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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. The tribes are currently contesting a Forest Service decision permitting the use of 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. Report by Amy Corbin HistoryThe 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 fifty 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. 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, 7500 feet up on the eastern slope of the mountain, supplied pumice, which is used to create the “stone-washed” denim effect, and is 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 August 28th, 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 5 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 former Secretary 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. ThreatWhile both the Forest Service and former Secretary Babbitt recognized that the Peaks should be off limits to mining, they seem to have no problem with a ski resort. The present-day Arizona Snowbowl ski area 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 is seeking to manufacture extra snow using wastewater from the city of Flagstaff. Once again, area tribes and community members are working together to fight this proposal. Because the natural melting snow goes into an aquifer within the mountain which 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 people will be drinking. The Snowbowl Resort 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%. 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, culminating in June 2005, when the plans were approved by the Southwest Regional Forest Office, following a Final Environmental Impact Statement that stated that the plans were consistent with the Coconino National Forest Plan and environmental regulations. Regional Forester Harv Forsgren found that the expansion is needed for a “consistent/reliable operating season, and to improve safety, skiing conditions, and recreational opportunities by bringing terrain and infrastructure into balance with existing demand.” The resort’s plans and the environmental investigation galvanized a new coalition of Native Americans and environmentalists, the Save the Peaks Coalition. Coalition members, including the Sierra Club, the Flagstaff Activist Network, the Center for Biological Diversity, the Navajo Nation, the Yavapai-Apache Nation, and the White Mountain Apache Tribe, have filed suit to stop the new construction, which was scheduled to begin in mid-July 2005. The first stage of work was to be cutting trees, followed by construction of a pipeline to carry wastewater from Flagstaff to the mountaintop resort. Coalition members asked the court to stop the work in the short-term while their lawsuit was considered. Other suits by the Hualapai Tribe, a Navajo medicine man, and a Hopi leader were also merged with the Coalition lawsuit by U.S. District Judge Paul Rosenblatt. The groups argue that the Forest Service’s decision 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 January 2006, the U.S. District Court ruled in favor of the Snowbowl expansion, but the 9th Circuit Court of Appeals reversed the ruling on March 12, 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, which requires government agencies to use the “least restrictive” means of interfering with any religious practice. This overruling of a district court decision is one of the most important in recent years under the 1993 Religious Freedom Restoration Act. Judge William Fletcher wrote that: “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, the Snowbowl and the Forest Service signaled their intention not to give up when they asked the appeals court to reconsider its decision on the grounds that it sets a broad precedent, allowing virtually anyone to hold up development on federal land if they cite religious objections. The U.S. Department of Justice and (in an unfortunate irony) former Interior Secretary Babbitt have also signed on to assist the Snowbowl. This is despite Babbitt's own previous statements that the San Francisco Peaks are sacred ground, which he made during his campaign to close the White Vulcan Mine. The Snowbowl’s owner Eric Borowsky recently stated that, if necessary, the case will go all the way to the Supreme Court. SolutionThe 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, conflicting interpretations of federal religious freedom laws, and the potential influence of community pressure. 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 first set of legal decisions on the ski resort, allowing the construction of the modern Snowbowl, highlight the limitations of the American Indian Religious Freedom Act. AIRFA’s wording 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, AIRFA 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—which has been used by more than a dozen tribes over centuries, including foot trails, shrines, and view sheds. The most recent court decision using the Religious Freedom Restoration Act indicates the potential strength of the newer law, though it lacks specific consideration of land-based religions. In the long term, this legal ambiguity 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 thus their only recourse now is the courts. What You Can DoSend donations to: Make checks out to: Flagstaff Activist Network Please write “Sacred Peaks” in the memo. Continue to check the Save the Peaks web site regularly for action alerts and breaking news. For More Information, ContactAndy Bessler Resources
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