9th Circuit denies second Snowbowl appeal

By Cindy Yurth
Tséyi' Bureau

CHINLE, Feb. 16,2012

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C alling it a "gross abuse of the judicial process," a three-judge panel of the U.S. 9th Circuit Court of Appeals on Feb. 9 turned thumbs down on a last-ditch attempt by traditionalists and environmentalists to stop the Arizona Snowbowl from making snow out of reclaimed wastewater on Dook'o'ooslííd (the San Francisco Peaks).

"Sadly, we face another setback where our sacred, religious rights are compromised in favor of economic gains for a few," wrote former Hopi Tribal Chairman Benjamin Nuvamsa in an email to Hopis who had been following the lawsuit. "Let us all thank the relentless and untiring work of attorney Howard Shanker and those that supported this effort."

Shanker, for his part, issued a statement saying the decision is "wrong on the merits" and the judges' commentary "reflects a gross misunderstanding of the nature of the case and the parties."

The Hopi and Navajo tribes, along with other plaintiffs, had already lost a lawsuit based on religious rights to the Peaks, which the two tribes and 11 others consider sacred.

The most recent appeal, filed in 2009, was based on the contention that snow made from reclaimed wastewater violated state water quality standards and posed a health risk if people ingested it, and that the U.S. Forest Service (which issued the permit for the snowmaking project) failed to consider the risk.

The court ruled that the health claims were already raised and dealt with in the previous lawsuit, and that in any case the Forest Service's environmental impact statement had exhaustively considered the topic.

"The USFS clearly considered and responded in approximately 31 pages of analysis in the (final environmental impact statement) to concerns about the risk and safety of human ingestion of snow made from reclaimed water," wrote Judge Milan D. Smith Jr. in the opinion issued Feb. 9, and had found no serious averse health affects.

Smith further accused the plaintiffs - the Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Benally, Frederica Hall, Berta Benally, Rachel Tso and Lisa Tso - of deliberately dragging out the case by waiting until the prior case failed before bringing the second appeal.

"Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer, and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership 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," Smith wrote.

"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."

The court also opined that the plaintiffs had sacrificed their right to appeal by waiting so long.

"Importantly, the snowmaking proposal at Snowbowl did not change after the USFS approved it in 2005," Smith wrote in the opinion. "The Save the Peaks Plaintiffs were aware of the USFS's decision and the pending litigation in Navajo Nation (the initial lawsuit) from 2005 to 2009. Nevertheless, the Save the Peaks Plaintiffs declined to join the Navajo Nation litigation, preferring instead to wait until the Navajo Nation Plaintiffs lost before filing claims.

"The claims are all ones that could have and should have been decided in that litigation, and would have been decided had counsel not erred in raising them," the opinion continued. "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."

Shanker took issue with the judge's assessment of the case, stating, "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."

Instead, Shanker suggested, there may be a flaw in the judicial process itself. He noted that a panel of 9th Circuit judges had ruled for the tribes in 2007, a decision later overturned by the full court.

"There is an evident flaw in our system of justice when, inter alia, one panel can rule unanimously that the (National Environmental Policy Act) 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," Shanker wrote. "If there is any gross abuse of the judicial process, it is reflected in the inconsistency of the panel decisions."

The three-judge panel heard arguments on the appeal Jan. 9 in San Francisco.

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