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For Immediate Release, March 14, 2007

Contacts: Kieran Suckling, Center for Biological Diversity, (520) 623-5252
Howard Shanker, The Shanker Law Firm, (480) 838-9300

Federal Court Overturns Artificial Snowmaking,
Protecting Peaks and Tribal Religious Rights

TUCSON, Ariz.– The Ninth Circuit Court of Appeals in San Francisco blocked the U.S. Forest Service’s authorization of a plan to make snow from recycled wastewater at an Arizona ski resort on Monday. The Arizona Snowbowl is in the San Francisco Peaks, a mountain held sacred by at least 13 American Indian tribes.

Said Kieran Suckling of the Center for Biological Diversity, one of the plaintiffs, “The judge saw through the Forest Service’s and Snowbowl’s combined arrogance, greed and disrespect in their attempt to introduce treated sewage to a sacred space that’s significant to many of the region’s tribes.”

The Navajo Nation, Havasupai Tribe, Hopi Tribe, Hualapai Tribe, White Mountain Apache, Yavapai-Apache Nation, Sierra Club, Flagstaff Activist Network and several named individuals in addition to the Center complained that the use of treated sewage to make artificial snow at the resort would violate the Religious Freedom Restoration Act. The groups also argued that this plan had not been sufficiently reviewed for safety to people, plants, fish and animals living on the mountain and streams receiving runoff.

According to Howard Shanker, attorney for the plaintiffs: "Native Americans have essentially been deprived of their ability to protect sacred sites that have come under the control of the federal government. This void in the protection of religious freedoms that the rest of us take for granted has, in many instances, led to the untenable misuse and misallocation of federal lands. This case provides a glimmer of hope for all people of conscience that are committed to protecting and preserving Native cultural and religious practices. Today, the Ninth Circuit confirmed the existence of a legal remedy that will, hopefully, require the federal government to consider its land use decisions more closely when they impact Native American religious practices."

Judge William Fletcher wrote the 64-page decision that reversed the district court’s ruling in favor of the Snowbowl snow-making plan, dismissing claims that the Forest Service had a “compelling governmental interest” in permitting the sewage snow-making plan:

“Even if there is a substantial threat that the Snowbowl will close entirely as a commercial ski area, we are not convinced that there is a compelling governmental interest in allowing the Snowbowl to make artificial snow from treated sewage effluent to avoid that result. We are struck by the obvious fact that the Peaks are located in a desert. It is (and always has been) predictable that some winters will be dry… The current owners now propose to change these natural conditions by adding treated sewage effluent. Under some circumstances, such a proposal might be permissible or even desirable. But in this case, we cannot conclude that authorizing the proposed use of treated sewage effluent is justified by a compelling governmental interest in providing public recreation.”

The three-judge appeals panel ruled that the Forest Service decision to allow a reclaimed wastewater reservoir and the use of this water for artificial snow violated the tribes’ religious freedoms.

Judge Fletcher wrote: “From time immemorial, they have relied on the Peaks, and the purity of the Peaks’ water, as an integral part of their religious beliefs. The Forest Service and the Snowbowl now propose to put treated sewage effluent on the Peaks. To get some sense of equivalence, it may be useful to imagine the effect on Christian beliefs and practices — and the imposition that Christians would experience — if the government were to require that baptisms be carried out with ‘reclaimed water.’”

The panel also agreed with the plaintiffs’ claim that the National Environmental Policy Act had been violated by the lack of analysis of the risks posed by human ingestion of reclaimed wastewater in the Environmental Impact Statement.

Referring to one of the responses to comments in the Environmental Impact Statement, Judge Fletcher stated: “The response does not answer the specific and highly relevant question: How much direct exposure to the artificial snow is safe? Nor does the response provide any analysis of the extent of the likely ‘exposure,’ including the likelihood that children or adults would accidentally or intentionally ingest the snow made from non-potable treated sewage effluent.”

The Ninth Circuit Court of Appeals decision can be found at:$file/0615371.pdf?openelement


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