Snowbowl Case Shifts to Use of Potable Water
Fake-snow Fight Takes New Direction

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.

Howard Shanker, 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.

Clayson Benally, 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 artificial snow.

But Eric 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.

Now Shanker 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.

Although the suit wasn't filed until after the Supreme Court threw out the tribes' suit, Shanker said it still meets the legal standards of being timely.

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 is acceptable.



Reprinted as an historical reference document under the Fair Use doctrine of international copyright law.