Snowmaking OK'd at Snowbowl resort

The decision out of the court's Ninth Circuit in San Francisco overturns an earlier appellate decision to the contrary. The issue has see-sawed since January 2006, when a federal judge in Prescott first ruled that Arizona Snowbowl's plan to run a pipe up the mountain from a water treatment plant in Flagstaff was acceptable under federal environmental law.

A coalition of tribes and environmental groups led by the Navajo Nation appealed the decision on religious grounds, and it was overturned in March 2007 by a three-judge panel at the Ninth Circuit. Snowbowl's owners asked that the case be reviewed en banc - by the entire bench of appellate judges - which came back with a 9-3 decision in favor of Snowbowl.

At issue was whether the possibility of residual human waste in the reclaimed water — estimated at .0001 percent — desecrated lands held sacred by several tribes. The resort lies not on Indian reservation land but on U.S. Forest Service land on the San Francisco Peaks, which are held sacred by the Hopi, Navajo, Apache, Havasupai and Hualapai peoples.

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 substantially harmed 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. Further, giving 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.”