Navajo Nation battles over fabricated snow issue at Flagstaff Snow Bowl

On March 8, 2005 Coconino National Forest Service supervisor Nora Rasure's decision to authorize the use of 100 percent reclaimed waste water to provide Snowbowl with artificial snow for its winter ski seasons was the spark that lit the explosive courtroom war that followed and continues to burn hot today.

"There is no question that the Arizona Snowbowl provides an opportunity for the general public to access and enjoy our public lands while still maintaining the vast majority of the Peaks in an undeveloped character, thus accommodating the needs and desires of those who come to the Peaks for physical, mental and inspirational rejuvenation," said Rasure, in a press release on the day of her decision.

According to court documents: "up to 1.5 million gallons per day of treated sewage effluent would be sprayed on the mountain from November through February." The project also includes the proposed construction of a reservoir built on the mountain "with a surface area of 1.9 acres to hold 10 million gallons of treated sewage effluent."

The Arizona Snowbowl leases 777 acres of land from the National Forest Service, a U.S. government agency, under a "special-use" permit in order to operate its ski mountain in Flagstaff. This meager 1 percent of vast terrain engulfed by the torrential San Francisco Peaks, a mountain range held sacred to many Southwestern Native American tribes, has been the basis of an important legal feud for the past three years with only one end in sight: the U.S. Supreme Court.

"The fact that the Federal Government is willing to essentially subsidize a privately run ski area on Federal land in a part of Arizona that doesn't get enough snow to support skiing and in the process essentially decimate the culture and religious beliefs of tribes of the Southwestern United States is outrageous," said Howard Shanker, congressional candidate and attorney representing four tribes, including Navajo Nation, three environmental agencies and two individuals in the ongoing court battle.

"The Navajo people view the Peaks in their entirety," said George Hardeen, chief spokesman for the Navajo Nation. "They see the Peaks as a living entity, not just an inert mountain."

"If you were to take a needle and inject it into your skin you would hurt the entire body not just that point on your body where you injected the needle - if it were a deadly poison as they view the reclaimed waste water," said Hardeen. "The mountain being a living entity, they see this as, frankly appalling beyond thought, that people would put waste water on a sacred mountain."

In June 2005, five Native American Indian tribes indigenous to the Southwest (Navajo Nation, White Mountain Apache Nation, Yavapai-Apache Nation, Havasupai and Hopi Tribes); three environmental organizations (Sierra Club, Flagstaff Activist Network, Center for Bioliogical Diversity) and four individuals filed suit against the U.S. Forest Service.

In January 2006 the a U.S. District Court judge in Prescott ruled in favor of Snowbowl's expansion, including it's proposed reclaimed wastewater pipeline. The three judge panel of the 9th District Court of Appeals reversed the ruling in March 2007 and voted unanimously against the proposal.

"It was a very good and well-reasoned decision that the appellate court issued. It rang true to not just Navajo leaders but Native leaders all across Arizona and beyond because it was the first time a U.S. court seemed to thoroughly understand the arguments entered by Native people," said Hardeen.

Barbara Johnson, a long-time Flagstaff area resident, wasn't concerned about the quality of reclaimed water that could possibly shower her backyard.

"We have a water recycling plant here in Flagstaff. I think it (reclaimed water) is perfectly all right. I've had a tour of the plant where they reprocess the water and it's probably purer than a lot of other places," said Johnson. "It's not like pee on the hillside."

Although the Arizona Department of Environmental Quality approved the use of treated sewage for snowmaking in 2001 the Snowbowl's general manager testified no other resort in the country currently uses 100 percent "undiluted sewage effluent" to make artificial snow (the proposed plan for Snowbowl).

The Snowbowl, Justice Department and the Forest Service filed petitions for a rehearing of the case in hopes of overturning the verdict. Although Shanker said they were rarely granted, perhaps 1-2 percent of the time, a rehearing was approved and scheduled for December 11 (AP Style error-dates) in Pasadena, CA (AP Style error-state abbreviations when accompanied by a city). The chief judge of the 9th Circuit Court, along with 10 (AP Style error-numerals) other judges, will rehear the arguments on both sides and review submitted briefs.

"This is a very important case. Perhaps the reason the court is deciding to rehear it," said Harding. "It's precedent setting. It's the first time the Religious Freedom Restoration Act has been tested at this level. If the Navajo Nation wins this case again, it will help tribes all across the country, not just the Navajo, Hopi, Wallapies, Havasupais and all the other tribes that are involved in this particular case."

Shanker remains confident. "I think we should prevail. I think we're right on the law," said Shanker. "I think the 9th circuit got it right the first time."

"It's probable that it will go to the Supreme Court regardless of the outcome. If the Navajo Nation wins, we would expect the Forest Service to appeal it to the Supreme Court. Certainly if the Navajo Nation is not victorious the second time around, it will appeal it to the Supreme Court because it has to." said Hardeen.

Read the court's decision in full on the U.S. Ninth Circuit Court of Appeals website at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/64C37FB597BF2F848825729C0058BFE8/$file/0615371.pdf?openelement.