Court Allows Snowmaking on the Peaks

Flagstaff, AZ – Host Intro:

The 9th circuit court of appeals has ruled to allow the use of treated wastewater to make artificial snow at the Arizona Snowbowl ski area. It's the latest decision in a see-saw legal battle over Native American religious freedoms on the San Francisco Peaks. From KNAU's Indian Country News Bureau, Daniel Kraker reports.

The decision overturns a ruling issued by a 3 judge panel of the court last year, that would have denied the use of wastewater on the San Francisco Peaks. That decision had reversed a 2006 Arizona district court ruling that sided with Arizona Snowbowl and the U.S. Forest Service.

Several Indian tribes and environmental groups then sued to block the plan. They argued the government didn't adequately study the environmental impacts of using treated effluent to make snow; and that the use of wastewater on the Peaks, which many tribes hold sacred, would violate their religious freedoms.

But in a 9 to 3 decision the full 9th circuit court disagreed. The judges wrote that artificial snow would only affect the plaintiffs', quote, subjective, spiritual experience, and would not impose a substantial burden on the tribes' free exercise of religion because it would not force the tribes to act contrary to their religious beliefs.

But Klee Benally, a Navajo and member of the Save the Peaks Coalition, says that's not the case.

I personally gather medicines from around the snowbowl area with my father, we won't be able to do this again, if this goes through because this area will become contaminated. And again it's not just part of the mountain, the SF Peaks are considered one living entity, and that's what we're struggling to have recognized.

The court called the tribes' religious beliefs sincere, but said the plaintiffs could still pray on the Peaks, conduct religious ceremonies, and collect plants for religious use. The court also wrote that giving, quote, one religious sect a veto over the use of public land would deprive others of the right to use what is, by definition, land that belongs to everyone.

Eric Borowsky is principal owner of the Arizona Snowbowl.

It's federal land, it belongs to all citizens of the US, it doesn't belong to a particular group of citizens, or a certain religion.

Borowsky says Snowbowl has been hurt by inconsistent snowfall over the past several years. Last year the ski area had record snowfall and record crowds. But in 2001 the ski area was only open for four days and had one and a half percent of budgeted revenue.

So ski areas like every other biz in the country have to have a semi reliable source of revenue, and without snowmaking in today's world you cannot operate a ski area, it's that simple.

Backers of snowmaking say the economic benefits of the plan will extend beyond the slopes. Julie Pastrick is President and CEO of the Flagstaff Chamber of Commerce.

One of the main benefits up front that will be rezlied almost immediately is the ability of hundreds of jobs to be annual now rather than seasonal, and with that payroll, the opportunity to boost biz across the entire community will be great.

But Howard Shanker, who represents many of the tribes and environmental groups who sued the government, says the impact of the case will be felt far beyond the boundaries of Flagstaff. He says the ruling will hurt the ability of tribes to protect sacred sites on public lands across the country.

It's a shame that we live in a country that prides itself on freedom of religion and 1st amendment rights and yet treats a whole segment of the population, a segment of the population that was here first, as second rate citizens when it comes to their religious beliefs.

Which is why Klee Benally with the Save the Peaks coalition says his organization may take the battle out of the courts and into Congress.

This case really underscores the fact that we need legislative action, to guarantee the protection for places that are held holy, hundreds of sites throughout the country, that's why this case is so significant.

And in all likelihood the case isn't over yet. Howard Shanker, who's also running for Congress in Arizona's 1st congressional district, anticipates his clients will appeal the decision to the Supreme Court.

For Arizona Public Radio, I'm Daniel Kraker in Flagstaff.