by Howard Fischer
Capitol Media Services
26 July 2010
PHOENIX - A
federal judge is hoping to get the owners of one of the state's
best-known ski resorts to promise they won't start construction
on an artificial-snow system for at least another two weeks.
At a hearing
last week, U.S. District Judge Mary Murguia noted that Flagstaff
officials are expected to decide by then whether they intend to
sell drinkable water to the Arizona Snowbowl.
the attorney for groups challenging the current plan to use
treated effluent on the San Francisco Peaks, conceded that using
potable water would make his lawsuit to preclude the use of
treated effluent to make snow at the resort legally irrelevant.
But even if
Flagstaff makes the water available, that is unlikely to end the
multiyear legal fight: Some foes of artificial snow said they
would file a new lawsuit challenging even the use of potable
water on the peaks.
one of the plaintiffs in the current lawsuit, said he remains
unconvinced that the water, which essentially would be treated
effluent filtered through the aquifer, is any safer than the
current plan simply to use treated sewage. He said much is
unknown about even microscopic amounts of chemicals left in the
water that would be pumped onto the mountain in the form of
Borowsky, general manager of the partnership that operates the
Snowbowl on U.S. Forest Service land, said opponents are looking
for any excuse they can find to deny the artificial snow he said
is necessary to ensure the facility is financially viable.
He said that
includes attorney Shanker, who first represented American Indian
tribes that said the use of treated effluent would interfere
with their ability to practice their religion. That argument
ultimately was rejected by the U.S. Supreme Court.
represents the plaintiffs in this lawsuit. And Shanker conceded
after Tuesday's hearing that another legal action may begin if
the Flagstaff City Council approves the use of potable water.
"Mr. Shanker has made a career out of filing lawsuits on this
matter," Borowsky said.
At last week's
hearing on the case, Snowbowl attorney Michael O'Connor said
this essentially is just a rehash of many of the same arguments
the tribes put forward in their original 2005 lawsuit. If
nothing else, O'Connor told the judge, the claims could - and
should - have been filed years ago.
suit wasn't filed until after the Supreme Court threw out the
tribes' suit, Shanker said it still meets the legal standards of
He also said the
issues are different. While many of the arguments he presented
for the tribes in the first case were about religious freedom,
this one concentrates more on arguments that the treated
effluent is unsafe. The Arizona Department of Environmental
Quality has concluded snow made from that kind of treated water