Judge rejects challenge to artifical snow for ski resort - East Valley Tribune: Arizona

Judge rejects challenge to artifical snow for ski resort

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Posted: Thursday, December 2, 2010 11:47 am | Updated: 10:28 pm, Thu Dec 2, 2010.

A federal judge has thrown out the latest legal bid to block the use of treated sewage to create snow on the San Francisco Peaks.

In a ruling released Wednesday, Judge Mary Murguia said the challengers to the plan to make artificial snow at Snowbowl waited too long to file their lawsuit. She said while members of the Save the Peak Coalition first registered their objections in 2005, they waited until last year to sue.

Even if that were not the case, Murguia rejected the contention that the U.S. Forest Service did not properly consider the fact that skiers and others playing at the resort might get a mouthful of that effluent-created snow.

The judge pointed out that the state Department of Environmental Quality has very specific rules on the use of effluent treated to the standards at issue here. Swimming is out, as is the use in misters and evaporative coolers, but skiing is OK.

That Murguia said, indicates DEQ believes that swallowing some small amount is safe.

“It is inconceivable the state would approve the use of Class A and A-plus reclaimed water for snowmaking without considering the likelihood of exposure, including some ingestion, that comes with recreation associated with snowmaking,’’ the judge wrote.

In fact, she pointed out, DEQ allows the use of treated effluent for not only irrigation of crops but also schools and homes, “all of which involve some ingestion.’’

The ruling drew criticism from Jeneda Benally, one of the plaintiffs in the lawsuit.

“We insist that our children not be used as guinea pigs for the profit of a single private business operating on our public lands,’’ she said in a prepared statement.

And Howard Shanker, attorney for the challengers, promised an appeal.

None of this would have been an issue had the owners of the resort been able to obtain drinking water from the city of Flagstaff. But the city council nixed that request.

That left the original plan to build a 15-mile pipeline to carry up to 1.5 million gallons a day of treated effluent from the city to Humphrey’s Peak. Plans are to cover about 205 acres with artificial snow at the beginning of the season, with more as necessary.

This is actually the second victory for the Forest Service, which gave the go-ahead for the plan because Snowbowl is located on federal lands. A federal appellate court rejected challenges brought in a separate lawsuit by various Native American tribes, a decision ultimately upheld by the U.S. Supreme Court.

That earlier lawsuit was clearly on Murguia’s mind in dismissing this one.

She noted that everyone objecting to the use of treated effluent knew of the Forest Service decision in 2005. But only the tribes filed suit at that time.

“Plaintiffs (in this case) sat by for years while the lawsuit challenging the Forest Service decision on similar bases was initiated and litigated by the Navajo Nation and other plaintiffs,’’ the judge wrote.

“Plaintiffs were admittedly aware of the lawsuit and could have joined it,’’ Murguia continued. “Yet they elected instead to wait to bring their claims until the initial lawsuit was resolved.’’

The judge said what the Save the Peak Coalition was doing, in essence, was waiting to see if the other lawsuit succeeded. When it failed, only then did coalition members bring their own action.

Shanker disagreed with Murguia’s conclusion that this lawsuit essentially was litigating the exact same dispute. He said the narrow issue of whether there is a danger to skiers who fall if they ingest snow made from reclaimed effluent was never resolved when the 9th Circuit Court of Appeals ruled against the claims by the Navajos and several other tribes.

Much of the first lawsuit was based on a claim by tribes that federal law requires government agencies to use the “least restrictive’’ means of interfering with any religious practice when considering projects built on federal land.

In a split decision, 9th Circuit acknowledged arguments by the tribes that the use of artificial snow will decrease the “spiritual fulfillment’’ they get from practicing their religion on the mountain. And the land on which the ski resort is located is owned by the federal government.

But Judge Carlos Bea, writing for the majority, said that does not run afoul of the federal Religious Freedom Restoration Act.

“A government action which decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a ‘substantial burden’ ... on the free exercise of religion,’’ he said. And Bea said there is nothing in the decision of the Forest Service to allow the use of treated effluent that requires the tribes to act contrary to their religion.

The ruling drew fire from Judge William Fletcher who wrote a dissent for himself and two other judges. He said the majority ruling “misunderstands the very nature of religion.’’

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