Arizona Ethnobotanical Research Association
AERA
107 N. San Francisco St.
Suite #1
Flagstaff, AZ 86004
(928)774-2884
azethnobotany@hotmail.com

AERA Summer 2007Plant Walks

Thank You To All Participants

Due to many requests, the AERA led a series of educational, ethnobotanical plant walks during the summer of 2007. And we had a blast!

On four separate occasions, we went to Griffith Springs, Midgley Bridge, Sandy Canyon (in conjunction with the Florida Trails Association) and Kelly Canyon. These are all moister, cooler areas in canyons in the greater Flagstaff and Sedona areas. Phyllis started off each walk with a prayer and a blessing for the plants as we all stood in a circle. After the prayer, we appreciated our surroundings, walking in silence until we arrived at our first plant. People had fun (and got frustrated!) learning the scientific, Hopi, and Navajo names for plants. Phyllis talked about ancient and modern medicinal or food uses for each plant. We saw cool critters enjoying the plants, too, like lizards, a praying mantis, and different kinds of pollinators.

Here are some photos from our walk! Ah, the glory days of summer…..we hope you will join us next year for more exciting ethnobotanical excursions!

Also Important to AREA...San Francisco Peaks still in Danger

Snowmaking v. Spirtuality
by Charles Seiverd
The Noise

Why the Peaks Trial is the most important case to come out of Arizona since Miranda

The eyes of the legal world will be focused on Pasadena, Calif. this December 11 th, as the Peaks Trial, Navajo Nation v. US Forest Service, is reheard in front of an enbanc panel of the Ninth Circuit Court of Appeals. This will mark the third time in as many years since the initial go-ahead by Forest Supervisor Nora Rasure that this issue will go to court. And it may not be the last.

At its core, the Peaks Trial wrestles with three major questions: Is artificial snow made from treated effluent safe to ingest, when the agency that recommended its use has conflicting directives on its application? Do the interests of private enterprise intertwined with government land use outweigh the religious rights of indigenous people? And are laws designed to bolster religious freedom strong enough to sway judges in the highest courts in the country?

Last spring, a three-judge panel of the 9 th Circuit overturned US District Judge Paul Rosenblatt’s assessment of the burden placed on 14 Arizona tribes who hold that snowmaking on the San Francisco Peaks would be a sacrilege akin to desecrating the Vatican. In its unanimous decision, the panel, led by Judge William Fletcher, ruled that the Forest Service’s Final Environmental Impact Statement did not adequately address the hazards of effluent-made snow ingestion and that approving snowmaking, because the Peaks are deemed sacred, violated the Religious Freedom Restoration Act.

Before the lengthy history behind RFRA is discussed, it is important to note the implications of the 9 th Circuit’s decision to nullify the Forest Service’s EIS, specifically its take on the dangers of involuntarily (or voluntarily) consuming snow made from undiluted treated effluent. Judge Fletcher concurred with the assessments made by Navajo Nation attorney Howard Shanker, that the EIS failed to quantify the health risks of humans coming in contact with artificial snow.

When the Forest Service drafted the EIS, it relied solely on the determination of the Arizona Department of Environmental Quality, which approved treated effluent for snowmaking in 2001 but still maintains the same substance is unsafe for human ingestion — an inconsistency which is perhaps the greatest flaw in the EIS. Arizona law requires users of treated effluent to “place and maintain signage at locations where the water is used so the public is informed that reclaimed water is in use and that no one should drink from the system.” Human consumption, full-immersion water activity with a potential for ingestion, and evaporative cooling or misting are all prohibited under the same law. It also lays out strict regulations for users of treated effluent: they must employ “application methods that reasonably preclude human contact” and prevent the stuff from “standing on open access areas during normal periods of use.”

Neither ADEQ nor the Forest Service can provide scientific data regarding the amount of treated effluent safe for human exposure, the likelihood that humans will ingest treated effluent during snowplay, nor the effects or quantities of unregulated contaminants in the treated effluent. The Forest Service, in its EIS, systematically avoided these concerns brought by members of the community, and in doing so, angered the 9 th Circuit.

Concluded Judge Fletcher in the panel’s opinion: “The Forest Service has not provided a ‘reasonably thorough discussion’ of any risks posed by human ingestion of artificial snow made from treated sewage effluent or articulated why such a discussion is unnecessary, has not provided a ‘candid acknowledgment’ of any such risks, and has not provided an analysis that will ‘foster both informed decision-making and informed public participation.’ We therefore hold that the FEIS does not satisfy NEPA with respect to the risks of ingesting artificial snow.” And while the Forest Service contends otherwise, its lack of forethought on such a volatile health issue could spell the undoing of years of snowmaking lobbying.

