March 13, 2007 — By

SAN FRANCISCO -- Using treated wastewater to make snow on a mountain sacred to American Indians in order to allow expansion at an Arizona ski resort would violate the tribes' religious freedom, a federal appeals court ruled.

The ruling came after Navajos and a dozen other Indian tribes sued to block operators of the 777 acre (315-hectare) Arizona Snowbowl from moving ahead with plans to adds a fifth chair life, spray man-made snow and clear about 100 acres (40.5 hectares) of forest to extend the ski season on the western flank of the San Francisco peaks. The mountain has spiritual and religious significance to 13 Southwest tribes.

The tribes claimed the plans would have violated their religious freedom and that the government did not adequately address the impact of wastewater on the environment.

"We are unwilling to hold that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities, as well as to extend its ski season in dry years, is a governmental interest 'of the highest order,'" Judge William A. Fletcher wrote for the three-judge 9th U.S. Circuit Court of appeals, which heard arguments in September.

In a 64-page decision issued Monday, Fletcher said the snowmaking scheme violated the Religious Freedom Restoration Act of 1993 and was akin to using wastewater in Christian baptisms.

The ruling overturned a lower court's finding that last year that the tribes "failed to present any objective evidence that their exercise of religion will be impacted by the Snowbowl upgrades."

The panel also ruled the U.S. Forest Service did not adequately address the possible health risks of drinking water tainted by runoff from snow made with treated wastewater.

Howard Shanker, who represents several tribes, including the Navajo, said Monday's decision could have important repercussions.

"Hopefully, this stands because it creates a tremendous precedent for tribes to protect their sacred sites," he said.

Snowbowl could ask for a rehearing by the full appeals court or could petition the U.S. Supreme Court. An Arizona lawyer for the resort did not immediately return a call seeking comment.

Environmentalists also opposed the planned expansion because resort owners intended to build a pipeline to pump the purified wastewater up the mountain from Flagstaff.

For the third time in four years, the Arizona Snowbowl, which brings an estimated $10 million (euro7.6 million) annually to Flagstaff's economy, opened late this winter because of a lack of snow.

Two years ago, when 460 inches (1,168 centimeters) of snow fell on the mountain, the 68-year-old resort stayed open for 139 days and hosted more than 191,000 skiers. But last year, there was so little snow that the lifts ran only for 15 days.

"We are struck by the obvious fact that the Peaks are located in a desert," Fletcher wrote in the ruling. "It is (and always has been) predictable that some winters will be dry."

Snowbowl principal owner Eric Borowsky said his group of investors has already spent $4 million (euro3.04 million) on the environmental impact statement and legal fees, as much as they paid for the resort in 1992. He has said he will sell Snowbowl if the appeals court ruled against him.

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The case is Navajo Nation et al v. U.S. Forest Service et al, 06-15371.

Source: Associated Press