Arizona Snowbowl, a ski resort in Flagstaff, Arizona, recently became the first ski resort to make artificial snow entirely out of treated wastewater. The snow-coated slopes may mean more winter skiing in the Arizona desert, but now skiers have an additional mogul to look out for –- yellow snow! It took years of legal battles to clear the slopes for the snow-making effort. The Snowbowl ski resort is located in the San Francisco Peaks, on land considered sacred by local Native American tribes. Back in 2005, after a lengthy environmental review, the U.S. Forest Service approved Snowbowl’s plans to produce artificial snow from recycled wastewater. These plans were not universally well-received.

When Three Point Shot last reported on this controversy in November 2009, a 2005 lawsuit brought by the Navajo Nation had just been put to rest. The Navajo Nation claimed that Snowbowl’s plans to coat the mountains in recycled sewage water violated the religious rights of plaintiff Indian tribes. But an en banc panel in the Ninth Circuit rejected the spiritual significance argument. The Navajo Nation also claimed on appeal that the Forest Service’s study of the risks posed by ingesting wastewater snow was inadequate, but the panel found that issue had not been properly raised at the district court level. The U.S. Supreme Court thereafter declined to review the case.

At the time of our November 2009 report, a new legal battle against the Forest Service and Arizona Snowbowl was just getting underway. Soon after the end of the Navajo Nation case, the Navajo Nation’s attorney filed an environmentally-focused challenge to Snowbowl’s expansion plans on behalf of the Save the Peaks Coalition. This litigation made the same environmental claims that the Ninth Circuit found were not properly raised in the Navajo Nation case. In response, the Forest Service and Arizona Snowbowl argued that Save the Peaks waited too long to bring its claim.

The Save the Peaks case hit an ice patch when the district court found that not only had Save the Peaks improperly delayed its claims, but the Forest Service had, in fact, satisfied its environmental obligations. In a February 2012 opinion, the Ninth Circuit upheld the lower court’s environmental ruling and declared the Save the Peaks case “a gross abuse of the judicial process.” The appeals court pointed out that several of the Save the Peaks plaintiffs were associated with and solicited money to support the organizations involved in the Navajo Nation litigation. It viewed the Save the Peaks case as substantially the same claims brought by substantially the same plaintiffs represented by the same attorney. In fact, as the panel pointed out, “a statement on the Save the Peaks Plaintiffs website even calls Navajo Nation ‘our prior court case.’” In June 2012, the appeals panel went so far as to order personal sanctions against Save the Peaks’ attorney for his bad faith actions, although that order was withdrawn without explanation in August 2012.

An additional suit challenging Arizona Snowbowl’s proposed snowmaking practices was filed by the Hopi tribe in November 2012, claiming that the sewage snow may harm an endangered plant. That case did not pick up speed, however, and was withdrawn in December 2012.

At long last, after nearly a decade of opposition, Snowbowl was free to produce wastewater snow. On December 24, 2012, that’s just what it did. But, to everyone’s horror, the snow came out yellow. Snowbowl maintains that the unpleasant surprise was caused by rusty pipes, but perhaps it’s all downhill from here.