Snowbowl can’t use treated sewage

The operators of a Northern Arizona ski resort cannot use recycled sewage to make snow, the 9th U.S. Circuit Court of Appeals ruled Monday.

In a unanimous decision, the judges said there is no evidence that denying the operators of Arizona 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.

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 the tribes have relied on the purity of the mountain water for their religious beliefs “from time immemorial.”

He said permitting the use of treated effluent would be the equivalent of the government requiring that Christian baptisms be done with reclaimed water.

Fletcher also said there was no evidence that denying the use of artificial snow made from treated sewage would cause the facility to close. He also said the owners should have realized when they purchased Snowbowl in 1992 that the resort is located in a desert and that there would be dry years with little natural snowfall.

The ruling means the operators of Snowbowl won’t be able to make snow unless they can find another water source. That means skiers such as Brent Bowles, the vice president of the Scottsdale Sea and Ski Club, will have to travel further in the winter to find a ski destination.

“They definitely need snow machines operating up there,” said Bowles, who just returned from a ski trip in Canada.

Owners of Snowbowl have argued there will be a lot of other skiers like Bowles who will leave the state to ski unless the ruling is overturned by the U.S. Supreme Court.

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.

Even if the owners can convince the U.S. Supreme Court that the federal religious protection laws do not apply, that would not provide them the goahead 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.

Snowbowl general manager Eric Borowsky said in a prepared statement the decision means the environmental laws have been abused “and the taxpayers of our country held for ransom by a small group of activists who believe that they personally own our nation s public lands.” Borowsky noted that the decision kills the intent of Congress for multiple uses of public land.

Borowsky also lashed out at native tribes, saying the White Mountain Apache tribe sprays “virtually untreated” sewage on its own ski resort called Sunrise “without question or environmental review.”

And he said the Hualapai tribe is putting a scenic walkway at the Grand Canyon for tourism and economic development.

“The political position of several of the Indian tribes, with less than stellar environmental records, who are involved in this matter is nothing short of hypocritical,” he wrote.

The current owners planned to build a 15-mile pipeline to carry up to 1.5 million gallons a day of treated effluent from Flagstaff. The idea was to cover about 205 acres with artificial snow at the beginning of each 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.”

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.

Snowbowl received 87 inches of snow in the winter of 2001-02 when the resort was open for only four days and hosted 2,857 skiers.

But Fletcher also pointed out that the snowfall in 2004-05 was up to 460 inches, with 139 ski days and 191,317 skiers.

“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” to allow 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. “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.

— Tribune writer Dennis Welch contributed to this story.