Native Americans rally at federal court to defend San Francisco Peaks

By Brenda Norrell

Updated Monday, Jan. 9, 2012 6 pm

Photos: Navajos and other Native Americans gather outside the Ninth Circuit Court of Appeals in San Francisco today. Photo Tony Gonzales. Jeneda Benally, Navajo, from Flagstaff, Ariz., speaks at the rally today, Jan. 9, outside federal court. Photo Dixie/Censored News

SAN FRANCISCO – The Ninth Circuit Court of Appeals heard arguments today in the case to protect sacred San Francisco Peaks from the plan to use wastewater for snowmaking. On Monday morning, Jan. 9, more than 100 Navajos and other Native Americans, many arriving by caravan from Flagstaff, Ariz., marched to the courthouse and rallied for the defense of sacred San Francisco Peaks.

Five plaintiffs and representatives of The Save The Peaks Coalition, with their attorney, were optimistic as they exited the James R. Browning United States Courthouse today following oral arguments of the appeal of The Save the Peaks Coalition, et al. v. U.S. Forest Service.

Save the Peaks issued a statement following today's court hearing.

"The San Francisco Peaks is in imminent danger of becoming a toxic recreation area, exposing people to dangerous contaminants as the US Forest Service allows treated sewer water at the ski resort and proposed snow play area. The Save the Peaks Coalition v. US Forest Service is a crucial legal battle to protect the public and the environment from hazardous pharmaceuticals and endocrine disrupting compounds that can negatively impact public health. The case asserted that under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act, the Forest Service failed to adequately consider the impacts associated with ingestion of snow made from reclaimed sewer water in its federally mandated environmental review process."

Plaintiff Clayson Benally, Navajo, said, “We are concerned citizens with every right to hold our government agencies accountable for our children’s health. I’d simply like to know why the question of how this will effect our future generations has still not been answered. Why do decision-makers continue to dismiss existing scientific evidence that suggests this sewage snow can cause major endocrine disruption? Today this threatens our mountain and drinking water, but the same danger may be faced by your community tomorrow."

In 2005, the Snowbowl Ski Resort and Coconino Forest Service’s expansion plan was approved, permitting the use of reclaimed sewage water from Flagstaff's Rio de Flag Sewage Plant for snowmaking at the resort. Since May 2011, owners of the Arizona Snowbowl laid seven miles of waste water pipeline and clear-cut over 50 acres of rare alpine forest, while the issue is still being contested in court. The San Francisco Peaks are sacred to 13 Indigenous tribes in Arizona.

“The decision in today’s three judge panel will determine whether the US Forest Service failed to comply with the National Environmental Policy Act and if the precedent laid out in the Laches case is valid in this instance.” said attorney Howard Shanker. The Laches case is a procedural argument concerning any alleged redundancy of the plantiffs or the case.

Outside on the courthouse steps, plaintiffs and attorneys met with the press and approximately 100 supporters, including an Intertribal youth caravan from New Mexico and Arizona which traveled here to catch a glimpse of the proceedings before the 9th Circuit Court of Appeals. Through song and prayer, individuals unified in efforts to save the holy mountain in Arizona and protect children from the waste water contamination.

“We feel confident in our lawyer. We put our prayers out there so that we can be heard and understood. Our lawyer made a strong argument and with our prayers we are confident in the outcome for the Sacred San Francisco Peaks, “ stated Alberta Nells, part of the Intertribal youth caravan.
 
 The Save the Peaks Coalition is continuing a legal battle to protect human health from endocrine disruptors and pathogens found in treated sewage effluent, which an Arizona ski resort aims to use in its expansion plan, Save the Peaks said in a press statement today.

In response to concerns raised by patients, a group of concerned emergency room and primary care physicians in Flagstaff, Arizona, commissioned a preliminary study in December 2011 on the treated wastewater. Dr. Robin Silver said, “We found antibiotic resistant genes in the reclaimed effluent that are associated with known infectious contaminants. These need further study because they are potentially dangerous.  We advise not using the effluent until these studies have been completed.”   

“In a 2005 study done by biologist Dr. Cathrine Propper, eggs were found inside the testicular tissue of fish. If this happens to the fish, what does this mean for my grandchildren and future generations?" asks Berta Benally, a grandmother traveling to California to witness the hearing. “It is deplorable that the United States Forest Service would allow known endocrine disruptors to come into contact with our our children. At one point DDT, BPA and asbestos were all considered safe. Years later, after many people suffered, we now sadly know that they created a health hazard.” 

The San Francisco Peaks are a unique ecological island of rare alpine that provides a habitat for threatened species, and is considered as central to the well-being and way of life of 13 Southwestern American Indian tribes.

With an outpouring of support from across the Southwest to the Pacific Northwest, California Indigenous communities, concerned parents, and environmentalists joined the Indigenous-led caravan from Arizona to rally for the protection of community health, future generations, and the ecological sanctity of the San Francisco Peaks.

