PEAKS LEGAL BATTLE CONTINUES

[Okwes]

PEAKS LEGAL BATTLE CONTINUES
www.treatycouncil.org/doc0826061.htm
<http://www.treatycouncil.org/doc0826061.htm>

On September 14, 2006 the 9th Circuit Court of Appeals in San Francisco,
California will hear arguments in a legal battle that may decide the
future of American Indian religious freedom and the ecological integrity
of the San Francisco Peaks, a mountain held sacred by over 13 Native
American nations. Tribes and environmental groups have unified to halt
Arizona Snowbowl's development plans to expand the current ski area and
use treated sewage effluent to make artificial snow on the sacred Peaks.
Although the plan is backed by the US Forest Service and has been
allowed to go forward in a decision issued by Judge Rosenblatt of the US
District Court of Arizona on January 11th 2006, Snowbowl has been forced
to delay their proposed development.
Howard Shanker, representing the Navajo Nation, the White Mountain
Apache Tribe, the Yavapai-Apache Tribe, the Havasupai Tribe, Rex
Tilousi, Dianna Uqualla, the Sierra Club, the Center for Biological
Diversity, and the Flagstaff Activist Network will argue the case
against the expansion plan and use of treated sewage effluent to make
snow before a three judge panel in San Francisco, CA.
In addition, presenting their case will be lawyers representing the
Hopi Tribe and DNA People's Legal Services Inc. representing the
Hualapai Tribe, and other tribal individuals.
The major points of the case are as follows (from Shanker's opening
statements to 9th Circuit Court):

1. Defendants Failed to Disclose and Discuss the Scientific Viewpoints
Submitted by Dr. Paul Torrence Under NEPA, the agency is required to
"disclose and discuss responsible opposing scientific viewpoints in the
final statement itself." Dr. Paul Torrence submitted an approximately 40
page treatise critical of the analysis of health and environmental
impacts of using reclaimed sewer water for snowmaking included in the
DEIS. The FS neither disclosed nor discussed Dr. Torrence's viewpoints
in the FEIS. The FS's failure to "disclose and discuss" was without
observance of the procedure required by law. It was also arbitrary,
capricious, and/or not otherwise in accordance with law.

2. Defendants Failed to Consider the Fact That Children Might Eat Snow
Made From Non-Potable Reclaimed Water The only time that the
possibility of eating snow is directly addressed in the FEIS is in the
FS response to comments, which provides, in pertinent part, that,
"[t]here will be signs posted at Snowbowl informing visitors of the use
of reclaimed water as a snowmaking water source. . . it is the
responsibility of the visitor or the minor's guardian to avoid consuming
snow made with reclaimed water. . ." ER 52. Defendants' failure to
adequately consider this impact was without observance of the procedure
required by law, arbitrary, capricious, an abuse of discretion, and/or
otherwise not in accordance with law.

3. Defendants Refused to Consider the Impacts Associated With Withdrawal
of 1.5 Million Gallons a Day of Reclaimed Water That is Currently Used
to Recharge the Regional Aquifer Near Flagstaff During the winter
months, approximately 1.5 million gallons a day of effluent from the Rio
de Flag treatment plant is currently introduced into the Rio de Flag
River to recharge the regional aquifer in Flagstaff �V where it is
diluted with fresh water before it percolates into the underground
aquifer. The FS refused to consider the impact of this diversion in its
decision making process �V noting that the City of Flagstaff was free
to do whatever it wanted with its wastewater. This is an "indirect
effect," a "cumulative impact," and/or a "connected action," the impact
of which should have been thoroughly considered in the FEIS. The FS's
refusal to consider this impact is without observance of the procedure
required by law, arbitrary, capricious, and/or otherwise not in
accordance with law.

