A History of "Saving the Peaks"
Arizona Snowbowl Resort Limited Partnership (ASR) is a privately owned entity that holds a special use permit (SUP) to operate a ski area on federal land located on the San Francisco Peaks. The San Francisco Peaks are environmentally sensitive. The Peaks, including the SUP area, are also "extensively documented and widely recognized as a place of extreme cultural importance" to the tribes.
Due to, in large part, inconsistent snowfall and limited demand, the Snowbowl ski area has been experiencing financial difficulties. To help provide ASR with a "consistent/reliable operating season," the Forest Service (FS) agreed to allow ASR to expand the ski area and to introduce snowmaking using non-potable treated sewage effluent. Thousands opposed the project and challenged the adequacy of the FS review, consultation, and approval processes throughout the administrative process. After being rebuffed in the administrative process, thegovernment conjoind all of the tribes and environmental groups who filed suit challenging FS actions under, in part, NEPA, NFMA, and the NHPA. Plaintiff Tribes also asserted violations of the government's trust responsibility to the tribes, and a violation of RFRA.
From many places in northern Arizona, the horizon is dramatically marked by three 12,000-foot volcanic peaks that rise out of the Colorado Plateau south of the Grand Canyon and north of Flagstaff. The San Francisco Peaks are sacred to 13 tribes. For the Navajo, the Peaks are the sacred mountain of the west, Doko'oo'sliid, "Shining On Top," a key boundary marker and a place where medicine men collect herbs for healing ceremonies. To the Hopi, the Peaks are Nuvatukaovi, "The Place of Snow on the Very Top," home for half of the year to the ancestral kachina spirits who live among the clouds around the summit. When properly honored through song and ceremony, the kachinas bring gentle rains to thirsty corn plants. The peaks are one of the "sacred places where the Earth brushes up against the unseen world," in the words of Yavapai-Apache Chairman Vincent Randall.
Arizona Snowbowl Resort Limited Partnership (ASR), purchased the ski area in December 1992. The ski area is operated under a 777-acre Forest Service-issued Special Use Permit (SUP), which is renewed on a 40-year basis. To help provide ASR with a "consistent/reliable operating season," the FS undertook to expand the ski area and to introduce the use of reclaimed sewer water for snowmaking.
In 2002, ASR initiated the process of having the FS approve their proposed expansion to the Snowbowl Ski area. A "scoping" letter, beginning the NEPA process for ASR's proposed expansion, was sent out by the FS in September 2002. On February 2, 2004, the FS issued its Arizona Snowbowl Facilities Improvements Draft Environmental Impact Statement' (DEIS). The Record of Decision (ROD) and Final Environmental Impact Statement (FEIS) were issued in February 2005.
The selected alternative, which essentially mirrored ASR's proposal, included in part: (a) approximately 205 acres of snowmaking coverage throughout the area, utilizing reclaimed wastewater; (b) a 10 million-gallon snowmaking reclaimed wastewater reservoir near the top terminal of the existing Sunset Chairlift and catchment pond below the Hart Prairie Lodge; (c) construction of a reclaimed water pipeline between Flagstaff and Snowbowl with booster stations and pumphouses; (d) construction of a 3,000 to 4,000 square foot snowmaking control building; (e) construction of a new 10,000 square foot guest services facility; (f) an increase in skiable acreage from 139 acres to approximately 204 acres – an approximate 47% increase; and (g) approximately 47 acres of thinning and 87 acres of grading/stumping and smoothing.
It is undisputed that the ski area is on federal land on the San Francisco Peaks, which are sacred to the tribes of the southwestern United States, who still actively use the Peaks for cultural, historic, and religious purposes. Indeed, in selecting Alternative 2, the FS specifically found, in part, that "snowmaking and expansion of facilities, especially the use of reclaimed water, would contaminate the natural resources needed to perform the required ceremonies that have been, and continue to be, the basis for the cultural identity for many of the tribes."
The Forest Service has identified the Peaks [including the SUP area] as a Traditional Cultural Property (TCP) as defined in the National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties. The Peaks [including the SUP area] have also been determined as eligible for inclusion on the National Register of Historic Places. According to National Register Bulletin 38, "[t]he San Francisco Peaks in Arizona, for example, are extensively documented and widely recognized as a place of extreme cultural importance to the Hopi, Navajo, and other American Indian people of the Southwest. . ."
