On December 26, two days after Arizona Snowbowl began making snow artificially from reclaimed wastewater, concerned residents Rudy Preston and Kathleen Nelson filed a complaint, along with photographs as documentation, that Snowbowl was violating state laws as well as not complying with many provisions outlined in their wastewater contract with the city of Flagstaff. The complaint was filed with both the City and Arizona Department of Environmental Quality. On Tuesday, January 15, the City of Flagstaff voted unanimously to fully investigate the complaint. Likewise, Arizona Department of Environmental Quality responded to the complaint on January 23.

After more than a decade of lawsuits and staunch resistance from environmental groups, concerned citizens, and Indigenous Nations, it would seem that the moment the snowmaking machines were fired up would be a moment to celebrate. As a recent New York Times headline suggests, however, “Discolored Slopes Mar Debut of Snowmaking Effort,” the artificial snow was yellow.

As the same article continues, “The discolored snow has sharpened an already fraught conflict.” While Snowbowl’s general manager J.R. Murray has chalked the discoloration up to rusty residue in the new pipes, which carry the wastewater up the mountain from Flagstaff’s Rio de Flag treatment facility, other’s regard this as one of many ways the resort has and continues to evade responsibility in complying with state law and many of the provisions of their contract with the city.

In short, though the issue of yellow snow on the Peaks was covered by local and national media, the focus of the complaint has nothing to do with what the snow looks like. “We did not file it because of the yellow snow,” said Rudy Preston, one of the individuals who filed the complaint. “We filed it because the Snowbowl is violating the terms of their contract with the city and also numerous State environmental laws.”

After Rudy and Kathleen formerly presented their complaint to ADEQ along with their graphic evidence on January 23, the following response was given: “we did receive your complaint…the process is that if we receive an environmental complaint…we look into it.” A physical inspection of Snowbowl was conducted looking at “the alleged violations in the complaint” alongside “compliance of rules and regulations.”

Ultimately Daniel Czecholinski, ADEQ Water Quality Compliance Inspector, said that his department is “not going to make a statement on factual conclusions until they issue this inspection report and I’m certainly not going to make a statement on how the rule is interpreted and I couldn’t even do that anyway because I don’t have the rule in front of me.”

While neither Mr. Czecholinski nor ADEQ Communications Director Mark Shaffer, when asked, would comment on the parameters of the department’s inspection–whether any water quality tests were conducted or if the field survey would be its sole criteria–the department is mandated to release its inspection report in 30 working days. “When it’s finalized,” continued Mr. Czecholinkski, “we’ll send it out to all interested and responsible parties. It also becomes public record at that point.”

During the city council meeting where the complaint was presented, Kathleen Nelson emphasized the fact that because Snowbowl does not have their own permit through ADEQ to use reclaimed wastewater—that in fact, Snowbowl’s use of this water falls under the city’s umbrella of users designated in their permit. “It is the city’s job to enforce the terms of that permit,” she said. “The city is libel to lose its permit with ADEQ…it’s important that the city looks carefully at this for that reason…we’re the permit holders.”

Under the City of Flagstaff’s wastewater contract with Snowbowl, it states, “End user shall strictly comply with all the following requirements: Provide and install sufficient signage reading ‘Snow made with Reclaimed Wastewater, do not eat the snow or drink melted snow’ or similar warnings. Such signs shall be prominently displayed at each reuse site.”

The complaint contends that “not one sign was observed anywhere at the ski area that contains the above wording.” Instead, after hours of looking around, two small purple signs were found ten feet off the ground that stated, “In order to conserve natural resources reclaimed water used for snowmaking. Do not ingest.” Aside from this wording, which is not similar to the wording quoted in the contract, those who brought the complaint argue that the wording is manipulative in two ways. First, the word “waste” is left off, which they say downplays the threat and legality of ingestion of this water.

Second, the wording is articulated through a kind of rhetoric of conservation, which is not a new practice in Arizona. Considering, however, recent and ongoing studies that have revealed the presence of pharmaceuticals, hormones, industrial and household toxins, endocrine disruptors and antibiotic resistant bacteria, it’s clear that those who penned the complaint see this as pollution masked as conservation. But their concerns run deeper into the larger discourse around this water source in the west. “The words ‘reclaimed wastewater’ and even worse, ‘reclaimed water’ in itself is an issue since the legal term for this water is ‘treated sewage effluent.’ By renaming it, the City has diminished the warning to be almost meaningless,” so says the complaint.