However, the Forest Service’s EIS is only one of two disputed points in the Peaks Trial, certainly one that can be left to an administrative procedural error, and not one that will quake the foundations of judicial review. What is under deep speculation is the future of the First Amendment through RFRA and whether it will stand the test of Native American religious rights.

What’s important to understand is that RFRA dramatically changed the landscape of religious claims against the government. It gave a level playing field to individuals and groups who wanted to maintain their religious identity. Instead of a religious claimant having to prove a “burden” like before, the government had to prove a “compelling interest,” which presumably puts the government on the defensive. Now although RFRA has been used successfully in cases in which an individual partakes of otherwise-prohibitive drugs for a religious ceremony, this is the first time it has been tested in conjunction with the Religious Land Use and Institutionalized Persons Act and applied to federal land.

And because the 9 th Circuit chose to hear the Peaks Trial en banc shows just how weighty the topic is. Circuit courts reserve the right to hear a case in front of the entire judicial make-up only when a case raises a particularly important legal question, conflicts with earlier rulings from within the same court or from other circuits, or is staged to become binding court precedent.

The Laws & the Court

There remains a complex relationship as to the desires of Congress, the authority of the Supreme Court, and the distinguishing attributes of the Free Exercise Clause of the First Amendment. With just sixteen well-placed words, the Founding Fathers opened up a massive debate in contemporary America, one that continues to baffle legal scholars and churn the ideal of separation of church and state. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

In the latter half of the 20 th Century, the Supreme Court had laid out a simple test by which to accommodate the interests of government and religion. It said that if a person’s religious beliefs required him to engage in or refrain from certain conduct, the conduct would be exempt from otherwise valid general laws under the Free Exercise Clause — unless the government could prove it had a “compelling interest” that would be sacrificed by that immunity. Also known as the “strict scrutiny” test, lower courts did not necessarily adhere to its stark language, but it did give religious claimants a legal bargaining chip, and oftentimes held out the prospect of victory if the government declined to accommodate a given exercise of religion.

Then in 1990 things began heating up for the Free Exercise Clause. In Employment Division v. Smith, two Douglas County drug and alcohol abuse counselors were fired after they participated in a Native American Church ceremony and ingested peyote, a hallucinogen deemed illegal under Oregon state law. When the pair filed for unemployment benefits, they were denied for reasons of “employee misconduct,” as the treatment facility where both worked had a strict policy requiring counselors to abstain from drugs and alcohol. In their subsequent appeal to the Oregon State Supreme Court, they claimed their right to worship had been violated, citing the Free Exercise Clause and another Supreme Court decision that favored Seventh Day Adventists who were fired when requesting Saturdays off.

The two social workers claimed victory at the state level, but the high court intervened, maintaining that unemployment benefits are not an inalienable right, and are instead granted by the state, which also governs criminal code. And while acknowledging flaws in Oregon state law, the Supreme Court stated, that like bigamy laws in Utah, a prohibition of conduct is valid only if it is not inspired by anti-religious sentiment and can be generally applied. In doing so, the Supreme Court left matters of criminal conduct when applied to religious observants up to individual states, vastly changing interpretations of the First Amendment.

Since the Smith ruling, the Court understood the Free Exercise Clause to be nothing more than a principle of formal equality. If a law singles out a religious practice because it is religious, then the compelling interest test applies; but if the law applies to everyone, then no Free Exercise issue is raised.

RFRA’s Rocky History

Apparently dissatisfied with the Court’s interpretation of the First Amendment, Congress struck back in 1993, seeking to reinstate the “compelling interest” test by putting it into law. The Religious Freedom Restoration Act made clear the compelling interest test should apply even when a “burdening” government law is generally applicable, even if it is not motivated by hostility toward a particular religion. Under RFRA, whenever a government action substantially burdens religious exercise, it can be enforced only if it is the “least restrictive means of furthering a compelling governmental interest.”

RFRA is the lifeblood of the Navajo Nation’s arguments against the Forest Service. Affirmed by the 9 th Circuit three-judge panel last spring, the Forest Service’s decision to allow snowmaking on the Peaks is not a compelling “governmental interest,” and instead, the “least restrictive” means of furthering that interest is allowing Arizona Snowbowl to continue operation of its ski lifts and lease acreage from the Forest Service.

