Snowbowl case might reach Supreme Court
A lawsuit filed by various tribes against the Arizona Snowbowl might be appealed to the U.S. Supreme Court after several contradictory rulings by more local courts have left the case under dispute.
In March 2005, the U.S. Forest Service granted permission to the Snowbowl to expand its infrastructure to allow artificial snowmaking using reclaimed water. Supporters say this is needed due to the inconsistency in snowfall over the past few years. In response, the Navajo, Hopi, Yavapai-Apache, White Mountain, Havasupai and Hualapai tribes filed a lawsuit saying the reclamation project threatens the environment and religious freedoms.
The case was taken to the 9th Circuit Court of Appeals, where a three-person panel ruled in favor of the tribes in March 2007. However, a ruling made on Aug. 8, 2008 concerning the religious right of the tribes gave favor to the Snowbowl. The tribes are currently deciding whether to appeal to the Supreme Court on the grounds of religious freedom.
Since the District Court did not rule on the merits of the environmental aspect of the lawsuit, the tribes may still appeal to the District Court for a separate ruling. Until a future ruling, the court has ordered a stay on production.
Due to the ongoing nature of the case, Snowbowl declined to comment.
Julie Pastrick, president and CEO of the Flagstaff Chamber of Commerce, said Snowbowl’s expansion plan will benefit Flagstaff’s economy.
“We live in a very desirable mountain area, and a healthy ski season would be a boon for our economy,” Pastrick said. “A healthy business economy is good for everybody. That’s just an economic reality.”
Save the Peaks (STP) is an organization formed in 2004 that focuses on opposing the Snowbowl’s plan. They cite the contamination that the project would have on the watershed in the peaks, along with other environmental damage that would result from reclaimed water.
Rachel Tso, a graduate student majoring in arts and sustainable communities, is a volunteer with STP. She said studies have shown that the chemicals, such as endocrines, that would be in the sewage water used to make the snow have altered the sexual development of frogs. She said this is a sign that the Snowbowl’s plan will damage more than just the watershed.
“What’s it going to do to people who face-plant in it?” Tso said. “What’s it going to do to the kids that eat it? There’s an environmental aspect to it. There’s a health aspect to it.”
Catherine Propper, professor of behavioral, environmental and reproductive endocrinology, has been involved in conducting some of these studies.
“Throughout the world, investigators have found endocrine disrupting compounds in wastewater effluent, and many studies have found that exposure to wastewater impacts sexual development in aquatic vertebrates,” Propper said. “Results of these studies demonstrate that low levels of the micro-contaminants in wastewater effluent have significant biological effects when organisms are exposed in their natural environments.”
However, Propper said these studies do not necessarily show what will happen should the Snowbowl’s plan be put into effect.
“We do not know what the impact of using wastewater on the San Francisco Peaks will be, as no one has conducted a study that evaluates the use of wastewater once it is sprayed, frozen and thawed, and exposed to UV,” Propper said. “The issue of low-level contamination of complex chemical mixes is very difficult to evaluate because of the complicated nature of the chemistry and biology of exposure. There is an urgent need for studies to evaluate the biological impacts of reclaimed water reuse.”
Due to the environmental concerns this case raises, the Sierra Club has also become involved in aiding the tribes. Robert Tohey is the Environmental Justice Program organizer for the Plateau Chapter of the Sierra Club and has been helping in the case since its conception.
“We think appropriate use of the land would not be to use reclaimed water for recreation,” Tohey said. “There would be major disruption to habitats and ecosystems. We’re talking about a mountain that’s already been disturbed.”
Brady Smith, public affairs officer for Coconino National Forest Service, said he disagrees that the project would harm the environment. He said the plan was approved by the Forest Service after it was deemed the best option amongst a variety of choices.
“If we thought it would be damaging to the forest, we wouldn’t be going through with it,” Smith said. “The forest in general is here for the people. They come to the forest for many different reasons, and one of those reasons is to recreate. This is just another opportunity for them to use the national forest in every way we have to offer.”
The Forest Service also cited many studies they say contradict the theory that the chemicals in the reclaimed water would harm sexual development.
The tribes’ main focus, however, has been on the religious aspect of the case. To these tribes, the San Francisco Peaks are a holy site, as important as any other. Thus, the possible contamination of the waters on this site have been met with much disapproval.
“It’s not just sacred, it’s holy,” Tso said. “It’s a place that’s been holy long before anybody of European descent came here.”
Tso said tribal medicine men go to the peaks of the mountain in order to gain herbs used for medicinal purposes.
“What type of thing is that to do to our neighbor?” Tso said. “You’re going to spray poisoned water on their pharmacy.”
Ruling for the majority in the 9th Circuit Court of Appeals, Judge Carlos Bea wrote, “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.”
According to Tso, this ruling means that Native American religion is considered subjective to the courts, which would never happen to religions such as Christianity or Islam.
“We’ve been contacted by nearly every Native American nation in the country, because if we lose, it sets a bad precedent,” Tso said. “If we lose, all Native Americans lose.”
Tso said she thinks the division caused by this case could wind up damaging Flagstaff’s economy. She said a study done by the City of Flagstaff showed that the Snowbowl provided less than 1 percent of Flagstaff’s economy, and the amount of business stores receive from Native Americans far outweighs that.
“There’s talk of boycott,” Tso said. “(The Native Americans) going to shop in Winslow or somewhere else. If Snowbowl closed down, it would have no (economic) impact. But if the Natives stopped shopping here, it would all come to a grinding halt.”
The Chamber of Commerce declined to comment on the religious issue, but President Pastrick said she strongly disagrees that the Snowbowl has little impact on the economy.
“During snowy season, we have plenty of people coming into town,” Pastrick said. “Because of that, many other businesses prosper, and therefore families prosper. This is not just about one business, this is about people. You’re talking about payroll to 300 to 350 people, and that money gets recycled into the economy. It’s tens of millions of dollars every year that goes into the economy from the Snowbowl.”
Mark Lamberson owns Mountains Sports Downtown, one of the businesses that receives income as a result of the Snowbowl.
“We just finished a great snow season last year, and so the Snowbowl received a lot of holiday business,” Lamberson said. “We received business like we hadn’t seen in years.”
Lamberson said the busy season created a 20 percent growth in business last year, and he hopes for that trend to continue.
“Because we came off a good snow season last year, people are more excited for this season,” Lamberson said. “Pre-sales for season tickets to the Snowbowl are up 85 percent.”
With the stay in effect, the future of this case remains uncertain. Supporters of the Snowbowl said they are confident they will be able to resume building the infrastructure soon. However, Tso said she still keeps some optimism.
“I’m optimistic when I’m on campus and I see all the Save the Peak stickers,” Tso said. “I’m optimistic when I talk to the younger generation. But the younger generation doesn’t run the Supreme Court.”