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February 25, 2012

Ninth Circuit Finds Plaintiffs’ Redundant NEPA and APA Claims Are “a Gross Abuse of the Judicial Process.”

Ninth Circuit Finds Plaintiffs’ Redundant NEPA and APA Claims Are “a Gross Abuse of the Judicial Process.”

Save the Parks Coalition v. United States Forest Service [Ninth Circuit Court of Appeals No. 10-17896, filed February 9, 2012]

By Andrea A. Matarazzo

Save the Peaks Coalition sued the United States Forest Service (USFS) and Arizona Snowbowl Resort Limited Partnership (ASRLP) in September 2009.  Their suit stems from a very similar case, which was taken through the judicial process up to the Supreme Court – Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024 (9th Cir. 2007, rev’d en banc 9th Cir. 2008).  In Navajo Nation, the USFS and ASRLP successfully defended an agency decision to allow snowmaking at the Arizona Snowbowl (Snowbowl).  The Snowbowl is a ski area operated under a special use permit issued by the USFS.  The Snowbowl relies on natural snowfall and often has poor skiing conditions due to lack of snow.  Without the increase in snow through snowmaking, the record showed that Snowbowl would likely go out of business.  ASLRP proposed snowmaking facilities using Class A reclaimed water provide by the City of Flagstaff and treated at Rio de Flag Water Reclamation Facility.  After receiving comments on the Draft Environmental Impact Statement (DEIS) for the project, USFS prepared a Final Environmental Impact Statement (FEIS).


In June 2005, Plaintiff Navajo Nation sued the USFS challenging the agency’s decision to allow ASRLP to produce artificial snow.  Plaintiff claimed that USFS failed to comply with NEPA, the Religious Freedom Restoration Act (RFRA) and other statutes.  The district court granted defendant summary judgment on all claims.  The Court of Appeals upheld the District’s decision.  The Navajo Nation sought review by the United States Supreme Court and was denied.


During the Navajo Nation litigation, Save the Peaks Coalition monitored the case, but declined to join as a party.  Some of the Save the Peaks plaintiffs were either members or associated with the same organizations that participated in the Navajo Nation litigation.  Some of the Save the Peaks plaintiffs solicited money to pay for the Navajo Nation litigation and organized and attended protests and events in support.  The attorney who represented Navajo Nation also represented Save the Peaks.


After the Supreme Court denied review, Save the Peaks filed a lawsuit alleging that the USFS violated NEPA because the FEIS did not provide a thorough discussion of making snow from reclaimed water, that the agency failed to ensure the scientific integrity of its analysis, and did not circulate quality information.  The district court granted defendant’s motions for summary judgment, finding that laches barred the Save the Peaks plaintiffs’ claims and even if laches did not apply, the USFS had not violated NEPA or the APA.  Save the Peaks appealed.


The Court of Appeals first considered the issue of laches and noted that to establish this equitable defense,  “a party must demonstrate “(1) that the opposing party lacked diligence in pursuing its claim; and (2) that prejudice results from that lack of diligence.”


When determining whether Save the Peaks lacked diligence, the Court considered (1) whether the party attempted to communicate its position to the agency before filing suit, (2) the nature of the agency response, and (3) the extent of actions, such as preparatory construction, that tend to motivate citizens to investigate legal basis for challenging an agency action.  Some of the Save the Peaks plaintiffs made comments about the DEIS, but all of the plaintiffs ceased communication with USFS after 2005 until the lawsuit was filed.  The USFS responded in 31 pages of analysis in the FEIS to public comments made about the ingestion of reclaimed water and concluded that they should not stop the proposed snowmaking at Snowbowl.  The plaintiffs knew of this decision and of the litigation in Navajo Nation, but declined to get involved until after Navajo Nation lost their case.  The appellate court concluded that Save the Peaks lacked diligence in pursuing its claims.


In determining prejudice, however, the Court of Appeals held that neither the USFS nor ASRLP could show prejudice as defined through precedent, and that the district court abused its discretion in finding plaintiffs’ claims were barred by laches.  The court explained that “[p]rejudice in environmental actions is measured by ‘what Congress defines as prejudice.  The primary concern is whether the harm that Congress sought to prevent . . . is now irreversible.”  Thus,  “two relevant factors are ‘the money spent on a project and the extent to which a project has progressed so far that “the harm [plaintiffs] fear” has already occurred.’”  The snowmaking project at Snowbowl was not near completion and construction had not even begun when Save the Peaks filed its lawsuit.  Harm to the environment therefore was not irreversible, and the harm plaintiffs feared had not already occurred.  A lengthy unexcused delay that does not result in prejudice is not a sufficient basis for laches to apply.  In the Ninth Circuit, a private company’s economic loss caused by delay in completing a project is irrelevant to the prejudice inquiry.  Further, while the burden of having to defend against claims that should have been made in a prior lawsuit is unfair, the appellate court found this burden insufficient by itself to demonstrate prejudice.  The Court of Appeals held:


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.


While the appellate court determined that laches could not apply, it rejected Save the Peaks’ claims on the merits.  The FEIS contained a detailed discussion of the proposed snowmaking facility’s environmental consequences, and the court found the discussion adequate to show that the USFS took the requisite “hard look” at the risks of human ingestion of snow made from reclaimed water.


Authored by:

Andrea A. Matarazzo

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(916) 737-5838 (Direct)



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