Regarding proper signage, the city’s contract also stipulates where signs should be located. “Such signs shall be placed at all logical points of entry to each reuse site, at the entrance to all lakes and ponds at each reuse site, at all pumping outlets and at all hose bibs providing Reclaimed Wastewater.” The complaint follows that no signs were visible at any of these areas or entry points, including the Hart Prairie and Sunset lifts, ticket booths, ski school entry points, nor were signs found anywhere near snowmaking equipment or the storage pond.

The “most egregious” of issues related to signage, as the complaint follows, is in regard to an area where children play and roll around in the snow, which was also free of signs. “When parents were asked if they knew what the snow was made from, many stated they didn’t know and made faces of disgust.” As Preston made clear during the city council meeting, however, the signage issue is “the smallest portion of [the] complaint.”

The complaint further follows an argument that was raised in court on more than one occasion (Save the Peaks et al. v US Department of Agriculture and Hopi Tribe v. City of Flagstaff), but was never directly addressed. The contract with the City states “Reclaimed Wastewater delivered under this agreement shall not be directly or indirectly utilized or transferred for any uses other than snowmaking.” Although “snowmaking” is covered under the contract of acceptable uses, the complaint exposes the fragility of the legal language in asserting that skiing is also a “direct reuse” of this water, as is “sitting in, rolling around on, and sledding on the reclaimed wastewater snow.” Such activities like swimming, wind surfing, water skiing, or other activities, which constitute “full-immersion” are similarly prohibited by state law. The complaint makes the case that skiing and other related activities “are immersive” and “have a very likely potential for ingestion through the eyes, nose, mouth, ears, and skin.”

Along this same line of thinking is the consideration of sanitation as it relates to eating areas. Under state law, “A permittee irrigating with reclaimed wastewater shall: 3. Prevent reclaimed water from coming into contact with drinking fountains, water coolers, or eating areas.” It should come as no surprise that, according to the complaint, “Skiers where observed tracking treated wastewater into and throughout the lodge and eating areas and additionally were observed with reclaimed wastewater on their clothes and gloves using and touching water fountains.”

The trouble of course is all the uncertainty that is raised through an exploration into these questions. When reclaimed wastewater snow mixes with the regular snow, is it diluted enough to pose a risk? Considering that on some days, reclaimed wastewater snow is the top layer, and other days it functions as a base layer, how can laws really account for concrete notions of exposure? Considering that reclaimed wastewater is not one homogenous thing, that the day-to-day compounds found in the water is in constant flux, should there be systems in place that account for days where the water is proven to be unsafe?

A recent Mother Jones article uses the issue of snowmaking at Snowbowl as a frame to talk about the growing use of sewage recycling, particularly in the southwest. “Population growth and climate change mean that water is becoming ever more scarce in the southwest. The article claims that the “Environmental Protection Agency estimates that the United States reclaims about 8 percent of it’s sewage water; four states—Arizona, California, Florida, and Texas—are responsible for as much as 90 percent of that figure.”

In addressing the Flagstaff City Council, Kathleen Nelson introduced the complaint her and Mr. Preston filed by addressing the larger implications of using this water, beyond Snowbowl, and beyond Arizona. “The more we’re using this reclaimed wastewater; we need to be ensuring that it is being used in a safe and proper method.” As much as the complaint might come across to some as nitpicking the wording of contractual and state law, the implications go far beyond the details, and address the rapid and on-going toxification of our total environment. The city of Flagstaff, and the practices of Snowbowl, has the nation’s attention. Decisions made here should be made with intention, framed with ideas of what direction we want to move—toward a sane and sustainable future with respect for those natural water systems that we owe our lives? Or one that is increasingly toxic?

(photo by John Running. more wheat paste art here)

What we do to the mountain, we do to ourselves,
we say again through hoarse voices that shake, and are quickly carried off by that which sways the trees. This time, as sharp as pine needles, we repeat:
what we do to the mountain we do to ourselves.
Gazing upward toward the elegantly sloping figure of the Peaks, we turn back toward each other, pressing forehead against forehead. We close our eyes tightly, this time whispering through clenched teeth.

What we do to the mountain, we do to ourselves.

