Court Allows Use of Reclaimed Wastewater on San Francisco Peaks

By Kathy Helms

WINDOW ROCK, Arizona, January 19, 2006 (ENS) - Tribal nations and environmental groups have lost a lawsuit against the U.S. Forest Service over upgrades to the Arizona Snowbowl ski resort and the use of reclaimed wastewater to make snow on the San Francisco Peaks.

U.S. District Court Judge Paul Rosenblatt made the decision on January 12 despite protests by tribes, environmental and community groups who filed suit to protect the environmental integrity of the Peaks.

Navajo Nation President Joe Shirley Jr. said, "It is another sad day in the history of not only the Navajo Nation but Native Americans where, in this day and age, in the 21st Century, genocide and religious persecution continue to be perpetrated on Navajo people (and) other Native Americans living in the states of Arizona and New Mexico, who regard the Peaks as sacred."

Located on the San Francisco Peaks in the Coconino National Forest near Flagstaff, the Arizona Snowbowl ski resort has 32 trails that cover 777 acres. In the past 24 hours the resort was dusted with its first two inches of snow, but needs at least a two foot packed base before it can open for the season.

President Shirley said the Navajo people will continue to stand their ground in protecting their ways of life. "I will continue to hope and pray that the higher powers will see fit that the Navajo and Native American ways of life are sacred ways and deserve to be respected," he said.


The Arizona Snowbowl ski resort wants to use reclaimed wastewater to make snow. (Photo courtesy Arizona Snowbowl)
No decision has been made by the Navajo Nation about plans to seek an appeal of the court's decision, according to George Hardeen, communications director for the Office of the President and Vice President.

Klee Benally of the grassroots Save the Peaks Coalition in Flagstaff, said, "We're going to support all of the efforts for the appeal of this injustice." At this point, he said, the case is expected to go to the 9th Circuit Court of Appeals in San Francisco.

Howard Shanker, attorney in the case, said the groups are left with one option to halt the Snowbowl expansion: to file a Notice of Appeal and a request for an injunction pending appeal.

"If granted, this will stop all construction/clearing activities," Shanker said, adding that if the preliminary form of relief is denied, the appeal process would still go forward.

While clearing of the land may have taken place before the end of the process, if the appeal is successful, any construction likely would have to be removed and the Snowbowl would not be allowed to make snow, Shanker said.

"This decision in many ways is not only a disgrace, but it is something that violates the core of who we are," Benally said. "It just shows there is not a lot of recognition for Native rights. Here, as Native people, we're still being denied our civil rights," he said.

Plaintiffs in the lawsuit include the Navajo Nation,the Sierra Club, the White Mountain Apache, Yavapai-Apache, Center for Biological Diversity and the Flagstaff Activist Network.

Navajo plaintiffs' complaints were consolidated in July 2005 with separate complaints filed by the Hualapai, the Havasupai, and the Hopi tribes, all seeking summary judgment under the Religious Freedom Restoration Act.


The San Francisco Peaks on the Coconino National Forest (Photo courtesy U.S. Forest Service)
The Snowbowl, located on the western flank of the Peaks, is operated under a Special Use Permit issued by the Forest Service and renewable every 40 years. The Coconino National Forest Land and Resource Management Plan, adopted in 1987, designates the Snowbowl as a "Developed Recreation Site."

The current proposal seeks to upgrade the Snowbowl, which is surrounded on three sides by the 18,963 acre Kachina Peaks Wilderness managed by the Forest Service.

In 1979, a Forest Service decision to allow upgrades to the Snowbowl was challenged in federal court by tribes asserting in the case of Wilson vs. Block that development of the Peaks would be "a profane act and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes."

The tribes also argued that development of the Snowbowl would seriously impair their ability to pray and conduct ceremonies on the Peaks. The District of Columbia Court of Appeals eventually upheld the Forest Service decision, leaving the Snowbowl to operate under the direction of the Environmental Impact Statement upheld in the Wilson case.

In September 2002, the Arizona Snowbowl Resort Limited Partnership sought to implement the remaining upgrades authorized in the 1979 case and submitted a formal proposal to begin snowmaking using reclaimed wastewater.

The Forest Service under the direction of Supervisor Nora Rasure last year approved the Snowbowl partnership's proposed expansion and diversion of 1.5 million gallons of reclaimed wastewater per day to be used for making artificial snow.

Plaintiffs in the case argued that issuance of the Snowbowl Special Use Permit constitutes a violation of the government's trust responsibility to the tribes. However, the court said that although it is undisputed that the United States is a trustee for the tribes, at issue is "whether that trust imposes any additional enforceable fiduciary duties upon Defendants."

The court concluded that no such additional trust duties exist. "Unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency's compliance with general regulations and statutes not specifically aimed at protecting Indians," the court said in finding that the Forest Service had satisfied its fiduciary duty to local tribes.