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District Court Rules For USFS in Save the Peaks Case, Plaintiffs will Appeal




DATE:            Wednesday December 1, 2010

NOTE TO EDITORS: For a background, legal documents, photos, updates, and further information please visit: . Interviews can be arranged.

District Court Rules For USFS in Save the Peaks Case

Plaintiffs will Appeal the Court’s Decision to the Ninth Circuit Court

FLAGSTAFF, AZ — The case known as The Save the Peaks Coalition, et al. v. U.S. Forest Service (USFS) was heard before Honorable Judge Mary H. Murguia and today a decision was made.

The Court ruled against the plaintiffs claims that the final FEIS prepared by the USFS ignores thorough consideration of a number of critical health issues. The plaintiffs contend that a new and thorough FEIS should be filed by the USFS. If this reveals that the use of reclaimed sewage water is a public health risk then snowmaking should not be permitted for the Arizona Snowbowl on the San Francisco Peaks.

Howard Shanker, representing the Save the Peaks Coalition and additional plaintiffs, will file an appeal to the Ninth Circuit Court. According to Shanker, “ the decision misstates the facts of this case and misapplies the law.  That’s why there is an appeal process.” Further, according to Shanker, “it is remarkable that the Obama Administration is complicitous in this effort to put treated sewer water on the San Francisco Peaks.  Not only is the site sacred to Native Americans in the Southwestern United States, the Forest Service has, at best, no idea what the long term health impacts will be on people who ingest this snow made from treated effluent.  Who figured the Snowbowl ski area was ‘too big to fail’”.

Judge Mary Murguia ruled that plaintiffs were barred from bringing this action by the doctrine of latches largely because of the “near completion of the project”.

“This is remarkable in light of the fact that there was a stipulation in place until yesterday barring any ground clearing activities in furtherance of snowmaking and no final approvals were provided by the government until recently – none of which have been implemented on the ground.  That is the project is not “near completion” but rather has not even begun.” stated Shanker.

Judge Murguia also ruled that the Forest Service adequately considered that people would ingest snow made from reclaimed sewer water in the EIS.  “Notwithstanding that the only other court to rule on this issue substantively was the three judge panel of the Ninth Circuit, which found that the Forest Service failed to comply with NEPA and the fact that the EIS does not contain a discussion of the impacts.” stated Shanker.

The suit asserts, among other things, that the FEIS ignores the possibility of human ingestion of snow made from treated sewage effluent. Snowbowl would be the only ski area in the world to use 100% wastewater to make snow. They would use 1.5 million gallons per day, storing and spraying this wastewater on a mountain that is holy to more than 13 Indigenous Nations.

“This case was filed because we insist that our children not be used as guinea pigs for the profit of a single private business operating on our public lands,” stated Jeneda Benally, a complainant in the lawsuit. “The Forest Service already has admitted that there was no consideration of the impacts if children consumed wastewater snow that they acknowledge contains untreated contaminants.”

Arizona Department of Environmental Quality regulations allow A+ class treated sewer water to contain fecal matter in three out of seven daily samples (R18-11-303 2a). Moreover, studies done by Dr. Catherine Propper, Professor of Biological Sciences at Northern Arizona University, on this same treated sewer water have concluded the waste water contains pharmaceuticals, hormones, endocrine disruptors, industrial pollutants such as pesticides and herbicides, and narcotics. David Norris, PhD, an integrative physiology professor at the University of Colorado at Boulder, found that pharmaceutical ethinylestradiol (an orally active semisynthetic steroidal estrogen) made it through the Boulder Wastewater Treatment Plant and into Boulder Creek. He reported that the percentage of native male fish in Boulder Creek decreased and that numerous intersex fish were found downstream of the wastewater treatment plant. He stated “the fish are a wake-up call; our bodies and those of the much more sensitive human fetus are being exposed everyday to a variety of chemicals that are capable of altering not only our development and physiology but that of future generations as well.”

In addition, according to biologist Dr. Paul Torrence, the treated sewage effluent may also contain antibiotics such as triclosan and triclocarban which break down into bio-accumulating cancerous dioxins when exposed to high altitude sunlight. Plaintiffs involved in this ongoing lawsuit have consistently insisted that the USFS take a hard look at what might happen to the people when they come in contact with or ingest snow made from treated sewage effluent. Under the National Environmental Policy Act, the USFS is obligated to consider these types of potential impacts on the quality of the human environment.

