Snowbowl rehearing?

By Jason Begay, Navajo Times Times, October 18, 2007

WINDOW ROCK – In a move that had taken tribal officials by surprise, the U.S. Ninth Circuit Court of Appeals reportedly agreed to reconsider its decision regarding a controversial plan to expand a ski area on the San Francisco Peaks.

According to news reports and the Flagstaff attorney representing several entities including the Navajo Nation in the case, the appeals court agreed to hear the case Navajo Nation v. U.S. Forest Service for a second time. A date is not yet set.

A records clerk with the Ninth Circuit court, based in San Francisco, could not confirm the report. The case was still considered “pending,” meaning the judges were still contemplating the issue, at press time Wednesday.

However, Howard Shanker, who represents the nation as well as six other tribes and environmental groups, said the court will review the case and could enter a new judgment. He called the move “regrettable.”

“It is even more regrettable that our federal government seems to place the profitability of a privately owned, non-destination ski area that operates on federal land over the deeply help religious and culture convictions of hundreds of thousands of Native Americans,” Shanker said in a statement.

The courts move does not affect its March decision, when a three-judge panel ruled against the Forest Service and Arizona Snowbowl and the ski area’s plan to increase its operation and use reclaimed waste water to make snow during dryer winters.

J. R. Murray, Snowbowl general manager did not return a phone call requesting comment Wednesday.

The March ruling was much celebrated throughout Native American tribes across the state.

If the court does revisit the case, it would do so “en Banc,” meaning instead of a three-judge panel the case would be open to a panel of 10 Ninth Circuit judges chosen randomly.

The judges would determine how to revisit the case. The panel could choose to base its decision on briefs submitted during the earlier trial, or ask for new filings from both parties.

“This case might not be physically argued in a court room,” Shanker said. “it’s entirely up to the judges.”

The En Banc hearing of the U.S. Circuit Court of Appeals is the last step before the U.S. Supreme Court, Shanker said.

Depending on the outcome, the losing entity could then decide to appeal to the country’s highest court, a risky move for either side as a decision there would set a national precedent for similar cases.

Still, petitioning the high court seems almost inevitable.

“If we win, I assume the other side will file a petition for review at the Supreme Court,” Shanker said. “If we lose, we’d have to decide if that’s what we want to do, which I would recommend but that’s up to the client.”

The U.S. Forest Service ruled in 2005 that the Snowbowl expansion plan could move forward, prompting the initial lawsuits from several tribes including the Navajo Nation, which considered the San Francisco Peaks sacred.

Although the entire plan was lambasted, the main sticking point remained the proposal to make artificial snow using reclaimed wastewater.

The water that would have been used in the plan goes through a filtering process in a Flagstaff plant that attempts to replicate a natural filtering system. In the end, the water technically meets federal drinking water standards.

However, tribal officials and medicine men say the wastewater included effluent from mortuaries, run-off from which would violate taboos. Biologists say such water also contains remnants of pharmaceuticals and household cleaning chemicals that eventually end up in sewage systems.

The Ninth Circuit’s initial ruling in March overturned a 2006 decision by the Arizona District Court that allowed the ski area to proceed with its expansion plan.