Snowbowl agreement may bypass environmental risks and voices of Indigenous nations
An agreement meant to address harmful effects related to Arizona Snowbowl’s development does not mention one of the most damaging potential threats. If it is signed by Feb. 20, Snowbowl will be permitted to continue development of the resort.
Left out of the agreement is requirement of a monitoring program that could provide data on the environmental health of the Peaks. Analysis of the Peak’s environmental health has become increasingly relevant with the introduction of two new studies.
Both studies suggest the resort’s use of reclaimed water — wastewater put through a filtering and disinfection process — is a threat to the environment on the San Francisco Peaks.
Despite scientists and more than a dozen Indigenous nations calling for environmental protection of the Peaks, the agreement only needs signatures from three government agencies to be executed. The agencies are the United States Forest Service, Advisory Council on Historic Preservation and Arizona State Historic Preservation Office.
Worsening the tension, the process that led to the drafting of the agreement was created specifically to protect culturally significant sites such as the Peaks.
‘We don’t know what the outcome will be’
It took Richard Hereford three years to complete his 2023 study. Hereford is a retired research geologist for the United States Geologic Survey (USGS). The study is unaffiliated with the USGS and was conducted free of charge. Hereford covered many of the expenses himself. He calls the study a “labor of love.”
The study theorizes that spraying large amounts of reclaimed water over the surface area of the ski runs allows chemicals in the reclaimed water to seep and accumulate in the soil. During storms, the soil erodes down the slope and funnels through Snowbowl’s stormwater drainage system. It then dumps the chemicals in large concentrations onto Hart Prairie below.
“The nutrient levels we’re seeing, even the lowest ones, are way, way high compared to what it should have been in its natural, pre-development stage,” Hereford said.
Hereford documented that runoff from the drainage system is cutting trenches through Hart Prairie. Through modern and pre-existing aerial photography, he found that erosion of the prairie began around the same time the drainage system’s original channel was diverted in 2003. Runoff from Snowbowl’s property can be damaging if reclaimed water mixes with runoff and enters Hart Prairie, which is a violation of the state’s water quality standards.
Nitrogen and phosphorus, which were both found in high concentrations, enhance plant growth. A large influx of these nutrients can be highly disruptive to an ecosystem. Hereford said he established what nutrient levels may have looked like on the Peaks in a natural state by using pre-existing data sampled from the same kind of volcanic material found on the mountain.
When he compared the nitrogen and phosphorus levels he found on the Peaks to this natural level, the level of nitrogen was 105 times greater and phosphorus over 1,300 times.
The amount of phosphorus, in particular, is high enough to suggest a man-made cause as opposed to natural reasons, like atmospheric deposition or the relatively phosphorus-rich sediment on the Peaks. Hereford said the source is likely the reclaimed water.
The Arizona Department of Environmental Quality (ADEQ) does not regulate phosphorus levels in reclaimed water because it is not considered to be harmful to humans at low levels.
“There’s enough of a red flag of warning in this to make people consider further investigation and ways of controlling it,” Hereford said. “If this continues, we don’t know what the outcome will be, but it’s likely not to be good.”
Potentially the most harmful concern raised in the report is nutrient loading.
Environmental engineer and biologist Allen Stewart III understands the dangers of nutrient loading. He specializes in research on water quality, nutrient loading and nutrient impacts on the environment.
Stewart undertook his own study in 2021 which included nitrogen and phosphorus loading projections for the region of the Peaks exposed to reclaimed water for snowmaking.
His study reported the area encompassing Snowbowl saw an average increase in nitrogen of 297% compared to pre-development estimates. Phosphorus saw an average increase of 1,095%.
Stewart said nutrient loading of nitrogen and phosphorus can be compared to creating a buffet for plants.
“If you increase your caloric input from 1,500 calories a day to 5,000 calories a day, you’re going to change,” Stewart said. “The environment is slightly different. These nutrients allow plants to grow at a much higher level.”