4. Defendants' Approval of This Project Violates RFRA In finding that
defendants did not violate the Religious Freedom Restoration Act (RFRA),
the lower court: (1) ignored the FS's own findings and Ninth Circuit
precedent on demonstrating a "substantial burden" in the context of a
government land use decision; (2) improperly interpreted sincerely held
religious beliefs; (3) improperly interpreted the requirement that RFRA
decisions be made in "context;" (4) applied improper legal analyses to
the "compelling interest" and "least restrictive means" components of
the strict scrutiny test; and (5) made clear errors in many of its
findings of fact.

If you would like to learn more about the case or read the actual court
documents that Howard Shanker has filed go to www.shankerlaw.net
<http://www.shankerlaw.net/> or the Save the Peaks website:
www.savethepeaks.org <http://www.savethepeaks.org/>

CARAVAN TO SAN FRAN TO SUPPORT THE SACRED PEAKS

The Save the Peaks Coalition is planning a caravan to San Francisco, CA
to support the efforts to protect the Sacred Peaks. There will be events
outside the courtroom and the chance for a few to go inside the
courtroom to respectfully view the proceedings. Organizations in San
Francisco are working with the Coalition to make this a truly amazing
experience for all peoples involved with efforts to save sacred places
around the world.
You are invited to take part in the caravan. We already have vehicles
with space for about 26 people. We are also looking for folks with their
own vehicles who may want to come with. Accommodations (free and for a
fee) will be available in San Francisco for all those who would like to
take part.
Much of the money needed to pay for the cost of travel has already
been sponsored by generous folks unable to go, but more is needed. If
you would like to go, but cannot pay, call us anyway. If you would like
to support the caravan call us or go to www.savethepeaks.org
<http://www.savethepeaks.org/> to donate to the Sacred Peaks Defense
Fund. All donations are tax-deductible. Deadline: If you would like
to go on the caravan please contact us by September 4th.

Contact: Please call or e-mail Rudy Preston [phone] or
[e-mail] <mailto:[e-mail]> to reserve your
space or for more information. We would also love to hear from you if
you are planning to come to San Francisco from other destinations
besides Flagstaff. Departing Flagstaff: We will be departing Flagstaff
on September 12th from Macy's parking lot. Time to be determined. Check
out www.savethepeaks.org <http://www.savethepeaks.org/> and sign our
emailing list for updates.

San Francisco, CA Logistics & Events: Once in San Francisco we will be
checking into our accommodations and relaxing until the morning of
September 13th.
On September 13th from 1:00 p.m. to 4:00 p.m. a ceremonial gathering
and welcoming of regional tribes, environmental groups and supporters of
sacred sites protection, environmental justice and cultural survival
will be held at Yerba Buena Park located at 3rd St. and Mission in San
Francisco, CA. An evening dinner reception and discussion on sacred
sites protection and environmental justice with tribal representatives,
spiritual leaders and environmental advocates will also be held from
4:30 p.m.- 9:00 p.m. at the American Indian Friendship House in San
Francisco (56 Julian Avenue).
On September 14th in San Francisco, CA there will be a sunrise prayer
gathering at 6:00 a.m. in Dolores Park (Dolores St. at 18th St.) and
March to the courthouse followed by a Vigil outside of the 9th Circuit
courthouse during the actual trial. There will also be limited space
inside the courtroom for those interested in viewing the trial. After
the court proceedings there will be a press conference on the steps of
the 9th Circuit Court of Appeals.

Departing San Francisco, CA: We will be departing San Francisco for
Flagstaff in the afternoon on September 14th, and arriving back in
Flagstaff late in the evening.
Please help support the caravan to San Francisco by donating today!
Save the Peaks Caravan Wish List -Van - $400 for vehicle rental -Gas -
$1,100 (for multiple vehicles, more funds can always be used for this) -
Catering for a reception on September 13th in San Francisco, CA. We need
to feed approx. 250 people. Cost: $1800 - Save the Peaks Bumper
Stickers! �V $655 for 5,000 stickers! - Tshirts �V 2 color - $600
for 100 shirts TOTAL: $4,555.00 FLAGSTAFF CANDLELIGHT VIGIL

On September 13th at 5:30 p.m. there will be a Candlelight Vigil at
Heritage Square in downtown Flagstaff, AZ to support the proceedings in
San Francisco, CA and to show support for the Sacred Peaks. There will
also be speakers to address the environmental and cultural impacts of
the proposed expansion and wastewater snowmaking plan.

