A lawsuit alleging snow made with reclaimed water would cause adverse health affects was ruled against in the Ninth U.S. Circuit Court of Appeals this past Thursday.
The Save The Peaks Coalition and several individuals brought the suit against the United States Forest Service and Arizona Snowbowl, which they attempted previously in 2009 with the same results.
Judge Milan D. Smith Jr., one of the judges the case was argued in front of before, said in a written opinion he did not approve of the case.
“This case represents a gross abuse of the judicial process,” Smith said.
Smith also said the suit was a “legal nightmare” for the defendants and implied the suit was filed for “no apparent reason other than to ensure further delay and forestall development.”
Howard Shanker, the plantiff’s attorney, said while the decision did not surprise him, the written decision was uncalled for.
“The decision is outrageous,” Shanker said. “These judges are talking about an abuse of process, an abuse of this; I mean it’s just ridiculous stuff. The only real abuse of process here is the fact that you can have one three-judge panel on the Ninth Circuit find there is a violation of NEPA (National Environmental Policy Act) and on the exact same facts and law, a second three-judge panel finds that there isn’t. It really doesn’t say much for our judicial system.”
Shanker also said while there is no direct appeal option, there are other options available for further work on the case.
“There’s really no appeal available,” Shanker said. “We can file a petition for rehearing or rehearing en banc [a hearing with a larger panel of judges] but that’s discretionary, there’s no right to an appeal, per se.”
Kurt Harris, who has worked with the Arizona Department of Environmental Quality, said he did not take either side in the suit.
“I’m not specifically opposed to anybody opposing anything that’s happening on the public lands,” Harris said. “I’m a big advocate of saying, ‘Look, we need to get as much use out of all the water that we possibly can anywhere.’ I’m actually opposed to just golf courses. I’m not pro-Snowbowl; I’m not anti-indigenous or sovereign rights for American Indians.”
Harris also said while he is a proponent of using reclaimed water, he only supports what he termed beneficial uses rather than recreational use such as at Snowbowl.
“The irony is the only real reason they’re using reclaimed water is to offset our irrigation requirements,” Harris said. “The real beneficial use with reclaimed water is when we’re offsetting groundwater depletion for agricultural uses.”
Michael Lerma, an NAU indigenous studies and international affairs assistant professor, said the ruling did not surprise him.
“I’m certainly not surprised by the ruling giving the attitude colonial courts pay to issues relevant to Native Americans,” Lerma said. “When it comes to the western legal tradition in the U.S., there seems to be an assumption by some people that ‘justice’ or ‘fairness’ are at work in some capacity. And those that wake up to ‘Snowbowl Decision’ types of events are the ones that tug at my heartstrings the most.”
Lerma also said decisions being made regarding policy over what he terms ‘yellow snow’ are made by people with a personal financial incentive.
“The reality is that [there is] a status quo [that] those that benefit from the Snowbowl Ski Lodge have the most sway over policy governing yellow snow,” Lerma said. “It’s not efficient nor nearly as profitable to any other entity as it is to those that benefit from Snowbowl directly. Investors have sunk costs they wish to recover at nearly any cost such as the cost of installing yellow snow pipes and sprayers. Investors will find a way to recover these costs even if it puts human health at risk and certainly if it disrespects indigenous religion.”
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