(CN) -The 9th Circuit gave a drought-ravaged ski resort in Arizona permission to make artificial snow with reclaimed water, calling an environmental group's most recent challenge to the move a "gross abuse of the judicial process."
Individual members of the Navajo Nation -- to whom the San Francisco Peaks in Flagstaff, where Arizona Snowbowl operates a popular ski resort, are sacred -- first sued the U.S. Forest Service to prohibit the proposed snowmaking in 2005.
They claimed that the plan violated their religious rights, and that the agency had neglected to study the possible health effects of ingesting reclaimed water. A District Court rejected both claims.
On appeal in the 9th Circuit, however, a three-judge panel held that the plan did violate the plaintiffs' religious rights. That panel also found that the Forest Service had not properly discussed the potential health risks of the snow. But then an en banc panel vacated that ruling and upheld the District Court. The case eventually went all the way to the U.S. Supreme Court, which denied the plaintiffs' petition for a writ of certiorari in 2009.
That same year, a group called the Save the Peaks Coalition filed a new complaint alleging that the agency had failed to properly study the issue before allowing the snowmaking.
The San Francisco-based federal appeals court ruled Thursday that the second lawsuit was largely a rehash of the first action, with the same attorney and some of the same plaintiffs.
"Some of the Save the Peaks plaintiffs are either members of, or associated with, the same organizations that participated in the Navajo Nation litigation," according to the 9th Circuit's unanimous three-judge panel. "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.'"
"The Navajo Nation plaintiffs, in effect, got a second bite at the apple through their surrogates, the Save the Peaks plaintiffs," the panel added.
The most recent lawsuit fared no better than the first on its merits. The District Court granted the ski resort's motion for summary judgment, finding that the group had waited too long to file its renewed challenge. The court also found no merit in the group's claims that the Forest Service had failed to take the "hard look" required by federal law at the potential environmental and health effects of the snowmaking scheme.
While the appeals panel begrudgingly found that the group had not improperly delayed its claims, it agreed with the lower court that the agency had complied with federal environmental law.
"The USFS evaluated studies finding no adverse health effects from drinking reclaimed water," wrote Judge Milan Smith for the court. "It considered that reclaimed water had been used for snowmaking at a commercial skiing location, that the process of freeze-thaw cycles destroys bacteria in reclaimed water, and that the State of Arizona allows Class A and A+ reclaimed water for direct reuse in snowmaking. Because Snowbowl would use Class A+ reclaimed water for snowmaking, its use of reclaimed water would be permitted by Arizona law and would be deemed safe by the Arizona Department of Environmental Quality (ADEQ). The USFS also considered that the ADEQ has developed strict and specific treatment requirements for reuse applications having high degrees of public contact like skiing that include secondary treatment, filtration, and disinfection. The USFS analyzed data measuring contaminants in reclaimed water ... and found that the water satisfied national drinking water standards for the regulated parameters tested. It noted that treatment processes had become sufficiently advanced that reclaimed water had become 'a technically and economically feasible source of potable water,' limited only because of the lack of public acceptance. It also noted that a number of projects have used reclaimed water indirectly for potable purposes, such as in replenishing public drinking water supplies."
Save The Peak's Attorney, Howard Shanker, told Courthouse News that he has not had a chance yet to discuss the possibility of appeal with his clients, but that he strongly disagrees with the 9th Circuit's ruling.
"I think the opinion is wrong on the merits and the panel's commentary reflects a gross misunderstanding of the nature of the case and the parties," Shanker wrote in an email Thursday. "There was no abuse of the judicial process. Indeed, I would never engage in any activity that could contribute to any sort of abuse of the judicial process. There are laws, rules, and binding precedent that are in place to ensure that cases representing a gross abuse of the judicial process cannot be pursued to the merits. Properly so, none of those precautionary measures apply to the facts and history of this case. I also believe that the panel's pro-defendant bias was evident at the oral argument. With regard to the bigger picture, there is an evident flaw in our system of justice when, inter alia, one panel can rule unanimously that the NEPA process was inadequate as a matter of law, while the instant panel rules unanimously that the same NEPA process was adequate as a matter of law - based on the exact same facts and law. If there is any gross abuse of the judicial process, it is reflected in the inconsistency of the panel decisions.
"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. 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. We also know that there are a host of pharmaceuticals and personal care products (PPCPs) that do not get adequately treated out of this water. I find it disconcerting that the federal government, including the judiciary, appear to believe that the Snowbowl Ski area is "too big to fail", notwithstanding the potential for a long term public health threat and the significant fact this ski area is located on federal land that is well documented as sacred to 13 of the tribes in the southwestern United States. "
Heretofore the Arizona Snowbowl has relied entirely on natural snowfall, which is fickle in an arid state gripped by a long-term drought. Over the last 22 seasons, snowfall on the peaks has ranged from 68 percent below median snowfall to 95 percent above median snowfall.
Calls to Arizona Snowbowl for comment were not immediately returned.