Snowbowl trial ends

Could be January before judge decides if snowmaking desecrates Peaks

PRESCOTT -- The trial concerning expansion and snowmaking at the Arizona Snowbowl ski area ended last week, but it could be 2006 before the judge issues a decision on who won.

Six Arizona Indian tribes and several environmental groups are suing the U.S. Forest Service for granting Snowbowl's request to expand its operations at the ski area on the Coconino National Forest near Flagstaff.

The non-jury trial centered on the tribes' contention that using Flagstaff's recycled wastewater for snowmaking would desecrate the San Francisco Peaks, which are sacred to them as well as seven other tribes.

One of the plaintiffs, the White Mountain Apache Tribe, uses a combination of lake water and a small amount of recycled wastewater on its Sunrise Park ski area, but states that peak is not sacred.

The tribes are arguing that the snowmaking at Snowbowl will violate the federal Religious Freedom Restoration Act (RFRA) by putting a substantial burden on their ability to practice their religions.

This is the first case to test the applicability of RFRA to native people's sacred sites, so it could set a wide precedent for future tribal arguments against activities on federal lands.

The peaks are the home of more than one tribe's creation story and spiritual guides.

Tribes note that wastewater contains the fluids of sick and dead people, and say that will hamper the peaks' ability to heal others.

The Forest Service and Snowbowl owners argue that the expansion and snowmaking won't be a burden, especially since the ski area covers only one percent of the San Francisco Peaks.

The Forest Service tried to convince Judge Paul Rosenblatt that its decision met the two tests of RFRA: the ski area expansion furthers a compelling government interest, and it is the least restrictive means of furthering that interest.

Snowbowl owners say the ski area will close without snowmaking, citing seasons as short as four days during the current drought. Groundwater is scarce in the area.

"How is it that the federal government can promote the interests of a handful of skiers and businessmen over the deeply held religious beliefs of over 250,000 tribal people?" counters Yavapai-Apache Nation Council Member and Historian Vincent Randall.

The trial began Oct. 12 and continued intermittently over a period of a month as Judge Rosenblatt's schedule allowed.

Before the trial, the judge decided to rule on other parts of the lawsuit using the existing Forest Service administrative record instead of a trial. Those arguments centered on the National Environmental Policy Act (NEPA).

The plaintiffs argued that the Forest Service didn't follow the requirements of NEPA because it didn't consider some cumulative impacts of the expansion, it defined the purpose and need of the expansion too narrowly, and it didn't look at enough alternatives to the expansion.

Findings of fact and conclusions of law are due to the court by Nov. 30. Objections are due Dec. 8.

Judge Rosenblatt probably won't issue a decision on the case until late December or January, said Howard Shanker, attorney for several of the plaintiffs.

It's likely that whatever the judge decides, the case will face appeal to the 9th Circuit Court.

(Joanna Dodder is a reporter for The Daily Courier in Prescott, a sister publication of the Navajo Hopi Observer. Contact the reporter at jdodder@prescottaz.com.)