Court backs native tribes on sacred mountain

SAN FRANCISCO (Reuters) - An Arizona ski resort's plan to use treated sewage to make snow on a mountain sacred to several Native American tribes violates religious freedom laws, a U.S appeals court ruled on Monday.

The decision on Arizona Snowbowl was a victory for Native American tribes after years of setbacks in their fight to bar the resort from using waste water on the federally owned mountain 150 miles north of Phoenix.

"It's like stomping on the scriptures in the world of Christianity," Navajo Nation President Joe Shirley Jr. said in a telephone interview. "This is my essence, the essence of who I am."

The 9th U.S. Circuit Court of Appeals agreed with the tribes that the treated waste water should be barred under the U.S. Religious Freedom Restoration Act, which says the federal government may not "substantially burden a person's exercise of religion."

"We hold that the Forest Service's approval of the proposed expansion of the Snowbowl, including the use of treated sewage effluent to make artificial snow, violates RFRA," William Fletcher wrote for a three-judge panel.

The ruling described the religious significance of the mountain to the Navajos, Hopi, Hualapai and Havasupai tribes and how sewage is treated.

"The record supports the conclusion that the proposed use of treated sewage effluent on the San Francisco Peaks would impose a burden on the religious exercise of all four tribes," Fletcher wrote.

According to the Navajo Nation, the San Francisco Peaks are sacred to more than 13 Native American nations.

"I think this is precedent setting," Shirley told Reuters. "The court has said that my rights, my religious rights, need to be protected."

ECONOMIC SURVIVAL?

The resort wanted to use artificial snow to enable skiing throughout the winter and says the project is crucial to its economic survival.

Eric Borowsky, Snowbowl's general partner, said he hoped the U.S. Congress would take action on the matter or that the case would go to the U.S. Supreme Court.

"To do so will insure once and for all that radical groups who hold utter contempt for the public's rights will no longer be able to abuse the process to achieve their ultimate goal of control of our nation's resources," he said in a statement.

Organized skiing started at Snowbowl in 1938, but it has depended on highly variable natural snowfall rather than using artificial snow as at many U.S. resorts. In many years, enthusiasts can ski for more than 100 days a year, while in the especially poor 2001-2002 season there were only four days of skiing.

Last year, a U.S. District Court judge backed the plans to allow a $25 million upgrade on the 777-acre (315-hectare) facility on federal forest land to include the use of treated sewage water.

The Navajo Nation, which has an estimated 300,000 tribal members in Arizona, New Mexico and Utah, joined several other tribes and environmental groups to fight the decision.

"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," Fletcher wrote.