The Save the Peaks Coaltion, et al v. USFS, et al
Filing
FILED OPINION (J. CLIFFORD WALLACE, JOHN T. NOONAN and MILAN D. SMITH, JR.) For the foregoing reasons, we affirm the district court. Accordingly, the Save the Peaks Plaintiffs request for reasonable fees and costs is denied. AFFIRMED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [8062463]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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,
v.
UNITED STATES FOREST SERVICE;
JOSEPH P. STRINGER, Acting Forest
Supervisor for the Coconino
National Forest,
Defendants-Appellees,
ARIZONA SNOWBOWL RESORT LP,
Intervenor-Defendant-Appellee.
No. 10-17896
D.C. No.
3:09-cv-08163MHM
OPINION
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
January 9, 2012—San Francisco, California
Filed February 9, 2012
Before: J. Clifford Wallace, John T. Noonan, Jr., and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
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COUNSEL
Howard M. Shanker (argued), The Shanker Law Firm, PLC,
Tempe, Arizona, for the plaintiffs-appellants.
Ignacia S. Moreno, John Tustin, Cynthia Huber, Lane N.
McFadden (argued), United States Department of Justice,
Environment and Natural Resources Division, Washington,
D.C., for the defendants-appellees.
Catherine E. Stetson (argued), Hogan Lovells US LLP, Washington, D.C., for the intervenor-defendant-appellee.
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OPINION
M. SMITH, Circuit Judge:
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,
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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 snowmaking 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-
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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.1 After a
bench trial, the district court also rejected the RFRA claim.
On appeal, a three judge panel of our court affirmed in part
1
Although the Navajo Nation Plaintiffs claimed at summary judgment
that the USFS did not consider the risks posed by human ingestion of
snow made from reclaimed water in the FEIS (i.e., the same claim raised
in this appeal), we, sitting en banc, found that the Navajo Nation Plaintiffs
had not appealed the district court’s denial of their motion to amend the
complaint to add such an allegation, and that they had thus waived the
claim on appeal. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,
1079-80 (9th Cir. 2008) (en banc).
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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.2 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.
2
A majority of the nonrecused active judges of our court voted to rehear
the case en banc, and ordered that our “three-judge panel opinion shall not
be cited as precedent by or to this court or any district court of the Ninth
Circuit, except to the extent adopted by the en banc court.” Navajo Nation
v. U.S. Forest Serv., 506 F.3d 717, 718 (9th Cir. 2007).
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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 or the APA. The
Save the Peaks Plaintiffs timely appealed.
STANDARD OF REVIEW AND JURISDICTION
We review de novo whether laches is a valid defense to a
particular action and review a district court’s decision whether
to apply laches to the facts for abuse of discretion. See Internet Specialties W., Inc. v. Milon-DiGiorgio Enters., Inc., 559
F.3d 985, 991 (9th Cir. 2009) (citations omitted); O’Donnell
v. Vencor, Inc., 465 F.3d 1063, 1066 (9th Cir. 2006) (per
curiam) (citation omitted).
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We review de novo the district court’s grant of summary
judgment. Ocean Advocates v. U.S. Army Corps of Eng’rs,
402 F.3d 846, 858 (9th Cir. 2005) (citation omitted); see also
Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1047 (9th Cir.
2010) (citation omitted).
We have jurisdiction pursuant to 28 U.S.C. § 1291. See 28
U.S.C. § 1291; Johnson v. Poway Unified Sch. Dist., 658 F.3d
954, 960 (9th Cir. 2011).
DISCUSSION
The Save the Peaks Plaintiffs argue that the district court
erred in finding that laches barred their claims. They also contend that the district court erred in finding that the USFS complied with NEPA and the APA.
A.
Laches
[1] Laches is an equitable defense that limits the time in
which a party may bring suit. See Jarrow Formulas, Inc. v.
Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir. 2002). It
derives from the maxim that a party who sleeps on his rights
loses his rights. See Miller v. Glenn Miller Prods., Inc., 454
F.3d 975, 997 (9th Cir. 2006). Whether laches applies
depends on the particular facts and circumstances of each
case. See Ocean Advocates, 402 F.3d at 862.
[2] To establish laches, a party must demonstrate “(1) that
the opposing party lacked diligence in pursuing its claim; and
(2) that prejudice resulted from that lack of diligence.” Neighbors of Cuddy Mountain, 137 F.3d at 1381 (citation omitted);
see Ocean Advocates, 402 F.3d at 862. Because environmental damage does not inflict harm only on the plaintiff, laches
is strongly disfavored in environmental cases. See Ocean
Advocates, 402 F.3d at 862. “The use of laches ‘should be
restricted to avoid defeat of Congress’ environmental policy.’ ” Id. (quoting Coal. for Canyon Pres. v. Bowers, 632 F.2d
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774, 779 (9th Cir. 1980)); see also Pres. Coal., Inc. v. Pierce,
667 F.2d 851, 854 (9th Cir. 1982).
1.
Diligence
To determine whether a party lacked diligence in pursuing
its claim, we consider “(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 bases for challenging an
agency action.” Pres. Coal., 667 F.2d at 854; see Ocean
Advocates, 402 F.3d at 862. Those factors cannot always be
neatly applied to the facts of a particular case. See Pres.
Coal., 667 F.2d at 854. Other relevant considerations include
“the length of the delay” before the plaintiff filed suit and “the
circumstances surrounding that delay.” In re Beaty, 306 F.3d
914, 927 (9th Cir. 2002).
[3] Here, the application of the relevant factors confirms
that the Save the Peaks Plaintiffs lacked diligence in pursuing
their claims. Although some of them made comments about
the DEIS and participated in the administrative appeal process, all of the Save the Peaks Plaintiffs (excluding their
counsel) ceased communications with the USFS after 2005,
until they filed this lawsuit. Moreover, throughout that same
period, the Save the Peaks Plaintiffs were aware of, and
actively supported, the Navajo Nation litigation, but declined
to join the lawsuit. The failure of the Navajo Nation litigation
appears to be the entire reason why the Save the Peaks Plaintiffs, after years of silence, decided to bring an action. Under
these circumstances, the Save the Peaks Plaintiffs pursued an
approach more consistent with sleeping on their rights than
vigorously enforcing them. The lack of any consistency in the
Save the Peaks Plaintiffs asserting their position—other than
at the strategically convenient time after the first challenge to
the snowmaking proposal failed—is strong evidence that they
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lacked diligence. See Apache Survival Coal. v. United States
(Apache Survival Coal. I), 21 F.3d 895, 909 (9th Cir. 1994).
[4] The USFS clearly considered and responded in approximately 31 pages of analysis in the FEIS to concerns about the
risk and safety of human ingestion of snow made from
reclaimed water. The USFS’s response to comments about the
DEIS also addressed the same concerns raised by the Save the
Peaks Plaintiffs, as did its record of decision. The USFS took
the concerns seriously, evaluated them rigorously, and concluded that they should not preclude snowmaking at Snowbowl. By 2005, the Save the Peaks Plaintiffs were fully on
notice of the USFS’s conclusions about human ingestion of
snow made from recycled water, but did nothing for four
years. Under these circumstances, the nature of the agency’s
response also confirms that the Save the Peaks Plaintiffs
lacked diligence.
Importantly, the snowmaking proposal at Snowbowl did
not change after the USFS approved it in 2005. The Save the
Peaks Plaintiffs were aware of the USFS’s decision and the
pending litigation in Navajo Nation 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 Save
the Peaks Plaintiffs had every reason to vindicate what they
thought were their rights, but they did nothing. Thus, the Save
the Peaks Plaintiffs also fail the third prong of diligence.
