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Ski Resort’s Use of Reclaimed Water Upheld

February 22, 2006

On January 11, 2006, United States District Court Judge Rosenblatt upheld a Forest Service Record of Decision (ROD) which approved expansion of the Arizona Snowbowl ski resort outside Flagstaff, Arizona. Navajo Nation v. U.S. Forest Service, --F.2d--, 2006 WL 62565 (D. Ariz. 2006). The Forest Service issued a final EIS and ROD in February 2005 for a proposed expansion of the Snowbowl. The ROD approved snowmaking on approximately 205 acres using reclaimed waste water, and the construction of a 10-million gallon reclaimed water reservoir. The plaintiffs, a coalition of Native American tribes and environmental groups, brought an administrative challenge to the Forest Service’s decision. After a technical review team evaluated the decisions, the Forest Service affirmed the ROD. Plaintiffs then filed suit in the United States District Court for the District of Arizona. Plaintiffs alleged that the Forest Service failed to comply with the National Environmental Protection Act, 42 U.S.C. § 4321, et seq. (NEPA), the Endangered Species Act, 16 U.S.C. § 1531 et seq. (ESA), the National Forest Management Act, 16 U.S.C. 1600-1687 (NFMA), the Grand Canyon National Park Enlargement Act, 16 U.S.C. § 228i (GCEA), the National Historic Preservation Act, 16 U.S.C. § 470, et seq. (NHPA), and the RFRA. 2006 WL 62565 at *2.

The Arizona Snowbowl is situated on a mountain considered to be sacred by several Native American tribes, and the principal issue before the Court was whether the Forest Service’s approval of the ski resort expansion violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4 (RFRA). The Court also considered a number of environmental issues, including the proposal to use reclaimed municipal wastewater for snowmaking at the ski area. Navajo Nation may represent a type of case that will become more prevalent as ski areas, commonly situated on public lands, look for new ways to respond to increasingly inconsistent and diminished snowpacks.

The Arizona Snowbowl is a privately-owned ski area situated entirely on the Coconino National Forest and is operated under a 777-acre Forest Service Special Use Permit. FEIS, ES-1. Snowbowl has been used as a ski area since 1938. In 1979, the Forest Service approved a series of upgrades, including new lifts, trails, and facilities. Snowbowl suffers from inconsistent annual snowfall, which has led to a sporadic operating seasons and corresponding fluctuations in annual visitation. ROD at 4.

Ruling on cross-motions for summary judgment, Judge Rosenblatt ruled that the Forest Service complied with NEPA. First, the Court considered whether the FEIS had a proper statement of purpose and need. Id. at *4. An EIS “shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. Agencies cannot artificially narrow the purpose of an action in order to avoid considering alternatives. City of New York v. United States Dep’t of Transp., 715 F.2d 732, 743 (2d Cir. 1983). Plaintiffs alleged that the stated project’s state purpose was too narrow and focused solely on Snowbowl’s financial viability. The Court disagreed. The project’s purposes included increasing the reliable operating season, and improving skier safety by developing additional beginner and intermediate skier terrain. The Court concluded that the stated purposes complied with NEPA. Navajo Nation, 2006 WL 62565at **4-5.

Next, the Court considered whether the Forest Service considered a reasonable range of alternatives. Agencies are required to “[r]igourously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.R.F. § 1502.14. The Court ruled that the Plaintiffs failed to establish that reasonable alternatives were brought to the Forest Service’s attention during the public NEPA process, and that the Forest Service failed to consider such alternatives. Navajo Nation, 2006 WL 62565at *6.

As to the use of reclaimed waste water, the Court ruled that the Forest Service adequately considered potential cumulative impacts associated with snowmaking activities. Under the proposal, Snowbowl will divert up to 1.5 million gallons of water per day from Flagstaff’s aquifer for snowmaking. The Court upheld the Forest Service’s determination that the cumulative watershed impact was negligible to moderate. Id. at **6-7. Finally, the Court ruled that the Forest Service evaluated and disclosed opposing scientific viewpoints regarding the safety of using reclaimed waste water for snowmaking. Id. at **8-9. While there was some evidence in the record regarding potential endocrine disrupters in wastewater, the Court rule that such evidence was insufficient “to declare that the agency’s decision was arbitrary and capricious . . . the Court is obligated to defer to the responsible agency’s informed assessment of scientific evidence.” Id. at *9.

