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Snowbowl and the sacred mountains

#37: April - June 2007 (Non-Fiction)
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George Ricker

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Snowbowl and the sacred mountains

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I just though I would mention this, since it seems relevent to our discussions here. It appears the Snowbowl Ski Resort is embroiled in a legal controversy with a group of Native American tribes over planned improvements to its facilities. The resort, which is located in the San Franciso Peaks mountain range around Flagstaff, Arizona, has suffered from diminished snowfall in recent years.The owners have come up with a plan to use artificial snow made from treated wastewater on the slopes. They also have other improvements planned as well, but the use of the artificial snow has become the big bone of contention. The Arizona departments of health and environmental regulation have signed off on the plan, according to news reports.The Navajo and other tribes have sued to prevent application of the artificial snow on the grounds that the mountains are sacred in their religion and are critical to their religion. One judge had found in favor of the resort, saying that areas of the mountain range are still accessible to the tribes in question and are available for any religious observances. The peaks are not part of any reservation or tribal lands. However, that finding was overturned by a 3-judge panel of the 9th U.S. Circuit Court of Appeals who found on behalf of the tribes, citing RFRA (the Religious Freedom Restoration Act). There's an article about the case here: "Snowbowl, feds appeal ruling barring snowmaking"I haven't been able to find a cite for the actual ruling. Call me a cynic, but I can't help wondering if the tribes filing the suit may have a resort or casino in the area that is in competition with Snowbowl. At any rate the resorts plans are blocked, pending an appeal. Coincidentally, or maybe not, the attorney representing the native Americans, Howard Shanker, is running for Congress in 2008. HmmmmGeorge "Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."Godless in America by George A. Ricker
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Snowbowl and the sacred mountains

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George, you're probably right. Something doesn't add up. And even if the tribes are being completely honest and they really would experience some sort of religious impact with the use of artificial snow...too bad. This is a prime example of how one persons "innocent beliefs" can bleed over and harm another person."...areas of the mountain range are still accessible to the tribes in question and are available for any religious observances. The peaks are not part of any reservation or tribal lands."So they don't even own the land? And they are using their religious beliefs to tell other people what to do with their land?
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George Ricker

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Chris: So they don't even own the land? And they are using their religious beliefs to tell other people what to do with their land?That does appear to be the case. What's more bothersome is that a panel of judges apparently agrees. This application of RFRA (which I think was bad law from the outset) seems very problematic to me. Ultimately, I think the reversal will be reversed on appeal, but it's an expensive, time-consuming process. George "Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."Godless in America by George A. Ricker
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This looks like it might be an interesting case to keep track of, George. Thanks for the link. BTW, I found a copy of the 9th Circuit Opinion from March, which is now up for reconsideration, if you're interested. I haven't read any of this yet. Navajo Nation, et al. v. United States Forest Service, et al.
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George Ricker

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Rosemary, Thanks for the link to the opinion. I prefer to read these things myself than to trust a reporter's understanding of the case. Some reporters tend to fix on the most sensational aspect of a case and ignore the more important elements of a ruling. George http://www.godlessinamerica.com"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."Godless in America by George A. Ricker
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garicker: I prefer to read these things myself than to trust a reporter's understanding of the case.ABSOLUTELY!!! No problem finding the case. I've actually really enjoyed searching for this stuff for free online. Usually, when I run across a case like this, I just find the Opinion on Lexis Nexis, but the people on this board couldn't then use that link. (Without a password that is.) I've been really amazed, and happy, to see that you can get most of this stuff for free online. It's really very neat--as I said in another thread the democritization of information. What can I say, I'm corny.
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Chris: So they don't even own the land?Correct me if I'm wrong here, but didn't Europeans come over and take the land by force?The question that seems most pertinent to me is, to what extent is Snowbowl extending its operation? Adding artificial snow presumably lengthens the annual period of time during which they're operational. Is that encroaching on the Navaho "religious season"? Or is Snowbowl also increasing the amount of space that it occupies on the mountain? (Maybe I should go read the damn article instead of asking rhetorical questions.)Actually, I suspect that (at least some of) the Navahos involved are taking advantage of a change in the situation in order to initiate a new line of attack on a problem that historically precedes the establishment of Native American casinos and fun parks. They've probably fought for this site before, were decided against, and needed a new precedent on which to reapply their case.As for Chris' argument that their religious use of the mountain should be, from a legal standpoint, immaterial, I think it helps to look at the matter through a different lens. Dennett mentioned the claim some Mohawk tribes have made to Ellis and Liberty Islands, and Dennett, as I recall, took much the same stance -- so what if the island is sacred to them? Their claim is premised on ideas that the rest of us don't recognize, so why should we accomodate them?But I suspect that all of us, Dennett included, would change our minds if the situation were reversed. If Hong Kong developers purchased Ellis Island and announced their plans to build a mall there, I think most of us would balk. And if there were some legal avenue for fighting their plans, I think we'd be in favor of suing. The situation is analogous in that both sites have historical and symbollic value for a particular group. We just feel more inclined to recognize and accomodate for the value of the latter because more of us relate to it. Religion is not the only system of subjective values that people feel a just society should accomodate for, and I think we need to look for a consistently applicable way of accomodating for a broad range of subjective values.
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George Ricker