TAKE ACTION TO PROTECT THE PEAKS NOW!

Support the Caravan! Check out our wish-list online and donate today!

1. HOST A SCREENING OF "THE SNOWBOWL EFFECT" DOCUMENTARY Indigenous
Action Media is offering a limited number of free copies of the
compelling 56-minute documentary to anyone who is interested in hosting
a community screening. Visit www.savethepeaks.org/snowbowleffect
<http://www.savethepeaks.org/snowbowleffect> to find out how you can
get a DVD and film screening kit with Peaks info today! 2. Be part
of the Save the Peaks Street Team and distribute info, put up flyers and
more! Go to www.savethepeaks.org <http://www.savethepeaks.org/> to
download and print flyers for our events. 3. Write letters to
editors of your local papers. 4. Email, write or call your favorite
news outlet and urge them to cover this story. 5. Place a Save the
Peaks web banner on your site, favorite message board, forums, or
wherever you can! Find them at www.savethepeaks.org/banners.html
<http://www.savethepeaks.org/banners.html> 6. Invite members of the
Save the Peaks Coalition to do a presentation about the issue in your
community, at your school, place of worship, etc. 7. Contact your
elected officials and urge them to protect the unique cultural and
ecological values of the San Francisco Peaks. Call, Fax and/or Email
your Elected Representatives! 8. Call the Capitol Switchboard at
[phone] www.visi.com/juan/congress
<http://www.visi.com/juan/congress> (Online Directory for the 108th
Congress) 9. Urge the Flagstaff City Council to stop its sale of the
wastewater to the Snowbowl for snowmaking! 10. City of Flagstaff
Mayor and Council
E-mail: [e-mail] <mailto:[e-mail]>
Opinion Hotline: [phone]
Telephone: [phone]
Mail: 211 W. Aspen Avenue, Flagstaff AZ 86001

[Okwes]

Native Americans say expanding ski resort sullies their religion
September 14, 2006
www.skiracing.com/industry_report/news_displaySRIR.php/3988/
<http://www.skiracing.com/industry_report/news_displaySRIR.php/3988/>

Southwestern tribes protested Thursday in front of a federal appeals
court over the proposed expansion of an Arizona ski resort they say
desecrates land they hold sacred.

About 50 American Indians, some wearing traditional garb, burned sage,
chanted and held signs that read ''Save the Peaks.'' Inside, the
courtroom was filled to capacity, mostly with Indians, many of whom had
traveled from Arizona to attend the hearing.

''Their plans to make snow, if allowed, would be cultural genocide,''
said Kelvin Long, a Navajo who lives in Flagstaff, Arizona. ''What we're
doing here is trying to protect that and trying to protect our
heritage.''

The protest came ahead of a hearing before the 9th U.S. Circuit Court of
Appeals in the tribes' bid to block upgrades to the Arizona Snowbowl ski
resort.

U.S. District Judge Paul Rosenblatt ruled in January the tribes ''failed
to present any objective evidence that their exercise of religion will
be impacted by the Snowbowl upgrades.'' The tribes appealed to the San
Francisco-based appeals court, which covers nine western U.S. states.

The resort, one of two in Arizona, is about 15 miles north of Flagstaff
in the Coconino National Forest. It says it may go under if it cannot
use machine-made snow to combat erratic snowfall. It also wants to add a
fifth lift and a tubing area, and to tear down and groom dozens of acres
of forest.

Indians consider the resort an affront, and say they believe it could be
the cause for the Sept. 11 attacks, the 2004 tsunami, recent hurricanes
and the Columbia shuttle crash. They say the resort's expansion could
lead to other catastrophes.

