June 08, 2007

First win on sacred site

Tribes Invoke Gods to Block Wastewater Snowmaking"In today's world, it is impossible to run a ski area depending on natural snowfall," says Eric Borowsky, general partner of the Snowbowl resort.

But in March, a three-judge panel of the Ninth Circuit Court of Appeals killed the scheme. The reason: The mountaintops are sacred to the Navajo and 12 other tribes, even though the land is not part of their reservations.

The tribes regard the mountains as living deities that would be offended by man-made snowmaking, especially if it used treated wastewater that the tribes contend would contaminate plants and spring water used in religious ceremonies. The court compared spraying snow made from treated wastewater on the peaks to requiring Christians to use reclaimed water for baptisms.

That ruling has given new hope to similar challenges from Indian tribes across the West.

At issue is the interpretation of the Religious Freedom Restoration Act, or RFRA, which Congress passed in 1993 with almost unanimous support after the Supreme Court upheld a government decision to deny unemployment benefits to two Native Americans fired for using illegal drugs in a religious ceremony. In the past, courts denied that the First Amendment's religious-freedom protections extend to American Indians who challenge federal land-use decisions. RFRA changed that by requiring the government to demonstrate a compelling interest when considering any action that would substantially burden a religious practice. The Snowbowl case is the first to successfully apply the law to a sacred site, says Howard Shanker, the Flagstaff attorney who represented several of the tribes before the court.

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