Snowbowl development case to hinge on religious rights

  By CYNDY COLE

Sun Staff Reporter

  10/07/2005

The federal judge hearing the case over improvements at Arizona Snowbowl raised several concerns about both the quality of the water to be used and the tribes' assertions that the Forest Service only consulted them as an afterthought.

U.S. District Court Judge Paul Rosenblatt is unlikely to decide the case without a trial that would begin Wednesday, he said.

The prime contention, however, will be whether the Forest Service and federal government would be breaking the law in allowing snowmaking with reclaimed wastewater on the San Francisco Peaks despite tribal claims that it would harm or destroy their religions.

"We're in a very close environment," Rosenblatt said Thursday in Prescott. "We're in an environment where everyone knows the religious significance of these mountains to the plaintiffs and to all people."

Snowbowl and Department of Justice lawyers argued that the Forest Service had done its part in recognizing harm to the tribes' beliefs, as is required under federal environmental law, but that it wasn't bound to manage its entire forest specifically to comply with their religions.

"There were many, many other places on the Peaks on which tribal members were free to engage in their religion," Snowbowl attorney Janice Schneider told the judge, referring to the 1979 case the Navajo Nation and Hopi Tribe lost.

The holding in that case essentially said that as long as religious practices could happen in a variety of sites, not just Snowbowl, it was acceptable to develop a bit of land for a ski area.

BREADTH OF SACRED SITES AT QUESTION

Rosenblatt challenged the Forest Service and feds, following the tribal lawyers' assertions that putting reclaimed water on a portion of the land that amounts to 1 percent of the Peaks is tantamount to poisoning the whole area.

"Surely you're not suggesting the plaintiffs use another mountain," he asked.

The lawyers for the Hopi, Havasupai, Navajo and Hualapai tribes, as well as the Sierra Club and others, will charge in the next week that federal religious law has since been strengthened and should be applied here. It means, Howard Shanker argues, tribes no longer have to prove the piece of land being impacted is the only site central to their religions to win the case.

In other words, if the whole mountain is sacred, the U.S. government must pass a series of strict legal tests before it can act against anyone's religious beliefs.

If the tribes and environmentalists win, it could be a landmark decision for Native Americans and tribal religious sites nationwide, Snowbowl and the Department of Justice lawyers argued.

HOW SAFE IS RECLAIMED WATER?

Issues of reclaimed wastewater and its cleanliness were argued but have yet to be decided. The Arizona Department of Environmental Quality has approved reclaimed water for use in making snow.

But that does not make the water or snow made from it safe or intended for drinking or eating by children, lawyers for both sides said.

Shanker, who is representing the Navajo Nation and other plaintiffs, said it would be hard to stop a child from eating snow, regardless of what it's made from, and that the Forest Service didn't adequately consider that possibility.

The judge seemed to agree.

"We all were taught not to eat the yellow stuff, but not it's not going to be yellow and not distinguishable" from natural snow, Rosenblatt said.

Rosenblatt questioned both sides but appeared to push Forest Service and Snowbowl lawyers harder on questions of religion and water quality.

Lawyers for the Navajo Nation, Sierra Club, Hopi Tribe, Havasupai Tribe and other plaintiffs charged that Coconino National Forest Supervisor Nora Rasure didn't consider two options she should have: closing down Snowbowl or allowing the tribes to join together and buy it to operate or shut down.

The Navajo Nation has expressed interest in shutting down the ski area, and fought its construction in 1979. The Havasupai also have talked about joining a consortium to buy out Snowbowl. The Hopi Tribe has not been a party to these discussions, Chairman Wayne Taylor Jr. said Thursday.

PROTESTERS GATHER OUTSIDE

Outside the courthouse, 65 protesters gathered, waving signs and shouting at cars through a bullhorn as the courthouse security watched out the window for what they said was a rare event.

The protesters held a giant white banner shaped like a pair of men's underwear and began to shout at Bruce Babbitt, the former Arizona governor and interior secretary.

Tribal environmental activists once gave Babbitt a pair of stonewashed jeans, the same type that used to be made with the pumice from White Vulcan Mine in the San Francisco Peaks, as a sort of token for helping them close the mine.

Babbitt made a speech that year about how he realized the mountains were sacred to tribes.

So on Thursday, Save the Peaks, environmentalists and other protesters chanted, "Give back the pants" to Babbitt as he walked to lunch.

They also shouted at the Forest Service's Rasure and Snowbowl General Manager J.R. Murray. Murray toasted his opponents from the courthouse window with a cup of water and smiled.

Back in the courthouse, the lawyer for the Havasupai Tribe, Alysia LaCounte, suggested her clients would have reason to sue under the Clean Water Act if reclaimed wastewater from Snowbowl ran into their drainage.

Every community along the Colorado, including Mexico, would need to have been notified of Snowbowl's snowmaking plans under her argument, she acknowledged.

Cyndy Cole can be reached at ccole@azdailysun.com or at 913-8607.

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