[Okwes]

PRESS RELEASE
For Immediate Release:
September 14, 2006
Contact: coalition(at)savethepeaks.org

Hundreds Show Support For Native American
Sacred Sites & Human Rights
Navajo Nation President and Tribal Leaders, Among Many,
at 9th Circuit Court of Appeals

San Francisco, CA - Hundreds of people gathered today in front of the 9th Circuit Court of Appeals in San Francisco, unified in efforts to save a sacred mountain in Arizona from desecration by a proposed ski resort development. The courts heard arguments against the ski resort’s proposed expansion and plan to make snow out of treated sewage effluent. This wastewater has been proven to contain harmful contaminants, such as pharmaceuticals, hormones and cancer causing agents.

“Just the thought of making snow with reclaimed sewer water on the San Francisco Peaks should be an affront to all people of conscience,” said Howard Shanker of the Shanker Law Firm who represented the Navajo Nation, Havasupai, Yavapai Apache, White Mountain Apache, Sierra Club, and others. “The Peaks are sacred to 13 of the Tribes in the Southwestern United States. We are here because the lower court decision was wrong. We are hopeful that this will be a case where what the court determines to be legal is also right and morally defensible.”

Tribal officials, including the President of the Navajo Nation, spiritual leaders, environmental activists and dozens of grassroots supporters traveled from throughout the country to join together with Native American communities and environmental groups from the Bay Area. The courtroom overflowed while outside colorful banners went up and numerous prayers were offered.

“This is a precedent setting case, which threatens to undermine Native American religious freedoms and environmental integrity.” Said Rudy Preston of the Flagstaff Activist Network. “The significance of this case is shown through the unity of the plaintiffs made up of Indigenous Nations, environmental groups, and individual community members. This is not just an issue of indigenous rights violations, this is an extreme environmental and human rights crisis.”

Representatives of the Navajo Nation, the Hopi Tribe, the Hualapai Tribe, Acoma, Yavapai Apache, the Sierra Club, Flagstaff Activist Network and the Save the Peaks Coalition spoke at a news conference immediately after the 9th Circuit Arguments.

Citing the importance of the San Francisco Peaks to his people, Joe Shirley Jr., the President of the Navajo Nation stated, "The world needs to know that we need to defend our way of life".

“I was very encouraged by what I saw and heard today, I think that the court seemed to understand the profound impact that this will have on the tribes that are involved, on their religions and on their religious practices.” Said Jack Trope of DNA Legal Services.
"Many courts over the years have done the wrong thing on these issues, hopefully this is the court that is going to do the right thing"

“Sacred sites are the most holiest areas that our Indian people hold Sacred, it is the beginning of our way of life, these are places we go to communicate with our creator, San Francisco Peaks is one of those areas, just like Bear Butte in South Dakota, Medicine Lake in Northern California, or Mt. Shasta, or the Shell Mounds of the Ohlone.” Said Jimbo Simmons of the San Francisco based International Indian Treaty Council. “Today these sites are threatened by developments that have no respect for our way of life, and our spirituality, and our natural way of life, we must continue to stand up for our beliefs. The spirit of the past will rise to claim the future, that’s what we are doing today.”


###


www.savethepeaks.org

[blackcrowheart]

