Snowbowl wins latest court fight vs. Navajos

Treated wastewater OK'd for ski slopes

By Michael Kiefer, Arizona Republic, AUGUST 9, 2008

A federal appellate court on Friday sided with a Flagstaff ski resort, ruling that its plan for using reclaimed wastewater to make artificial snow does not violate the religious freedom of Native Americans.

The ruling sets up a potential showdown at the U.S. Supreme Court, where Arizona tribal leaders, environmental groups and their attorneys pledge to appeal their case.

Regardless, there will be no snowmaking at the Snowbowl this winter

"There is nothing we can do this year . . . regarding the opposed improvements to the ski area" because of the lateness of the season, said Eric Borowsky, principal owner of the 69-year-old ski hill.

More important, the ruling Friday by the 9th U.S. Circuit Court of Appeals attempts to weigh religious rights of minorities against the public's use of public land.

"(G)iving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone," Judge Carlos Bea wrote in the majority ruling.

But the Native American community disagreed.

"Again, with this decision, the federal government misses an opportunity to help us continue with our way of life in order to benefit skiers and developers," Navajo Nation President Joe Shirley Jr. said.

It will take at least until the beginning of 2009 before the high court decides to hear the case or let the Circuit Court ruling stand.

If it refuses to accept jurisdiction, construction can start in March on a pipeline that will pump treated, reclaimed water up the mountain from a treatment plant in Flagstaff.

If the Supreme Court takes the case, it will prolong a battle that has raged for more than a decade and has seesawed through federal court since 2006.

At issue is whether the possibility of residual human waste in the reclaimed water, estimated at 0.0001 percent, will desecrate lands held sacred by several tribes.

The resort lies not on Indian reservation land but on U.S. Forest Service land in the San Francisco Peaks, which are held sacred by the Hopi, Navajo, Apache, Havasupai and Hualapai people.

Friday's ruling sympathizes with the tribes' religious beliefs but points out that there is no likelihood of ecological damage from use of the reclaimed water, nor would any tribal members be denied access to worship. The spiritual effect, it opines, is not harmed enough to prohibit the resort's plans.

"Were it otherwise," it reads, "any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens.

"Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities or tastes, or fails to satisfy his religious desires."

In the late 1990s, the Snowbowl proposed snowmaking to guarantee sufficient snow cover so that the ski hill could stay open even in dry years.

Last winter saw heavy snow and good skiing conditions. But as recently as the 2001-02 season, snowfall was so scant that the Snowbowl could open for only four days.

The Forest Service approved a plan that included snowmaking. But a coalition of tribes and environmental groups led by the Navajo Nation sued the Forest Service, arguing that snowmaking in general would upset the deities that live on the peaks and that using treated sewage would desecrate the holy sites. The Snowbowl's management signed on to the case to defend its interests.

In January 2006, a federal judge in Prescott first ruled that the Snowbowl plan was acceptable under federal law.

But the tribes and environmental groups appealed, and the District Court ruling was overturned in March 2007 by a three-judge panel of the 9th Circuit.

The Snowbowl's owners asked that the case be reviewed en banc; that is, by the entire bench of appellate judges, which came back with an 8-3 decision in favor of the Forest Service and the Snowbowl.

"We were somewhat surprised. We thought we had made a pretty good argument last winter, and we were hopeful we would get a favorable ruling," said Ben Nuvamsa, chairman of the Hopi Tribe. "It obviously has some national implications for religious sites all over the United States."

But Paul Johnson, an attorney for the Snowbowl, noted that Friday's decision fleshes out details of the federal Religious Freedom Restoration Act.



Reprinted as an historical reference document under the Fair Use doctrine of international copyright law.