In 2007, a three-judge panel of the Ninth Circuit Court found that the USFS failed to adequately consider the possibility of human ingestion of snow made from treated sewage effluent. In Judge William Fletcher’s opinion, he concludes that “the FEIS does not contain a reasonably thorough discussion of the risks posed by possible human ingestion of artificial snow made from treated sewage effluent, and does not articulate why such discussion is unnecessary.” While the decision of the three-judge panel was later overturned on a technicality by an en banc panel of the Ninth Circuit, issues surrounding the completeness of the FEIS were left unresolved.

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The family of Klee Benally thanks you for the donations!




The family extends their appreciation for the fierce outpouring of support. We cannot thank you enough. Ahééhéé. If you would like to support some of the work that still continues, please consider a donation to HaulNo. And we know you really want to go out and do some rabble-rousing. Don’t just do it for Klee, do it for you! Do it for the future. All our lives depend on it.

Donations for Haul No!

Klee was deeply involved in Haul No! to stimulate actions of resistance against Energy Fuels’ Pinyon Plain/Canyon Mine uranium mine, Energy Fuels’ White Mesa Mill, and related transport.

Continue the protection and fight for Mother Earth & human rights that Klee passionately fought for.

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No Thanks, No Giving! Indigenous Action Yearly Fundraiser (online)




Support Indigenous radical autonomous, anti-capitalist, anti-colonial organizing & agitation!


Donate to Indigenous Action:


This is our yearly call for material support for Indigenous Action activities & donation drive for Táala Hooghan infoshop unsheltered support & operational expenses.

Indigenous Action (IA/originally Indigenous Action Media) was founded on August 25th, 2001 to provide strategic communications and direct action support for Indigenous sacred lands defense. We are a volunteer-run radical autonomous crew of anti-colonial & anti-capitalist Indigenous trouble makers & propagandists.

We generally are comprised of designers, artists, writers & frontline agitators that work together on a project by project basis (some long-term some short) for liberation for Mother Earth and all her beings. We’ve organized hundreds of actions, marches, banner drops, workshops, conferences, benefits, & much more. 100% of all proceeds directly support radical Indigenous organizing. Everything we do is based on community support. We don’t rely on grants. We’re all in for total liberation.

Some (not all) active projects & organizing we’re currently directly involved with:

  • IA Podcast+ Táala Hooghan Infoshop
  • Kinł
  • Ongoing local/regional frontline support:
  • Resource/supply distro, bail, jail support
    organizing, etc.
  • Graphic & web support for a dozen
    current Indigenous-led campaigns.

Some larger yearly expenses we need immediate support for:

  • Táala Hooghan taxes & utilities (the space has been free to use by KMA for 3 years):
    Approx. $6,000+/year.
  • Regional supply distro for Indigenous unsheltered relatives: $1,000-$3,000, we also maintain funds for emergency hotels.
  • Anti-state repression + DA support: $3,000+ varies, but we maintain an ongoing bail fund & frontline resource support.

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16th Annual No Thanks, No Giving!




Indigenous Action presents:
16th Annual No Thanks, No Giving!
Food share, anti-colonial resistance & solidarity discussion circle, & online fundraiser!


1:30p – 4pm
We will prepare and serve mutton stew and other foods for all who join us. Please bring any dish to contribute if you wish, we also plan on actively distributing (possibly mobile) any extra foods.

Local volunteers needed! Contact:

At 2:30p we will have a talking & action circle focused on anti-colonial resistance & solidarity. Representatives of Kinłani Mutual Aid, Haul No!, volunteers with Protect the Peaks, and autonomous organizers supporting unsheltered relatives will present & discuss upcoming actions & organizing. We will also discuss building Indigenous solidarity with local efforts to Free Palestine. Come ready to share, support and get involved! Everyone welcome!
This event is free, please bring donations for unsheltered relative support (tents, sleeping bags, tarps, jackets, etc).

This is also our yearly fundraiser for Táala Hooghan infoshop and Indigenous Action activities!
Please donate online via PayPal:
Support Indigenous autonomous organizing and agitation!

*We will not host a livestream this year.

When: Thursday, Nov. 23, 2023
1:30pm – 4:00pm MST.

Where: Táala Hooghan Infoshop1704 N 2nd St, Kinłani (Occupied Flagstaff), AZ

MASKS REQUIRED This event will be held both indoors and outdoors (dress warm!) with limited indoor space. We will maintain social distancing & mask protocols for immunocompromised relatives.

For 16 years we have hosted No Thanks, No Giving! as an anti-colonial event to bring together radical Indigenous voices, share traditional foods, and benefit unsheltered relatives at Táala Hooghan Infoshop in Kinlani (Flagstaff, AZ). More info:

#nothanksnogiving #MutualAid #indigenousmutualaid #solidaritynotcharity

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