Snowmaking OK on Ariz. Snowbowl, court says |

Snowmaking OK on Ariz. Snowbowl, court says

Chris Kahn and Bob Christie
Associated Press
Vail, CO Colorado

PHOENIX – A federal appeals court on Friday allowed an Arizona ski resort to spray reclaimed sewage water across its slopes to make snow despite pleas from Indian tribes who consider the mountain sacred.

The decision by a full panel of the 9th U.S. Circuit Court of Appeals in San Francisco clears Arizona Snowbowl to expand their 777-acre resort. Owners want to add snowmaking equipment, a fifth chair lift and plan to cut away 100 acres of surrounding forest for more room.

“People will now be able to plan year in and year out that Snowbowl will be open by the Christmas holiday,” resort spokesman Dave Smith said. Opening the ski season “is not going to be the guessing game” that it is right now.

However, a lawyer representing some of the Indian groups said he expects his clients to appeal the ruling to the U.S. Supreme Court.

Navajo Nation President Joe Shirley also vowed to appeal, saying in a statement “There are plenty of other ways to make money besides putting filthy water on a sacred place.”

Hopi Chairman Ben Nuvamsa added that the mountain is like a church to his people: “We do want it to be in its purest state.”

The resort sits on U.S. Forest Service land in the Coconino National Forest. The Forest Service approved the snowmaking and expansion, prompting a suit by several tribes and environmental groups.

The appeals court overturned a ruling made last year by a three-judge appeals panel that held that using wastewater on the San Francisco Peaks violated the federal Religious Freedom Restoration Act.

The full panel disagreed. It concluded the tribes will still have full use of the mountain for their ceremonies and the snowmaking would not affect that. No plants would be harmed, no ceremonies would be physically affected and no places of worship would be made inaccessible.

“The sole effect of the artificial snow is on the (tribes’) subjective spiritual experience,” Judge Carlos T. Bea wrote for the majority of the 11-judge panel. “A government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a substantial burden … on the free exercise of religious freedom.”

Three judges disagreed with the court’s decision, noting that it would allow the ski resort to spray 1.5 million gallons of treated sewage effluent each day on the “most sacred mountain of southwestern Indian tribes.”

Circuit Judge William A. Fletcher, who wrote the dissenting opinion, said the court’s decision “constitutes a substantial burden on the Indians’ exercise of their religion.”

The towering San Francisco Peaks in northern Arizona have been the subject of years of battles between recreational skiers and numerous Indian groups who consider them central to their religious identity.

The Hopi have been making pilgrimages to the peaks since at least the 1540s. The tribe directs their prayers toward the peaks and consider them home to the spiritual Kachinas that bring the world water, snow and life. To the Navajo, the peaks are central to their creation story. Navajo members consider the mountain as family and greet the peaks daily with prayer songs.

The San Francisco Peaks also have become very important to recreational skiers in Arizona. For the past 70 years, they’ve flocked to Humphrey’s Peak, the tallest in the state, to enjoy one of the only ski slopes within driving distance from Phoenix.

One of the only alternatives is Sunrise Park Resort, which is owned and operated by the White Mountain Apaches.

Indian tribes have fought previous development plans by ski resort owners on Humphrey’s Peak since at least the 1970s. When they heard that Snowbowl wanted to spray treated sewage across their sacred land, leaders of the Navajo, Hualapai, Havasupai, Hopi, White Mountain Apache and Yavapai Apache tribes joined several environmental groups in a lawsuit to stop the owner.

Tribal members marched into court hearings, chanting and beating drums to emphasize their anger over Snowbowl’s plans.

“In a nation that prides itself on religious freedom, and rights for all, it should be intolerable that it is good for everyone except native Americans,” attorney Howard Shanker, who represented some of the tribes and environmental groups, said Friday. “What we have is generally a bunch of non-natives becoming arbiters of (Indian) religion, which is not the role of the court.”

A U.S. District Court judge in Phoenix sided with the Forest Service and Snowbowl in 2006. A three-judge panel of the 9th Circuit overturned the decision last year, and the full 9th Circuit then agreed to rehear the case and upheld the district judge’s initial ruling.

Calls to Forest Service officials and attorneys seeking comment weren’t immediately returned.


The case is Navajo Nation v. U.S. Forest Service, 06-15371.


Associated Press Writer Felicia Fonseca contributed to this story from Albuquerque.



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