U.S. Water News Online
FLAGSTAFF, Ariz. -- The owners of the Arizona Snowbowl ski area and the federal government are asking an appeals court to reconsider a March ruling barring the use of treated wastewater to make snow.
This week's filings are the latest step in a multi-year court battle between tribes and the owners of the resort on the San Francisco Peaks outside Flagstaff.
The Department of Justice, Forest Service and the Snowbowl asked the 9th U.S. Circuit Court of Appeals to reconsider the ruling it made largely on religious grounds.
Attorneys for the government and the Snowbowl contend the ruling sets a dangerous precedent, giving almost anyone the power to set up serious roadblocks anytime the government grants a use of public land that they disagree with. They also contend that the three-judge panel's ruling departs from established case law.
The filing said the court should have relied on an earlier case that said Native Americans' religious rights were not harmed by the commercial ski area so long as other areas on the San Francisco Peaks were available for religious activities.
The appeals panel, however, cited a more recent law, the Religious Freedom Restoration Act.
The ski resort wanted to add a fifth chair lift, spray man-made snow and clear about 100 acres of forest to extend its ski season, which opened late last winter for the third time in four years because of lack of snow.
The lawyer for the Navajo Nation and other Southwest tribes who filed suit to block the project, Howard Shanker, said it could take up to a year for the court to decide if it will revisit the case. In the meantime, he said, the prohibition on the improvements remains.
Snowbowl owner Eric Borowsky criticized the court after the March ruling and said there appeared to be a double standard for nonnative American individuals when it came to development in Arizona.
While the Hualapai tribe can build a walkway over part of the Grand Canyon, which tribes consider sacred, he couldn't make snow on public land, he said.
The Snowbowl and the Forest Service will still have the opportunity to appeal this case to the U.S. Supreme Court, as well.
"Our hope was that we'd settle at the 9th. You don't want to go to the Supreme Court unless you have to," Borowsky said. "But we are prepared to go there."
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