What is contentious now — and undoubtedly what has prompted the appeal to the en banc panel — is the fact that the Supreme Court, in 1997’s City of Boerne v. Flores, ruled RFRA unconstitutional when applied to state governments. In other words, the Court held that Congress lacked the power to require state governments to grant religious exemptions from state laws.

In City of Boerne, a Catholic Archbishop applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit because the church fell within a historic preservation district, the Archbishop brought suit, challenging the denial under RFRA. After a lengthy appeals process, splitting the district and circuit courts, the Supreme Court ruled that Congress had overstepped its power by applying RFRA to state governments, attempting to usurp the high court’s interpretation of the First Amendment.

But even though rumors of RFRA’s demise circulated among legal scholars in the years to follow, the Supreme Court revitalized the law when applied to the federal government in 2006 with Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. In that case, the Court held that members of a Brazilian-based Christian Spiritis Sect had a right to use a hallucinogenic tea called hoasca for religious purposes, even though it is considered a Schedule 1 substance, the same as marijuana or peyote. Members of the group had attempted to retrieve a shipment of hoasca when US Customs inspectors seized it, threatening prosecution. The church group filed suit under RFRA and were granted relief from both a district and circuit court, but Attorney General Alberto Gonzales pressed on for an appeal at the high court. In the unanimous opinion, written by Chief Justice Roberts, the Court applied RFRA to the Controlled Substances Act, using it as an exception to federal laws already enacted.

But both these exemplary cases do not conclude that RFRA applies to the “federal government as landlord.” Such is the argument by the Forest Service in the Peaks Trial, which contends that RFRA should only be applied when the government is attempting to regulate a private person and/or his own private property. The Forest Service dismisses the claim by the Tribes that the entirety of the Peaks is central to religious observation, and instead insists that its authority over use of public land is paramount; the argument goes that if the Tribes get their way in this case, it will wreck havoc on the continued public use of all public land, as any natural monument could be deemed “sacred” by Native Americans.

One particular case pointed to is 1988’s Lyng v. Northwest Indian Cemetery Association, a pre-Smith case which dealt with the construction of a six-mile road on federal land that had also been used by Indians for religious purposes. In that instance, the Supreme Court rejected the objections by Indians, citing that a government action can impose a “substantial burden” on religious exercise only when an individual is coerced to act contrary to his religious beliefs. Justice O’Connor wrote in the majority opinion: “Whatever rights the Indians may have to use the area … those rights do not divest the Government of its right use what is, after all, its land … Such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property.”

Lyng, however, was heard by the Supreme Court both before Smith and RFRA, and although the Forest Service has spent an estimated $10 million on legal fees attempting to parallel the Peaks Trial to it, it has been unable to define the compelling interest of the government to permit snowmaking while Snowbowl remains operational — other than it will “increase the number of skiable days.” The Forest Service will not lose revenue nor will it necessarily forfeit its jurisdiction to determine public use areas.

Somewhere in this convoluted mix resides another Congressional push to broaden the First Amendment: the Religious Land Use and Institutionalized Persons Act, signed into law in 2000. Congress’ reaction to the Supreme Court’s decision in City of Boerne, attempted to reapply the compelling interest test to state and local laws; but it did more than that: it also tweaked RFRA’s definition of what kind of “exercise of religion” can support a claim. RLUIPA defines the protected exercise of religion to “include any exercise of religion, whether or not compelled by, or central to, a system of religious belief” — thus protecting a wider range of religious sensibilities.

The Peaks Trial, however, is only RLUIPA’s second test as an amplifier to RFRA. Previously, the Supreme Court allowed RLUIPA on its own merits, in Cutter v. Wilkinson, which accommodated prisoners with religious material of their own choosing. And it was only last year that the 9 th Circuit itself upheld RLUIPA and RFRA in tandem in Guru Nanak v. County of Sutter, which chastised a county government for denying a building permit to a religious society wishing to construct a temple. That decision was not appealed for an en banc hearing and did not involve government-owned land, leaving a high degree of speculation among legal scholars as to the outcome of the Peaks Trial.

