The Arizona Daily Sun
03/12/07
The operators of Arizona Snowbowl cannot use reclaimed wastewater to make snow, the 9th U.S. Circuit Court of Appeals ruled today.
In a unanimous decision, the judges said there is no evidence that denying the operators of Snowbowl the ability to use sewage for artificial snow would force the facility, located on U.S. Forest Service land, to shut down. They said there is no "compelling governmental interest'' in having artificial snow on the San Francisco Peaks.
More to the point, the judge said the federal Religious Freedom Restoration Act requires government agencies to use the "least restrictive'' means of interfering with any religious practice.
"The record in this case establishes the religious importance of the Peaks to the ... tribes who live around it,'' Judge William Fletcher wrote for the court. He said that "from time immemorial'' the tribes have relied on the purity of the water for their religious beliefs.
He said permitting the use of treated effluent would be the equivalent of the government requiring that Christian baptisms be done with reclaimed water.
Arizona Snowbowl owner Eric Borowsky has vowed to appeal the decision to the U.S. Supreme Court if the Forest Service agrees to do so, saying this case will set a national precedent giving Native Americans control over the use of all public lands if it is allowed to stand.
Fletcher also said there is no evidence that denying the use of artificial snow made from treated sewage would cause the facility to close. But he also said even if that were the case, it hardly was a secret to the current owners, who bought the facility in 1992, that Snowbowl is located in a desert and there would be dry years.
Even if the owners can convince the U.S. Supreme Court that the federal religious protection law do not apply, that would not provide them the go-ahead for snow making. Fletcher said the Forest Service did not consider whether there would be any danger to someone who ingested snow made entirely from treated sewage water.
Monday's decision, which overturns a trial court's ruling against the tribes, may break new legal ground: Attorney Howard Shanker who represents the tribes said he believes this is the first time the 1993 federal Religious Freedom Restoration Act has been used successfully to block government action.
The ruling comes just hours after the resort, located on about 770 acres, shut down at 4 p.m. Sunday due to lack of snow.
J.R. Murray, general manager of the operation, did not return phone calls seeking comment.
At issue is a plan by the current owners, who bought the resort in 1992, to build a 15-mile pipeline to carry up to 1.5 million gallons a day of treated effluent from Flagstaff. Plans were to cover about 205 acres with artificial snow at the beginning of the season, with more as necessary.
Several tribes brought suit. But the appellate judges, in their 64-page ruling relied mostly on the evidence presented by the Navajo and Hopi tribes about the religious significance of the mountains and, to a lesser extent, the impact on the Hualapai and Havasupai tribes.
Fletcher noted that even the Forest Service conceded that the mountains are the most sacred place for the Hopi and Navajo. And he said the evidence showed that putting treated sewage on the mountain would place a "substantial burden on their exercise of religion."
That then left the question of whether the Forest Service had a "compelling governmental interest'' in permitting the use of sewage for artificial snow, and whether the snow making was the "least restrictive means" of advancing that interest.
Attorneys for the federal government and Snowbowl argued that the artificial snow was necessary to maintain the facility for public recreation.
But Fletcher noted that the operation, first opened in 1938, always has relied on natural snowfall.
In the 2001-02 winter, the judge said, there was just 87 inches of snow, with four days of skiing and just 2,857 skiiers. But Fletcher also pointed out that in 2004-05 there was 460 inches of snow, with 139 ski-able days and 191,317 skiiers.
"The evidence in the record does not support a conclusion that the Snowbowl will necessarily go out of business if it is required to continue to rely on natural snow and remain a relatively small, low-key resort," Fletcher wrote.
"The current owners may or may not decide to continue their ownership," the judge said. "But a sale by the current owners is not the same thing as the closure of the Snowbowl."
And Fletcher said even if there were some danger that the resort would close, "we are not convinced that there is a compelling governmental interest" in allowing the use of recycled sewage to prevent that from happening.
"We are struck by the fact that the Peaks are located in a desert," the judge explained. And he said it is predictable that some winters will be dry.
"The then-owners of the Snowbowl knew this when they expanded the Snowbowl in 1979, and the current owners knew this when they purchased it in 1992," Fletcher wrote.