Forest Service decision. This would involve cutting 76 acres of trees and thinning an additional 48 acres, in order to increase the size of the resort by 47 percent. Cutting this many trees could increase soil erosion and damage the habitat of wild animals, including the endangered Mexican Spotted Owl.

The proposal to expand the ski area and use wastewater for snowmaking triggered several years of environmental review and public comment before receiving approval from the U.S. Forest Service.

Several lawsuits against the plan eventually coalesced into one case supported by the Sierra Club, the Flagstaff Activist Network, the Center for Biological Diversity, the Navajo Nation, the Yavapai-Apache Nation, the White Mountain Apache Tribe, the Hualapai Tribe, Navajo medicine man Norris Nez, and Hopi practitioner Bill Preston. The lawsuit argues that the Forest Service’s approval of wastewater usage on the Peaks violates the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Religious Freedom Restoration Act, and other land and cultural protection laws.

In 2006, the U.S. District Court ruled in favor of the Snowbowl’s plan, but the Ninth Circuit Court of Appeals reversed the ruling in 2007. The three judges’ unanimous decision said there is no evidence that denying the operators of the Snowbowl the ability to use reclaimed wastewater for artificial snow would force the facility to shut down, nor is there any “compelling governmental interest” in having artificial snow on the San Francisco Peaks. The ruling cited the instructions of the federal Religious Freedom Restoration Act (RFRA) of 1993, which requires government agencies to use the “least restrictive” means of interfering with any religious practice.

At the time, this overruling of a district court decision appeared to be one of the most important in recent years to use the RFRA. In the court’s ruling, Judge William Fletcher wrote, “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.’”

However, a year later, a split panel of 13 judges on the same appeals court reversed its decision, finding that the 2007 interpretation of RFRA was too broad. The opinion stated that “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 the plaintiffs’ religious beliefs by calling them mere “damaged spiritual feelings.” In June 2009, the Supreme Court denied a petition by tribes and environmental groups to hear the case, effectively clearing the last legal obstacle to the Snowbowl’s plans.

“The Supreme Court’s denial … is unfortunate to say the least,” said Jack Trope, of the Association on American Indian Affairs, who is working on the case. “It means that the San Francisco Peaks, sacred to so many tribes, will continue to be at great risk from the development approved by the Forest Service that allows treated sewage water to be used for snowmaking. It also means that the Ninth Circuit’s narrow interpretation of the RFRA – an interpretation which in practice will make that law virtually unavailable to protect sacred lands in the states covered by the Ninth Circuit – will stand.”

Solution

The history of the ongoing conflict at the San Francisco Peaks is a good example of the sometimes contradictory positions taken by a single government agency and conflicting interpretations of federal religious freedom laws. The Forest Service (part of the Department of Agriculture) and the Department of the Interior ultimately prevented mining at the San Francisco Peaks; this campaign was made more difficult due to the antiquated 1872 Mining Law, which allows companies to mine on public land for minimal or no fees. Meanwhile, the same two agencies encouraged skiing on the Peaks, nominated the area for permanent protected status, and then approved resort expansion.

The series of legal decisions on the ski resort, first allowing the construction of the modern Snowbowl and then the use of wastewater, highlight the limitations of the legal protection for American Indian religious expression.

The wording of the American Indian Religious Freedom Act has been interpreted narrowly by the courts; in the example of the San Francisco Peaks, because the ski resort did not prevent the tribes from practicing their religion, the court found that the legislation did not apply. There is no provision for a substantial negative impact on religious practices. In addition, the act is more effective when a specific site can be designated, such as a shrine, but the act is unable to take into account situations that involve an entire landscape, as is often the case with sacred places. The Peaks are a classic example of a large area — the center of a 100-mile-radius landscape — that has been used by more than a dozen tribes over centuries, with uses including foot trails, shrines and view sheds.

The back-and-forth court decisions regarding the RFRA indicate the ambiguity of the newer law. It lacks specific consideration of land-based religions, and different judges have viewed it with varying degrees of breadth. In the long term, this legal indeterminacy points to the need for a new, stronger law to protect sacred landscapes.

The Save the Peaks Coalition continues to exhibit the effectiveness of local coalitions of tribal groups, activists and ordinary citizens. However, in spite of an outpouring of public comment on the Snowbowl construction, they were ultimately unable to impact the outcome of the environmental review process, and were then failed by the courts.

What You Can Do

The failure of the Religious Freedom Restoration Act has made defenders of the San Francisco Peaks all the more determined to push for specific legal protection for Native American religious expression.

For more information, contact: protectpeaks@gmail.com

Sources

Grahame, John D. and Thomas D. Sisk, ed. ”San Francisco Peaks.” Canyons, cultures and environmental change: An introduction to the land-use history of the Colorado Plateau. 2002.

Groninger, Greg. “Religious Freedom Restoration Act analysis.” First Amendment Center.

“The Holy San Francisco Peaks.” Women’s Earth Alliance, Sacred Land Film Project film. 2009.

Kraker, Daniel. “Sacred Claims: American Indian tribes win some, lose some, on federal land.” High Country News, November 14, 2005.

Kraker, Daniel. “American Indians Seek Protection for Sacred Sites.” Voice of America, November 28, 2005.

Kraker, Daniel. “Edge of the Rez – Snowbowl History.” KNAU – Arizona Public Radio, November 16, 2006.

McLeod, Christopher. “Coalition Ushers a Mine off Sacred Ground.” High Country News, September 11, 2000.

Save the Peaks Coalition. “Supreme Court Affirms Tribes Have No Religious Rights, Tribes and others Call For Congressional Action to Protect Sacred Places.” News release, June 8, 2009.

U.S. District Court, District of Arizona. “Plaintiffs Consolidated [Proposed] Findings of Fact and Conclusions of Law.” December 2005.

Ninth Circuit Court of Appeals decision filed March 12, 2007. (PDF)

Ninth Circuit Court of Appeals en banc opinion filed August 8, 2008. (PDF)

U.S. Forest Service. “Arizona Snowbowl Upgrade Proposed Action, September 2002.” Coconino National Forest.