[5] The four-year delay by the Save the Peaks Plaintiffs in
bringing an action after the USFS’s issuance of the FEIS fully
supports finding a lack of diligence, particularly considering
the circumstances surrounding the delay. Other courts have
found comparable delays inexcusable. See, e.g., Jicarilla
Apache Tribe v. Andrus, 687 F.2d 1324, 1338 (10th Cir.
1982); Nat’l Parks & Conservation Ass’n v. Hodel, 679 F.
Supp. 49, 53-54 (D.D.C. 1987).
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[6] The circumstances surrounding the four-year delay are
egregious. The Save the Peaks Plaintiffs not only waited to
bring an action until the Navajo Nation Plaintiffs’ claims
failed, but seem to have been solely motivated by the outcome
in Navajo Nation. The “new” parties in this litigation appear
to be little more than a vehicle for the Navajo Nation Plaintiffs’ counsel to evade res judicata and collateral estoppel. We
do not “encourage successive challenges, where one plaintiff
awaits the outcome of another plaintiff ’s [case] before bringing its own claim.” Apache Survival Coal. v. United States
(Apache Survival Coal. II), 118 F.3d 663, 666 n.5 (9th Cir.
1997). Nor do we encourage strategic gamesmanship in litigation to hinder development and impose costs unnecessarily.
See FTC v. Garvey, 383 F.3d 891, 900 (9th Cir. 2004); Natural Res. Defense Council, Inc. v. Thomas, 838 F.2d 1224,
1252 (D.C. Cir. 1988). Accordingly, the district court properly concluded that the Save the Peaks Plaintiffs lacked diligence in pursuing their claims.
2.
Prejudice
[7] “Prejudice 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.’ ” Neighbors of Cuddy Mountain, 137 F.3d at
1382 (quoting Apache Survival Coal. I, 21 F.3d at 912) (alterations in original). Accordingly, 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.” Id. (quoting Apache Survival Coal. I, 21 F.3d at
912-13) (alterations in original). In our circuit, we have also
concluded that a private company’s economic loss caused by
delay in completing a project is irrelevant to the prejudice
inquiry. See Klamath Siskiyou Wildlands Ctr., 468 F.3d at
555; Grand Canyon Trust v. Tucson Electric Power Co., 391
F.3d 979, 988 (9th Cir. 2004); Neighbors of Cuddy Mountain,
137 F.3d at 1381 n.8. A lengthy, unexcused delay that does
not result in prejudice is not a sufficient basis for laches to
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apply. See Grand Canyon Trust, 391 F.3d at 988. “Difficulties
caused by the pendency of a lawsuit, and not by delay in
bringing the suit do not constitute prejudice within the meaning of the laches doctrine.” Shouse v. Pierce Cnty., 559 F.2d
1142, 1147 (9th Cir. 1977) (per curiam).
In finding prejudice, the district court focused on “the fact
that the Snowbowl improvement project is almost complete”
and “near completion.”3 The district court considered that
fact, “coupled with the burden of serial and similar litigation,”
sufficient to find prejudice.
In reaching this conclusion, the district court relied on erroneous findings of fact. The snowmaking project at Snowbowl
is not near completion and construction had not even begun
when this lawsuit was commenced. Although the USFS and
ASRLP stated at oral argument that construction began after
the lawsuit was filed and that some of the water pipeline has
been installed, prejudice must be judged as of the time the
lawsuit was filed, thereby eliminating consideration of postlawsuit expenditures and progress in constructing the pipeline.
See Cornetta v. United States, 851 F.2d 1372, 1386 (Fed. Cir.
1988) (Michel, J., concurring) (“[T]he period after the filing
of the suit cannot be relevant to the prejudice inquiry since the
laches determination only focuses on the time and events taking place until suit is filed.”); see also Shouse, 559 F.2d at
1147.
