Calling the lawsuit "a gross abuse of the judicial process," three judges on the 9th U.S. Circuit Court of Appeals ruled firmly Thursday in favor of the Forest Service and against individuals opposed to snowmaking with reclaimed wastewater at Arizona Snowbowl.
"Just when (the Forest Service and Snowbowl) successfully defended an agency decision to allow snowmaking at a ski resort on federal land all the way to the United States Supreme Court, 'new' plaintiffs appeared," Judge Milan D. Smith Jr. wrote for the court. "Represented by the same attorney as the losing parties in the first lawsuit, the 'new' plaintiffs -- who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation -- brought certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development."
Smith went further, saying the plaintiffs in this case appeared to have waited to file their lawsuit until after the first was decided in order to set up a series of legal hurdles for Snowbowl, contributing to a "legal nightmare" for the business.
"The circumstances surrounding the four-year delay are egregious," the court stated. "...We strongly believe that this lawsuit represents a serious abuse of the judicial process. The Navajo Nation Plaintiffs, in effect, got a second bite at the apple through their surrogates, the Save the Peaks Plaintiffs."
TOOK CONCERNS SERIOUSLY
A three-judge panel at the 9th Circuit was asked to decide whether the Forest Service had adequately considered any human health risks in making snow from reclaimed wastewater.
The Forest Service did adequately consider that question, they ruled, citing 31 pages of an environmental analysis and the review of public comments from 5,700 people, including some of the individuals who brought this lawsuit.
The agency "took the concerns seriously, evaluated them rigorously, and concluded that they should not preclude snowmaking at Snowbowl," Smith wrote for the panel.
Howard Shanker, attorney for the plaintiffs in Thursday's case at the 9th Circuit, said he did not know yet whether his clients would want to appeal and that they had not done anything to abuse the judicial system.
The plaintiffs were raising genuine questions that different courts had been conflicted over, and questions about public health, he said.
"This case involves a non-destination ski area's attempt to use 100 percent reclaimed sewer water to make snow for recreational purposes -- something that is not done anywhere else in the world," Shanker said via a written statement. "The ski area will also post signs suggesting that people should not eat the snow because it is made from non-potable water. There are no federal treatment standards for reclaimed sewer water. The U.S. EPA has, however, recently confirmed that reclaimed water is a major source of the release of endocrine disrupting compounds into the environment -- drugs that block or mimic normal hormone activity."
MAKING SNOW BY NOVEMBER
Snowbowl has already installed pipeline for snowmaking along Snowbowl Road and cleared 40 acres of new ski runs.
"We're thrilled on several counts, first of all with the decision, and we're also thrilled with how quickly the 9th Circuit ruled on the case. For any court of appeals to issue a decision in 30 days is really very quickly," said owner Eric Borowsky.
Snowbowl plans to receive pipeline for the slopes of the ski area in late March or early April and be making snow this November.
"Now that the court decision is behind us, we're going full steam ahead," he said.
Thursday's decision was vastly different than another lawsuit that asked the 9th Circuit to decide whether making snow with reclaimed water on the San Francisco Peaks violated Native American religious freedoms.
Snowmaking opponents, including area tribes, lost that argument before a larger panel of judges at the 9th Circuit, and that decision became final when the U.S. Supreme Court declined to hear the case in the summer of 2009.
But interestingly enough, the judges at the 9th Circuit seemed to reach different conclusions on matters of fact this time -- specifically the ski area's private records showing financial viability with or without snowmaking.
This time the judges found snowmaking was necessary for the viability of a ski area providing 200 full-time jobs and $12.1 million in annual economic output.
"Without greater consistency in the availability of snow to draw visitors, the record suggests that Snowbowl will go out of business," Smith wrote.
PREVIOUS JUDGE DISAGREED
Other judges at the same court had previously disagreed.
"The evidence in the record does not support a conclusion that the Snowbowl will necessarily go out of business if it is required to continue to rely on natural snow and remain a relatively small, low-key resort," Judge William Fletcher wrote in a 2007 decision.
He said it was not the government's job to ensure business at a ski area that had relied on natural snowfall since 1938.
"We are struck by the fact that the Peaks are located in a desert," Fletcher wrote.
Plaintiffs in this case against the U.S. Forest Service were The Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Benally, Frederica Hall, Berta Benally, Rachel Tso and Lisa Tso.
Cyndy Cole can be reached at 913-8607 or at email@example.com.
One lawsuit still alive
One other lawsuit from the Hopi Tribe against the City of Flagstaff remains, with the tribe seeking to block the sale of reclaimed water to Snowbowl.
A Coconino County Superior Court judge ruled the tribe should have brought its complaints earlier and ruled against the tribe in December; the tribe appealed the case to a higher court last month, and it awaits a decision.