(photo cred: Wendy Kenin)

It was nine days into the new year when a panel of three judges heard oral arguments in the Ninth Circuit appeal of The Save the Peaks Coalition, et all v. U.S. Forest Service at the James R. Browning United States Courthouse in San Francisco. The hearing itself comes more than a decade since majority owner of Arizona Snowbowl Limited Partnership, Eric Borowsky, first came to the City of Flagstaff and U.S. Forest Service with plans to further develop the ski area.

Among many proposed developments, like new lifts, ski runs, and trails, the most controversial aspect of Snowbowl’s proposal includes buying the City’s reclaimed wastewater to make snow artificially. While it is true that a number of resorts use a percentage of reclaimed water to make snow artificially, Snowbowl would be the only place on Earth to use 100% of this water to make snow. This has prompted many concerns in the northern Arizona community regarding human health.

Last year the lower District Court ruled in favor of Snowbowl and the Forest Service. The ruling, however, had more to do with false claims related to a procedural issue called “laches” than the merits of the case. “Laches doesn’t even apply unless construction is nearly complete,” explained attorney Howard Shanker. “The lower court found that construction was nearly complete, when in fact we filed two years before they even had authorization to begin construction; it’s just absurd what’s going on.” Both the lower court and the Ninth Circuit Court rejected Shanker’s request for an injunction pending appeal, which would have halted previously approved construction while the case was still active in the courts. Snowbowl began construction late last spring, clear-cutting trees for new runs, and laying sections of the wastewater pipeline along the road leading to the resort.

In the year leading up to the Ninth Circuit appeal, Shanker was optimistic, recalling in 2006 that the court ruled in their favor when he represented the Navajo Nation on this same issue, but on religious grounds. The court ruled that Snowbowl’s developments and proposed use of reclaimed wastewater does, in fact, infringe on the religious freedoms of those native people he represented. “We had a three-judge panel on this exact same issue rule in our favor,” reiterated Shanker. “And the enbanc court in an 8-3 decision vacated it on a technicality that wasn’t even right.”

When Shanker learned of the panel he would be facing this time around in San Francisco –judges appointed by Richard Nixon, another by Ronald Reagan, and the third judge appointed by George W. Bush—he was less optimistic. Most of the time given to Shanker to make his case was, once again, dedicated more to procedural issues than the merits of the case.

“Frankly the lower court laches decision was so outrageous and so bad, I assumed I wouldn’t have to spend much time on it, and that seems to be how they used all my time up.” Shanker was also forbidden from citing details related to the Navajo Nation case that went in his favor in 2006; because it was overturned in the en banc court, the judges said the ruling “no longer exists.” “The rule that I read to them said I was allowed to cite cases that aren’t precedential, but these guys were afraid to hear anything about it,” explained Shanker. “I couldn’t even mention it.”

Under the National Environmental Policy Act (NEPA), the Forest Service needed to provide a “reasonably thorough” discussion of the impacts of development in their Environmental Impact Statement (EIS). Thumbing through this 611 page made-for-public document, one will indeed see reclaimed wastewater mentioned. The document recognizes that the use of reclaimed water is offensive to at least 13 regional tribes of people. The EIS explains how the introduction of this water to the Snowbowl area constitutes a likely increase in nitrogen levels. The document further outlines a tested and acceptable level of bacteria present in the water and attempts to explain where the water will go after it melts.

“Not one of those studies” cited in the EIS, however, says Shanker in court, “has anything to do with using reclaimed sewer water for recreational purposes. What we’ve got here is Snowbowl and the federal government not going through the process that is required by NEPA. They do not do adequate analysis.”

The defendants argued that NEPA is simply a disclosure tool, which forces their discussion in the EIS to disclose any adverse affects of a project that are known. Shanker disagrees. “NEPA is a decision making tool; it is not necessarily a disclosure tool. It creates a process to make informed and reasoned decisions. It’s not just disclosure, it’s supposed to make sure the government is reaching well-thought out and well-informed decisions. And instead, they don’t even understand the purpose and what these people do is regard NEPA simply as a hurdle they have to get over to implement the plan they thought of in the first place. Using NEPA in this way subverts the whole process and the whole meaning behind the statute,” explains Shanker.

Though the conservative judges in the Ninth Circuit Court of Appeals hardly considered the case’s merits doesn’t change the fact that the jury is still out on reclaimed wastewater. Every year of the last decade saw more scientific studies on this water than the year before. Scientists and community members are concerned with what is in the water and the impact it might be having on those plants and animals that come in contact with it.

