Compromise complicated in debate over faith, water, land

In his 90s, Jones Benally still works as a Navajo healer, regularly collecting medicinal plants from the San Francisco Peaks, just outside Flagstaff.

"In creation, it is said the mountains were placed here by the holy people," Benally said. "I collect medicinal plants and vegetation from the San Francisco Peaks because it's very powerful."

He travels the Navajo Reservation, where he was born in Black Mesa, visiting the sick and praying with them in their homes and in what he describes as modern hospitals.

He goes to Canada and visits the First Nations people there to do the same. And, he works closer to home, wherever his people need him.

"That is what I do. I say prayers in the Navajo traditional way," said Benally, who spoke through a Diné translator.

But even as he continues to pick plants from the mountainside, he's concerned about how they're impacted by snow made from reclaimed wastewater, an issue his tribe and his family have been fighting for years.

Benally is the father of Klee Benally, an indigenous people's rights advocate and environmental activist. His daughter, Jeneda Benally, his son Clayson Benally, and his wife, Berta Benally, were named in 2009's Save the Peaks Coalition, et al v. USFS, et al.

Since 2012, Arizona Snowbowl ski resort has used reclaimed wastewater to make snow on about 1 percent of the mountain, extending the ski season last year to 121 days from what would have been about nine days with natural snowfall. More than 140,000 people visited Snowbowl last year, according to Jason Stratton, the resort's director of sales and marketing.

But the Navajos and the other 12 tribes who see the Peaks as sacred say the water contaminates the entire mountain and devalues their religious practices.

Benally worries about what the process does to the Peaks and to his people. He is not reassured that Flagstaff says the water is drinkable by Environmental Protection Agency standards.

"This is our land, it is our shield. It is the land that protects us, and we stand behind it," Benally said.

The petition

Snowbowl is a relatively small ski resort with six lifts, none of which are high-powered or enclosed. Snowmaking and skiing are allowed under a special-use permit from the Coconino National Forest. But development has been a contentious issue since 1971, when thousands protested large-scale improvements to what had been a modest ski lodge since 1937.

The first court case seeking to limit development of the Peaks was filed in 1979 and was followed by a handful of challenges, all of which focused on environmental impact, religious expression and historic or cultural site preservation. In 2009, the U.S. Supreme Court declined to hear the case after the 9th U.S. Circuit Court of Appeals ruled in favor of snow-making. Because of various challenges to the snow-making, the question remained in the courts until 2012.

The conflict between the 13 Native American tribes and Snowbowl resists a clean resolution because courts seek compromises, by percentages, dollars or acres. But anything less than a full expression of belief is a diminished expression, in the eyes of the faithful.

Now, this issue is back in the news in time for the spring-break ski season in Arizona.

Having exhausted domestic legal recourses, the Navajo Nation filed a petition on March 2 with the Inter-American Commission on Human Rights arguing only that the snow-making is a violation of the tribe's religious freedom. Since the 2012 ruling, the Navajos have been working with the international human-rights community to prepare their case.

The petition says their religious freedoms are guaranteed by the American Declaration of the Rights and Duties of Man, which the United States has been bound by since 1948, when it became a charter member of the Organization of American States.

The petition asks the commission to find the U.S. government in violation of this treaty.

The commission, created by the 35-member OAS, is a seven-member panel that investigates human-rights claims in the Western Hemisphere. Rulings carry symbolic weight, and can be used to apply political pressure, but the panel has no authority over the U.S. government.

The petitions are a kind of diplomatic tool, and a way to bring renewed attention to the issue, said one of the petition's authors, Robert A. Williams Jr., a co-chair in the Indigenous Peoples Law and Policy Program at the University of Arizona in Tucson. Williams said the petition process keeps a light on the ongoing disenfranchisement of indigenous people.

"But no government would say they'd change their policy because of a report by a human-rights body because they don't want it to appear like bodies can interfere with their sovereignty," said Williams. "But the threat of the report has huge influence on governments."

The Navajos understand that the petition process guarantees nothing.

