Post by blackcrowheart on Aug 12, 2008 11:31:41 GMT -5
Court OKs Snowbowl making snow with effluent By Howard Fischer - Aug.
08, 2008
The operators of Snowbowl are entitled to use recycled sewage to make
snow on the San Francisco Peaks despite the objections of several Native
American tribes, the 9th U.S. Circuit Court of Appeals ruled Friday.
In a split decision, the court acknowledged arguments by the tribes that
the use of artificial snow will decrease the "spiritual fulfillment''
they get from practicing their religion on the mountain. The land on
which the ski resort is located is owned by the federal government.
Judge Carlos Bea, writing for the majority, said that does not run afoul
of the federal Religious Freedom Restoration Act.
"A government action which decreases the spirituality, the fervor, or
the satisfaction with which a believer practices his religion is not
what Congress has labeled a 'substantial burden' -- a term of art chosen
by Congress to be defined by reference to Supreme Court precedent -- on
the free exercise of religion,'' he said.
And Bea said there is nothing in the decision of the Forest Service to
allow the use of treated effluent that requires the tribes to act
contrary to their religion.
The ruling drew fire from Judge William Fletcher who wrote a dissent for
himself and two other judges. He said the majority ruling
"misunderstands the very nature of religion.''
Friday's decision is significant beyond the future of the ski resort.
In overturning a contrary ruling by its own three-judge panel, the full
court adopted a much more restrictive reading of the 1993 law that the
tribes used in this case. That has implications for others hoping to use
claims of religious freedom to block government action.
It also is a defeat for Howard Shanker, who argued the case for the
tribes before the court -- and who lists his earlier victory before the
three-judge panel as one of his "triumphs'' that voters should consider
in his bid for Congress in the District 1 race.
At issue is a plan by the current owners, who bought the resort in 1992,
to build a 15-mile pipeline to carry up to 1.5 million gallons a day of
treated effluent from Flagstaff to Humphrey's Peak. Plans are to cover
about 205 acres with artificial snow at the beginning of the season,
with more as necessary.
Various tribes filed suit, citing that 1993 law that requires government
agencies to use the "least restrictive'' means of interfering with any
religious practice when considering projects built on federal land.
Shanker said the court got it wrong in its conclusion that the project
does not place a substantial burden on the practices of the tribes he
represents.
"The court is being the arbiter of religious beliefs, which is not its
role,'' he said.
"The court is supposed to determine whether the religious beliefs at
issue are sincerely held, and that's it,'' Shanker said. "Once they've
made that determination it's not for the court to decide whether or not
they agree with the testimony that was presented.''
www.eastvalleytribune.com/story/122614
<http://www.eastvalleytribune.com/story/122614> -----
Teresa Anahuy
groups.yahoo.com/group/FirstPeoplesNews
<http://groups.yahoo.com/group/FirstPeoplesNews>
08, 2008
The operators of Snowbowl are entitled to use recycled sewage to make
snow on the San Francisco Peaks despite the objections of several Native
American tribes, the 9th U.S. Circuit Court of Appeals ruled Friday.
In a split decision, the court acknowledged arguments by the tribes that
the use of artificial snow will decrease the "spiritual fulfillment''
they get from practicing their religion on the mountain. The land on
which the ski resort is located is owned by the federal government.
Judge Carlos Bea, writing for the majority, said that does not run afoul
of the federal Religious Freedom Restoration Act.
"A government action which decreases the spirituality, the fervor, or
the satisfaction with which a believer practices his religion is not
what Congress has labeled a 'substantial burden' -- a term of art chosen
by Congress to be defined by reference to Supreme Court precedent -- on
the free exercise of religion,'' he said.
And Bea said there is nothing in the decision of the Forest Service to
allow the use of treated effluent that requires the tribes to act
contrary to their religion.
The ruling drew fire from Judge William Fletcher who wrote a dissent for
himself and two other judges. He said the majority ruling
"misunderstands the very nature of religion.''
Friday's decision is significant beyond the future of the ski resort.
In overturning a contrary ruling by its own three-judge panel, the full
court adopted a much more restrictive reading of the 1993 law that the
tribes used in this case. That has implications for others hoping to use
claims of religious freedom to block government action.
It also is a defeat for Howard Shanker, who argued the case for the
tribes before the court -- and who lists his earlier victory before the
three-judge panel as one of his "triumphs'' that voters should consider
in his bid for Congress in the District 1 race.
At issue is a plan by the current owners, who bought the resort in 1992,
to build a 15-mile pipeline to carry up to 1.5 million gallons a day of
treated effluent from Flagstaff to Humphrey's Peak. Plans are to cover
about 205 acres with artificial snow at the beginning of the season,
with more as necessary.
Various tribes filed suit, citing that 1993 law that requires government
agencies to use the "least restrictive'' means of interfering with any
religious practice when considering projects built on federal land.
Shanker said the court got it wrong in its conclusion that the project
does not place a substantial burden on the practices of the tribes he
represents.
"The court is being the arbiter of religious beliefs, which is not its
role,'' he said.
"The court is supposed to determine whether the religious beliefs at
issue are sincerely held, and that's it,'' Shanker said. "Once they've
made that determination it's not for the court to decide whether or not
they agree with the testimony that was presented.''
www.eastvalleytribune.com/story/122614
<http://www.eastvalleytribune.com/story/122614> -----
Teresa Anahuy
groups.yahoo.com/group/FirstPeoplesNews
<http://groups.yahoo.com/group/FirstPeoplesNews>