We stand like this in silence. And at first, I feel my toes going numb. The wind makes your tears cold to the touch; cupping your cheeks, I take a deep breath, opening my eyes to meet yours. I see deep inside you a reflection of myself, of the mountain, of eternity. When I look into those deep irises, I realize it is not a numbness I feel, but my body surrendering. And suddenly there is no difference between my body and the soil beneath my feet, my heart and yours. The birds, the wind, the trees, the trickle of snowmelt, and you, my love, I feel you as intimately as my own flesh.
And I know you see it too.
You are so beautiful.
You are the mountain.

You rise from where the desert sands become rocky, from where valleys become canyons. You rise from the mesquite-covered Black Hills to the cottonwood trees tracing the gentle form of the Verde River—that river, still wild—that river, which owes you its life.

You rise from the Painted Desert, from the Hopi Mesas, where sagebrush gives way to piñon and juniper. And still you rise over the Vermillion Cliffs, where the condor sore through Marble Canyon.

Alas, you were there when the Little Colorado finally pushed through the sandstone to meet its parent at the confluence.
Alas, you have known the Grand Canyon since it was a mere crack on the horizon.

You are the mountain.
You rise above the Mogollon Rim as the highest point on the Colorado Plateau, where a sea of ponderosa pine embrace Douglas fur, evergreen, and groves of yellow aspen, toward your uppermost reaches, where you kiss the clouds that gently glide over your body.

You are the mountain.
And you are so much more than this. It was Leopold who got it wrong in Thinking Like a Mountain. Not thinking, so much as remembering, means that one does not need to kill a wolf to understand the green fire. Inside those windows that shine so brightly, there is a still a green fire, a life carved from more than rock and soil. You are the wildflowers, the grasses, and the moss. You are the tassel-eared squirrel dancing among the lush green fern. You are the elk sipping melted snow, only to pause briefly before skipping off without a sound.

You are the mountain.
You are the horny toad waiting for the frost, the swagger of the skunk, the prick of the porcupine, and the transformation of the butterfly. You are the rabbit looking up at the raven eying the snake that is waiting for the mouse. You are the soil that feeds the trees that caress the streams that form the canyons. You are the trees that sway like hair and the roots that embrace roots deep below your skin. You are the snow that collects in the pond where the salamander lives that teases the birds that live in the trees that will one day return to the soil.

Without all of these things the mountain would be dead.
And you, my love, you are very much alive.
You are the mountain.

Your integrity is sustained, not through myths of science, or through the myths of the Forest Service, but through an understanding that what we do to the mountain we do to ourselves, that water, blood, and soil are not so categorically different.

You are the mountain.
Both physically and emotionally, you have scars. You are the reason for the city built upon your foothills, and it is you upon which the city fashions an identity, the mountain town. Yet they cut you deeper. They name your wounds: Larry’s line, Mo’s Bowl, Yogi’s Catwalk, the Dutchman;
mortal names carved onto your immortal body.
They bleed you out as surely as they bleed themselves; the green pipe, the surgically implanted artificial veins, from which they flow poison, from which they flow arrogance.

You have been led to believe, however, that you are not the mountain.
They poison you with dogma as surely as they do with reclaimed wastewater. You have been, as that drunken poet said, “born into this.” Born, the stone-age baby into the chaotic maelstrom of western, first world existence, born with a beating heart and a ferociously hungry imagination, born with empathy, compassion, and love.

Yet you have been led to believe that dignity is something earned, that it can be given and taken away; you have been led to believe that you do not need the trees, the rivers, the valleys, the canyons, the falling snow, the mountains.

But you do. And you have always known this.

You are the mountain,
which is to say you are much more than what you have been told. You know things you don’t remember learning. The collective memory of millennia is stashed away in your unconscious. Every now and then, and rather unexpectedly, the knowledge of your ancestors, of my ancestors, appears in your waking life. You are more than your job. You are more than your voting record. You are more than the films you enjoy or the music you collect. You are more than firing synapses and coursing serotonin. And you are no more your physical features than you are the muscle and the bones and the blood flowing beneath them. Every cell in your body has been completely replaced over and over again.
Yet you remain inexplicably you.

It is not what we do to the mountain; after all, it is what they do to the mountain, to you, to me, to all of us that is at stake. And the only real question is:
how will you respond?

Under the concrete, beneath the layers of social constructions, of cultural myths about the one right way to live, beyond a dominant culture no longer driven by well-meaning hearts like yours, there is a world you used to know, a real world that deeply misses you.

Will you hide within yourself or will you rise like the mountain you are?

Three years ago, one could find him at the Arizona Snowbowl ski resort snowboarding on a regular basis. Today, James Kennedy is better known as one of many northern Arizona activists who have and continue to risk their safety and freedom to stop the resort from moving forward with plans to use reclaimed wastewater to make artificial snow.

For months, Kennedy and others had been monitoring the construction of the 14-mile pipeline, the remaining sections of which are currently being dug out on Lowell Observatory’s property on Mars Hill, just west of Thorpe Park. On Monday August 20, Kennedy took further action by occupying a large ponderosa pine tree, which was tied first to other trees in the vicinity, then anchored to a large trench-digging machine. This is what is referred to as Kennedy’s lifeline. The tree-sit halted construction for three full days before Kennedy, who had enough food and supplies in the tree to last a month, chose to come down Thursday morning due to a severe lightening storm in the area.

A day into Kennedy’s tree-sit, supporters noticed unidentified men messing around with his lifeline. “They were swinging around on James’ lifeline as if it were a monkey bar, and when we told them that they were endangering his life they said, ‘it’s coming down today anyway,’” recalled Alex Iwasa. At this point Iwasa and Erik Fettig locked themselves to the machinery, blocking access to the lifeline, thus protecting Kennedy from threats to cut the line. Both men were cut out by police and arrested for trespassing. Eventually, police did remove the lifeline, which jostled James’ platform. Fortunately James was not injured.

The action comes after two days of education and protests. On August 18, a well-attended Teach-in at Northern Arizona University’s new Native American Cultural Center took place throughout the day, which included panels, workshops, and small group sessions that addressed issues related to the history of the controversy surrounding development on the San Francisco Peaks, including information on sacred sites, environmental justice, legal cases, water issues, and promoted many ways concerned folks could get involved.

The day of the Teach-In also marked the final steps of Diné activist Kris Barney’s 200-mile “prayer walk” from his home in Rough Rock, AZ to the San Francisco Peaks to bring awareness to what he refers to as an “attack,” and “ecocide” in favor of “recreational expansion.”

The next day dozens of protestors converged on the Rio Del Flag wastewater treatment plant where one individual had locked himself to the front gate by the neck with a U-Lock. The treatment plant is scheduled to supply the Arizona Snowbowl with reclaimed wastewater as early as November. After holding down the entrance for four hours, protestors decided to leave due to concerns about the weather. There were no arrests.

In terms of legal updates, the actions come as Howard Shanker, attorney for the Save the Peaks Coalition waits to hear whether or not the full eleven-judge panel for the Ninth Circuit Court of Appeals will grant his petition for a rehearing, challenging the Republican appointed 3-judge panel’s decision to impose sanctions on the lawyer. Consumer advocate Ralph Nader, among a list of lawyers and indigenous human rights groups across the country continue to express support for Shanker. Supporters are concerned that such a decision would deter other lawyers from taking on politically charged cases for free.

The Noise caught up with Kennedy on the second day of his tree sit, just before he prepared his lunch, at least 80 feet up in the tree. From his perch, Kennedy said, “I can see all of town, and directly east of me are the San Francisco Peaks,” described Kennedy. “It’s a beautiful view.” On today’s tree-sit menu: some hot soup with carrots and bell peppers from his garden. He didn’t answer his phone right away, as his stash of food was in a bag a little further up the tree.

When asked what his primary reasons are for staging this kind of nonviolent demonstration, Kennedy voiced much concern over the safety of reclaimed wastewater, noting recent studies that the courts or the Forest Service never considered. “There are several recent studies that came out, some of which came out in The Noise about the detrimental affects of treated sewage water on trees and the environment,” said Kennedy. “And most recently Robin Silver—it wasn’t his research but a team of researchers and students that reported to him—tested pubic sources of treated sewage effluent in Flagstaff for bacteria, attempting to answer questions regarding, what bacteria survives the treatment process? In at least three different samples, they found bacteria that contain antibiotic resistant genes. The study found evidence of MRSA, antibiotic resistant Enterococcus, stuff like that. Really dangerous stuff,” said Kennedy.

The report Kennedy refers to, “Antibiotic Resistance Gene Testing of Recycled Water Samples in Flagstaff, AZ,” was released in August of this year. “Antibiotic resistance is a growing problem and is a major challenge to human medicine because it results in drugs losing their effectiveness for treating bacterial infections,” so explains the rational for the study. The study found that the presence of ARGs, although “relatively diminished” in the newly recycled water, was “dramatically increased at the point of use.”

The study then expresses concerns that “there are no water quality standards defining a ‘safe’ level of ARGs,” while at the same time the study seems skeptical of Arizona Department of Environmental Quality’s ability to accurately rate the safety of treated water. “Water quality standards are primarily based on coliform testing.” ADEQ can rate the quality of water as “Class A+ reclaimed water,” if there are less than 23 coliform organisms per 100 ml of any given sample. This “falls short,” explains the study, “in assessing risks of many pathogens, especially in recycled water.” This obviously calls into question all uses of reclaimed wastewater, not just on the Peaks or McMillian Mesa’s proposed snow-play area, but everywhere the water is used.

“So this is what is being sprayed on our fields. Kids run through the fields and essentially get sprayed down with antibiotic resistant bacteria. So I think that really spurned me into action,” said Kennedy.

Even if the city did take measures to ensure the quality of the wastewater goes above and beyond the standards of ADEQ, there is still the very real issue of responsible water use in the west. “I’ve spoken to city employees among others who say, if there were a catastrophic wildfire near Lake Mary, that such an event would ruin that water supply and we’d have an immediate water shortage,” explains Kennedy. “Beyond that, we’re still looking at 20 years until we run out of water. And regardless of whose water we try to steal, such as from Red Gap Ranch and other places, if the wastewater can be made safe, it’s still a resource for the community and it shouldn’t be sold off to private interests,” he said.

When pressed to recall a specific moment when he changed his mind from being one who supports snowbowl as a snowboarder to the outspoken critic he is today, Kennedy explained how a Hopi woman he worked with allowed him to see his priorities in a new way. “Three years ago, I had a season pass so I went almost every day. But it’s just recreation, you know? It’s not something that takes precedence over someone else’s culture and life.”

Police say they are planning to arrest Kennedy, and Lowell Observatory plans to press trespassing charges.

Note: This article has been translated into French, here.

When attorney Howard Shanker first filed a case against the Forest Service in 2010, he could not have known that it would turn out this way. Not only were the merits of the case virtually ignored throughout judicial proceedings, but an appointed three-judge panel of the Ninth Circuit is also holding Mr. Shanker personally financially responsible for reimbursing Snowbowl for some of its expenditures in the case.

“The situation is unbelievable,” said Mr. Shanker of the sanctions against him. There is nothing in the record to support any of the allegations against me. The panel and Snowbowl’s lawyers have accused me of all sorts of unprofessional behavior. It’s outrageous. If the judges didn’t have immunity, I’d sue them for slander or libel.”

On the day Mr. Shanker filed his response to Snowbowl’s presumptive demand that the court order him to pay over $32,000, he explained how it all came to this.

In 2005, upon hearing the Coconino National Forest approved snowmaking with reclaimed water at the Arizona Snowbowl, several tribes and environmental groups sought pro bono legal support from Mr. Shanker. They filed suit against the US Forest Service on the grounds that using reclaimed wastewater violates religious freedoms. “The lower court ruled against us on everything, said Mr. Shanker. “So we appealed it.”

The following year, a three-judge panel of the Ninth Circuit Court of Appeals ruled with Mr. Shanker and the tribes, affirming that Arizona Snowbowl could not use reclaimed wastewater to make snow artificially. “We won on both the religious and cultural issues and then we also won on this one NEPA (National Environmental Policy Act) issue, that the Forest Service didn’t adequately consider the issue of human ingestion of reclaimed sewer water in their Environmental Impact Statement.”

In October 2007, the Ninth Circuit Court of Appeals granted the Justice Department and Snowbowl’s request for appeal to rehear the case en banc. “It went to the full 11-judge panel and in an 8 to 3 decision, I think, breaking along party lines — 8 Republican [appointed by Pres. Nixon/Reagan/Bush] judges that voted against us, and 3 Democrats [appointed by Pres. Kennedy/Carter/Clinton] in our favor — the Republican majority ruled there was no substantial burden on the exercise of religion,” explained Mr. Shanker of the August 2008 decision allowing Snowbowl to make snow from reclaimed wastewater. “So they reversed on the merits of the religious and cultural issues. On this issue of ‘ingestion’ though, they held that it was never properly raised in the lower court. So it was an open issue; it was never decided on the merits according to this en banc panel.”

In January of 2009, the tribes appealed to the US Supreme Court. In June of that year, the Supreme Court announced it would “not hear” the case, thus upholding the 2008 Ninth Circuit en banc decision.

But there remained the unresolved NEPA claim never fully decided en banc, a claim the first three-judge panel provided a thorough analysis for and one that held the Forest Service failed to verify in its Environmental Impact Statement. What if people ingest the artificial snow? Surely, skiers would “faceplant” and children would be tempted to eat the snow, not realizing it being made from reclaimed wastewater. What would happen to them? How much exposure is considered safe? Nothing in the EIS quantified this valid argument, like any decent scientific study would.

In Flagstaff, posted signs warn against coming in contact with reclaimed wastewater directly. During the windy months, it recently came to light that workers who spray reclaimed wastewater over construction areas to keep the dust down are required to take hepatitis B shots as a precaution against this exposure. What are the affects of this kind of exposure on skiers, on workers? There are no answers to these questions because the Forest Service hasn’t followed through with the National Environmental Policy Act, as a matter of procedure, in answering these questions.

Regarding this “open claim,” explained Mr. Shanker, “the Save the Peaks Coalition and 9 concerned citizens that were not party to the Navajo Nation case approached me and said, ‘look, we want to bring this claim.’” So in 2010, another suit was filed with different plaintiffs. “The claim was so meritorious; the only thing out there was this three-judge panel decision saying the Forest Service didn’t adequately consider it; it was unresolved on the merits,” said Mr. Shanker. “So we brought it back to the district court and I assumed it would be a no-brainer; I thought we would win easily.”

Instead of delving into the details of Mr. Shanker’s NEPA claim, it was quickly dismissed without meaningful discussion. A district court ruled against him under the doctrine of laches, a procedural rule which declares a party has “slept on its rights,” or failed to act in a timely manner. “So I was kinda shocked with the result. So we appealed it, assuming we would prevail on the merits and on the laches issue, and we drew this hostile panel.”

In January of this year, the three-judge panel — all of whom were appointed by Nixon/Reagan/Bush — ignored the merits of Mr. Shanker’s NEPA claim and continued to hammer him with procedural issues. When he argued how the claim was left unresolved from the Navajo Nation case, he was told that the case “didn’t exist” anymore. “What they’re saying, and they’re mistaken, is that the en banc panel vacated that case. En banc review, however, does not result in automoatice vacatour, the en banc panel simply provided that the prior decision could not be cited as precedent,” Mr. Shanker continued. “It could, however, be discussed as informative. That is, the court does not have to make believe it never happened.”

Judge Milan D. Smith, Jr. expressed his opinion when he handed down the panel’s decision in February, writing that Mr. Shanker “Grossly abused the judicial process,” by bringing this second case against the resort after losing a “virtually identical” case with a different client; even though the NEPA claim was never fully vetted by the en banc panel.

“It’s extremely frustrating. I’ve been pretty cynical before, but our judicial system is obviously broken. I mean, here you have the exact same law and facts that a prior three-judge panel ruled in our favor on and now they’re ruling against it on the merits and accusing me of abusing the judicial process,” Mr. Shanker continued. “It just makes no sense.”

When Mr. Shanker petitioned to rehear the case, he was denied by the very same presiding judge who ruled in the overturn of the original 2006 Ninth Circuit decision —Chief Judge Alex Kosinski, an appointment of the Reagan years. Snowbowl’s lawyers then used the language of Judge Smith’s decision to petition the court for sanctions against Mr. Shanker and the plaintiffs, originally seeking over $280,000. In providing an opinion for that motion, Judge Smith went even further, accusing Mr. Shanker not only of “bad faith” and abusing the judicial process, but of actually “misleading his clients.”

“They based their motion for sanctions on the panel’s language,” said Mr. Shanker. “There are now these two Ninth Circuit published opinions that say I ‘grossly abused the judicial process.’ Smith and the other two judges on the panel have attacked my credibility and professionalism without cause. There is nothing in the record on appeal or in any findings of fact in the lower court to support any of these inaccurate factual accusations raised for the first time on appeal by an actual panel of judges.

