(photo: Genesis Realty)
The San Francisco Peaks in Northern Arizona are considered sacred lands by more than a dozen Tribes in the region. Stunningly picturesque, the Peaks are also home to the Arizona Snowbowl – a popular ski resort that attracts thousands of people to its slopes each year. Tourism in sacred Tribal lands is often a source of socio-political tension, but when the proprietors of the Snowbowl sought a special permit from the US Forest Service to begin spraying the Peaks with artificial snow made from treated sewage water, the Navajo Nation and other local Tribes were moved to action.
Instead of utilizing typical principles of environmental law, the Tribes took a different approach. They petitioned for an injunction against the Snowbowl under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, a federal law enacted in 1993 to prevent government actions that would substantially burden a person's free exercise of religion. The RFRA prohibits the federal government from placing a “substantial burden” on a person’s exercise of religion unless the government’s action furthers a “compelling government interest” or “is the least restrictive means of furthering that compelling government interest.” It also reinforces the “strict scrutiny” test for any governmental action that would tend to impinge on religious freedom – this is the most stringent and demanding standard for governmental actions, requiring that any the action be closely tied to a compelling government interest in order to be legal.
The Tribes argued that spraying “snow” made of treated sewage effluent on the sacred Peaks was both an unreasonable interference with their religious practices and not sufficiently related to a compelling government interest. Since the Snowbowl is located on land controlled by the US Forest Service, the issuance of a permit for the artificial snow is a governmental action subject to scrutiny under the RFRA. The Tribes succeeded in convincing a 9th Circuit panel that the spraying was a violation of the RFRA, but the decision was reversed by the full 9th Circuit Court of Appeals. The Tribes then petitioned the US Supreme Court and are currently awaiting review.
As global climate change increasingly calls into question modern pollution-producing lifestyles, it is interesting to ponder ancient Native philosophies regarding the environment. In Pre-Columbian times, Native American Tribes created communities that lived in remarkable harmony with nature. The Anasazi cliff dwellings in Canyon de Chelly provide a striking example of people building and operating a society based on knowledge of and respect for their natural surroundings. Those familiar with Native American culture know that this approach was based on something far deeper than mere geographic expediency; Native people viewed the earth as sacred, and embraced its preservation as a spiritual imperative.
Using legal tools like the RFRA, contemporary Native communities can work to heighten awareness and protection of lands that have ritual and religious significance – and at the same time make positive contributions to the environment for the benefit of all people.