In the latest twist to the saga involving the increasingly likely desecration of sites held sacred by some American Indians, a coalition of Indian citizens has filed a last-ditch legal appeal against the U.S. Forest Service, hoping to change a tide that has long seemed unchangeable. By using science and the law to back their religious and spiritual beliefs, the coalition wants the courts to find that the federal agency failed in its duty to protect the public’s health, while breaking the federal government’s own environmental rules as a result of deciding that a company could develop a ski resort using treated wastewater sprayed on Arizona’s San Francisco Peaks.
A legal motion offered by the Save the Peaks Coalition, filed in June before the U.S. District Court for the District of Arizona, says that an environmental impact statement offered by the U.S. Forest Service in reference to development of the Snowbowl Ski Resort does not include the federally required “reasonably thorough discussion” of the impacts associated with the ingestion of snow made from reclaimed sewer water. The argument reasons that as a result of the peaks being infested with treated sewage, which is the company’s ongoing plan that has been allowed to proceed without intervention from the Obama administration, some of this sewage may end up being eaten by people who live near or visit the mountains. And perhaps they could be sickened by it, physically—or even mentally.
The brief cites a 9th Circuit opinion from 2007 that says, “If an agency fails to consider an important aspect of a problem . . . its action is arbitrary and capricious”— and can therefore be stricken down. The plaintiffs feel that the legal precedent would be justly applied to the Forest Service’s 2005 decision to allow the Snowbowl company to desecrate the peaks via reclaimed wastewater. Since that decision in 2005, various legal proceedings have delayed the action, but a major gain was made by Snowbowl last year when top U.S. government officials in the Obama administration said they would support the development of the slopes, as long as federal rules were followed in the process—and in contrast to the desires of several tribes in the region.
Tribes and individual Indians have long argued that the peaks are a sacred site that should be protected from development, especially from development that includes dirty water as a main part of its business plan. Since at least the 1970s, Natives had been pressing the government to take a strong stand against possible development of the Arizona mountains in a sign of true support for tribal religion and sovereignty, but federal officials have been slow to understand, and they have taken a different route entirely in recent years. In 2009, the Supreme Court chose not to take up a case that would have blocked the action, and since then, the Obama administration has taken a back seat, effectively allowing local officials to take the lead in allowing the company to do as it wishes. In blatant disregard to tribes, the Obama administration sent letters last year to local officials signaling a willingness to compromise – perhaps allowing non-wastewater to be used to make fake snow – while failing to offer consultation with tribes regarding the decision.
In response to the latest legal filings and protests, some tribal leaders are showing new resolve, with some calling on the Obama administration to take a new look at the situation, and to realize that it was wrong to allow the development, especially in consideration of the Forest Service’s mistake. They also say that an aspect of the issue lost in all the debate about wastewater is the fact that many Indian citizens do not want development on the peaks at all. They believe that because the peaks are held sacred, they should be protected from any and all development. Some Indians have tried to get the non-Indian community to understand by likening the peaks to churches or holy lands that no one would think of developing for profit. The fact that some federal officials thought it was okay last year to allow some development– even if it wasn’t wastewater – showed a lack of understanding for core tribal beliefs, according to Indians involved in the case.
The Indian plaintiffs involved in the new appeal are taking their arguments to a level yet unseen in the case, saying that the Forest Service failed on multiple fronts by not ensuring the scientific integrity of its decision, and by not disseminating “high quality information to the public and decision-makers regarding the impacts of ingesting snow made from reclaimed sewer water.” In effect, they are using science combined with a judicious use of law to back up their desire to protect their religious and spiritual beliefs.
Howard Shanker, a lawyer for the Indian coalition who has led the fight in the courts for years, said in the brief that the Forest Service’s failures amount to a violation of National Environmental Policy Act. The 1970 law sets up procedural requirements for all federal government agencies to prepare environmental assessments and environmental impact statements, which are to offer statements of the environmental effects of proposed federal agency actions. Further, Shanker argues that agency action in this case was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and/or “without observance of procedure required by law.”
Protesters of the planned development have continued to be outraged by the violations, saying that not only the Forest Service, but also the U.S. Department of Agriculture, the City of Flagstaff, and the Arizona Department of Environmental Quality should all be held responsible.
Local reports from the region noted that several Native protesters stepped their outrage up a notch by visiting the site in June and participating in a sit-in that called for an end to Snowbowl once and for all. After which, six were reportedly arrested for trespassing and released. Further enflaming the situation, ski resort officials were quick to say that they would support maximum civil or criminal penalties for the protesters: “It is unfortunate that thousands of taxpayer dollars were spent by several agencies on this frivolous act to gain publicity,” they offered in a written statement. “Dozens of hikers, bicyclists and tourists were not allowed to go up Snowbowl Road until the incident was over. This is another example of opposition groups and individuals showing their lack of respect for the law and judicial process.”
Native protesters found it ironic that the Snowbowl officials would say that they have respect for the law, when it seems clear to some that the Forest Service violated federal rules in allowing the resort to go forward with its plans, while Native groups have long lived without respect in the case.
“As I read Snowbowl’s statement in response to recent lockdowns on the mountain, I wondered how we might regard Snowbowl’s blatant disregard of the findings in the 2005 Final Forest Service EIS that the gain to Flagstaff’s economy through snowmaking would be slight – even marginal – and that the loss to local Native American tribes would be devastating,” wrote Flagstaff resident Mary Sojourner to the Arizona Daily Sun in response to the ski officials’ position. “Imagine if Snowbowl had at that point agreed to abandon snowmaking plans and, in that, had shown ‘respect for the law and judicial process’ as well as for the spiritual practices of hundreds of thousands of its neighbors. Imagine the countless hours of judicial time and taxpayer dollars that would have been spared. And, imagine the deeper regard with which Snowbowl might now be held.”