Ninth Circuit Allows Recycled Sewage on Sacred San Francisco Peaks

The Ninth Circuit Court of Appeals has upheld a district court decision dismissing a lawsuit filed by the Save the Peaks Coalition in 2009 against the U.S. Forest Service (USFS) that challenges the use of treated sewage water to make artificial snow for a ski resort on the sacred San Francisco Peaks.

A federal appeals court has given an Arizona ski resort operating on federal land permission to use recycled sewage to make artificial snow on Humphrey’s Peak—the highest and the most sacred of the San Francisco Peaks to more than a dozen Indian nations.

The Ninth Circuit Court of Appeals ruling on Thursday, February 9, upheld a district court decision dismissing a lawsuit filed by the Save the Peaks Coalition in 2009 against the U.S. Forest Service (USFS). In 2005, the forest service approved an application from the Arizona Snow Bowl Resort to use treated sewage on the sacred site. The Save the Peaks lawsuit was the second challenge to the USFS approval. The Navajo Nation was among a group of Indigenous nations to file the first lawsuit against the desecration of the mountain in 2005.

Erny Zah, spokesman for Navajo Nation President Ben Shelly, said the Ninth Circuit decision was “a disappointment. Although the San Francisco Peaks are not within our reservation, they are within our traditional boundaries, within our realm of dwelling, and we make offerings on the Peaks, we have prayers and songs that incorporate not only the San Francisco Peaks but all of elements of life, and this court decision to potentially allow the use of reclaimed water to generate snow negates our inherited traditional foundations.”

The Nation will continue to explore “other avenues we might go down to see if there are other actions we can turn to make sure our Peaks are kept sacred,” Ernyzah said.

The first challenge to the USFS’s approval to use wastewater on the sacred mountain was filed by individuals of the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, the Yavapai-Apache Nation and the White Mountain Apache Nation. They claimed the Snowbowl Resort’s plan violated their religious rights and that the USFS has neglected to study the possible health effects from ingesting the recycled sewage. The case wended its way through various courts with some decisions upholding their claims and others denying them, all the way to the U.S. Supreme Court, which denied the plaintiffs petition for review in 2009. The Save the Peaks Coalition filed its lawsuit following the high court’s refusal to review the case.

In a statement that was both unusually harsh and petulant, Ninth Circuit Judge M. Smith wrote in the opening paragraph of his decision, “This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on federal land all the way to the United States Supreme Court, ‘new’ plaintiffs appeared.” The Ninth Circuit’s unanimous three-judge panel said that the Save the Peak lawsuit rehashed the first lawsuit with the same attorney—Howard Shanker—and some of the same plaintiffs. It also reversed a previous panel’s ruling that the USFS approval violated the National Environmental Protection Act (NEPA).

Shanker had equally strong words in disagreeing with the Ninth Circuit’s ruling.

"I think the opinion is wrong on the merits and the panel's commentary reflects a gross misunderstanding of the nature of the case and the parties. There was no abuse of the judicial process,” Shanker said by e-mail, adding that he had not yet discussed the possibility of appeal with his clients.

“I also believe that the panel's pro-defendant bias was evident at the oral argument,” he continued. “With regard to the bigger picture, there is an evident flaw in our system of justice when, inter alia, one panel can rule unanimously that the NEPA process was inadequate as a matter of law, while the instant panel rules unanimously that the same NEPA process was adequate as a matter of law—based on the exact same facts and law. If there is any gross abuse of the judicial process, it is reflected in the inconsistency of the panel decisions.”