But, as Leonard Gorman, executive director of the Navajo Nation Human Rights Commission, puts it, "We, as humans, find it inappropriate and a violation, and we intend to correct that in one respect or another. We humans don't react and say 'OK, I'll accept that and move on.' We make the effort to correct the situation, no matter how long it takes."

This is the third ski season Snowbowl has used "A+" treated wastewater from the city of Flagstaff to stock a 10 million-gallon retention pond. When it's cold but there's no precipitation, the resort draws water from the pond and blows it through $15 million worth of snow-making machines, the same kind used in the Sochi Olympics.

Snowbowl declined to comment on the petition or previous legal action.

Sunrise Park Ski Resort in the White Mountains is run by the White Mountain Apache tribe, where they've been making snow for more than two decades, according to a resort spokesman. The tribe has permission from Arizona Game and Fish to withdraw so many gallons per season from the roughly half-acre Lake Ono, which sits at the base of the resort and is refilled each year by springs, and snow melt.

Because the water is coming from its natural state and then sprayed on the mountain, untreated, questions of degradation and sacredness don't come into play.

Faith, water and land

The Navajos are the nation's largest Indian tribe and much of northern Arizona, including Flagstaff and the San Francisco Peaks, was part of the tribe's historic range, which extended into New Mexico and Colorado.

Called Doko'oosliid, or Abalone Shell Mountain, by the Navajos, the Flagstaff peaks are the Sacred Mountain of the West, one of four peaks marking the cardinal directions. Two others are in Colorado and one is in New Mexico.

The Navajos, as with other site-based faiths, believe certain places on the planet have the power to protect and heal people. The peaks are a source of soil, plant and other natural resources used for ceremonies, prayers and religious practices for the Navajos and other indigenous people in Arizona.

According to their petition, the Navajos believe the snow-making is incompatible with the sacred character and ecology of the mountain and infringes on their ability to live as their faith calls them to.

It doesn't matter that the water has been treated.

"It doesn't make any sense. If, for example, you washed somebody who was dead, the water is not pure. It will never lift out," Benally said.

Some native advocates try to draw parallels with their faith and Christian religious practices in attempt to express the gravity of the offense.

"Think of a cathedral, a place where you're aspiring to reach heights of spirituality. What if it gets cleansed with treated wastewater. How would you feel about that? That is how Navajos' belief and tradition and culture are infringed upon," said Gorman.

But the analogies fail — and illuminate the chasms of understanding and misunderstanding — because the fundamentals of the belief systems are not comparable. Christians generally hold that God exists in all places at all times. Prayer can happen anywhere. Geography is not always, or often, relevant.

"That really makes a distinction between some people's thinking and indigenous thinking," Gorman said. "It is a matter of where you are and what you are. That's where the distinguishing factors exist."

Benally said Snowbowl offered to move plants away from the snow-making, but he dismissed this idea as absurd, saying, essentially, that the plants grow where they grow, and that is where he harvests them, because that is where they grow.

Geography matters, even if measured in inches and feet.

He took the offer in stride, saying pragmatically, "The reason why people don't listen is the way our lifestyle ... our faith, and the ceremonies and the Navajo philosophy was given to us by the holy people. However, they didn't grow up with that, and we grew up with that."

"We're measuring the percentages," said Williams, a member of the Lumbee tribe. "We're saying how much impurity is any impurity in a religious context. The problem is grasping the nature of religion. When you desecrate the place, no matter what the percentage, it throws the lifeway out of balance," he said.

But in 2008, when the 9th U.S. Circuit Court of Appeals ruled on the Navajos' claims of religious infringement under the Religious Freedom Restoration Act of 1993, it found "no plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified.

"Thus, the sole effect of the artificial snow is on the Plaintiffs' subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs' feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain."

Neither the First Amendment nor the Religious Freedom Restoration Act protects how satisfied people are with the practice of their faith. The 9th Circuit warned of a future in which each citizen could prohibit government action "solely because it offends his religious beliefs ... or fails to satisfy his religious desires."