Wrote Vikram Amar, a law professor at the University of California: “Even if the federal government should have more leeway as landlord than regulator, an issue on which the three-judge Navajo Nation panel did not really weigh in, things get tricky in cases involving Indians. Why? Because Indians/Native Americans use federal land for religious purposes out of necessity. Their religious belief systems are often land- and nature-based, and federal lands are often where the nation has relocated them. It is hardly fair to have a bright-line rule that government need not be sensitive to religion when it’s managing its own land.”

The Stance of the 9 th Circuit

The 9 th Circuit Court of Appeals is the largest federal appellate court in the country, spanning 15 districts, 9 states, and 2 territories, with over 20% of the nation’s population under its jurisdiction. Twenty-eight active judges bench the court, and unlike any other circuit court, an en banc hearing — which usually calls for all the judges of a given court to hear an appeal — in the 9 th Circuit, because of its immensity, requires that only 11 bench the panel. For this reason, likened to “stacking the court,” en banc decisions by the 9 th Circuit have been criticized, as decisions by such a panel becomes binding court precedent (which lower courts must use in all similar litigation) that can only be overturned by the Supreme Court.

Critics cite the fact that 60% of active judges are appointees of either Jimmy Carter or Bill Clinton, making the 9 th Circuit the most liberal of all the appellate courts. It has ruled consistently against the federal government and for environmental groups and liberal initiatives, and has been on the forefront of what some call the “pushing of progressive” politics.

One exemplary decision is Newdow v. US Congress, which in 2002 held that the recital of the Pledge of Allegiance — specifically with the phrase “Under God” — violated a grade school student’s First Amendment right to be free from governmentally-established religion. The Supreme Court later reversed that decision, a stance it has taken in over 90% of the cases it has heard on appeal from the 9 th Circuit.

What is interesting about the Peaks en banc panel is that although the names of all its judges have not been revealed as of publication date, it will be lead by recently-appointed 9 th Circuit Chief Judge Alex Kozinski. Unlike his predecessor, Mary Shroeder of Phoenix, who was a Carter appointee and oversaw many of the decisions that came to mark the circuit court since 2000, Mr. Kozinski was nominated by Ronald Reagan and is known for his brash and rebellious judgments.

While he is the first conservative in a decade to lead the court, his libertarian streak has earned him a reputation of “shaking up” the establishment. Mr. Kozinski has been quoted as saying “Everything I learned about writing I learned from Playboy fiction” and revels in snowboarding, scuba diving, and chicken farming, not to mention he is the only circuit court judge to have won at the Dating Game (although that happened at a much earlier time in his life) and to have been named the “Number One Male Superhottie of the Federal Judiciary” (a title he won by lobbying votes on an online blog competition).

In 1985, at age 35, he became the youngest federal appellate judge in the country and barely squeaked by a Senate confirmation hearing in a 54-43 vote. In his years on the court, he has racked up a record of siding with free market economics, bashing federalism, and according to his arch-nemesis on the 9 th Circuit, Stephen Reinhardt: “callously ignoring the interests of the people.” As such, Mr. Kozinski has oftentimes found himself writing the dissent’s opinion in rulings.

But his dissents have often found favor in the Supreme Court. As is the case of what is considered his most volatile opinion, when he dissented in the 9 th Circuit’s ruling granting a death row inmate a new trial on the grounds of procedural misunderstandings four days prior to the inmate’s execution. Mr. Kozinski wrote: “If the en banc call is missed for whatever reason, the error can be corrected in a future case where the problem again manifests itself … That this is a capital case does not change the calculus.” The Supreme Court later intervened, siding with Mr. Kozinski.

Whatever decision Mr. Kozinski makes on the Peaks Trial will surely be watered down by the other 10 judges on the panel, as his vote still counts as one. In other circuit courts, a unanimous three-judge panel decision would automatically disqualify an en banc hearing. Since the 9 th Circuit is so large, it does allow the additional appeal, however rarely, when the issue is of “significant importance.”

Whatever the outcome of the en banc panel, it is almost assured it will be appealed to the Supreme Court. And while the 9 th Circuit Court has seen over 90% of its rulings overturned by the high court, the fact that .1% of its 6,000 decisions are reviewed by the Supreme Court is a rather large percentage of cases left on-the-merits.

The Peaks Trial is more than just a case of property rights, it underlies the very nature of the Free Exercise Clause of the First Amendment, a subject the Supreme Court has been grappling with for the past 50 years. The Supreme Court has taken in the legislation put forth by several factions of Congress but has yet to resolve the over-arching themes of the Bill of Rights and its competition with government interest, however compelling or illegitimate.