While increased plant growth might sound good, the consequences can often be dramatic.
The alpine plants on the Peaks have evolved over thousands of years to survive with a relatively low amount of nutrients. Stewart said a large increase in nitrogen and phosphorus could disrupt the ecology of the Peaks and harm native species while also helping invasive species thrive.
Stewart lives in Florida where invasive bacteria fed by nutrient pollution killed much of the seagrass native manatees rely on for food. As a result, at least 1,900 manatees died of starvation between 2021 and 2022.
“That was one of those uncertainties that hit us right between the eyes,” Stewart said. “The manatee is a critical, threatened species here in Florida and to lose 1,200 of them in one fell swoop was devastating.”
An invasive species known as cheatgrass has wreaked havoc on the West for years. Its growth has played a role in the increase in size, intensity and frequency of wildfires.
In rivers all over the world, correlations have been found between hormonal chemicals found in reclaimed water and male fish being “feminized,” producing female eggs in the testes.
“There’s a great deal of uncertainty with this,” Stewart said. “And in addition, it’s quite often irreversible. So, you take a big risk when you start doing this.”
Contentious investigations
Hereford’s study said it could be years or even decades before biological evidence of polluted runoff on Hart Prairie is recognized. Attempting to prevent a serious ecological problem before it occurs, Hereford sent an early copy of his study to the ADEQ to prompt an investigation.
In April 2022, ADEQ investigators and Snowbowl management toured the resort property and ultimately decided no action was necessary in terms of regulation violations.
Hereford disagreed with this, citing the investigators’ written field descriptions and photo log. Both show investigators had viewed a site 950 feet northwest of the area in question, which is within Snowbowl’s property. Snowbowl’s property is also referred to as a Special Use Permit (SUP) area, the class of permit area that allows Snowbowl to use reclaimed water for snowmaking.
Caroline Oppleman, communications director for the ADEQ, said the ADEQ was not misled by Snowbowl management. Mountain Capital Partners, the owners of Snowbowl, declined to comment on this story.
“Snowbowl representatives provided ADEQ with the necessary access to conduct a thorough investigation that included both the Special Use Permit area and areas of concern to the complainant, which were located outside of the Special Use Permit area,” Oppleman said in an email.
After the initial investigation, Hereford sent a letter to the ADEQ stating why he disagreed with its findings. The ADEQ then began a second investigation where Hereford and other complainants were allowed to guide investigators to the area in question.
This investigation also ended with ADEQ deciding no regulation violations were occurring. The report stated that neither reclaimed water nor reclaimed water mixed with stormwater was observed leaving the SUP area.
“ADEQ is confident that erosion in the area is due to typical stormflow associated with monsoonal rain,” Oppleman said.
However, Hereford said a key idea of the study is that samples of stormwater runoff contain chemicals found in Hart Prairie and reclaimed water. This suggests stormflow is polluted with nutrients left behind from reclaimed water and deposited on Hart Prairie.
Oppleman compared the reclamation of water to the water cycle: all water is recycled water. She said reclaimed water is critical to easing the demand placed on other water sources.
“Reclaimed water from [wastewater treatment plants] is used across the state, the nation and the world to irrigate crops and sports fields, is injected back into aquifers for future use as a drinking water source or discharged to surface waters,” Oppleman said. “As long as reclaimed water meets the rigorous standards applied for each specific use, there is no significant risk.”
Hereford and Stewart suggest more data is needed to better understand the situation on the Peaks.
A monitoring program on the mountain to observe the impacts of reclaimed water on the ecological health of the site is the next logical step. Hereford sent a copy of his finished study to the Forest Service in August. He never received a response.
“The problem has been to grab the attention of the relevant agencies — namely the Forest Service and, of course, Snowbowl management itself, which really has no inclination or interest,” Hereford said. “Their motto is no data, no problems.”
