SAN FRANCISCO (CN) - The 9th Circuit seems likely to let a ski resort use purified wastewater to put snow on Arizona's San Francisco Peaks, which many southwestern American Indian tribes consider sacred.
After more than a decade of fickle snowfall in the drought-ravaged peaks, the Arizona Snowbowl Resort submitted a controversial plan to make purified snow.
The Save the Peaks Coalition and various private citizens - including several Navajo medicine men - sued
the U.S. Forest Service and Snowbowl Resort in 2009 when years of administrative challenges proved futile. The group claimed that a snowmaking scheme would harm the environmentally sensitive peaks, which some 13 Southwestern tribes consider sacred.
They also said that the Forest Service failed to properly study whether snow made from reclaimed water is dangerous to humans, especially children who use the peaks' popular snow-play area. Navajo medicine men allegedly bathe in snow gathered from the peaks for ritual purposes.
A federal judge granted summary judgment to the defendants in 2010, finding that the Forest Service had properly studied the potential health effects of snow made from wastewater. In February 2011, the trial court refused
to further halt construction pending Save the Peaks' appeal to the 9th Circuit.
At a hearing on that appeal Monday, the three-judge panel seemed impatient with Save the Peaks Coalition attorney Howard Shanker, who argued that the U.S. Forest Service had not thoroughly discussed the effects of ingesting the non-potable water.
"This is tremendously interesting, but unfortunately we have three nonexperts here," Judge John Clifford Wallace said. "We probably don't even ski. The government has gone to some extent of checking whether this meets a statute. So the question is did they obey the rules that they're supposed to follow? Regardless of what's in the snow, it's an issue of whether they did what they're supposed to do under the statute. That's all the control we have. Whether I particularly would want to eat the snow is not the issue."
Shanker took issue with the Environmental Impact Statement submitted by the government, saying it "does not include a reasonable thorough discussion of the impacts associated with the ingestion of snow made from reclaimed sewage."
But Judge John Noonan shot this argument down.
"None of us is a scientist as far as I know," Noonan said. "As a layperson, it looks to me like they really did discuss this. And you just disagree. You will never agree on this."
Noonan repeatedly pointed to an Arizona federal judge's 2010 ruling to support the idea that the government had fully discussed the issue under the National Environmental Policy Act.
"I'm having some difficulty with the concept that this issue was not discussed and there was no resolution made," Noonan said. "I understand you don't agree with it. Help me with how I'm supposed to figure out, from your perspective, who is correct."
When Shanker countered that it was not a "full discussion," Noonan pressed further.
"But how do you measure what's a full discussion?" he asked. "Does it have to be 400,000 pages? Let's just say it was five paragraphs. I disagree, but let's say it is. Isn't that enough?"
Shanker responded, "It's got to be a reasonably thorough discussion."
Arizona Snowbowl's attorney, Cate Stetson, said construction on the pipeline to deliver the wastewater is now half-complete, since it began only after U.S. District Judge Mary Murguia's February ruling.
"NEPA, as this court well knows, is a pragmatic obligation on the court," Stetson said. "You look at whether the discussion as reasonably thorough. What you don't do is nitpick and fly-speck and sit as a scientific panel of experts or impose a different result on top of a considered result that the agency reached. All you are looking for is can you discern the path the agency took to get to the result it did. And here there is plenty of information that supplies that path and confirms the result."