Arizona tribes call ski resort plans 'cultural genocide'
By David Kravets
Associated Press
deseretnews.com/dn/view/0,1249,650191263,00.html
<http://deseretnews.com/dn/view/0,1249,650191263,00.html> SAN
FRANCISCO � Attorneys for Southwestern Indian tribes urged a federal
appeals court last week to block the proposed expansion of an Arizona
ski resort they say already desecrates land they hold sacred and sullies
their religious beliefs.
[Image] Matt York, Associated Press Skiers at the Arizona Snowbowl
wait in line for the ski lift. Several American Indian tribes say the
resort desecrates their land. During the 70-minute hearing
Thursday, a panel of the 9th U.S. Circuit Court of Appeals appeared
skeptical about allowing Arizona Snowbowl to become the nation's first
ski resort to use 100 percent reclaimed water to make snow.
A Hualapai tribe attorney argued that spraying snow made from
treated sewage on the peaks, which they believe are spiritually
significant, "is like putting a contaminated needle in your body
containing poison."
Outside the hearing, dozens of American Indians, some wearing
traditional garb, burned sage, drummed, chanted and held signs that read
"Save the Peaks." Inside, the courtroom was filled to capacity, mostly
with Indians, many of whom had traveled from Arizona to attend the
hearing.
"Their plans to make snow, if allowed, would be cultural
genocide," Kelvin Long, a Navajo who lives in Flagstaff, Ariz., said as
he chanted here in front of the ornate courthouse.
The tribes say Snowbowl is an affront to their religion and its
existence may have caused the Sept. 11 attacks and other universal
calamities. The resort, one of two in the state, might go out of
business because of a lack of snowfall.
The 777-acre resort rests on the western flank of the San
Francisco Peaks that have spiritual and religious meaning to 13 tribes
in the Southwest.
The resort wants to add a fifth lift, spray man-made snow and tear
down and groom about 100 acres of forest to attract more skiers and
increase the number of skiing days. U.S. District Judge Paul Rosenblatt
of Phoenix ruled in January the tribes "failed to present any objective
evidence that their exercise of religion will be impacted by the
Snowbowl upgrades."
The tribes appealed to a three-judge panel of the San
Francisco-based appeals court, which repeatedly questioned the proposal
to spread snow created from treated wastewater.
Janice Schneider, a lawyer for the resort, told the court there
would be 82 signs warning skiers the snow is generated from "reclaimed
water."
But Judge William Fletcher wondered whether skiers would
understand "that reclaimed water is treated sewage."
[Image] Jeff Chiu, Associated Press Representatives of the tribes
suing the Snowbowl greet supporters outside the 9th U.S. Circuit Court
of Appeals in San Francisco. Fletcher and Judge Johnnie Rawlinson
were doubtful because there aren't studies determining how the snow
would affect skiers, although there are plenty of studies showing the
snow would not harm the environment.
"It's not nearly far-fetched that children will eat snow,"
Rawlinson said. Fletcher wondered how much snow a skier might
accidentally ingest during a "faceplant."
Schneider said reclaimed water in Arizona is "used on children's
playgrounds, church grounds and crops."
Hopi attorney Scott Canty said "the Hopi have revered this place,
this mountain, for more than 1,000 years, where the Hopi have built
their entire culture."
He said it was up to the deities, not man, to make snow.
"To usurp their authority is a crime, an insult," he said. "It
desecrates the entire mountain that the Hopi believe is a living
entity."
Jack Trope, a Hualapai attorney, said the man-made snow also could
melt into a nearby spring the tribe uses for healing ceremonies. Once it
touches the spring, he said, using those waters is akin to "committing
spiritual malpractice."
The ski resort opened in 1937 and now gets minimal snow, allowing
only 15 days of skiing last year. It hopes to get more than 100 days of
skiing per season by making snow.
The resort sees some 4,000 skiers on busy days. The proposed
upgrades would increase skiing from 139 acres on the resort to 205
acres, and would require more than 100 acres of forest thinning and
grading.
Arizona Snowbowl is about 14 miles northwest of Flagstaff and 140
miles north of Phoenix.
The court did not indicate when it would rule.
The case is Navajo Nation v. U.S. Forest Service, 06-15371.

[Okwes]

Hundreds Show Support During Peaks Appeals!
by iam Saturday September 16, 2006 at 01:18 PM

arizona.indymedia.org/news/2006/09/49787.php
<http://arizona.indymedia.org/news/2006/09/49787.php>
<mailto:> San Francisco, CA - Hundreds of people gathered on Sept.
14th in front of the 9th Circuit Court of Appeals in San Francisco,
unified in efforts to save a sacred mountain in Arizona from desecration
by a proposed ski resort development. The courts heard arguments against
the ski resort's proposed expansion and plan to make snow out of
treated sewage effluent. This wastewater has been proven to contain
harmful contaminants, such as pharmaceuticals, hormones and cancer
causing agents.