On June 23, 2005 a lawsuit was filed in Arizona District Court, Plaintiffs/Appellants the Navajo Nation, the White Mountain Apache Tribe, the Yavapai-Apache Tribe, the Havasupai Tribe, Rex Tilousi, Dianna Uqualla, the Sierra Club, the Center for Biological Diversity, and the Flagstaff Activist Network (hereinafter collectively referred to as "Plaintiffs") sought declaratory and injunctive relief for violations of the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), the National Historic Preservation Act (NHPA), the National Forest Management Act (NFMA), and the Religious Freedom Restoration Act (RFRA). The district court entered a final Order and Judgment in favor of the US Forest Service and Arizona Snowbowl on January 11, 2006. This judgment disposed of all parties' claims.
Plaintiffs filed a timely Notice of Appeal to the 9th Circuit Court of Appeals on February 27, 2006. On March 12, 2007 the 9th Circuit Court of Appeals overturns the lower court ruling. This ruling establishes protection for the Sacred San Francisco Peaks from Arizona Snowbowl's development and wastewater snowmaking plan. Judge William A. Fletcher stated, "We are unwilling to hold that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities, as well as to extend its ski season in dry years, is a governmental interest ‘of the highest order."
However on May 30, 2007 the United States Department of Justice on behalf of the Forest Service files for a rehearing and appeal "en banc" in the case to protect the San Francisco Peaks in Northern Arizona. This hearing before an 11 judge panel was granted and held on December 11, 2007 in Pasadena, CA. A divided en banc panel of the Ninth Circuit overturned the protections granted, holding that a "substantial burden" exists under RFRA "only when individuals are  forced to choose between following the tenets of their religion and receiving a governmental benefit . . . or  coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions." Spraying sewage water onto the mountain would do neither of these particular things, notwithstanding the profound impact it would have on the tribes' spirituality and religious practices. The panel also refused to comment or make any ruling on the NEPA claim of governmental neglect when it did not study what would happen if the sewer water snow was to be eaten. They instead claimed there was a filing technicality and threw out the NEPA claim entirely.
What's in the Water and what happens if I eat it?
The Forest Service failed to ask that question. The only time that the possibility of eating snow is directly addressed in the FEIS is in the FS response to comments, which provides, in pertinent part, that, "[t]here will be signs posted at Snowbowl informing visitors of the use of reclaimed water as a snowmaking water source. . . it is the responsibility of the visitor or the minor's guardian to avoid consuming snow made with reclaimed water. . ." The FS failure to adequately consider this impact was without observance of the procedure required by law, arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.
So, in all honesty we can't say for sure what will happen, because we don't know. However, recent studies are telling us that there is a lot of stuff in this water. Including pharmaceuticals, pathogens, "superbugs," nanotechnology, industrial contaminants, and more. Some of these studies are even showing a major effect on the wildlife that lives in treated sewage effluent contaminated areas. From the feminization of male fish to extreme diet alteration, there is a lot happening in this A+ graded treated sewer water.
And it is not just the man-made waste that is causing serious problems, it is the organic as well. We have major outbreaks of e coli on spinach and tomatoes caused by wastewater irrigation. Hundreds have gotten sick in outbreaks of norovirus on the Colorado River due to wastewater discharged at a Glen Canyon sewer treatment plant. In Phoenix, AZ one person died and 82 were dreadfully ill from treated sewage effluent that cross contaminated a water cooler on a golf course.
Currently the City of Flagstaff is using this water to irrigate parks, ballfields, and school grounds. Even NAU has recently started using this water to irrigate. How do we know that this is safe? How do we know we are not passing on norovirus, hepatitis, bio-accumulating pharmaceuticals that disrupt endocrine systems? Well, we don't know unless we ask...
Since this article was written, two more lawsuits were filed as well as a great deal of other happenings.
The next article "Putting the Peaks in Context" will bring you the rest of the way up to date.
Compiled by Zen
Using water for waste disposal is a bad idea. It may have seemed like a good idea to begin with, but it isn't. We have to find a new way to poo; a new way to dispose of industrial waste; a healthy soap and shampoo. It's not just 1% of a mountain in a wilderness area that needs protection, it is our entire planet.
If we stop and take a closer look, the very top of our mountains may be the only places safe from wastewater contamination. We have definitely drawn the line way too late. E. coli is in our food supply, pharmaceuticals are in our drinking water, mercury is in our fish, antibiotics are mimicking our endocrine system, and all because we flushed it down the toilet or washed it down the drain.