In saying the Navajos were having a "subjective, emotional religious experience" that the government couldn't be held accountable for preserving, the 2008 9th Circuit ruling put a fine line on the challenges of applying the law to expressions of faith.

Some of the controversy around Snowbowl is about the discomfort people feel when the government puts limits around religious freedoms, the expression of which is at the heart of the country's founding.

On a recent Saturday at Snowbowl, people wished for new or better compromises.

Bill Butts, who has been skiing in the area for 40 years, wondered aloud if all pollution could be considered an act of religious persecution to some group, somewhere.

"It's so easy to trample on people's religious rights, and no one wants to do that," said Butts, who identifies as a Christian. "It's not that we're insensitive to the tribe's concerns of sacred ground. But there's the economic concerns and the recreational benefits ..."

Jennifer Hester, 52, spoke up as Butts trailed off: "If there were a way to (make snow) and still be sensitive to the tribe, if there was a compromise position."

But Hester herself knows what it's like to be dissatisfied with the government's positions on religious expression.

"The federal government has no problem impeding Christians' religious freedoms, taking the Ten Commandments out of buildings, no prayer in schools," she said. "They have no problem taking away our rights."

The forest

Snowbowl's 777 acres are run as a kind of compromise.

Gifford Pinchot, the first chief forester, said in 1905: "Where conflicting interests must be reconciled, the question will always be decided from the standpoint of the greatest good of the greatest number in the long run." That statement has been the guiding principal of the U.S. Forest Service since.

It's why some National Forest acreage is designated as fully protected Wilderness Areas, and others are used for logging, still others for skiing. It's also why the government has an array of laws designed to protect historically or culturally significant places for people whose ideas of "greatest good" might not dovetail with those held by the "greatest number," including the 1966 National Historic Preservation Act, the 1979 Archaeological Resources Protection Act, and the 1990 Native American Graves Protection and Repatriation Act.

Across the country, there are 122 ski areas on 180,000 acres, out of 193 million acres of land administered by the Forest Service, according to a 2014 government report. Almost 60 percent of the nation's ski areas are on national forest land.

Snowbowl has 17 years left on a 40-year special-use permit. When granting permits, the Forest Service balances a range of priorities, considering the proposed activity's impact on "wildlife, watershed, recreation, heritage site and timber, and we look at them collectively and try to make the best decision for the longer term for the forest and the whole society," said Mike Elson, district ranger for Flagstaff Ranger District, which oversees the San Francisco Peaks portion of the Coconino National Forest.

The service also considers the economic impact of the proposed activity. Snowbowl creates 550 jobs every winter.

Elson said the Forest Service receives hundreds of requests annually for special-use permits, similar to the one Snowbowl operates under.

"People want bike races, road races, boat races — we are constantly inundated with requests for all kinds of these activities," he said, adding to the list expert-led birding, rock climbing, horseback riding and backpacking tours. "We do turn many of these down. We have this filtering process so we have to ask what is in the best use of most people. Otherwise, we could have special events on our trails every weekend."

Elson said no Forest Service decision is going to please everyone, or even most people.

"It's an extremely difficult conflict between values and potential uses," Elson said.

Standing next to the rentals area in the Hart Prairie Lodge, Kevin Nguyen, 23, and his girlfriend Allyson Tallman, 22, were two of an estimated 3,500 people on the mountain on a recent Saturday. The couple spent much of the drive up from Scottsdale talking to each other and two friends about the conflict between Snowbowl and the Navajos. Nguyen had wondered why the resort didn't make snow until recently, and he'd looked into the issue.

The four talked about how it was a shame the Navajos felt hurt by the snow-making.

"I don't think we should use reclaimed water on their land. I know that's important to them spiritually," said Tallman. "What I thought I knew was that the Navajo people were benefiting from this, but they're not."

Nguyen spoke up, "From a snowboarder's point of view, I know it disrespects the mountain, and I want to respect it, but it's not close enough to me to care. I want to care more, but…"

"We have the perception that we don't really make a difference," said Tallman. "Like, we not coming today, is that really going to hurt Snowbowl? But if everyone felt that way, we could make a difference."

