Ski resort can’t make snow from sewage

March 12, 2007 | Roger McEowen


It seems that conservation is in vogue at the moment in all different areas. But, an Arizona ski resort recently found out that there can be a limit to conservation efforts. In this case, the resort proposed an expansion plan that would use recycled sewage water to make snow on peaks that are sacred to 13 Indian tribes.  Arizona Snowbowl is a ski area on Humphrey’s Peak, the most religiously significant of the San Francisco Peaks in the Coconino National Forest. Several tribes say they have a duty to protect the sacred peaks. The plaintiffs include the Hopi, Havasupai and Hualapai tribes, and the Navajo, Yavapai-Apache and White Mountain Apache nations. They teamed up with environmental groups to sue the U.S. Forest Service, claiming the resort’s plan to make snow from treated sewage violated the Religious Freedom Restoration Act (RFRA), the National Environmental Protection Act and the National Historic Preservation Act. The court affirmed an award of summary judgment for the Forest Service on most environmental claims, but reversed a ruling that the plan did not violate the RFRA - stating that the snowmaking plan would “impose a substantial burden on their exercise of religion.”  It also held that the Forest Service’s impact statement “neither reasonably discusses the risks posed by the possibility of human ingestion of artificial snow made from treated sewage…nor articulates why such discussion is necessary.” 

If the decision stands, it could imperil federal control over other land which tribes consider sacred, such as the Grand Canyon and Mt. Rushmore. Likewise, there would appear to be nothing that could prevent a plaintiff from claiming that their “religion” has been impacted by some sort of activity on federal land. Navajo Nation, et al. v. United States Forest Service, No. 06-15371, 2007 U.S. App. LEXIS 5710 (9th Cir. Mar. 12, 2007).