Tribes Lose Bid to Freeze Ski Lodge’s Snowmaking

(CN) - A federal judge refused to halt a plan that would create snow using purified wastewater for Arizona's San Francisco Peaks, which many southwestern American Indians tribes consider sacred.

A coalition of environmentalists and American Indians that challenged the project had failed to show that further action will cause irreparable harm, U.S. District Judge Mary Murguia ruled on Feb. 18.

She pointed out that it will be at least a year until the Arizona Snowbowl Resort, which manages a ski lodge on the peaks that has suffered through more than a decade of fickle snow fall in the drought-ravaged region, begins the snowmaking process.

The appeal is currently pending in the 9th Circuit.

The Save the Peaks Coalition and various private citizens - including several Navajo medicine men - sued the U.S. Forest Service and Snowbowl Resort in 2009 after years of failed administrative challenges to the controversial plan. The plaintiffs argue that the snowmaking scheme will harm the environmentally sensitive peaks, which some 13 Southwestern tribes consider sacred. They also argue that the Forest Service failed to properly study whether snow made from reclaimed water is dangerous to humans, especially children who use the peaks' popular snow-play area. For ritual purposes, Navajo medicine men often bathe in snow gathered from the peaks, according to the group's original complaint.

Late last year the District Court granted summary judgment to the defendants, finding that the Forest Service had properly studied the potential health effects of snow made from wastewater.

Save the Peaks filed an appeal before the 9th Circuit and asked that the project be halted while the case was pending. The group argued that the resort will cause irreparable harm to the peaks if it goes forward with a tree-clearing project and begins constructing a pipeline.

Judge Maguia disagreed.

"Having reviewed the injunctive relief issues, the court finds that plaintiffs will not be injured, much less irreparably so, by any construction related activity taken in furtherance of snowmaking," she wrote. "While plaintiffs might be correct in noting that building an almost 15-mile-long pipeline will have a potential impact on the environment in general, plaintiffs' complaint only concerns whether the [National Environmental Policy Act] process adequately considered the threat to human health posed by the ingestion of Class A+ reclaimed wastewater. The complaint is unrelated to the potential environmental harms caused by clearing or construction. Consequently, plaintiff's request for a stay, insofar as it aims to curb anything except the actual production of and use of snow made from reclaimed water on Snowbowl, is improper."

Maguia found equally unconvincing the coalition's arguments that an injunction would benefit public interest and that the going forward with construction would destroy the cases' subject matter.

"While it is certainly possible for the public interest and hardship asserted by the plaintiffs to outweigh those asserted by the defendants, in this particular case they do not," she wrote. "The hardships and interests the plaintiffs claim to represent are broad, stemming generally from their concerns about the changes to the environment to be made by defendants well before they actually produce and dispense snow made from reclaimed water. As such plaintiffs are wrong, or at least premature, when they state that the defendants could 'destroy the subject matter of this case.' The subject matter of this case is whether the Forest Service sufficiently considered the possibility that people would ingest snow made from reclaimed water.

Since there is no immediate threat of such ingestion, the public interests represented by and hardships to be borne by the defendants outweigh those of the plaintiffs."

The San Francisco Peaks tower over Flagstaff, Ariz., a small college town about two hours north of Phoenix. They include Humphreys Peak, the state's highest at over 12,600 feet.

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