The Arizona Supreme Court has greenlighted a lawsuit that the Hopi Tribe brought against the city of Flagstaff, Ariz. for selling wastewater to a local ski resort to make fake snow.
In a procedural victory, the tribe has won the right to proceed with its lawsuit challenging Flagstaff’s 2002 decision to sell reclaimed wastewater to the Arizona Snowbowl ski area, on claims that the wastewater snow creates a “public nuisance.”
The Arizona Court of Appeals last April had overturned a trial judge’s dismissal of the case in 2011. The city then asked the supreme court to review the appeals court ruling, but the petition was denied on Jan. 7.
The ruling means that the Hopi can go forward with its claim that the wastewater – pumped up the mountain directly from Flagstaff’s sewage treatment plant – creates a “public nuisance” by “interfering with the public’s enjoyment” of the mountain wilderness area on the San Francisco Peaks mountain range, where the ski resort is located. A Hopi win would mean Flagstaff would have to cancel its water supply contract to Snowbowl.
The development is the latest chapter in a decade-long legal saga between Arizona Snowbowl, 14 miles north of Flagstaff, and a collective of environmental groups and Native American tribes who say the wastewater snow will harm the delicate alpine ecoystem and potentially human health, if skiers ingest it. The Peaks are sacred to 13 Native American tribes, who view the wastewater snow as a desecration.
"Using wastewater harms the use and enjoyment of these areas and degrades the pristine nature” of the area, then-Hopi tribal chairman Leroy Shingoitewa said in the Navajo-Hopi Observer after April’s ruling.
But Snowbowl manager J.R. Murray has said that – with diminished snowfall due to climate change – the resort needs to supplement natural snow to maintain its season and stay in business. He declined to comment on the latest lawsuit because the resort is not a party to it.
The City of Flagstaff contends that the Hopi’s public nuisance claim doesn’t apply because “the alleged nuisance” – snowmaking – is already authorized and regulated by federal and state authorities.
Indeed, in 2002 when Snowbowl contracted with Flagstaff to purchase reclaimed water from the city’s wastewater treatment plant to use for snowmaking, it required the permission of its landlords, the U.S. Forest Service, which conducted a lengthy environmental review.
The water used for snowmaking is also regulated at the state level, through Arizona’s Department of Environmental Quality. After wastewater snowmaking began in December 2012, the agency required Snowbowl to post signs around the resort telling customers not to eat the snow, among other things.
However, critics of snowmaking point to studies conducted on Flagstaff’s wastewater that show it contains endocrine-disrupting chemicals, including hormones, antibiotics, pharmaceuticals and steroids – compounds that are not regulated but which have proven harmful to frogs and other animals that live in wastewater. The substances were not considered in the Forest Service’s impact assessment because federal guidelines do not require doing so.
There is much debate, even among America’s top toxicologists, about whether these chemicals are harmful to humans in small amounts.
Kimberly Ott, communications director for Flagstaff, declined to comment for this story, citing pending litigation.
In Flagstaff, adjacent to the sprawling Navajo reservation, emotion about Arizona Snowbowl runs deep. Julie Pastrick of the Flagstaff Chamber of Commerce has said in published reports that Snowbowl helps “generate as much as $35 million for the local economy during the winter.” Meanwhile, environmentalists and tribes have been protesting the existence of the ski resort for decades, and the wastewater dispute has resulted in hunger strikes and multiple arrests.
Klee Benally, a Navajo man and activist who has been one of Snowbowl’s most vocal opponents, says that the city “continues to profit off of the suffering of indigenous people. It is clear that our living cultures have no meaningful value to Flagstaff's City Council.”
Leslie Macmillan is a contributor to High Country News. She tweets @leslieannmac.