A federal judge is hoping to get the owners of one of the state's best known ski resorts to promise they won't start construction for an artificial snow system for at least another two weeks.
At a hearing Tuesday, U.S. District Court Judge Mary Murguia noted that Flagstaff officials are expected to decide by that time whether they intend to sell drinkable water to Snowbowl. Howard Shanker, the attorney for groups challenging the current plan to use treated effluent on the San Francisco Peaks, conceded that move would make his lawsuit to preclude the use of treated effluent to make snow at the resort legally irrelevant.
Murguia gave the attorneys through Thursday to negotiate something. And if they can't agree, the judge said she will decide whether to put the project on hold while the lawsuit plays out.
But even if Flagstaff gives the go-ahead, that is unlikely to be the end of the multi-year legal fight: Some foes of artificial snow said they would file a new lawsuit challenging even the use of "potable" water on the peaks.
Clayson Benally, one of the plaintiffs in the current lawsuit, said he remains unconvinced that the water, which essentially would be treated effluent filtered through the aquifer, is any safer than the current plan simply to used treated sewage. He said much is unknown about even microscopic amounts of chemicals left in the water that would be pumped onto the mountain in the form of artificial snow.
And Andy Bessler said Flagstaff needs all the drinkable water that it can get.
But Eric Borowsky, general manager of the partnership that operates Snowbowl on U.S. Forest Service land, said foes are just looking for any excuse they can to deny the artificial snow he said is necessary to ensure the facility is financially viable.
He said that includes attorney Howard Shanker who first represented Native American tribes who said the use of treated effluent would interfere with their ability to practice their religion. That argument ultimately was rejected by the U.S. Supreme Court.
Now Shanker represents the plaintiffs in this lawsuit. And Shanker conceded after Tuesday's hearing that another legal action may begin if the Flagstaff City Council ultimately approves the use of potable water.
"Mr. Shanker has made a career out of filing lawsuits on this matter," Borowsky said.
The official purpose of Tuesday's hearing was for Murguia to decide if it should be allowed to go forward.
Snowbowl attorney Michael O'Connor said this essentially is just a rehash of many of the same arguments the tribes put forward in their original 2005 lawsuit. If nothing else, O'Connor told Murguia, the claims could - and should - have been filed years ago.
Shanker acknowledged this lawsuit wasn't filed until last year, after the Supreme Court threw out the earlier lawsuit. But he said the filing still meets the legal standards of being timely.
He also said the issues are different. While many of the arguments he presented for the tribes in the first case were about religious freedom, this one concentrates more on arguments that the treated effluent is not safe.
The Arizona Department of Environmental Quality has concluded snow made from that kind of treated water is acceptable.
But Shanker said no one has ever looked at the question of what happens if someone swallows some of that snow. He said the Forest Service, which owns the land where Snowbowl is located, should have examined that as part of its environmental impact study before issuing the necessary federal permits.
Paul Johnson, another Snowbowl attorney, said the Forest Service did not rely entirely on the DEQ study. He said the agency did its own research on the effects of ingesting snow made from the treated effluent and concluded it would not be a problem.
Borowsky said the initial construction that Murguia wants delayed is for a pipeline to bring the treated effluent to the resort. He said, though, there is no chance that any artificial snow could be made before the 2011-2012 skiing season.