By now, most people in northern Arizona are aware of studies done by Northern Arizona University biological sciences professor Cathrine Propper on endocrine disrupting compounds which “disrupt physiological processes including development, reproduction, general metabolism and behavior.” While one could make the argument that all water is “reclaimed,” Propper’s analysis considers the rapid changes to the content of our water. “In the last 100 years, humans have introduced hundreds of new, synthetic compounds into the environment,” says Propper. “How these compounds ultimately influence physiology and fitness of individual organisms, dynamics of populations, and ultimately functioning of ecosystems, is not well understood.”

Studies of wastewater across the country have discovered the persistence of the following industrial wastes: antimony, mercury, chromium, cadmium, lead, dioxins, flame-retardants, antifreeze, insecticides, and pesticides. Scientists like Dr. Paul Torrence, former Northern Arizona University Professor and renowned expert in the field of bio-organic and medicinal chemistry, have done studies related to other compounds found in industrial waste, pharmaceuticals, household products, and other chemicals, some of which have only been introduced into the water supply within the last ten to twenty years. One compound in particular, triclosan, is found in many household products like anti-bacterial soaps, deodorant, and toothpaste. When triclosan reacts with chloride, it becomes chloroform, which is a carcinogen. When it reacts with ultra-violet rays, it forms different, mega-carcinogens, in the form of poisonous dioxins.

The concern here lies in the fact that the law is slow to catch up to the science. The Environmental Protection Agency is currently involved in a multi-year study of this water, to be completed in 2013, which could lead to federal standards. For now, however, there are no federal regulations regarding wastewater. Many of the most troubling compounds are either not tested for regularly, or are not tested for at all. “According to the Arizona Department of Environmental Quality regulations, treated sewer water can be graded A+ even when it contains fecal matter in three out of every ten samples.” According to Dr. Abraham Springer, Northern Arizona Professor and director of the School of Earth Science and Environmental Sustainability, “The treated wastewater can meet all applicable water quality standards, but still not be as high of quality as precipitation.”

In December of last year, Dr. Robin Silver, a medical doctor and co-founder of the Center for Biological Diversity took the issue of bacteria in the water even more seriously in a panel discussion on the topic. Silver pointed to a growing number of studies across the country related to “super bugs.” A lab in Virginia has demonstrated that bacteria exposed to anti-biotics on a regular basis develop characteristics that ensure their survival. “Super-bugs,” are bacteria that are essentially resistant to anti-biotics. Because anti-biotics are the only way to cure serious bacterial infections, this poses a potential human health risk. Dr. Michael Gray, a medical doctor and toxicologist, recently gave a talk at Northern Arizona University called “Reclaimed Water and Public Health,” voicing a distilled version of many concerns outlined above.

Some Flagstaff City Council members were concerned about this, but don’t have the resources to do the studies. “In a perfect world, I’d like to see a more robust set of studies and eventually a question for the voters on tertiary treatment to get us up to the highest level of treatment but those don’t come for free,” Art Babbott said to the Arizona Daily Sun.

The case before the Ninth Circuit Court of Appeals calls upon the Forest Service to do these studies, to ensure that exposure to concentrated reclaimed wastewater poses no human health risks; not doing the necessary scientific analysis is a violation of the NEPA process.

In the months leading up to the appeal, in an obvious effort to avoid arguing the merits of the lawsuit, Snowbowl majority owner Eric Borowsky held private talks with tribal members of the Navajo Nation in an effort to get them to agree to using potable (drinking) water over reclaimed wastewater, as a safer, “less offensive” option. Though the topic has reached the tribal council’s agenda at least twice in the last 6 months, they have yet to vote to use drinking water. Both Hopi, who have just filed their own appeal in court on the issue, and the Navajo Nation have been consistently against any development on the San Francisco Peaks in every generation of lawsuits. The Hopi assert that Snowbowl’s proposed use of reclaimed wastewater actually violates several state laws regarding how the water is to be used.

“I’m not in a hurry to hear from them,” says Shanker regarding the outcome of the case and his frustration with not being able to meaningfully address the merits. “I assume they’re going to rule against us. What they’re saying is that they did all the scientific work and [the plaintiffs] just disagrees with it.” Shanker continues. “We’re saying, no, we’re not disagreeing with it; it’s not in there.”

This post will be back up shortly. Sorry for the tease.

A few weeks ago, Little America Hotel in Flagstaff was forced to fire 18 employees who did not provide adaquate documentation of legal residency, as defined by Immigration and Customs Enforcement, or ICE.

