Our view: We can dampen the polarization on snow making by acknowledging the case comes in many legal shades of gray
AZ Daily Sun | Wednesday, June 10, 2009
It came so far, but wound up far short of a definitive conclusion.
That's our take on the litigation surrounding snowmaking on the San Francisco Peaks. The case got right up to the doorstep of the U.S. Supreme Court, but the justices refused to let it in. That throws it back into the court of public opinion, which in Flagstaff and northern Arizona is bitterly divided. A ruling by the nation's highest court, however it came down, at least would have signaled how the nation's most experienced jurists weighed one of this country's most difficult problems: balancing religious freedom against government policies that must neither favor nor trample religious beliefs.
In other words, a high court decision would have brought closure, at least in a legal sense. The religious, environmental and economic questions raised by the case all could have benefited from one more vetting.
DIVIDED LEGAL RECORD
Now, however, the various parties are left with a divided legal record that ends with the 9th U.S. Circuit Court of Appeals. That court, in an 8-3 ruling, upheld a Coconino National Forest permit allowing Arizona Snowbowl to make artificial snow from reclaimed wastewater.
A three-judge panel of the circuit, however, had earlier denied the permit.
And before that, a federal judge in Arizona had ruled in favor of the permit.
Tribal opponents contended that the practice violated the sacred nature of the San Francisco Peaks. They cited the Religious Freedom Restoration Act, which sets out two tests that a public policy must meet when a religious practice or belief is affected ...
-- Does the federal policy "substantially burden" a religion?
-- If it does, is there a "compelling public need" that outweighs the religious burden?
Even if the answer to the first question is yes, a policy can still go forward if the answer to the second question also is yes.
But because the Supreme Court declined the case without comment, we'll never know whether it was because it felt there was no substantial burden. Or if there was, were there compelling enough public reasons to approve the permit?
WASTEWATER VS. LAKE WATER
For example, we would have liked to have heard more testimony and read a decision about how the practice of tribal religions is penalized, violated or prevented by snowmaking -- one of the definitions of "substantial burden" in similar cases. Under RFRA, for example, an employer has not been allowed to penalize a Seventh Day Adventist for refusing to work on a Saturday, that religion's Sabbath. It has also told a school board that it cannot force children of Amish parents to attend a public high school. Sacred sites are different than sacred principles, but it would have been enlightening to see the law applied to the Peaks.
If a substantial burden had been found, the balancing test might have considered the alternatives available to reclaimed wastewater. Potable water was never seriously considered by the parties, perhaps because the proposal arose during the serious drought years earlier this decade. But the water need not even be treated -- simply drawing it from Lake Mary would have absolutely no impact on Flagstaff's winter water supplies. During winter months, Flagstaff uses less than 10 million gallons of water a day, even with NAU in session -- less than half of the city's safe production capacity. Pumping another 1.5 million gallons a day to Snowbowl might seem frivolous or wasteful to some. But it is definitely feasible -- and it could bypass the treatment plant entirely.
Does the city of Flagstaff need more potable water? Yes, but that's in the future and only to meet peak demand in the late spring and early summer. It's similar to why highways are so expensive -- they, like water systems, must be built to a size that accommodates the most users at a single time. That's never the case in the winter with Flagstaff's water system, so if the sticking point to "substantial burden" is treated wastewater vs. lake water, we would have been interested to hear the justices' take on that issue.
ECONOMIC NECESSITY?
Another angle the justices might have considered is the economic necessity argument by Snowbowl. The recent decade-long drought has dramatically reduced the average number of days each winter that Snowbowl can operate: Between 1980 and 1995, the average was 114 days; since then, the average has been 76. Snowbowl contends the latter average is too low to support the fixed expenses needed to break even as a business. We would have liked to have seen more specifics argued in open court or in briefs so that all can judge just how much of a necessity snowmaking is to Snowbowl's survival and weigh that against the burdens it places on tribal religion.
Local business leaders contend that a predictable ski season of at least 100 days each year would be a major boon to the local winter economy. But Flagstaff's tourism economy has done quite well even when Snowbowl operated for as few as four days a season. A bare winter on the slopes means the highways leading up from Phoenix are bare, too, and that has attracted more than enough non-skiers to keep the city BBB tax receipts on a steady upward course, year after year. In fact, only this past winter, amid the deepening recession, has the BBB tax declined, despite a healthy year for Snowbowl of 102 days of operations.
Based on those BBB trends, the difference if Snowbowl were to go out of business (and the city or some other entity did not take it over) would be felt in the snowy years when the day trippers don't venture north -- although Phoenicians increasingly are finding other outlets for snowplay in the Flagstaff region that don't require a 36-inch base. Conversely, if Snowbowl were to get a full season even during a bare winter, tourism businesses would have skiers as well as day-trippers, conceivably upping local spending on lodging, restaurants and other goods and services by nearly $16 million between December and March, according to a recent study.
3 PERCENT OR 100 PERCENT
Are those financial impacts significant enough to balance the burden placed on tribal religions by snowmaking? From a regional perspective, $16 million is roughly 3 percent of the area's total economic activity during those four months. But if your job or business depends on downhill skiers in Flagstaff, then the impact of Snowbowl is closer to 100 percent. Again, we would have liked to have seen the justices take on that question.
Of course, there now won't be a definitive ruling. But the thorny issues we raise above -- and there are many more in the case -- illustrate that neither side has the law entirely on its side. We urge the parties and their supporters to back off the rhetoric of certitude and acknowledge that, when it comes to religion and public policy in this country, there are many shades of gray. The tribes, Snowbowl, the Forest Service and city officials -- all will have some further say in how the permit is implemented. We urge cooperation and even further compromise where possible. If the Supreme Court won't help us resolve our differences, we'll have to do it on our own.
