(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.”

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.
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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.

August 22, 2011
By Hopi Tribe

The Hopi Tribe Initiates Litigation against the City of Flagstaff to Enjoin the Illegal Contract for the Sale of Reclaimed Wastewater to the Snowbowl

KYKOTSMOVI, Ariz. – On Friday, August 19, 2011, the Hopi Tribe filed a lawsuit against the City of Flagstaff in Arizona Superior Court in Coconino County challenging the City’s decision in September 2010 not to amend or cancel the contract for the sale of reclaimed wastewater to the Arizona Snowbowl ski resort (“Snowbowl”) for snowmaking.

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. The contract provides for the use of reclaimed wastewater in a mountain setting where runoff and overspray cannot be prevented, as Arizona law requires. Additionally, restrictions on limiting human contact with wastewater cannot be met, and harm to the unique alpine environment in the area, including rare animals and plants, cannot be prevented.

The contract is also illegal under Arizona law because it will result in unreasonable environmental degradation and will further deplete limited drinking water resources. As stated in the complaint, the use of reclaimed wastewater for snowmaking will unreasonably harm the environment, create a public nuisance, and infringe upon the public’s, including the Hopi Tribe’s, use and enjoyment of the area around Snowbowl as well as infringe on the Hopi Tribe’s reserved water rights.

The City’s sale of reclaimed wastewater to the Snowbowl will cover a portion of the San Francisco Peaks with artificial snow made from reclaimed wastewater. The San Francisco Peaks, and in particular Snowbowl, is ecologically unique and contains rare types of habitat and species. The City’s illegal contract allows wastewater to run off and spray into wilderness areas specifically used by the Hopi Tribe and others, impeding and infringing on the use and enjoyment of these areas by the Hopi Tribe and others.

Reclaimed wastewater is water that has been used and processed through the City’s wastewater system. Snowmelt from artificial snow made from reclaimed wastewater will be environmentally harmful because it contains chemicals including endocrine disruptors, which can interfere with natural hormone levels and processes in humans and animals. Negative impacts of endocrine disrupters include aberrant sexual development, behavioral and reproductive problems. Key species in the San Francisco Peaks ecosystem, such as frogs, are particularly susceptible to these harmful effects.

The Hopi Tribe will show that the illegal contract for the sale and use of reclaimed wastewater at Snowbowl will result in a very large net economic loss for the San Francisco Peaks community. The small increase in profits anticipated by the Snowbowl and minimal economic benefits to the area are far outweighed by much higher costs, including environmental damage, for the San Francisco Peaks’ community, including the Hopi Tribe.

The effects of the reclaimed wastewater cannot be confined to the ski area and, therefore, users of the Peaks in the vital and accessible areas around Snowbowl will be harmed if the illegal contract is allowed to stand. The Hopi Tribe seeks a judicial order prohibiting performance on this contract to sell reclaimed wastewater to Snowbowl, as the contract is for an illegal purpose and contrary to public policy.

The Hopi Tribe Chairman Leroy Shingoitewa stressed the importance of the case to 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. The use of reclaimed sewage on the San Francisco Peaks as planned by the City of Flagstaff and Snowbowl will have a direct negative impact on the Hopi Tribe’s frequent and vital uses of the Peaks.”

I’m very aware that some people are upset about me leaving Flagstaff. One the one hand, I’m humbled because it means my efforts as a journalist in this town has not gone unnoticed. On the other hand, I have great respect for so many people in this town – so much in fact that I’m finding it hard to part without leaving an explanation. So here it is.

For those who haven’t heard yet, I’m moving to Tucson and I’m starting a PhD program this fall in rhetoric & composition. I haven’t figured out my emphasis because it doesn’t really exist yet. I’ll have to work with someone to create one. But I will be focusing on environmental rhetorics and masculinities. Also in Tucson is my partner ♥. Also my grandparents, who could really use my help right now and I’m the only family left in the state.

I move to Tucson with a heavy heart, but a sure step. With everything going on at the mountain right now, I feel especially sad to leave. The mountain and those working to protect it need the support of everyone. Everyone. Right now. As I type, new runs are being clear-cut. The pipeline, poised to carry reclaimed wastewater from Flagstaff to Snowbowl has nearly reached the resort from Ft. Valley Road. Folks are coming from all over the country in support of the Peaks. Folks that worked so hard to protect Glenn Cove, CA (and won!) are on their way to the Peaks right now. There are prayer vigils up there every Saturday morning at ten, and a week of events coming up. The case itself is in appeal. It is, indeed, a shitty time to leave Flagstaff.

My friend Brent told me, “what, you can’t leave Flagstaff…Kyle, you ARE Flagstaff!” My dad, since I was a kid, told me that his heart is in the San Francisco Peaks.
So why?