Mr. Shanker finds it curious that Snowbowl would seek sanctions, as they were a “private intervener” in the case. “So essentially the court is finding me in ‘bad faith’ because we were trying to insist the Federal Government comply with federal law. We never sued Snowbowl,” said Shanker. “They filed briefs so they could intervene in the case as a defendant. They wanted to be in the case. It’s just remarkable what’s going on.”

Amicus Curiae is a Latin phrase that means “friend of the court.” An Amicus Brief is the legal document that is prepared by individuals or groups of individuals who, although not party to a given case, have a strong interest in or views on the subject of a court’s decision.”

Such a document was filed on July 16 in support of Mr. Shanker, pro-bono attorney for the Save the Peaks Coalition et al. The brief was submitted on behalf of consumer advocate and social critic Ralph Nader, Arizona State University professors of law Myles V. Link and Gary Marchant, as well as the Association on American Indian Affairs, Native American Rights Fund, Women’s Earth Alliance, The Morning Star Institute, and Center for Biological Diversity. For many reasons outlined in the brief, the signees of the Amicus Brief support Mr. Shanker’s appeal of this decision.

The prevailing sentiment among those who support Shanker’s appeal stem from concerns that such actions by the court, whether intentionally or not, might deter legal involvement in similarly politically- charged environmental and human rights-related cases. As Mr. Marchant points out, this implication has nothing to do with the merits of the case. “While taking no position on the merits of the underlying case in this matter … applying sanctions in a case such as this would deter attorneys from bringing controversial cases on matters of public policy, and would impede the important role of courts in providing a public forum for hearing and resolving such matters.”

Groups like the Native American Rights Fund (NARF) are concerned that sanctions against Mr. Shanker will impact what they do, that holding pro-bono attorneys like Shanker personally responsible for Snowbowl’s costs “will seriously and negatively impact NARF’s ability to take up claims that may be particularly difficult or unpopular.” Similarly, The Morning Star Institute “is concerned that sanctioning the attorney in this case will serve to dampen the enthusiasm of other attorneys who are requested to help tribes, nations, pueblos and other Native American peoples who have no other way to seek justice.”

The formal support provided by the signatories of the Amicus Brief echo the concerns of many who were outraged upon hearing sanctions had been ordered against Mr. Shanker. So wrote Bennet Kelley, in an article for the Huffington Post, “Imagine an America in which lawyers dared not challenge the mightiest, no matter how egregious their offenses may be for fear of financial ruin. No Thurgood Marshalls, no Ralph Naders and no Howard Shankers.”

“The message from the Ninth Circuit Court of Appeals was clear,” wrote Stephen Brittle, president of Don’t Waste Arizona, defending Mr. Shanker. “If you are concerned about the environment; if you want to protect Native American sacred areas; or even if you simply want to make sure that the federal government complies with its own environmental obligations, go home. You are not welcome in the Ninth Circuit. You have no right to due process.”

NOTE: On August 18, myself and many others are participating in a Teach-In focusing on the obvious and complex issues that surround this controversy. It will be a lot of fun and a great chance to learn and get involved. Flier below and more info here.

The very idea that there is a multi-generational controversy over development on the San Francisco Peaks should make at least one point clear: the mountain and it’s surrounding areas are imagined in startlingly different ways. It is a contested space, yet no people reside there. What does reside there are narratives that often clash; yet, in a lot of ways, one of these narratives continues to dominate the way the Peaks are meant to be experienced. That the controversy persists, and continues to receive national media coverage, indicates that there are a growing number of people who resist that narrative.

photo: indigenous action media

As a writer, it was this contention that initially drew me into the complexities of this controversy. In the fall of 2006, I was a new writer for the publication you presently hold in your hands. I was eager for story ideas and thus became a regular attendee at Flagstaff City council meetings. I had positioned myself in my usual spot in the back of the room, armed only with a worn pad of paper and a stubby pencil; right away, I realized this wasn’t a typical meeting.

While I couldn’t say now what was on the agenda that day, I can easily recall the moment when the public was asked to give comments; this was the moment when I first realized that the controversy surrounding development on the San Francisco Peaks would give me more than enough to write about for the rest of my life.

An elderly Native women, who I later learned was quite famous for her activism in the Big Mountain region of Black Mesa, approached the microphone slowly, clenching the arm of a man who steadied her steps. As she pulled the microphone down to meet the reach of her voice, the reverberation of her silver rings against the metal of the microphone echoed throughout the Chambers; all eyes were on her.

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