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The Snow War

Recreation and Indigenous Culture Collide on Public Land

By Michael Wolcott

Editor's note: Since 2005, Arizona Snowbowl has fought a court case for approval to make artificial snow from reclaimed sewage effluent on the San Francisco Peaks - a plan which Native Americans say would desecrate their sacred mountain. Navajo Nation vs. the U.S. Forest Service is currently under review by the U.S. Supreme Court.

When I reached J.R. Murray by phone two days after Christmas, the general manager of Arizona Snowbowl was busy. A string of December storms had dumped eight feet of snow on the San Francisco Peaks. Flagstaff's much-litigated ski center was jamming - for now.

But wildly erratic snowfall makes the ski business dicey on the Coconino National Forest, where Snowbowl operates. The ski center stayed open for 114 days last season. But in a recent drought year, the lifts ran for a grand total of just four days.

Without snowmaking, Murray says, he doubts that Snowbowl can survive.

"Right now, we don't know year-to-year if we'll even open," he told me. "Snowbowl desperately needs to upgrade facilities and services. To do that, we need a more steady and consistent revenue stream."

Snowbowl's proposed solution is a contentious upgrade plan that would include a snowmaking system on 204 acres of skiable terrain, a 14-mile pipeline to deliver reclaimed water from the City of Flagstaff's sewage treatment facility, additional ski runs, and a snow-play area. (Other improvements, according to Snowbowl's web site, include construction of a 2,500-square-foot Native American cultural and education center.)

Coconino National Forest approved Snowbowl's proposal in March 2005 after receiving 10,000 public comments on its final Environmental Impact Statement. Six Arizona tribes and three environmental groups promptly sued, arguing that snowmaking would violate federal laws protecting religious expression and the environment.

After three appeals and two reversals, Snowbowl currently holds the upper hand in court. The last chapter of this saga is now unfolding in Washington, D.C.

On January 5, lawyers for the Hopi, Navajo, Havasupai, Hualapai, Yavapai Apache, and White Mountain Apache tribes - along with the Sierra Club, the Tucson-based Center for Biological Diversity, and the Flagstaff Activist Network - filed a petition with the U.S. Supreme Court to review the case.

But unless the high court elects to hear the case (which it does with only 1 percent of appeals) and then reverses a lower court ruling, Snowbowl will be free to proceed with snowmaking.

"The odds are pretty long" that the Supreme Court will take on the case, Snowbowl attorney Paul Johnson has said.

Howard Shanker, an attorney for several of the plaintiffs, would not speculate on the chances for a reversal in the Supreme Court, but has called the case "the last, best chance for Native Americans across the country to protect sacred and religious sites."

J.R. Murray and Snowbowl owner Eric Borowsky say the Indians' argument for sacred-lands protection threatens free access to the public domain. In a press release issued after a lower court ruling had favored the Indians, Snowbowl said:

"If this ruling is allowed to stand, then our national policy and congressionally mandated multiple use doctrine on public lands is dead for all practical purposes. The ramification of this ruling, if left unchallenged, will be devastating to the taxpayer's access and use of its lands."

Across this divide, the two sides have waged a war for public sympathy.

So I wasn't surprised when J.R. Murray began our phone interview with a question of his own: "What kind of story are you planning to write?" he wanted to know. "Are you going to play it down the middle?"

If Snowbowl's point man sounded a bit wary, that is no surprise. Unflattering press coverage is a fact of Murray's life.

For years, protesters have brandished signs that read "Don't Desecrate Our Church" and "Toilet Water Makes Crappy Snow." Indians show up at Snowbowl in ceremonial garb, insisting on their right to pray at the foot of the ski runs. News organizations find these images irresistible.

Murray stopped short of calling the news media unfair, but said the story has been "sensationalized."

But given what is at stake such demonstrations are necessary, says Klee Benally, a Navajo artist and musician who spearheads the opposition, Benally calls the Snowbowl plan "a cultural death sentence."