Hundreds Show Support for Save the Peaks Appeals in SF!
<http://www.savethepeaks.org/>
Video of the March for Sacred Sites & Human Rights:

Audio:
indybay.org/uploads/2006/09/14/9-14aanestadonpeaks.mp3
<http://indybay.org/uploads/2006/09/14/9-14aanestadonpeaks.mp3>
[Photobucket - Video and Image Hosting] <http://www.savethepeaks.org/>
More Photos and an Article:
www.franciscodacosta.com/articles/firstpeople006.html
<http://www.franciscodacosta.com/articles/firstpeople006.html>
Hundreds Show Support For Native American Sacred Sites & Human Rights
Navajo Nation President and Tribal Leaders, Among Many, at 9th Circuit
Court of Appeals
San Francisco, CA - Hundreds of people gathered today in front of the
9th Circuit Court of Appeals in San Francisco, unified in efforts to
save a sacred mountain in Arizona from desecration by a proposed ski
resort development. The courts heard arguments against the ski
resort's proposed expansion and plan to make snow out of treated
sewage effluent. This wastewater has been proven to contain harmful
contaminants, such as pharmaceuticals, hormones and cancer causing
agents.
"Just the thought of making snow with reclaimed sewer water on the
San Francisco Peaks should be an affront to all people of
conscience," said Howard Shanker of the Shanker Law Firm who
represented the Navajo Nation, Havasupai, Yavapai Apache, White Mountain
Apache, Sierra Club, and others. "The Peaks are sacred to 13 of the
Tribes in the Southwestern United States. We are here because the lower
court decision was wrong. We are hopeful that this will be a case where
what the court determines to be legal is also right and morally
defensible."
Tribal officials, including the President of the Navajo Nation,
spiritual leaders, environmental activists and dozens of grassroots
supporters traveled from throughout the country to join together with
Native American communities and environmental groups from the Bay Area.
The courtroom overflowed while outside colorful banners went up and
numerous prayers were offered.
"This is a precedent setting case, which threatens to undermine
Native American religious freedoms and environmental integrity."
Said Rudy Preston of the Flagstaff Activist Network. "The
significance of this case is shown through the unity of the plaintiffs
made up of Indigenous Nations, environmental groups, and individual
community members. This is not just an issue of indigenous rights
violations, this is an extreme environmental and human rights
crisis."
Representatives of the Navajo Nation, the Hopi Tribe, the Hualapai
Tribe, Acoma, Yavapai Apache, the Sierra Club, Flagstaff Activist
Network and the Save the Peaks Coalition spoke at a news conference
immediately after the 9th Circuit Arguments.
Citing the importance of the San Francisco Peaks to his people, Joe
Shirley Jr., the President of the Navajo Nation stated, "The world needs
to know that we need to defend our way of life".
"I was very encouraged by what I saw and heard today, I think that
the court seemed to understand the profound impact that this will have
on the tribes that are involved, on their religions and on their
religious practices." Said Jack Trope of DNA Legal Services. "Many
courts over the years have done the wrong thing on these issues,
hopefully this is the court that is going to do the right thing"
"Sacred sites are the most holiest areas that our Indian people hold
Sacred, it is the beginning of our way of life, these are places we go
to communicate with our creator, San Francisco Peaks is one of those
areas, just like Bear Butte in South Dakota, Medicine Lake in Northern
California, or Mt. Shasta, or the Shell Mounds of the Ohlone." Said
Jimbo Simmons of the San Francisco based International Indian Treaty
Council. "Today these sites are threatened by developments that have
no respect for our way of life, and our spirituality, and our natural
way of life, we must continue to stand up for our beliefs. The spirit of
the past will rise to claim the future, that's what we are doing
today."
www.savethepeaks.org
### <http://www.savethepeaks.org/> On the steps of the courthouse.
[Photobucket - Video and Image Hosting] <http://www.savethepeaks.org/>
Banner drop!
[Photobucket - Video and Image Hosting] <http://photobucket.com/>
Sacred Sites Supporter on the March!

www.savethepeaks.org <http://www.savethepeaks.org/>