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Snowbowl Protest

A deputy from the Coconino County Sheriff's office guards to protestors who chained themselves to an excavator on the Snowbowl Road early June 27, 2011. (Cyndy Cole/Arizona Daily Sun/file)

The Hopi Tribe has filed suit against the city of Flagstaff for the city's sale of reclaimed wastewater to Arizona Snowbowl.

The tribe is asking a Coconino County Superior Court judge to find that the city's contract to sell water is illegal, and to declare it null and void and/or award the tribe unspecified financial compensation for suffering it says it will experience if the plan goes ahead.

The lawsuit says the city's water sale will create a public nuisance and violate state laws about where reclaimed water can be used.

Notably, the tribe raises future plans for city water sources at Red Gap Ranch, ties it to the reclaimed water sale, and says Flagstaff is doubly infringing upon the tribe's water rights.

The law governing tribal water rights dates to a 1908 case where the U.S. Supreme Court found that tribal reservations were guaranteed water rights sufficient to meet the needs of the reservation.

If a reservation was established to give a tribe an area to grow agriculture, for example, there must be enough water to irrigate crops on it.

The city has an agreement to sell up to 1.5 million gallons of reclaimed water daily to Snowbowl from November through February.

This comes as a second lawsuit questions the possible human health risks of using reclaimed water to make snow for skiing, and as contractors working for Snowbowl install water pipeline along Snowbowl Road.

Federal courts ultimately sided with the U.S. Forest Service in a previous lawsuit that asserted snowmaking would violate tribal religious freedoms.

In this lawsuit, the Hopi Tribe asserts the water sale for making snow:

-- Is "contrary to public policy because it will result in unreasonable harm to the environment and public health"

-- Was null and void because Snowbowl's contractual agreement to buy city water expired in 2004, when Snowbowl had not yet obtained all necessary approvals for the snowmaking project

-- Is against state law because reclaimed water is not allowed to run off of the site for which it is intended, and run-off is expected here

-- Goes against city and state requirements that prohibit most human contact with reclaimed water

-- Extends the city of Flagstaff's water use further (due to water evaporating on the Peaks if used as snow), and the tribe asserts that the city's volume of water use is already infringing upon Hopi water rights

-- "Violates principles of environmental justice in desecrating a site" sacred to tribes

-- Is out of character with the surrounding wilderness area on the Peaks.

No monetary damages are specified in the suit, but the original claim filed with the city in February specified $40 million in damages.

The tribe filed the lawsuit Friday in its capacity as a federally recognized tribe, and on behalf of the Hopi Tribe Economic Development Corporation that owns Heritage Square, Kachina Square Shopping Center, and Continental Plaza Shopping Center on Country Club Drive.

The city attorney declined to comment on the case Tuesday.

Cyndy Cole can be reached at 913-8607 or at ccole@azdailysun.com. Daily Sun reporter Joe Ferguson contributed to this report.

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