As many folks who know me know, I’ve been researching and writing a book for a few years now on the issue of development on San Francisco Peaks and those who have worked so hard for decades to resist development. I have mixed feelings about academia and of course it will be hard to leave Flagstaff. I feel, without knowing it, the mountain pulled me here to write about what was going on. She helped me find my voice. And I feel like now I have to leave to finish it.

This controversy and everything that surrounds it is what I will be writing about at UofA. It will be my dissertation project, and I believe, ultimately the book will be that much better because of it. Some of the topics under interrogation here are obvious. Some are very complex and, in my opinion, lie at the heart of not only many of the issues of environmental degradation that plague the dominant culture, but also issues of environmental justice and human rights. And what I’m trying to do is illuminate the omissions inherent to the mainstream discourse around sustainability. Many of the issues we’re dealing with on the mountain speak directly to this. Some of these issues include the rhetoric of colonization, issues of racism, white supremacy and whiteness, masculinity and issues of dominance and control of Nature and culture…Identity issues related to the construction of Flagstaff as “ski town,” water issues in the west, water classifications (potable, reclaimed, recovered-reclaimed), the power of naming (water issues, the road, the mountain itself), the structural limitations of the law – not only in terms of meaningfully enforcing obvious knocks to Native religious freedoms, but also in terms of how incapable it is when it comes to drawing obvious connections, and of course issues of “what is Sacred?” (uh, skiing is sacred to me, bro!)…and way more than I can possibly describe here.

Rhetorically, all these issues are very interesting, but also timely. This case is so precedent setting, because we’re not just talking about the San Francisco Peaks here. In terms of issues of sanity and sustainability regarding treatment of sacred sites on public land, we’re also talking about Black Mesa, Indian Pass, Bear Lodge (Devil’s Tower), Red Butte, Grey Horn Butte, Mt. Graham, Weatherman Draw, Zuni Salt Lake, Cave Rock and hundreds of other places around the world. What do these places and the cultures that hold them dear have to contribute as we (hopefully) move toward a sustainable future? The truth is, nobody really knows, because nobody is really asking.

The idea of the sacred is an important, yet often unarticulated factor in any move toward a sustainable future. All of these issues – what is sacred and what that means, how we talk about our water, and how we talk about the land (and therefore how we treat it) is all related to a more meaningful understanding of sustainability. Also, the question of how language has been used to shape the way people perceive the natural world, and how rhetoric shifts when used by indigenous people who have a cultural and spiritual connection that is tied directly to the land raises further important questions. Nobody deserves to have their narrow view of sustainability shaken up more than municipalities, corporations, and yeah, universities.

I mean, one doesn’t have to be particularly observant to notice the difference in the way folks talk about the local environment when their cultural, spiritual, and physical survival is tied directly to the land, particularly when that land is under attack – and those that believe their survival is tied directly to those exploitive systems that bring them these things (why would you, after all, defend a river, if you drink from the tap?). And that interrogation is meaningful.

Someone told me a long time ago that you know you’ve settled on a dissertation topic when it is something that keeps you up at night, but other people could give a shit less about. I’m a step further on this one because I know I’m not the only one losing sleep over this.

So I’m hoping the dissertation will aid in making the book better and serve as a contribution to the larger discourse on sustainability as it relates to sacred sites…etc. I don’t see anyone else out there drawing connections to our environmental/cultural degradation and issues of masculinity…so I feel it’s an important niche I can fill. I’m going to need help figuring out how best to tell the story, how best to connect all this to issues elsewhere, and how best to make it accessible to the widest audience I can.

Chuck already knows I’ll be giving him Peaks related articles for The Noise, and he is welcoming my contributions even when I’m 252 miles south of Flagstaff. It just won’t be the kind of “boots on the ground” reporting that I think people are used to from me.

I already told the English Department at NAU to expect my application in 4 years or less. The plan was always a PhD program, but I wanted to make that transition with some determination, some deliberation, and I’ve got that now; plus UofA is paying for four years funding. So my heart lies on the Peaks, like my dad, and like everyone who leaves Flagstaff, the plan is to come back.

Folks have asked if I’m having a going away party. Instead, I’m asking everyone I know to come to the events this coming week, a week of action, in defense of the Peaks. Please come to the prayer circle on Saturday mornings at 10. I’m too connected to the issues up here to announce that I’m going away, because the truth is I’ll likely be up here a lot still. I’m out on the 10th

With respect,

Kyle Boggs

BTW – I have script written for a graphic novel related to the peaks/reclaimed water issue. It’s pretty low-brow humor, kinda gory too…like a Toxic Avenger sorta thing…after an avalanche of reclaimed wastewater snow covers him on the mountain, our hero, perhaps the first homosexual superhero from the suberbs of Scottsdale – now half man, half elk (with powers of course!) seeks his bloody vengeance on JR, the FS, and the city….next volume, Black Mesa? Who knows?! Anyway – if there are any artists out there who like drawing cartoons and want to partner with me on this, please get a hold of me!