"The Peaks are integral to the spiritual life ways of more than 13 indigenous tribes," said Benally, whose father is a traditional healer. "Snowmaking would irreparably destroy our ability to effectively carry on our prayers and our traditions

"Fake snow in the high desert is an attempt to dominate Mother Nature," Benally said. "In the face of global warming that's not just unsustainable, it's insane."

Language like this exasperates Murray. He points out that the water in question is rated "A-plus" (one step below potable) by the Arizona Department of Environmental Quality. "It's used everywhere in Arizona and in Flagstaff," he says, "in city parks, in ponds where you can eat the fish, on golf courses, lawns, and the university campus."

But environmentalists say that the human-health effects of micro-pollutants in the water - endocrine disruptors, pharmaceutical residues and the like - have not been adequately studied. They also argue that widespread use could potentially endanger the mountain ecosystem. And at least one group of plaintiffs, the Hopi tribe, says any snowmaking-no matter what water source is used - would harm their spiritual connection with the mountain.

It is the final legal interpretation of snowmaking's cultural impacts - and the Indians' rights to religious protection - that will likely influence similar cases involving sacred sites across the nation's vast public lands system.

"This issue isn't about one mountain," says Benally. "There are hundreds of sacred places located on public lands that are being threatened by development right now; Mt. Tenabo in Nevada, Medicine Lake in Northern California, Bear Butte in South Dakota, Mt. Taylor in New Mexico, for example."

Plaintiffs in the Snowbowl case seek protection under the 1993 Religious Freedom Restoration Act (RFRA), which guarantees protection for expression of all religions, including those of Native Americans.

Snowbowl's attorneys argue that the ski center is located on already-disturbed public land, that reclaimed water has been deemed environmentally safe for snowmaking, and that the Supreme Court has previously held that a group's religious or spiritual beliefs can't prohibit mixed uses of public lands - as long as those beliefs can be accommodated.

Murray believes the Indians should "share the mountain" with Snowbowl, and says the ski center is merely following its legal mandate to provide a service on public lands.

"The Forest Service is charged by Congress to provide recreation," Murray said. "We're simply trying to meet the needs of the people of Arizona. Right now demand exceeds supply."

(Maximum daily use levels were set in 1983 to settle a previous lawsuit over development at Snowbowl, when it was under different ownership. The current "build-out" proposal would enable Snowbowl to meet those service levels.) "We have agreed not to exceed that capacity," Murray said.

"We are on national forest land, not reservation land," Murray said. "We occupy only one percent of the landmass of the San Francisco Peaks. Show me an example of a dispute where one side gets 99 percent and the other gets one percent, where the people with one percent are happy."

But snowmaking opponents reject that argument, saying that if one percent of a Christian church or a Jewish temple is desecrated, so is the other 99 percent.

"Snowbowl shouldn't be there in the first place," Klee Benally says. "Tribes and activists never accepted (the 1983) decision but took it as a forced compromise. The ski area should maintain itself as is - no expansion and no fake snow."

The tribes and many of their supporters view the snowmaking dispute in a larger historical context - one that includes systematic attempts by the U.S. government to eradicate Native American cultures. They point out that the ski center was established on the tribes' sacred mountain in the nineteen-thirties-when Indians were denied the legal right to vote in Arizona.

"Every right we have as Native people, we've had to fight for, including being recognized as human beings in this country," Benally said. "Today, the civil rights struggle for Native peoples in the U.S. has not ended."

Snowbowl's attorney's have argued that nothing in the snowmaking plan would block Indians rights to practice their traditional religions. And J.R. Murray says that the media "underestimates Snowbowl's true benefits" to the community.

"In the past ten days we've hired 500 people," Murray told me. "That's significant, especially in a down economy." He listed other less-tangible benefits" of the ski area - things like "the skiing tradition, family values, and the outdoors."

That view ignores the far-longer traditions of the region's Native Americans, Benally says. "And besides, studies show Flagstaff's winter economy is not driven by the small ski business."

The importance of Snowbowl's impact on the local economy has been in dispute throughout the snowmaking controversy. An economic impact study of Snowbowl conducted several years ago estimated that the ski resort generated $20 million in primary and secondary spending during an "average" winter. That's 3 percent of Flagstaff's $1.5 billion annual economy.

