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.
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
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
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
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.