Plaintiffs in Peaks case considering appeal

In an en banc ruling published Aug. 8, the U.S. 9th Circuit Court of Appeals overturned a previous ruling by a three-judge panel that would have prevented the snowmaking scheme at the Arizona Snowbowl ski area.

Among the appellants were the Navajo Nation and three other tribes who claim the use of reclaimed sewage effluent, even if cleaned up enough to meet federal drinking water standards, would defile a sacred mountain, render the area's medicinal plants unusable, and nullify some of their ceremonies.

Other plaintiffs in the appeal were two individuals, along with the Flagstaff Activist Network and the Sierra Club. The original complaint, dismissed by a U.S. District Court in 2006, included 13 plaintiffs, mostly other area tribes.

"We're still reviewing the opinion and obviously consulting with Howard (Shanker), our attorney," said Andy Bessler, tribal partnerships coordinator for the Sierra Club. "We do plan to consult with the other plaintiffs before we decide what to do. Folks are very concerned about this."

In an earlier interview, Robert Tohe, the Sierra Club's environmental justice coordinator, predicted the Natives, at least, will press for an appeal.

"The tribes will go to the mat on this one," he said.

The court's 100-page decision was split, with eight of the 11 judges holding that the snowmaking scheme would not violate the tribes' rights under the Religious Freedom and Restoration Act of 1993.

Writing for the majority, Judge Carlos T. Bea maintained that while the use of wastewater on the mountain would affect the tribes' "subjective spiritual experience," it would not place a "substantial burden" on their ability to practice their religions by gathering plants from the mountains or conducting ceremonies on it.

Wrote Fletcher for the minority, "Contrary to what the majority writes and apparently thinks, religious exercise invariably, and centrally, involves a 'subjective spiritual experience.'"

The court refused to consider the Sierra Club's contention that the wastewater, which could contain up to 0.0001 percent human waste, could pose a health risk if people ate the manmade snow.

Bea wrote that the claim was not part of the plaintiffs' original complaint and thus could not be reviewed as part of the appeal.

"Rather than consider our position on its merits, they threw it out on a technicality," said Bessler. "One thing we'll definitely review with Howard is whether there's some way we can bring that NEPA (National Environmental Protection Act) claim back in."

Shirley and the Sierra Club immediately denounced the ruling.

"We witness the erosion of our way of life and our culture daily with the continual encroachment of the dominant society into our homeland," Shirley was quoted as saying in a press release.

"Again, with this decision, the federal government misses an opportunity to help us continue with our way of life in order to benefit skiers and developers."

In a Snowbowl press release, the ski resort's general manager called the ruling a victory for "multiple use of public land" (the Snowbowl is located in the Coconino National Forest).

"This ensures the future of skiing in Arizona," stated J.R. Murray.

Because natural snowfall levels are seldom sufficient to enable the Snowbowl to operate throughout ski season, Murray has contended the ski area will go under if it's not allowed to manufacture snow.