Forest Service prevails in snowmaking suit

Plaintiffs to appeal decision in Ninth Circuit Court

<i>Photo by Calvin Johnson</i><br>
Despite objections from a number of tribal and environmental groups, a ruling by Honorable Judge Mary H. Murguia in District Court last week essentially gives the Arizona Snowbowl in Flagstaff the go-ahead to resume with expansion and snowmaking efforts on the sacred San Francisco Peaks. Opponents of these efforts continue to assert that the final Environmental Impact Statement prepared by the U.S. Forest Service ignores the possibility of human ingestion of snow made from treated sewage effluent. The decision will be appealed in the Ninth Circuit Court.

<i>Photo by Calvin Johnson</i><br> Despite objections from a number of tribal and environmental groups, a ruling by Honorable Judge Mary H. Murguia in District Court last week essentially gives the Arizona Snowbowl in Flagstaff the go-ahead to resume with expansion and snowmaking efforts on the sacred San Francisco Peaks. Opponents of these efforts continue to assert that the final Environmental Impact Statement prepared by the U.S. Forest Service ignores the possibility of human ingestion of snow made from treated sewage effluent. The decision will be appealed in the Ninth Circuit Court.

FLAGSTAFF, Ariz. - The case known as The Save the Peaks Coalition, et al. v. U.S. Forest Service (USFS) was heard before Honorable Judge Mary H. Murguia last week in District Court. The Court ruled against the plaintiffs' claims that the final Environmental Impact Statement (FEIS) prepared by the USFS ignores thorough consideration of a number of critical health issues.

The plaintiffs contend that a new and thorough FEIS should be filed by the USFS. If this reveals that the use of reclaimed sewage water is a public health risk then snowmaking should not be permitted for the Arizona Snowbowl on the San Francisco Peaks.

Attorney Howard Shanker, who represents the Save the Peaks Coalition and other plaintiffs, planned to file an appeal to the Ninth Circuit Court. Shanker stated, "The decision misstates the facts of this case and misapplies the law. That's why there is an appeal process. It is remarkable that the Obama Administration [supports] this effort to put treated sewer water on the San Francisco Peaks. Not only is the site sacred to Native Americans in the Southwestern United States, the Forest Service has ... no idea what the long term health impacts will be on people who ingest this snow made from treated effluent."

Judge Murguia ruled that plaintiffs were barred from bringing this action by the doctrine of latches largely because of the "near completion of the project."

Shanker stated, "This is remarkable in light of the fact that there was a stipulation in place until yesterday barring any ground clearing activities in furtherance of snowmaking and no final approvals were provided by the government until recently, none of which have been implemented ... [T]he project is not 'near completion' but rather has not even begun."

Judge Murguia also ruled that the USFS adequately considered that people would ingest snow made from reclaimed sewer water in the EIS.

However, the suit asserts that the FEIS ignores the possibility of human ingestion of snow made from treated sewage effluent. Snowbowl would be the only ski area in the world to use reclaimed wastewater to make artificial snow. They would use approximately 1.5 million gallons per day, storing and spraying the water on a mountain deemed sacred to more than 13 Native nations.

"[T]he only other court to rule on this issue substantively was the three judge panel of the Ninth Circuit, which found that the Forest Service failed to comply with NEPA and the fact that the EIS does not contain a discussion of the impacts," Shanker added.

"This case was filed because we insist that our children not be used as guinea pigs for the profit of a single private business operating on our public lands," stated Jeneda Benally, a complainant in the lawsuit. "The Forest Service already has admitted that there was no consideration of the impacts if children consumed wastewater snow that they acknowledge contains untreated contaminants."

Navajo Nation Human Rights Commission (NNHRC) Executive Director Leonard Gorman was not surprised by the decision. He stated, "[I]t is because Indigenous peoples make up a small population, the dominant society ... make[s] Indigenous peoples insignificant. The judge's ruling suggests the court rules in favor of the federal agency than Indigenous peoples. Navajo beliefs have prevailed for centuries ... It's interesting to learn that a federal agency makes note that data exists contesting the health risk, but finds it appropriate to continue with the development at the Arizona Snowbowl ski resort."

Arizona Department of Environmental Quality (ADEQ) regulations allow A+ class treated sewer water to contain fecal matter in three out of seven daily samples (R18-11-303 2a). Moreover, studies done by Dr. Catherine Propper, Professor of Biological Sciences at Northern Arizona University on this same treated sewer water have concluded the water contains pharmaceuticals, hormones, endocrine disruptors, industrial pollutants (pesticides and herbicides), and narcotics. David Norris, PhD, an integrative physiology professor at the University of Colorado at Boulder, found that pharmaceutical ethinylestradiol (an orally active semisynthetic steroidal estrogen) made it into Boulder Creek, resulting in a decrease in male fish and numerous intersex (both male and female) fish.

In addition, according to biologist Dr. Paul Torrence, the treated sewage effluent may also contain antibiotics such as triclosan and triclocarban which break down into cancerous dioxins when exposed to high altitude sunlight. Plaintiffs involved in this ongoing lawsuit have consistently insisted that the USFS take a hard look at what might happen to the people when they come in contact with or ingest snow made from treated sewage effluent.

Under the National Environmental Policy Act (NEPA), the USFS is obligated to consider these types of potential impacts on the quality of the human environment.

In 2007, a three-judge panel of the Ninth Circuit Court found that the USFS failed to adequately consider the possibility of human ingestion of snow made from treated sewage effluent. In Judge William Fletcher's opinion, he concluded that, "the FEIS does not contain a reasonably thorough discussion of the risks posed by possible human ingestion of artificial snow made from treated sewage effluent, and does not articulate why such discussion is unnecessary."

While the decision of the three-judge panel was later overturned on a technicality by an en banc panel of the Ninth Circuit, issues surrounding the completeness of the FEIS were left unresolved.

Further details regarding the appeal were unavailable at press time.

Comments

Comments are not posted immediately. Submissions must adhere to our Use of Service Terms of Use agreement. Rambling or nonsensical comments may not be posted. Comment submissions may not exceed a 200 word limit, and in order for us to reasonably manage this feature we may limit excessive comment entries.

Use the comment form below to begin a discussion about this content.