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Arizona court backs Hopi lawsuit against Flagstaff snowmaking

(Flickr/Antti T. Nissinen)

FLAGSTAFF, Ariz. — The state appeals court has backed the Hopi Tribe’s effort to halt the use of treated wastewater in artificial snowmaking operations at a ski resort outside Flagstaff.

Thursday’s ruling extends a lengthy battle between American Indian tribes and the Arizona Snowbowl’s snowmaking on the San Francisco Peaks. At least 13 tribes consider the mountain on public land sacred.

The Hopis have argued that plants and other objects they gather from the mountain could become contaminated with chemicals in the wastewater and could no longer be used in ceremonies. They also say the wastewater could blow on shrines, springs and other sacred areas, negatively impacting them.

The tribe sued Flagstaff in 2011, alleging the city’s decision to sell wastewater to the Snowbowl causes a public nuisance. A Coconino County judge dismissed that and two other claims the following year, but the nuisance claim survived in a challenge to the appeals court.

In reconsidering the claim, the Coconino County Superior Court ruled in 2016 that the tribe didn’t show an injury unlike that suffered by the general public, which would be needed for the nuisance claim to advance.

The appellate court disagreed Thursday, saying the Hopi Tribe distinguished its cultural and religious interest in the mountain from the interests of skiers, hikers and other recreationists, without commenting on the merit of the tribe’s claim.

The case now goes back to the Superior Court.

The Hopi Tribe did not respond to a request for comment Thursday.

Snowbowl general manager J.R. Murray said the resort is evaluating the ruling.

Snowmaking at the resort began in 2012 to supplement natural snow and extend the ski season. With little snowfall, the resort has relied almost entirely on snowmaking machines this season and has about 75 percent of its runs open, Murray said.

At one point, Flagstaff and the Hopi Tribe appeared poised to settle the lawsuit when the city proposed building a system to further treat the water at a city park. But the Flagstaff City Council never voted on the agreement.

The city declined to comment on any aspect of the case Thursday or the legal cost. Under a 20-year contract, the resort pays $1.88 for every 1,000 gallons. Murray said the contract allows for 180 million gallons a season.

A group called Protect the Peaks has called on the city to cancel the contract and regularly protests at the ski resort. Group member Klee Benally said he’s encouraged that the court will take another look at the Hopi lawsuit.

“Whether or not we find justice in the court, I don’t hold a lot of hope for that, mainly because the courts have sided again and again against us,” said Benally, who is Navajo.

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