‘We keep saying no, but they don’t listen’
There are more than a dozen Indigenous nations who hold the Peaks as one of their most significant historic, cultural and religious landmarks. Each nation has a unique relationship to the mountain range. To some, it is the home of deities, the origin of humans, a place where offerings are made and where rare medicinal herbs are gathered.
Former Navajo Nation President Joe Shirley Jr. once likened the expansion of Snowbowl and the use of reclaimed water to an extension of the Indian Removal Act, the law that led to forced relocation of Indigenous people.
“If you desecrate and destroy the Peaks, you’re doing away with a way of life,” Shirley said. “When is that going to be understood? That’s killing Native American nations. That’s killing us.”
Despite years of pleas, lawsuits and advocacy, Snowbowl continued to regularly develop the resort. Spraying reclaimed water only worsened the distress felt by the nations.
Dianna Sue Uqualla has understood the importance of Hvehasahpatch — what the Havasupai Nation refers to the Peaks as — since she was a young adult. She remembers when her elders would take her to Hvehasahpatch to show her why the mountain is sacred. She remembers watching as her elders spoke at meetings to protect the Peaks, inspired by how they argued without yelling.
The seasonal lands of the Havasupai reach as far west as Seligman and span the Grand Canyon and Colorado River. This includes Flagstaff and the Peaks.
Now, Uqualla has picked up where her elders left off. She speaks on behalf of the environment as an elder and practitioner who serves on the Havasupai Tribal Council. She said it has been an honor to step into the role of her elders.
“I watched my elders and even the elders of the Navajo and Hopi,” Uqualla said. “They’ve always been very strong about taking care of this beautiful mountain. It is very sacred to all of us.”
Watching the story of the Peaks unfold over the years has been painful for Uqualla. She watched as the arguments of her elders were repeatedly not heard or understood.
She watched Snowbowl slowly expand, cutting down trees and disturbing the ground.
When Snowbowl first opened in 1938, it was barely more than a two-person rope tow powered by a car engine to ferry skiers up the slope. Today, Snowbowl has 55 trails, eight lifts, four terrain parks and three mountain lodges.
In 2012, Snowbowl began to pump artificial snow onto the slopes.
“They’re tearing all of this, and every time they tear it off, it’s like tearing off a piece of your skin until they get to the bone,” Uqualla said.
To Uqualla, it is not only the mountain that is sacred but everything on it. Her culture sees spiritual worth in the trees, medicinal plants, springs, animals and everything else naturally found on the mountain.
But that idea has been at odds with the authorities legally in charge of the Peaks since Snowbowl’s inception. The dominance of Western government over Indigenous government — paired with a lack of understanding of Indigenous cultures — has allowed these authorities’ decisions to repeatedly accommodate Snowbowl’s interests.
“They’re only going bit by bit and asking us for permission to do things there, and we keep saying no, but they don’t listen,” Uqualla said. “The Forest [Service] always gives them their permits.”
The dominance of the Western government is something that plays a role in legal proceedings like the Memorandum of Agreement, the agreement that will allow continued development.
Shawn Mulford, a Diné citizen involved in the new MOA process, understands this well.
“It’s important to understand that that word ‘tribe’ comes from a system that is trying to dominate over the original people on this land and also over the land itself,” Mulford said.
His hope for the new MOA if it is signed into effect is that it will fully address the concerns raised by the Native nations.
“What they can do is listen to us,” Mulford said. “And what we’re telling them is that they have been mismanaging federal lands in our sacred areas with pollution, development, logging, mining.”
The U.S. General Services Administration states federal consultation with Native nations must be “meaningful, conducted in good faith and entered into on a government-to-government basis.”
The United Nations Declaration on the Rights of Indigenous Peoples, Article 19, requires that “States shall consult … with the Indigenous peoples concerned … in order to obtain free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
However, Mulford said the declarations are being ignored.
