[TrueSnow Note: This opinion is from a nameless editor of the Daily Sun Newspaper and contains serious misinformation..Link to original]

If at first you don't succeed, try, try again.

That seems to be the mantra among lawyers involved in litigation over snowmaking on the San Francisco Peaks.

The first major round of lawsuits went after the U.S. Forest Service, which approved the permits for using reclaimed wastewater at the ski area, the first project of its kind in the United States. Area tribes and others lost their legal claims that it violated their religious rights. Now they are suing on environmental and human health grounds, although they have yet to win at any court level.

The next step is to go after the vendor -- in this case, the city of Flagstaff. The city council in 2002 approved a long-term sales contract with Snowbowl, and last fall a different council declined to amend it by substituting drinking water for treated effluent.

Lawyers for the Hopi Tribe are now suing Flagstaff, using a combination of arguments from the religious freedom lawsuit and the adverse environmental and health impact claim.

We're not attorneys, but on its face, the lawsuit seems misdirected. It alleges harm -- desecrating a sacred site, polluting a watershed, endangering skier health -- by a party that is not directly responsible for it. Flagstaff is simply selling a product, not directing how it should be used.

And if the Hopis want to make a product liability claim, they should go after the state Department of Environmental Quality, which specifically approved the use of the reclaimed wastewater for snowmaking before the city signed the contract with Snowbowl.

Curiously, the Hopi lawsuit seems aimed only at stopping the use of reclaimed wastewater on the Peaks, not stopping Snowbowl from operating a ski area, which has been the tribe's historic legal stance.

That raises the question: Would the tribe be satisfied if the city substituted drinking water for treated effluent?

That was the no-cost option presented to the council last September, when the federal government offered $11 million to offset the higher cost of delivering potable water to Snowbowl over the next 20 years.

The council voted 5-2 against the plan, in part because the Hopis and other tribes would not commit to it. The message back then was that the tribes would continue to sue over snowmaking and Snowbowl development, regardless of the quality of water. If that were the case, reasoned the council majority, why bother switching to drinking water, especially when the city might need that water to meet domestic needs in the near future.

So now, the Hopis are hauling the city into court. Even if their claims are ultimately rejected as lacking standing or having already been decided at the federal level, the legal defense will inevitably cost city taxpayers a hefty amount.

A compromise, which Councilmember Al White championed back in September, is still possible: Use drinking water only for the next five years while the issues surrounding treated effluent are litigated, then switch to the latter if it is found to be legal. Snowbowl's owner signed off on that approach as did the Chamber of Commerce and a majority of the city council at the time - it got hung up in a procedural motion over timing and review by other city commissions.

Such a move might not make moot the Hopi legal claims as well as the lawsuit against the Forest Service now being heard by the federal Ninth Circuit Court of Appeals. But it would address the concerns that Snowbowl is moving forward with reclaimed wastewater before a final legal ruling on environmental and health impacts is in -- possibly by the U. S. Supreme Court.

A five-year "timeout" might not satisfy the current group of protesters, who see the construction of the pipeline itself and the clearing of 70 acres of trees on the slopes as irreversible damage. But legally, Snowbowl is within its rights to proceed and it is also assuming all financial risk if the courts eventually rule against the Forest Service.

Substituting drinking water for five years would let the lawyers continue doing what they would do anyway. But at least the rest of us, including the tribes, could rest a little easier while more time is taken to evaluate a plan that indeed breaks new ground -- not only legally but environmentally, scientifically and culturally. We urge the council to take a second look at the White plan while there is still time, even if the federal subsidy is unavailable for short-term use.

• < Prev