The termination of the workers was immediate and the hotel offered no severance package. The workers, with a large group of supporters delivered a letter to the president, on behalf of the workers and The Repeal Coalition. The letter was delivered by Joel Olson, NAU political science professor, and part of the Repeal Coalition. The central goal of the coalition is to repeal all anti-immigration laws in support of a world where people can live, love, and work anywhere they want.

But despite how folks feel about immigration, this is about respect for worker’s dignity.

Katie Curren, a local film-maker and member of Repeal posted this video of the action.

FOR IMMEDIATE RELEASE (Sept. 14, 2011) ST. MICHAELS, Ariz.—The Navajo Nation Human Rights Commission will hold a public hearing to give Navajo citizens an opportunity to give oral testimony, written information, or send written testimony to NNHRC about Dook’o’osliid as they relate to use, need for preservation, protection and other issues on Friday, September 23, 2011 at 5 p.m. at City Hall in Flagstaff, Ariz.

NNHRC is established under the legislative oversight of the Naabik’iyati’ Committee of the 22nd Navajo Nation Council.

NNHRC advocates for recognition of Navajo human rights and directly networks at the local, state, national and international level to assess the state-of-affairs between Navajos and non-Navajos by conducting public hearings. NNHRC also investigates written complaints involving discrimination of Navajo citizens and addresses the public about human rights and the Navajo Nation’s intolerance of human rights violations.

The mission of the NNHRC is “[t]o protect and promote the human rights of Navajo Nation citizens by advocating human equality at the local, state, national and international levels based on the Diné principles of Si’a Naaghai Bik’eh Hózhóó, Hashkéejí, Hózhóójí and K’é.” The Diné principles translate to being resilient, content, disciplined and maintaining peaceful relationships with all creation.
_____

If a willing participant cannot make the hearing, NNHRC will accept a written testimony by mail. Be sure to include your full name, date, and chronological history of events pertaining to your concern about sacred sites, also, state the problem, and state the solution you want if you have one to recommend. Send your testimony to: Navajo Nation Human Rights Commission, P.O. Box 1689, Window Rock, AZ 86515.

For more information, call the NNHRC at (928) 871-7436 or visit the NNHRC website at www.nnhrc.navajo-nsn.gov.

(find before and after construction pics here)

Since May 25, the owners of Arizona Snowbowl, with the blessing of the US Forest Service and the Flagstaff City Council have laid nearly six miles of a 14.8-mile wastewater pipeline and have clear-cut over 40 acres of rare alpine forest. As construction continues, a lawsuit centering on the human health impacts of using reclaimed wastewater to make snow artificially is currently under appeal in the Ninth Circuit Court. The Save the Peaks Coalition and nine concerned citizens will be able to make one oral argument on the issue, likely by the end of September, before a decision is made.

While many resorts use a mixture of reclaimed wastewater and potable water to make snow artificially, Snowbowl is slated to be the only resort in the world to use 100% reclaimed wastewater to make snow. That is, if it is successful in court. If Snowbowl is not successful in court, the pipeline will have to be removed.

“Snowbowl is aware of this. They know that whatever they’re doing is at their own risk,” said attorney in the case, Howard Shanker. “They actually filed for a motion to expedite [the appeal process], but the Ninth Circuit turned it down.”
Recently, on August 19, the Hopi Tribe filed a separate lawsuit against the City of Flagstaff. “The lawsuit states that the City’s contract to sell 1.5 million gallons of reclaimed wastewater per day to Snowbowl is illegal because it violates several Arizona laws that govern the proper use of reclaimed wastewater” and will “result in unreasonable environmental degradation.”
Stressing the importance of this case to the Hopi people, Leroy Shingoitewa, the Chairman of the Hopi Tribe. “The health and safety of the Hopi people is indistinguishable from the health and safety of the environment — protection of the environment on the San Francisco Peaks is central to the Tribe’s existence.”

This summer, a sense of urgency has accompanied what opposition groups refer to as desecration of the San Francisco Peaks, which has resulted in mass organizing, demonstrations, protests, rallies, marches, and an outpour of community support for those who have been arrested. Said one activist who wished to remain anonymous: “The notion is clear: if you want to protect the mountain from further expansions, don’t write letters, don’t sign petitions, stop asking yourself ‘why government agencies, from the city to the feds, are fighting so hard for an unpopular project’ and take action!”

Shortly after the rumble of diesel machinery tore into the mountain, affinity groups began to arrive, setting up self-sustained base camps. An affinity group is a small group of activists, united under a common cause, who work together on direct actions. By mid-August, 26 known basecamps had been established within the legal camping area of Forest Service land on the San Francisco Peaks. Since June 16, there have been 26 people arrested in various direct actions and protests, both on the Peaks and in the city of Flagstaff.

While at least half of those groups are from Flagstaff, other supporters, both native and non-native, reside elsewhere on the Colorado Plateau and in the state. Eight people who spent nearly 100 days and nights to protect Glenn Cove, a burial site held sacred to several tribes near Vallejo, California arrived in early August. The occupation of the cove, called Sogorea Te, resulted in a “cultural easement” which set a legal precedent guaranteeing that the Yocha Dehe and Cortina tribes will have legal oversight in all activities taking place on the site. Motivated by the success of their own victory, they came to support those taking similar action on the San Francisco Peaks.

In mid-July, the “Peaks CookShack” was established in a legal camping area near Snowbowl “to support other encampments and affinity groups by providing access to available food, gear, first aid, information, and other supplies being offered and dropped off by supporters and community members.” CookShack is committed to remain on the mountain indefinitely.

“A few folks from Tohono O’odham came and hung out with us for the first weekend we were here,” said Nadia Del Callejo, speaking on a beautiful Sunday morning at CookShack toward the end of July. “They did a prayer for rain and protection on the mountain. Literally right when they left, it hailed for two days straight. Construction had to stop because there was a foot of hail on the ground. In July.”

Sitting on a log, looking up toward swaying aspen, Ms. Del Callejo continued, “There are moments like that up here; irregardless of the kind of hopelessness folks feel. Up here, you just can’t feel it. I mean, you see the destruction every day and it does get to you, but there is also this other part of it, where you understand fully how important it is to do the work and to find a way. We know we’re going to win; we don’t know how we’re going to get there quite yet, but we have faith — whether it’s through the lawsuit or through people taking direct action, or by prayer — they’re not going to put sewer water up here.” She paused and smiled. “We just know.”

Ms. Del Callejo was arrested in June, along with five other people, for an action whereby demonstrators locked themselves down to excavators and to each other, deep inside wastewater pipeline trenches. The action halted construction for four hours and resulted in a reemergence of the issue in local and national media (read my full coverage of that, here). More supporters converged on the Peaks. Weekly prayer gatherings, drum circles, and self-guided tours that bared witness to the clear-cuts continued.

August 4th though the 9th was organized as a “Week of Action,” which included multiple marches throughout Flagstaff including protests and rallies in front of City Hall, the Coconino County Forest Service Office, and High Desert Investment (the construction company contracted by Snowbowl). On August 7, police aggressively disrupted the Protect the Peaks march, which drew more than 100 people, arresting six people, including several known organizers.

The next morning, nine people formed a blockade across Snowbowl Road. Some demonstrators locked themselves to steel drums full of concrete, while others were bound to each other. More than 50 armed agents showed up and used industrial saws, toxic chemical degreasers, and a jackhammer to break apart the blockade. The human blockade delayed construction that day for 8 hours. It also quelled any preconceived ideas that opposition to development would go away.

Snowbowl General Manager JR Murray appeared a few hours into the action. To say that he was mad would be to paint an incomplete picture. As the sound of industrial saws pierced the quiet at 9 thousand feet, he stood with his arms crossed on the side of the road, watching police drag demonstrator after demonstrator away from the scene; the look on his face could only be described in one way: he was dumbfounded.

It could be compared with the same facial expression pro-development folk had during the last 40 years of Flagstaff city council meetings concerning development on the Peaks — when native elders spoke in their own language about the mountain, about desecration, with streams of tears running down their cheeks. That dumbfounded look, that look that begs the question: if skiers and snowboarders had to make due without expansions, without the pipelines and the clear-cuts, would the prospect of that reality bring tears to their eyes?

“The only choice for us is to take action against those who threaten Indigenous cultures, the environment, and our future. It’s frustrating that we had to do this in order to make this point clear,” stated Jenna Tomasello, who took part in the action.

Stephen Zavodynik, also arrested during the blockade elaborated: “We decided to take matters into our own hands and you can too. Whatever you feel is sacred, defend it with all your heart and take a risk, because our future generations will not forgive inaction.”

“For us, our actions are self-defense,” said Ms. Del Callejo after she was arrested for the third time this summer. “And everyone has that right. I am not afraid of what will happen to me if I protest, what I am more afraid of is what will happen if I do not stand up.”

Weekly Prayer circles and other events are scheduled to take place every weekend until construction stops. For more information and updates visit truesnow.org and indigenousaction.org