“Now, the problem that we have as the original people here, the Native people here, is the United States does not recognize free, prior and informed consent of the original people,” Mulford said. “And so, if you can’t have free, prior and informed consent, then the word ‘meaningful’ means nothing.”
‘The place where they skin you alive’
Howard Shanker, the attorney general of the Tohono O’odham Nation, has been practicing law in Arizona since 1993. In that time, he has litigated multiple court cases related to environmental policy and has represented many Indigenous communities.
One case, Navajo Nation v. United States Forest Service, almost cost him his livelihood.
Shanker argued the presence of Snowbowl as a violation of the National Environmental Policy Act (NEPA) and the Religious Freedom Restoration Act from 2006 and 2007. That lost in the lower court, Shanker appealed the case to the Ninth Circuit Court of Appeals, where the three-judge panel unanimously ruled there was a violation of both acts.
A new panel of Ninth Circuit judges later threw out the previous ruling, replacing it with their 8-3 decision that no violations occurred.
Shanker was not done. The statute of limitations had not expired, meaning there was no rule against refiling his case to get another hearing. So, he refiled to the annoyance of a lot of people, he said.
Shanker said the new panel of judges was “very hostile,” and he lost his case again.
“Oftentimes, you already know how the decision is going to come out when you see which judges are assigned,” Shanker said. “They not only ruled against me on the NEPA claim, but in a published Ninth Circuit decision, they said that I grossly abused the judicial process without really any explanation of how I abused it.”
Afterward, Snowbowl followed up by asking the court for sanctions against Shanker, which would have made him pay Snowbowl’s attorney fees — totaling hundreds of thousands of dollars. The judges granted the sanctions. Shanker was acting in the case pro bono, or free of charge.
Shanker argued that he had not broken any rules. Multiple groups came to Shanker’s aid and filed briefs arguing the legal implications of granting sanctions against a pro bono attorney, despite Shanker having not violated any rules. The panel of judges ultimately withdrew their decision on sanctions.
Shanker said he believes Indigenous arguments often lose in court because the alternative could reduce what the government is allowed to do.
“I think it’s really inconvenient for the federal government,” Shanker said. “… It’s just inconvenient to have to deal with the tribes and limit what they can do with their own land.”
However, to many, Navajo Nation v. United States Forest Service is one of a series of court cases that are attempts to restore their way of life.
Bucky Preston is a Hopi elder and farmer. Most days between April and June he plants his crops by hand and prays to the mountain and other forces for rain. The ritual is a large part of his culture and religion. Snowbowl residing on the mountain is detrimental to the sanctity of this process, Preston said.
To protect what he believes in, Preston testified in Navajo Nation v. United States Forest Service.
The Hopi are known for keeping much of their rituals and traditions to themselves, but in court, Preston was expected to talk about his traditions to defend them.
“You understand that you can’t stand back because these teachings come from our grandparents and their grandparents,” Preston said. “But it’s not easy to talk about, especially when lawyers are pressing you and turning your words around and trying to make you make a mistake.”
Preston was not used to explaining his culture. He said he would have felt more comfortable if multiple traditional people who are authorized to speak for the Hopi could have weighed in, instead of standing alone.
In court, Preston tried to explain why he could not explain specific beliefs his culture prefers to keep from outsiders. The testimony felt like a struggle between him trying to honor his beliefs and lawyers attempting to get him to say what he could not.
“I was also told by our elders that this place that they call the court system, the legal system, the Hopi call it, ‘the place where they skin you alive,’” Preston said.
An insufficient law
The National Historic Preservation Act (NHPA) of 1966 was meant to be the triumph of preservationist movements. It was passed primarily to acknowledge the importance of protecting American heritage in an age of rampant federal development.
Public desire for widespread change in the federal government inspired the NHPA. It was meant to transform the government from an “agent of indifference, frequently responsible for needless loss of historic resources, to a responsible steward for future generations.”
The NHPA established the Advisory Council on Historic Preservation (ACHP). It also includes Section 106, which requires federal agencies to take into account the effects of their actions on historic properties through a review process.