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Mad: Religion is not the only system of subjective values that people feel a just society should accomodate for, and I think we need to look for a consistently applicable way of accomodating for a broad range of subjective values.That's all well and good, but, as the judge who originally heard the case indicated, Snowbowl's plans don't prevent any of the tribes from continuing their religious observances or from having access to the portion of the peaks -- the largest part by far -- that isn't impacted by the resort's plan. The U.S. Forest Service had signed off on the resort's plans, including the use of the artificial snow. I have no problem recognizing that the Indian's make use of the mountains for their religious observances and accommodating that usage in a reasonable manner. However, I don't think it ought to trump all other considerations.It will be interesting to see how this plays out in the courts. George http://www.godlessinamerica.com"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."Godless in America by George A. Ricker
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Having done a quick scan on the matter, it looks to me as though the issue for most of the Native Americans involved is that of desecration, rather than that of sharing the mountain. The issue seems to be that the artificial snow is made from recycled sewage. The Snowbowl would, in effect, be spreading sewage over what the tribes regard as a sacred emblem. Bear in mind that most Native American religion is centered around the veneration of nature. In other words, they regard it in much the same way that, say, a pious Muslim might regard attempts to install a Victoria's Secret billboard on the front of a mosque. The issue, for the Native Americans, isn't usage, but rather the treatment of the mountain itself. To a certain degree, their concern is conservationist, although that doesn't provide any additional legal protections, and to whatever degree the state of the mountain really is integral to their religious beliefs, this case really does cut to the heart of how much we're willing to accomodate beliefs that differ from our own.
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Yes, Mad, the issue certainly seems to be the "treated sewage effluent" (ewwww). My problem isn't really with plaintiffs' claim, it's with RFRA. If the plaintiffs had raised this under normal First Amendment proceedings (assuming RFRA didn't exist), I wouldn't have any problems with the case--of course then they wouldn't have a chance of winning, either. The problem with RFRA, and this is very thoroughly spelled out in the Opinion, is that it provides, in my mind, too great a protection on free religious expression. It goes well beyond constitutional requirements that protect against the prohibition of free religious exercise, and places a heavy burden on the government to demonstrate cause, according to the debilitating and relatively unconstitutional terms of the statute.The Opinion states that Plaintiffs presented "evidence" on a wide array of "beliefways" in which the Peaks are an essential element of their belief system, including sweat lodges to expunge spirits, medicine bundles with healing properties, and roaming spirits, Katsinam, that require the purity of the mountains for their residence. Yet when the state presented their case--additionally hampered by the statute's requirements that they show a "compelling interest" for their proposed changes, and that those changes represent the "least restrictive means" to execute their plans--the court suddenly adopted a more restrictive definition of "evidence." (Be reminded this is all required for the government to use their own land--and no I'm not getting into a debate on American Indian land rights here, that wasn't at issue in the case.) Though the government demonstrated how the community would be better served by a reliable cover coat of snow to be placed at the beginning of the snow season to ensure safe and consistent skiing conditions, the court found that closing the ski resort for all but a handful of days for the normally occurring dry winters, would not necessarily permanently shut down the facility. The court writes: "But the evidence in the record does not support a conclusion that the Snowbowl will necessarily go out of business if it is required to continue to rely on natural snow and to remain a relatively small, low-key resort." But, the Court, not ten pages before, has no problem accepting the testimony of Larry Foster, a Navajo medicine man in training, who states that, were the treated sewage effluent used, "he would no longer be able to go on the pilgrimages to the Peaks that are necessary to rejuvenate the medicine bundles, which are, in turn, a part of every Navajo healing ceremony." And just a statement from an actual Navajo medicine man, Norris Nez, that "the presence of treated sewage effluent would 'ruin' his medicine" was enough to constitute evidence of "burden." Oh and my favorite "burden" accepted by the court came from Roland Manakaja from the Havasupai who claimed that "he was 'concerned' that the water's perceived impurity might cause the sweat lodge ceremony to die out altogether, if tribal members fear 'breathing the organisms or the chemicals that may come off the steam.'" Now, just the fear of a "perceived impurity" constitutes "evidence" of substantial burden on religious expression, while the government's more fact-based case demonstrating numbers of skiers in wet compared to dry seasons is dismissed because they can't show that the ski resort would permanently shut down. RFRA is a serious problem, and it needs to be addressed. And I think it has very little to do with "how much we're willing to accommodate beliefs that differ from our own." I think it's about navigating around judicial decisions and making allowances for religion that the Constitution never intended.Hey, I'm all for the federal government losing land-use cases against local communities. I'm also not a big fan of how ski slopes alter beautiful mountains and recognize the burden ski slopes can be on the surrounding natural community. (In the interest of full disclosure I am a recreational skier.) Disallowing "treated sewage effluent" (ewwwww) doesn't bother me, doing so under RFRA offends me. This will be an incredibly interesting case to follow, I'm grateful you brought it to my attention, George. I'm not sure how it missed my radar screen, but there's just so much out there to keep track of.
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