Snowbowl: No Green Deed Goes Unpunished

Abstract

The litigation over artificial snowmaking on the San Francisco Peaks in Northern Arizona is one of the most hotly debated local environmental topics in recent memory. The controversy between the Arizona Snowbowl Resort Limited Partnership (“Snowbowl”) and the Indian Tribes relates to Snowbowl’s proposed use of reclaimed wastewater for the purpose of making artificial snow, as a part of the Snowbowl’s expansion plan. Snowbowl’s plan has encountered stiff resistance and has drawn extensive media and Internet coverage. The proposal has even prompted the production of a documentary, and websites have sprung up dedicated to covering every political and judicial step of the parties. If one searches for “Snowbowl and sewer,” the Google search engine will provide thousands of hits. The case is hardly limited to those interested in tribal advocacy, as it touches and concerns many other legal issues, including possible adverse harm on environment and public health, freedom of religion, scope of the agency action, violation of state law and public policy, tribal water rights, public nuisance, and even American adherence to international standards to which the United States has expressed its commitment. The goal of Snowbowl, Northern Arizona’s primary ski resort, is to provide a quality recreation venue for local and out-of-state skiers and snow enthusiasts during the winter months. However, the unpredictable Arizona weather and unreliable snowfall has prompted Snowbowl to develop alternative methods to meet the expectations of patrons. To ensure that the skiers and snowboarders have plenty of snow, the business invested in an expansion plan calling for the production of artificial snow. Aware of the fact that environmental activists and coalitions fearlessly file for injunctive relief to draw attention to conservation problems, and given environmentalists’ mantra of promoting alternative energy and recycling, the Snowbowl decision initially appeared to be a “green” decision designed to avoid the use of precious wild or natural water resources for mere recreational purposes. The City of Flagstaff agreed to sell reclaimed water from one of its wastewater treatment plants to the resort for snow production. Why should anyone oppose a program that actually recycles sewer water to make snow? Interestingly, regardless of business effort to “go green,” it nevertheless met vehement and widespread opposition on environmental and religious grounds from Native American Tribes who consider the peaks as sacred ground and consider the idea of dumping repurposed recycled wastewater on their cherished peaks to be grossly insensitive at best, and sacrilegious at worst. This controversy has a number of players on the defense side. The first target was the United States Forest Service (“USFS”), which approved the permits for using reclaimed water. Then, the Hopi Tribe independently sued the vendor, the City of Flagstaff (“the City”), which based its contract with Snowbowl on the USFS’s permit. The City entered into a contract with Snowbowl to provide up to 1.5 million gallons of reclaimed water every day from November to February each year. Denied any form of preliminary relief in the first round of litigation, the Tribes are pressing for extra-judicial relief on the executive level by formally requesting that President Obama suspend the permit issued by the USFS. Accordingly, the Tribes have pressed Snowbowl into a corner using three distinct tactics: pressuring against the vendor; litigating against the administrative power (USFS); and invoking with the executive.