That process ideally ends with the signing of an agreement, like a Memorandum of Agreement (MOA). These MOAs require a state’s Historic Preservation Officer (HPO) to sign off on them. Tribal Historic Preservation Officers are functionally the same as a state HPO, but they are only required to sign off on an MOA related to sites on their reservation.
Reservations frequently do not coincide with Indigenous ancestral homelands, resulting in Native nations often having no real legal authority to oppose development on historic sites beyond reservation borders. This is the case with the Peaks.
Jaime Loichinger is the ACHP director of the Office of Federal Agency Programs. His office acts as a representative and guide for the review process.
“In determining whether to sign an MOA, we consider the comments and concerns of all consulting parties, particularly invited signatories, provided during the consultation process,” Loichinger said in an email.
With their new status as invited signatories, Indigenous nations may have a better chance of their concerns being recognized by the ACHP.
However, past agreements suggest this MOA could be signed before the concerns are fully addressed.
“The ACHP has participated in numerous Section 106 reviews conducted by the [United States Forest Service] across the country,” Loichinger said. “The overwhelming majority of these consultations result in executed agreements.”
Kathryn Leonard, the Arizona State HPO, did not respond to a request for comment prior to the publication of this story.
Multiple requests for an interview with the Forest Service forester in charge of Snowbowl relations were denied. The Forest Service said in an email it is inappropriate to discuss an in-process MOA and that it is awaiting signatures.
The agency signed the new MOA on Dec. 11.
Consultation of little consequence
Laura Jo West, former forest supervisor of Coconino National Forest, is well acquainted with the strained relationship between the Forest Service and Native nations.
West arrived in Flagstaff for her position as forest supervisor in 2015. The previous 2005 MOA expired right before her arrival. West said ambiguous wording led her to believe it had not, so she continued to approve projects for Snowbowl previously allowed under the MOA.
The projects sparked a great amount of disapproval from Native nations. In 2021, a complaint from the Hualapai Nation about projects being implemented despite an expired MOA led West to halt all development on the Peaks. Before it can resume, the new MOA must be signed.
West said she saw the MOA as a chance to initiate a conversation about how the Forest Service and Indigenous nations could work together to manage the Peaks. She wanted to build a timeline based on a consultation process with the nations. West said it would likely take around two years.
But Snowbowl’s parent company wanted it done in six months, West said.
“Legally, I could have blown past all of this, the tribal piece, and just do the minimum and consult with them, listen to them, not listen to them, whatever, say that I consulted and just moved on,” West said. “Legally, I was able to do that.”
West did not. MCP accused her of stalling and being “biased toward tribes.” West’s boss at the Forest Service took her off MOA negotiations even though MCP provided no evidence to support their accusations.
Today, West says she gives her boss the benefit of the doubt — that their intentions behind removing West from Snowbowl were an attempt to keep the peace.
However, West was asked to support the new direction when she was removed from having the ability to influence the MOA. West said she increasingly felt forced to choose between her job and doing what she believed was right.
After four months of trying to get the decision reversed, West resigned.
“It wasn’t anything that had to do with the ski industry that I decided to leave,” West said. “I dealt with a lot of hard things as a forest supervisor and a lot of sticky wicket issues, and you’re not always making people happy. That wasn’t the problem. It was realizing that the agency I put 33 years into would turn its back like that.”
These days, West works as a part-time professor for NAU, teaching a class on natural resource policy. She said she might teach a section on Snowbowl in the future.
West said students should be aware and understand the university is on Indigenous ancestral homelands.
“I want to make sure that students understand that broader picture of where they reside, and where they recreate, and the conflicts that come with that,” West said. “I’m not pushing an agenda or ‘you need to think a certain way’ but just surfacing that these are hard things. There are trade-offs to these things, and ‘How do we resolve those?’”
GIPHY App Key not set. Please check settings