Sacred Lands, Sewer Snow

American Indians fight to stop an Arizona ski resort from making snow out of sewage water.

Chelsea Ross

Klee Benally calls Snowball's sewage treatment proposal "a severe act of cultural degradation.

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. 

Klee Benally calls Snowball's sewage treatment proposal "a severe act of cultural degradation."

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.”

Chelsea Ross is a Chica­go-based free­lance writer, pho­tog­ra­ph­er and graph­ic designer.
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