The Court also ruled that the Forest Service did not violated the FMPA because it adequately considered the effects of all alternatives on forest-wide habitat, and the Court declined to consider Plaintiffs’ ESA claims on the ground that Plaintiffs’ lacked standing. Id. at **11-12. The Court ruled that the Forest Service did not violate the GCEA because all the authorized activities would take place on lands outside the Havasupai reservation. Id. at *12. The Court also upheld the Forest Service’s conclusion under the NHPA that the Snowbowl expansion would not adversely affect historic properties because the plaintiffs were given an opportunity to participate in the identification of potential adverse impacts. Id. at *10.

Finally, the Court disposed of the plaintiffs’ RFRA claims after an eleven-day bench trial. Plaintiffs sought an injunction declaring that the proposed alternative would have irreversible effects on their religious, traditional, and cultural practices. Under the RFRA, a law of general applicability that burdens a person’s free exercise of religion is invalid unless the law is the least restrictive means of advancing a compelling government interest. 42 U.S.C. § 2000bb-1(b). Once a plaintiff establishes that the law substantially burdens her religious freedoms, the burden shifts to the government to demonstrate that the law furthers a compelling interest in the least restrictive manner. Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002). The Court concluded that the Forest Service’s approval of the Snowbowl expansion did not substantially burden the plaintiffs’ religious freedom because the decision did not coerce plaintiffs’ into violating their religious beliefs or penalize religious activity. Navajo Nation, 2006 WL 62565at **33-34. The Forest Service guaranteed that plaintiffs would continue to have access to the Snowbowl and surrounding areas for religious purposes; thus, the decision did not bar the plaintiffs’ “access, use, or ritual practice on any part of the Peaks.” Id. at * 35.

Navajo Nation may represent the kind of cases that will become more prevalent as ski areas are forced to deal with irregular and diminished snowpacks as a result of global climate change. Rising temperatures have caused the snowpack in Washington’s Cascade mountains to fall an average of 35-percent since 1950, and researchers predict that the Cascade’s snowpack will shrink to half of its 20th century levels by 2050. Josh Gordon, “Battered Ski Industry Sweating for Snowfall,” Seattle Time (October 27, 2005). Similarly, researchers predict that the snowpack in California’s Sierra Nevada may shrink 15- to 30-percent in the 21st century. “Global Warming Will Reduce Future Water Supply, Study Finds” (November 17, 2005). As global temperatures rise, communities that rely on snowfall and glacial snowmelt for fresh water may face shortages. Id.

Accordingly, global climate change may also adversely impact the ski industry. A 2003 report prepared by the United Nations Environmental Programme (UNEP) concluded that many low-elevation ski areas will face economic hardship or ruin due to increasing global temperatures. “Global Warming Threatens Many Low-Level Ski Resorts” (UNEP, 2003). Furthermore, climate experts warn that unpredictable snowfall will likely push winter sports higher up mountains, sever usable ski terrain from base areas, and concentrate impacts in fragile, high-altitude areas. “Ski Resorts Adapt to Changing Weather Patterns,” Summit Daily Newspaper (February 16, 2006). Until recently North American ski resorts have dealt with the specter of climate change by increasing snowmaking capacity and increasing water storage. Daniel Shaw, “As Snowy Peaks Get Warmer, Ski Industry Tries to Stave Off Extinction.”

The National Ski Area Association (NSAA) has responded to environmental concerns by launching its Sustainable Slopes program which encourages ski areas to optimize the efficiency of snowmaking equipment and conduct snowmaking operations in a manner that minimizes the impacts on stream flows and fish and wildlife resources. NSAA Sustainable Slopes Charter. Despite technological advances, artificial snowmaking remains controversial. Environmentalists note that most ski areas are located at headwaters, where streams run low, particularly late in the year when snowmaking is needed. Allen Best, “Colorado Critics Says Snowmaking Should not be Allowed.” If predictions of diminishing snowfall come true, ski resorts may become increasingly dependent on artificial snowmaking in order to ensure sufficient snow coverage, and challenges to snowmaking activity similar to those in Navajo Nation may become more prevalent.

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