On December 1, 2010, Federal Judge Mary Murguia ruled in favor of Arizona Snowbowl Resort Limited Partnership, allowing the resort to use the city’s reclaimed wastewater to make artificial snow on the San Francisco Peaks.

The plaintiffs in the case, including the Save the Peaks Coalition and nine concerned citizens, asserted that in their Environmental Impact Statement, the Forest Service did not follow the National Environmental Policy Act (NEPA) in addressing the potential human health concerns regarding the use of reclaimed wastewater to make snow.

While many ski resorts utilize a percentage of reclaimed water mixed with potable water to make snow, Snowbowl would be the only resort in the world to use 100% reclaimed waste water to make snow. That is, if they continue to be successful in court.

When the decision was announced, Snowbowl indicated that it “plans to begin construction work on the supply pipeline for the snowmaking system as soon as possible, consistent with any necessary approval by the U.S. Forest Service, and weather permitting.”

On December 2, a day after the announcement, more than a dozen demonstrators took action and “quarantined” Snowbowl’s Heart Prairie Lodge, disrupting the resort’s annual job fair. Truesnow.org, the website dedicated to highlighting the perspective of those opposed to the use of reclaimed water to make artificial snow on the San Francisco Peaks, posted an article that originally appeared at Arizona.indymedia.org covering the action.

“Carrying banners that read ‘Danger: Snowbowl, Public Health Hazard’ and dressed in hazmat suits, some of the protestors attempted to enter Snowbowl lodge…employees blocked the group and attempted to make them leave the public area. Becoming physically aggressive Snowbowl general manager JR Murray then pushed one of the protesters and wrestled a banner pole from their hands.”

“The demonstrators drove down the mountain in two separate cars. Six law enforcement vehicles swarmed and prevented them from leaving. The occupants were detained, interrogated and threatened with arrest, all while pictures and video were taken by County sheriffs, Forest Service and other Federal agents whom refused to identify themselves. When asked what the allegations were, the cops said, ‘trespassing and littering.’ After being detained for more than 30 minutes, the demonstrators were released without being charged or cited,” the article reported.

“’How can Snowbowl say that we’re littering when they are attempting to dump 180 million gallons of contaminated sewage per year and expand their development by clear cutting over 100 acres of old growth trees?’ said Flagstaff citizen Ned del Callejo. ‘While Snowbowl is threatening public health they are calling law enforcement on those who are trying to protect it. The alleged ‘litter’ was two signs that were accidentally left, which I told the agents I was more than willing to go and retrieve. To which there was no response.”’

Disappointed in the decision, attorney Howard Shanker vowed to immediately appeal the court’s decision on multiple points. “Unless stopped by an injunction pending the hearing of an appeal, construction for making snow at Arizona Snowbowl is slated to start next year [spring of this year] and finish for skiing by November 1, 2011,” reported the Daily Sun.

Because Snowbowl intends to begin construction as early as this month, and the appeal process will not begin until mid-May, Shanker, representing the Save The Peaks Coalition and the same nine concerned citizens, filed a request for an injunction.

In order for an injunction to be granted, plaintiffs must demonstrate that 1) the details of the appeal have merits; 2) the “balance of hardships” tips sharply in the plaintiff’s favor; 3) there is a likelihood of irreparable injury if the injunction is not issued; and 4) that the injunction is in the public interest.

In the request for an appeal and in the subsequent reply to defendants, Mr. Shanker was confident that he met all of these criteria in his request for an injunction. In the legal documents he asserts that plaintiffs have a strong likelihood of success on several merits, including their appeal of the NEPA claims.

“This court found that the Forest Service does not have to do a thorough analysis or include a reasonably thorough discussion of the impacts associated with the potential ingestion of snow made from reclaimed sewer water in the FEIS [final environmental impact statement] because ADEQ [Arizona Department of Environmental Quality] approved the use of reclaimed sewer water for snowmaking,” said Shanker.

Though using reclaimed waste water to make snow was approved, Mr. Shanker contests that it was never approved for skiing. “The Forest Service is obligated to “Fully consider the impact of [the proposal] on the physical, biological, social, and economic impacts of the human environment,” and they never “considered the issue of people ingesting snow made from reclaimed sewer water in its NEPA analysis.”

He claims this issue wasn’t brought up in the District Court in Navajo Nation et al., v. U.S. Forest Service et al in 2006 and “as a result, the en banc panel also declined to address the merits of that claim.” Further, Mr. Shanker continues in the request for an injunction that any claims that the Forest Service complied with NEPA when considering the environmental impact of making snow from reclaimed water “is disingenuous.”

On a related note, the Environmental Protection Agency is currently entrenched in a multi-year national study (to be completed in 2013) that interrogates the effects of reclaimed waste water on human health. Preliminary findings have exposed previously unknown levels of potentially harmful agents, which suggest that more stringent regulations will be implemented in the way reclaimed wastewater is used by municipalities in the not-to-distant future.

While waiting for the Ninth Circuit Court to hear the appeal, Mr. Shanker and plaintiffs wanted simply to make sure that in the meantime, irreparable harm is not done due to construction associated with snowmaking infrastructure. “Irreparable injury is not only likely, it is a certainty,” claims Mr. Shanker. “Indeed, the nature of the environmental injury asserted by Plaintiffs–cutting trees, clearing, trenching, construction of a storage reservoir–in furtherance of snowmaking is precisely the type of environmental harm that is anticipated.”

As for the other two requirements needed for an injunction pending an appeal, Mr. Shanker emphasizes that there is a “well-established ‘public interest in preserving nature and avoiding irreparable environmental injury.” And in 2008 the Supreme Court noted that “’Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.’”

Given the predicted injuries associated with construction of snowmaking infrastructure on the Peaks, Mr. Shanker affirms in his reply to defendants, “In these types of cases, it is generally accepted that, ‘if such injury is sufficiently likely…the balance of harms will usually favor the issuance of an injunction to protect the environment.”

The injunction, however, was denied. This was essentially due to the fact that the plaintiff’s legal complaint is with respect to the impact of reclaimed water on human health while the judge regarded their motion for injunction pending as more of an effort to protect the local environment, as if the two weren’t related. “While Plaintiff’s might be correct in noting that building an almost 15 mile long pipeline will have a potential impact on the environment in general, Plaintiff’s Complaint only concerns whether the NEPA process adequately considered the threat to human health posed by the ingestion of Class A+ reclaimed water.”

Procedurally, Mr. Shanker was required to file the motion for injunction pending appeal with the same judge that ruled on the case in December. When the Ninth Circuit briefing begins in late April, another injunction will be filed with a panel of three judges.

Mr. Shanker is confident in the appeal and with good reason, as it wouldn’t be the first time the Save the Peaks coalition won on an appeal. “In the meantime,” Shanker responds, “Snowbowl can legally begin cutting down thousands of trees, grade the land, and begin constructing the pipeline.”

A brief recap of the on-going case: