Just south of the Grand Canyon and seven miles north of Flagstaff, the volcanic San Francisco Peaks loom 12,000 feet above the Arizona landscape. They also sit at the intersection of a cultural, environmental and commercial controversy – one that could make its way to the Supreme Court.
The Peaks, which are managed by the United States Forest Service (USFS) as part of the Coconino National Forest, are held sacred by 13 American Indian tribes. So when Arizona Snowbowl, a ski resort that leases almost 800 acres of the mountain, proposed in 2002 to expand its facilities and make fake snow out of water reclaimed from sewage treatment plants, environmentalists and tribal leaders came together in opposition.
Snowbowl manager J.R. Murray says the resort had been looking for a water source to make snow for decades. “The precipitation in the Peaks cycles. Right now, we’re in a dry cycle,” Murray says. “In a great year, we’re open 120 days. This year, we were only open 40 days. We weren’t open for Christmas. That’s like a mall not being open for Christmas.”
Included in the proposal were plans for a 14.8‑mile buried pipeline that would transport the class A‑plus wastewater (a step below potable) from the Flagstaff Water Reclamation Plant to a 10 million-gallon man-made storage pond on the mountain. In a state with a perpetual water supply shortage, using wastewater provided Snowbowl with a viable way to keep its business running.
But for environmentalists and tribal members, the plan was unacceptable.
“Snowbowl’s proposal would not only disrupt and negatively impact the sensitive mountain ecosystem and public health, but it is also a severe act of cultural degradation,” says Klee Benally, an organizer with the Save the Peaks Coalition and a Navajo Tribe member.
The coalition of tribes and environmentalists brought the issue to Federal District Court, which in January 2006 ruled in favor of the USFS’ approval of the plans on all counts. But on March 12, the 9th Circuit Court overturned two counts of that ruling, making it illegal for Snowbowl to go ahead with its plans to make snow from reclaimed wastewater.
In his 64-page decision, Judge William Fletcher wrote that the human health impacts of using wastewater had not been sufficiently evaluated, and that making snow from wastewater violated the 1993 Religious Freedom Restoration Act (RFRA), based on the religious practices of the Navajo, Hopi and Havasupai tribes.
The ruling marks an unprecedented application of RFRA, says attorney Howard Shanker, who represented the 13 tribes along with the Sierra Club, the Flagstaff Activist Network and the Center for Biological Diversity in the class action suit.
Shanker says that while sewage-treatment plant wastewater is a “very valuable resource in Arizona, it’s not tested for things like hormones and antibiotics.” There have not been many conclusive studies of the effects of wastewater, but a 2005 study published by the University of Exeter in England found that long-term exposure to wastewater effluent resulted in reproductive mutations in fish, among other biological effects.
But Murray says the use of wastewater should not be an issue. “It’s used everywhere in Arizona and in Flagstaff,” he says, “in city parks, in ponds where you can eat the fish, golf courses, lawns, the university campus and on Indian reservations. Everybody in the state of Arizona understands reclaimed water, [but] the judges don’t.”
Judge Fletcher, however, compared the spraying of such snow on the Peaks to the government requiring that “baptisms be carried out with ‘reclaimed water.’”
He also wrote, “We are struck by the obvious fact that the Peaks are located in a desert. It is (and always has been) predictable that some winters will be dry.”
Murray contends it is impossible for most ski resorts to run without making fake snow and insists Snowbowl will close unless it does so. But even with the risk of closure, which Fletcher said was not necessarily imminent, the 9th Circut’s decision stated, “We are not convinced that there is a compelling governmental interest” to justify the use of reclaimed wastewater in relation to the “substantial burden” on the exercise of tribal religious practices.
Murray and Snowbowl owner Eric Borowsky argue that the issue is one of public land usage, not religious freedom. A press release put out after the ruling stated, “If this ruling is allowed to stand, then our national policy and congressionally mandated multiple use doctrine on public lands is dead for all practical purposes. The ramification of this ruling, if left unchallenged, will be devastating to the taxpayer’s access and use of its lands.”
“What’s wrong with sharing the peaks?” asks Murray. “We have one percent, they have 99 percent, we’re happy. The opposition groups are basically saying that [they] want the ski area off the mountain and don’t care who enjoys skiing, religious beliefs are more important than multiple uses of the land and recreational use.”
According to Benally, the conflict is a “throwback to the days of racism and disrespect” toward American Indians and created deep divisions within the Flagstaff community.
To support Snowbowl, the Flagstaff Chamber of Commerce and the Flagstaff Ski Club formed Reclaim the Peaks!. The group is raising money to assist with the costs of further litigation if an appeal is granted. Snowbowl has already spent an estimated $4 million on legal fees.
The idea of losing the case “is painful, considering the legacy indigenous people have faced,” says Benally. “You have to acknowledge the context of genocide, the cultural degradation, the racism.”
Whether an appeal will be made to the Supreme Court is up to the Department of Justice, which recently filed a request with the 9th Circuit Court for an extension on making that decision, according to Coconino National Forest Public Affairs Officer Raquel Romero.
Murray is certain the case will make it to the Supreme Court. “If we prevail,” he says, “well, the Indians might have to adjust some of their thought processes or religious practices. But if they win, the ski area goes away.”