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The Save the v. Supervisor For the Coconino National Forest

February 9, 2012

THE SAVE THE PEAKS COALITION; KRISTIN HUISINGA; CLAYSON BENALLY; SYLVAN GREY; DON FANNING; JENEDA BENALLY; FREDERICA HALL; BERTA BENALLY; RACHEL TSO; LISA TSO, PLAINTIFFS-APPELLANTS, UNITED STATES FOREST SERVICE; JOSEPH P. STRINGER, ACTING FOREST
v.
SUPERVISOR FOR THE COCONINO NATIONAL FOREST, DEFENDANTS-APPELLEES, ARIZONA SNOWBOWL RESORT LP, INTERVENOR-DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding D.C. No. 3:09-cv-08163- MHM

The opinion of the court was delivered by: M. Smith, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted January 9, 2012-San Francisco, California

Before: J. Clifford Wallace, John T. Noonan, Jr., and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Milan D. Smith, Jr.

OPINION

This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had 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. 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. Years had passed since the original proposal had been made. According to the record, ASRLP, which operated the ski resort, faced a looming prospect of financial ruin without the ability to proceed with the plan to produce snow. Neither fact deterred the "new" plaintiffs' lawsuit. Nor did the meritless nature of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

Although it is apparent to us that the "new" plaintiffs and their counsel have grossly abused the judicial process by strategically holding back claims that could have, and should have, been asserted in the first lawsuit (and would have been decided earlier but for counsel's procedural errors in raising those claims), we are compelled to hold that laches does not apply here because the USFS and ASRLP cannot demonstrate that they suffered prejudice, as defined by our case law. See Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555 (9th Cir. 2006); Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1381 n.8 (9th Cir. 1998). Nevertheless, we hold that the Save the Peaks Plaintiffs' claims fail under NEPA and the APA. Accordingly, we hold that the district court properly granted summary judgment to the USFS and ASRLP, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Arizona Snowbowl (Snowbowl) is a ski area on the western flank of the San Francisco Peaks operated by ASRLP. It is operated under a special use permit issued by the USFS, and supports approximately 200 full-time jobs and $12.08 million in economic output.

To generate revenues, Snowbowl depends on visits from skiers. Unlike most ski areas in the United States, Snowbowl relies entirely on natural snowfall and does not operate snow-making equipment. Because natural snowfall at Snowbowl is highly variable (ranging from 68% below median snowfall to 95% above median snowfall over 22 seasons), Snowbowl is often plagued by poor skiing conditions and limited availability for skiing. Visits by skiers and profitability have closely paralleled the availability of snow. For example, Snowbowl had over 193,564 visitors during the 2004-2005 ski season when it snowed more than 460 inches, but fewer than 3,000 visitors during the 2001-2002 ski season when it snowed only 50 inches. Without greater consistency in the availability of snow to draw visitors, the record suggests that Snowbowl will go out of business.

In 2000, ASRLP began conducting preliminary work on a proposal to make its own artificial snow. ASRLP proposed to build a facility to regularly produce snow sufficient to cover 203.5 acres of land. The water to be used for producing the snow would be Class A reclaimed water provided by the City of Flagstaff and treated at the Rio de Flag Water Reclamation Facility (Rio de Flag).

In February 2004, the USFS released a Draft Environmental Impact Statement (DEIS) for the project. Over 5,700 peo- ple submitted comments during the 60-day DEIS comment period, including Plaintiffs-Appellants The Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Benally, Frederica Hall, Berta Benally, Rachel Tso, and Lisa Tso (collectively, the Save the Peaks Plaintiffs) regarding, among other things, the health effects of ingesting reclaimed water. After receiving the comments, the USFS prepared a Final Environmental Impact Statement (FEIS), which included updates to the original analysis in the DEIS based on substantive comments received, and 31 pages of analysis concerning the quality of the water to be used in making artificial snow at Snowbowl and the health effects of ingesting snow made from that water.

In June 2005, four groups of plaintiffs, including individuals, several Native American Tribes and Nations, and environmental organizations (collectively, the Navajo Nation Plaintiffs), filed suit in the United States District Court for the District of Arizona to stop the USFS from permitting ASRLP to produce artificial snow using Class A reclaimed water at Snowbowl. The complaint alleged, inter alia, that the USFS had failed to comply with NEPA, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq.; and certain other federal statutes.

The district court granted summary judgment to the defendants on all claims (including the NEPA claims) other than the Navajo Nation Plaintiffs' claim under RFRA.*fn1 After a bench trial, the district court also rejected the RFRA claim. On appeal, a three judge panel of our court affirmed in part and reversed in part. See Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1060-61 (9th Cir. 2007), rev'd en banc, 535 F.3d 1058 (9th Cir. 2008). Specifically, our three judge panel held that the USFS's approval of the proposed expansion of Snowbowl, including the use of reclaimed water to make snow, violated the RFRA. See id. at 1060. It also held that the USFS violated NEPA because its FEIS did not reasonably discuss the risks posed by the possibility of human ingestion of snow made from reclaimed water or articulate why such a discussion was unnecessary.*fn2 See id. The district court's grant of summary judgment on the remaining claims was affirmed. See id. at 1060-61. We accepted the case en banc, thereby vacating the opinion of our three-judge panel, Navajo Nation, 506 F.3d at 718, and, sitting en banc, we upheld the entirety of the district court's decision, see Navajo Nation, 535 F.3d at 1080. The Navajo Nation Plaintiffs sought review of our en banc decision by the United States Supreme Court, which denied their petition for a writ of certiorari on June 8, 2009. See Navajo Nation v. U.S. Forest Serv., 129 S. Ct. 2763, 2763 (2009).

When the Supreme Court denied certiorari, the USFS and the ASRLP had good reason to believe that the issues involved in the case had been fully and fairly litigated, and that their legal nightmare had ended. Little did they know what awaited them.

While the Navajo Nation litigation was pending, the Save the Peaks Plaintiffs closely monitored the case's progress, but declined to join it as parties. Some of the Save the Peaks Plaintiffs are either members of, or associated with, the same organizations that participated in the Navajo Nation litigation.

Moreover, some of the Save the Peaks Plaintiffs solicited money to pay for the Navajo Nation litigation, and some organized and attended protests and events in support of the Navajo Nation plaintiffs. The attorney who represented the Navajo Nation Plaintiffs before the district court and our court also represents the Save the Peaks Plaintiffs in this case. A statement on the Save the Peaks Plaintiffs website even calls Navajo Nation "our prior court case."

In the words of one of the Save the Peaks Plaintiffs, "once [the Navajo Nation Plaintiffs'] case was thrown out, we knew that it was time for us to step up to see if there was something we could do." Shortly after the Supreme Court denied certiorari in Navajo Nation, the Save the Peaks Plaintiffs commenced the litigation now before us by filing a complaint on September 21, 2009. They alleged that the USFS violated NEPA because the FEIS does not contain a reasonably thorough discussion of the significant aspects of the probable environmental consequences of Snowbowl making snow from reclaimed water, the USFS failed to ensure the scientific integrity of its analysis, and the USFS did not disseminate quality information.

The district court granted the defendants' motions for summary judgment. It found that laches barred the Save the Peaks Plaintiffs' claims and, alternatively, that even if laches did not apply, the USFS had not violated NEPA ...


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