(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.
