High court refuses to hear Dook'o'oosliid case

Navajo traditionalists and environmentalists who want the sacred mountains protected from development had a roller-coaster week.

They barely had time to celebrate New Mexico's decision June 5 to name Tzoodziil a "traditional cultural property" (see accompanying story) when they learned Monday the U.S. Supreme Court had refused to review a lawsuit seeking to prevent the use of treated wastewater to make snow on Dook'o'oosliid (San Francisco Peaks).

"I felt pretty good Friday," said Robert Tohe, environmental justice coordinator for the Sierra Club's Grand Canyon Chapter, Monday after hearing of the Supreme Court's decision. "Today, I'm not so good."

The Arizona Snowbowl - the ski area that wants to install the snowmaking system - published a news release on its Web site thanking "all those who made this result possible" and promising to start working with the U.S. Forest Service, which administers the area, on a schedule for the project.

"Due to the scope of the project, the snowmaking system will not be operational for the 2009-2010 season," the release reads.

Howard Shanker, attorney for the six Arizona tribes and several individuals who pursued the writ of certiorari (request for review) from the high court, said he was disappointed by the court's decision, but not surprised.

"The Supreme Court only grants about one or two percent of the certs people ask for," he explained. "It always kills me when news reporters speculate on why the court refused to hear a case, because you only find out about it by seeing your case listed with about a hundred others that they're not going to hear."

The decision represents the end of the road for the tribes' four-year struggle to protect the mountain from development under the Religious Freedom Restoration Act of 1993. An en banc decision by the U.S. 9th Circuit Court of Appeals last August now stands.

In that decision, which reversed a 2007 decision by a panel of three appeals court judges, the court ruled the Snowbowl's plans did not "substantially burden" traditional believers' religious experience on the peak, which is sacred to 13 southwestern tribes.

The tribes had argued sprinkling the mountain with wastewater was a form of desecration.

"I think it's worth noting that the en banc decision broke down along political lines," Shanker said. "The five judges who ruled against us are Republicans, and the three who sided with us are Democrats."

The attorney added those who wish to continue the fight still have some options.

"We can't pursue the religious freedom angle any more, but there are other angles we can pursue with new lititgation," he said.

For instance, one mentioned in the original 2005 lawsuit against the Forest Service is the health risk posed by the semi-treated Flagstaff wastewater if a child were to eat a handful of snow.

The tribes can also "reach out to the Obama Administration or reach out to Congress" for stronger legislation protecting the nation's sacred sites, Shanker suggested.

In a press release issued Tuesday, Navajo Nation Council Speaker Lawrence Morgan said he would support continuing the battle for the peak.

"If we stop here, we are short-changing ourselves," Morgan is quoted as saying in the release. "We cannot allow the floodgates to open even further."

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