"But we are making a difference," said their friend, Chase Clarke, 23. "We're voting, voting with our money to keep this place open."

And with that, the conversation died. And the four clomped out in their boots to ski and snowboard.

Benally isn't angry with people who run the ski resort, or who ski there, but he's not resigned to the situation, either.

"They ruin things. They ruin pretty areas, pretty things, they ruin our prayers, and all they want is the money," he said. "It is not just me, it is all of the earth people who are a part of this. The mountain should not just benefit greed. It is all of the earth people who should find it useful and go there to pray."

But what is prayer to Benally, and what is prayer to a snowboarder, rest somewhere in the chasms of understanding and misunderstanding.

Reporter Betty Reid, who is Navajo and a native Diné speaker, conducted and translated the interview with Jones Benally.

San Francisco Peaks-Snowbowl Timeline



The land known as the San Francisco Peaks has been held as sacred since the beginning of time by 13 Arizona Native American tribes.

1937-1940: The Coconino National Forest builds a ski lodge and access road. Flagstaff Ski Club and Flagstaff Ski Team is founded.

1952-62: The lodge is destroyed in a fire and is rebuilt. Roads are lengthened. Lifts are added. Second lodge is added.

1969-71: The development of a ski resort with shops, restaurants and lodges is proposed. Community opposition slows plans.

1979: The Forest Service allows development of additional lifts, a new lodge and trails. A coalition to Flagstaff residents and members of the Navajo and Hopi tribes sue Interior Secretary John Block.

1982-83: In Wilson v. Block Hopi Indian Tribe, the religious claims of the Hopi and Navajo tribes were combined in an attempt to preclude Snowbowl expansion. A federal appeals court upholds Forest Service approval; Supreme Court refuses to hear appeal.

2002: Snowbowl proposes expansion and improvements including snow-making with treated wastewater. Flagstaff agrees to sell Snowbowl 180 million gallons of treated wastewater for snow-making.

2004: Forest Service issues the Draft Environmental Impact Statement on proposed Snowbowl development. Save the Peaks Coalition is formed to address environmental and human-rights concerns.

2005: Coconino National Forest approves Snowbowl proposal. Several Native American tribes and a range of conservation organizations file lawsuits against the Forest Service. Primary case is Navajo Nation, et al v. USFS, which alleges that development violates various ecological and historic-site preservation acts and that the snow-making violates the Religious Freedom Restoration Act.

2006: U.S. District Court issues decision against tribes and environmental groups.

March 2007: The 9th Circuit Court of Appeals overturns the lower court ruling.

May 2007: The Department of Justice on behalf of the Forest Service files for a rehearing and appeal of Navajo Nation, et al v. USFS.

2008: The 9th Circuit Court of Appeals reverses its 2007 decision, upholding the Forest Service's approval of development.

June 2009: Native American groups appeal to the U.S. Supreme Court. Court declines to hear the case.

September 2009: The Save the Peaks Coalition and several individuals file suit to overturn 2005 Forest Service decision approving snow-making.

2010: District Court of Arizona rules against Save the Peaks Coalition. Save the Peaks Coalition appeals.

2011: Snowbowl begins construction of water pipeline. Protests on mountain begin. More than 25 people are arrested.

February 2012: 9th Circuit Court of Appeals rules against the Save the Peaks Coalition, saying the case had already been ruled on, essentially, in Navajo Nation, et al v. USFS.

December 2012: Snow-making begins at Snowbowl.

March 2, 2015: The Navajo Nation files a petition with the Inter-American Commission on Human Rights asking it to declare the United States government in violation of human rights, saying that mountainside snow-making with reclaimed wastewater constitutes a violation of religious freedom and cultural and judicial protections.

Sources: Arizona Republic archives; Arizona Daily Sun; FindLaw.com; ca9.uscourts.gov; and ProtectthePeaks.org.

Reach the reporter at 602-444-8770 or megan.finnerty@arizonarepublic.com.