Benally also questions Snowbowl's claim that the business probably can't make it without snowmaking: "If the economic situation for the ski area was so dire, how have they been able to sustain the legal fees (which Murray said have topped $2 million) and maintain consistent operations thus far?"

Partly because a group called "Reclaim the Peaks" - founded by the Flagstaff Chamber of Commerce and the Flagstaff Ski Club - is picking up some of the tab. According to its mission statement, the group exists "to support the Arizona Snowbowl ski resort . . . by educating the public on reclaimed water and its uses" and "to fundraise to help provide financial assistance towards existing and future litigation costs" of the snowmaking case.

That litigation has a complicated history.

The Indians lost the first round in January 2006, when U.S. District Judge Paul Rosenblatt in Prescott upheld the Forest Service's decision. But the plaintiffs won an appeal to the 9th U.S. Circuit Court of Appeals in September 2006, when a three-judge panel in San Francisco ruled against snowmaking on both environmental and religious grounds.

That decision was then appealed to the entire 11-judge 9th Circuit Court. The en banc court ruled for Snowbowl last August, adopting a much more restrictive reading of RFRA. On a technicality, the majority also tossed out arguments that snowmaking with reclaimed wastewater could have unconsidered health or environmental impacts.

In its split decision the en banc court acknowledged arguments by the tribes that the use of artificial snow will decrease the "spiritual fulfillment" they get from practicing their religion on the mountain. But Judge Carlos Bea, writing for the majority, said that does not run afoul of RFRA: "A government action which decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a ?substantial burden,'" Bea wrote.

In a dissent written for himself and two others on the 9th Circuit Court, Judge William Fletcher offered consolation to the plaintiffs, but little hope for other indigenous people seeking to protect sacred sites under the federal statute.

Stating that he was "truly sorry" about the majority decision, Fletcher wrote: "If Indians' land-based exercise of religion is not protected by RFRA in this case, I cannot imagine a case in which it will be."

That's why the Indians are taking the case to the case to the Supreme Court, according to Howard Shanker.

"This case addresses the failure of our government to protect sites held sacred by Native Americans, Shanker said. "For land-based religions, the government should play some role in protection."

But if the tribes ultimately prevail in this case, couldn't just anybody claim a site on public land is sacred and try to restrict access on religious freedom grounds?

"We're not dealing with hypotheticals," Shanker said. "The sacredness of the San Francisco Peaks is well-documented both in the EIS and in the courts. Those precedents give Native Americans the right to try to protect this (particular) sacred site."

In any similar lawsuit, Shanker said, the courts would be "free to probe into the validity of the religion" and the burden of proof would be on the plaintiff. "There's got to be substantial burden," he said.

I asked Klee Benally what the Indians would be likely to do if the Supreme Court upholds the 9th Circuit Court's decision. Will that be the end of "the snow war?"

His answer was an emphatic "no."

"Our spirit is resilient, we have suffered major defeats as Indigenous Peoples before, so we know that we have to keep fighting to ensure that our rights are fully upheld," he said. "We can't just wait until the bulldozer engines start; we have to find every possible point of intervention."

A group Benally helped to found, the Save the Peaks Coalition, has begun a letter-writing campaign to urge the Flagstaff City Council to rescind the contract it has to sell water to Snow bowl.

The city signed the agreement in 2002, promising up to 1.5 million gallons of reclaimed wastewater per day from November through February. The agreement was renewed in 2006, and could be renewed through 2021 without any vote by the City Council.

"We are also asking for everyone to call their Congressional representatives to hold hearings and to enact new legislation that guarantees protection for Native American sacred places," Benally said.

That's unlikely to surprise J.R. Murray. This has been a long fight. Still, Murray insists he's not angry about the snowmaking lawsuit.

"I just wish we wouldn't have had these delays," he says, "but the American judicial process allows them."

Michael Wolcott is a former wilderness ranger and dog musher. He has just finished his graduate education. It took less than one semester. He can be reached at angelpass12455@hotmail.com.