KNAU and Arizona News
10:47 pm
Tue December 11, 2007

Snowmaking Reconsidered by 9th Circuit Court

Flagstaff, AZ – Host intro:

The Arizona Snowbowl opens tomorrow after being blanketed with several feet of natural snow. Yesterday, in Pasadena, the 9th circuit court of appeals heard arguments in the latest chapter in the ski area's longstanding legal effort to make artificial snow using reclaimed wastewater. Arizona Public Radio's Daniel Kraker reports.


The one hour hearing Tuesday was before 11 judges on the 9th circuit court. They agreed to reconsider a March ruling from a three judge panel of the court, which ruled that allowing snowmaking would violate the religious freedoms of 13 Indian tribes who hold the San Francisco Peaks sacred. William Perry Pendley directs the Mountain States Legal Foundation, which filed a friend of the court brief in support of the U.S. Forest Service and Snowbowl. He attended the hearing.

There are two very hard lines drawn on the 9th circuit, one group of judges saying this is the federal government's land, and it can do with this land as it pleases, and on the other side, a handful of judges, who are concerned about the impact on American Indian religion.

Pendley says it's hard to tell where the majority lies. But he says in his view, if the court upholds the panel's decision, it will limit the government's ability to manage federal land that some people hold sacred.

If this is permitted there's no logical stopping point, because you really can't question the sincerity of religious practitioners. The courts don't get into that kind of inquiry. If that's all you need for a believer to step forward and question the use of federal land, to initiate this kind of inquiry into whether or not the government has a good reason to do it, well, then Katie bar the door.

But Howard Shanker, who represents the Navajo Nation, the lead plaintiff, says the court can only consider what's at stake in this case, not elsewhere.

This case was about a 777 acre special use permit area on federal land, not about thousands of acres of federal land across the country.

Shanker also says the government has failed to prove that it has a compelling interest to burden the religious practices of the Navajo, Hopi and other tribes.

What this is about is putting reclaimed sewer water to make snow on a small ski area on federal land, that's sacred to 13 of the tribs of the SW US, I don't think this is a compelling government interest to devastate culture and religion.

A decision in the case isn't expected for several months.

For Arizona Public Radio, I'm Daniel Kraker.

To read coverage of the hearing from the San Gabriel Valley Tribune, click here: