Flagstaff, USA - Would artificial snow made from purified wastewater defile a mountain Native Americans hold sacred?
The U.S. Supreme Court on Monday refused to consider that question, essentially ending a five-year court battle over the future of Arizona Snowbowl on Flagstaff's San Francisco Peaks.
The decision lets stand a lower court ruling allowing development and snowmaking at the 70-year-old ski area. Manmade snow could arrive in time for the 2010-11 season.
The Navajo, Hopi, Hualapai, Havasupai and Apache tribes hold the peaks to be sacred sites and contend that plans to make artificial snow out of reclaimed wastewater will infringe on their religious freedom.
"This was not completely unexpected, but it's completely disappointing," said Navajo spokesman George Nuveen. "The Navajo Nation and the Navajo people have been seeking redress for the San Francisco Peaks for decades now."
The coalition of Native Americans and environmentalists including the Sierra Club that took Snowbowl's landlord, the U.S. Forest Service, to federal court in 2006, vowed to take other action, including congressional action or a direct appeal to President Barack Obama.
But Eric Borowsky, the majority owner of Snowbowl, countered, "We'll just deal with everything they come up with."
The planned development includes more than just snowmaking.
Construction this summer will expand the size of skiable terrain from 120 to 205 acres and install conveyor-belt style people movers on the beginner slopes, Borowsky said.
But the major work - 15 miles of pipe uphill from a water-treatment plant in Flagstaff, 12 more miles to distribute water along the slopes, and a 10-million gallon retention pond - will have to wait until March 2010. The $12 million snowmaking system should be in operation by that October, Borowsky said, meaning snow in time for Thanksgiving and Christmas, when the ski season traditionally begins.
The hope is to guarantee a ski season of 100 days or more at a facility that has always been at the mercy of the peaks' unpredictable snowfall. The past two winters saw heavy snow. But as recently as the 2001-02 season, snowfall was so scant that Snowbowl could open for only four days.
Most U.S. ski resorts have artificial snowmaking equipment, including Arizona's Sunrise Ski Area, which is owned by the White Mountain Apache Tribe. The Snowbowl plan was unusual, though, for its use of reclaimed water. Because there is no water source on the San Francisco Peaks, treated water would be pumped in from a sewage-treatment plant.
Snowbowl began planning snowmaking in the late 1990s. The Forest Service approved that and other development.
But the tribes sued the Forest Service, arguing that snowmaking would upset the deities that live on the peaks and that using treated sewage would desecrate the holy sites. Snowbowl's management signed on to the case to defend its interests.
In January 2006, a federal judge in Prescott first ruled that the Snowbowl plan was acceptable under federal law.
The coalition of tribes and environmental groups appealed, and the district court ruling was overturned in March 2007 by a three-judge panel of the 9th U.S. Circuit Court of Appeals.
Snowbowl's owners asked that the case be reviewed by a larger panel of appellate judges, which came back with an 8-3 decision in favor of the Forest Service and Snowbowl.
"(G)iving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone," Judge Carlos Bea wrote in the majority ruling.
The coalition petitioned the U.S. Supreme Court to reconsider.
It was the second time that Snowbowl reached the doorstep of the Supreme Court. In the late 1970s, a previous owner got Forest Service approval to make improvements, but was confronted by a similar coalition of Native American and environmental activists. Similarly, a federal court of appeals decision was taken up to the high court, which in 1982 refused to take that case. As a compromise, limited improvements were approved and land surrounding the ski slopes was designated a federal wilderness area, forever off-limits to development.
Those improvements had not been made by the time Borowsky's group bought the facility in 1992.
Borowsky decided to implement the changes permitted by the 1982 decision and added a snowmaking plan, and the opposition began anew.
Even after Monday's denial by the Supreme Court, Howard Shanker, an attorney representing the coalition said that they are exploring other possible legal challenges. He would not elaborate.
Andy Bessler of the Sierra Club said, "We think there are other legal options."