“The Forest Service failed to adequately consider the impacts of potential human ingestion of snow made from reclaimed sewer water as required by applicable law”, said Howard Shanker, the Coalition’s lawyer.  “By approving treated sewage effluent for snow making without adequate analysis, the government essentially turns the ski area into a test facility with our children as the laboratory rats. That is unconscionable,” Shanker said. 

Shanker, a former congressional candidate in Arizona Congressional District 1, has represented a number of tribes and environmental organizations in prior litigation over Snowbowl’s proposed expansion and threatened use of treated sewage effluent.

“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,” Shanker said.

In 2005, the Snowbowl Ski Resort and Coconino Forest Service’s expansion plan was approved for reclaimed sewage water from Flagstaff's Rio de Flag Sewage Plant for the use of snowmaking at the Arizona Snowbowl Ski Resort. Since May 2011, owners of Arizona Snowbowl Ski Resort laid seven miles of wastewater pipeline and clear-cut over 50 acres of rare alpine forest, while the issue is still being contested in court. Many tribal leaders have declared that these are all acts of desecration.

California tribal members rallied today in support of plaintiffs in the latest court battle to prevent the further desecration of the San Francisco Peaks, a mountain in Northern Arizona that is held sacred by over 13 Indigenous Nations. Supporters from a number of Native nations, environmental groups, as well as concerned individuals, gathered for a Sunrise Prayer Vigil Ceremony, followed by a march to the James R. Browning U.S. Courthouse- 9th Circuit at 95 7th Street, San Francisco for the 9:30am hearing.

The Ninth Circuit Court of Appeals is hearing arguments that the US Forest Service, in its Environmental Impact Statement, failed to adequately consider the dangerous health and environmental impacts associated with the planned use of artificial snow made from reclaimed sewer water. Studies have proven that the treated water contains toxic substances such as pharmaceutical by-products. Native Americans consider the use of sewage on the sacred San Francisco Peaks to be an offensive desecration of their holy grounds, California Native Americans said in a press statement.

The Sunrise Prayer Vigil on Monday was held at Yerba Buena gardens, which sits atop the remains of a sacred shellmound, to welcome the plaintiffs onto Ohlone land.

“The Sacred San Francisco Peaks affects us all. We’re going to continue this fight no matter what the ruling is. We have to be the voices for our ancestors, to remember our teachings. We cannot afford to give one more inch to the developers. We as Indigenous people in the United States simply desire to have safeguards for our religious and cultural  freedom, as well as the land and the health of our children," said Corrina Gould, a local Chochenyo/Karkin Ohlone activist.

Hundreds of people, the majority of them from the local Native community, expressed a similar show of solidarity in 2006, when the San Francisco Peaks case entered the Ninth Circuit San Francisco courthouse on the Religious Freedom Restoration Act. The latest hearing comes amidst a tumultuous year of local Indigenous struggles that frequently made breaking news.

Morning Star Gali of the Pit River Tribe said today, “The battle to protect the San Francisco peaks in Arizona is the same fight against cultural genocide that we are waging here in California to save our sacred places. From this summer’s spiritual encampment to protect Sogorea Te/Glen Cove in Vallejo, Calif., to the Bureau of Land Management backed Calpine Corporation’s proposed desecration of Medicine Lake, and millionaire developer John Nady’s flagrant destruction of Rattlesnake Island in Clear Lake, Calif., the message is clear. Native peoples must unite to preserve our religious and cultural freedoms- ones that the rest of society takes for granted.”

Native Americans in California said in a statement, "The implications of these cases extend to the lives of all peoples as most instances of sacred site desecration concurrently involve environmental destruction that ultimately threatens human health. The toxic legacy of California’s Gold Rush has left Native peoples’ lands, now inhabited by all Californians, riddled with deadly mercury. The endocrine disruptors that will flood the area of Flagstaff, Ariz., if proposed snowmaking plans move forward exemplify present day environmental racism."

Jim Brown of the Elem Pomo Nation said, “Mercury mining has left a legacy of environmental disasters that continue to negatively impact the traditional life ways and fishing economy, and contaminate the headwaters of oldest Lake in Northern California. This is destroying the Elem people's mental health and spiritual wellness, and creating inter-tribal turmoil."

Caleen Sisk Franco Spiritual Leader and Tribal Chief of the Winnemem Wintu said, “For the Winnemem, the destruction of sacred sites is more than just about the poisons and toxins. When you destroy a sacred place, you destroy the hearts of the people. We believe we need our sacred sites and relationships with them in order for us to grow to be good people. When you destroy a sacred site, it hurts our spiritual belief and our physical development of that site. That's a different kind of poisoning that occurs even before the toxins have any effect.” 

Native Americans consider clear-cutting of rare alpine forest by the U.S. Forest Service for the expansion of a for-profit ski business on the sacred San Francisco Peaks and the use of sewage water for the planned snow production to be an offensive desecration of their holy grounds. For decades numerous strategies, including long-standing campaigns, boycotts, prayer gatherings, direct actions, and litigation, have been employed by many citizens, tribes, and organizations who have strived to protect the mountain. The Hopi Nation and Navajo Nation governments have also passed resolutions and pursued their own litigation to prevent the desecration of the sacred San Francisco Peaks.

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