SAN FRANCISCO (CN) – The 9th Circuit upheld the U.S. Forest Service’s decision to allow an Arizona ski resort to use recycled sewage water to make artificial snow in peaks that are sacred to at least 13 Indian tribes.
The government agency drew heavy criticism for allowing the Arizona Snowbowl, a ski area on Humphrey’s Peak in the Coconino National Forest, to make snow with the treated wastewater.
Plaintiffs included the Hopi, Havasupai and Hualapai tribes; the Navajo, Yavapai-Apache and White Mountain Apache nations; and environmentalists. They claimed the fake snow violated the Religious Freedom Restoration Act, the National Environmental Protection Act and the National Historic Preservation Act.
In an 8-3 decision, Judge Bea said the use of the treated wastewater, classified as the highest quality recycled water under Arizona law, does not clearly impose a “substantial burden” on the plaintiffs’ religious exercise.
“The presence of recycled wastewater on the Peaks does not coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions,” the majority wrote, “nor does it condition a governmental benefit upon conduct that would violate their religious beliefs.”
The majority also dismissed the plaintiffs’ claim that the government violated the National Environmental Policy Act by failing to consider the risk of humans ingesting the manmade snow. It ruled that the Navajo plaintiffs failed to plead this environmental claim to the district court.
Judges Fletcher, Fisher and Pregerson dissented. Fletcher said the government needs to offer a compelling interest for spraying treated sewage on the mountain, and evidence that using the recycled water to make snow is the least restrictive method of achieving that purpose.