[8] Because construction had not begun when the Save the
Peaks Plaintiffs filed suit, harm to the environment was not
irreversible, and the harm that the Save the Peaks Plaintiffs
3
We disagree with ASRLP’s contention that the district court was not
referring to the degree of physical construction of the snowmaking project,
but to the process of obtaining permission from the USFS and beginning
to produce snow at Snowbowl. Such an interpretation is strained. The
more natural reading of “near completion” is that the district court was
referring to how far physical construction of the snowmaking project had
progressed.
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feared from human ingestion of snow made from reclaimed
water had not already occurred. As in Neighbors of Cuddy
Mountain, this is not a case where a major project has already
been built, or where delays in a project would cause a breakdown of an international coalition or loss of a project to a foreign site. See Neighbors of Cuddy Mountain, 137 F.3d at
1382. Accordingly, the primary concern for the prejudice
inquiry in environmental cases where laches is at issue suggests that the USFS and ASRLP cannot demonstrate prejudice. See id. (explaining that the USFS could not demonstrate
prejudice where two nonprofit groups sought only to halt further logging because the harm that the groups feared had not
become irreversible); cf. Apache Survival Coal. I, 21 F.3d at
912-14 (finding laches in an environmental case where construction of telescopes was 35% complete when the plaintiffs
filed their complaint).
ASRLP also argues that the prejudice requirement is met
because its economic losses from continuing to operate Snowbowl without the ability to make snow, and its investment of
significant resources in the process of seeking approval for
the snowmaking project, are sufficient to show prejudice. Our
precedents require us to hold to the contrary. See Klamath Siskiyou Wildlands Ctr., 468 F.3d at 555; Neighbors of Cuddy
Mountain, 137 F.3d at 1381 n.8. Moreover, the fact that
ASRLP would lose money if the Save the Peaks Plaintiffs’
lawsuit were to proceed is insufficient to demonstrate prejudice. See Grand Canyon Trust, 391 F.3d at 988; see also
Neighbors of Cuddy Mountain, 137 F.3d at 1381 n.8. The
increased costs it faces because of the Save the Peaks Plaintiffs’ delay in filing suit is also insufficient. See Pres. Coal.,
667 F.2d at 855.
The final evidence offered to show prejudice also appears
to be unavailing in light of our precedent. According to the
USFS, the burden of having to defend against serial litigation
of similar claims is sufficient to find prejudice. In support, the
USFS relies on an inapposite case where the court considered
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that factor, but in the context of facts suggesting that construction was already significantly underway when the lawsuit
was filed. See Apache Survival Coal. II, 118 F.3d at 664-66;
see also Apache Survival Coal. I, 21 F.3d at 912. We agree
that the Save the Peaks Plaintiffs’ lawsuit imposes a burden
of having to defend against claims that should have been
made in the Navajo Nation litigation. We also agree that this
burden is unfair. Because the primary consideration weighs
against finding prejudice, however, we cannot hold that this
burden is sufficient by itself to demonstrate prejudice in this
environmental case. See Neighbors of Cuddy Mountain, 137
F.3d at 1381-82. Moreover, it appears dubious that the burden
of defending against litigation can ever be sufficient, standing
alone, to constitute prejudice even if this were not an environmental case. See Shouse, 559 F.2d at 1147; see also Goodman
v. McDonnell Douglas Corp., 606 F.2d 800, 808 (8th Cir.
1979); Vineberg v. Bissonnette, 529 F. Supp. 2d 300, 311
(D.R.I. 2007), aff’d, 548 F.3d 50 (1st Cir. 2008); Jeffers v.
Clinton, 730 F. Supp. 196, 202-03 (E.D. Ark. 1989) (threejudge district court).
Nevertheless, the facts of this case are unusual because they
involve a second lawsuit allegedly attempting to vindicate the
public interest. This lawsuit imposes a significant burden on
the defendants of having to defend against claims substantially similar to those presented in the Navajo Nation litigation. 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. 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.4 We have been unable to find another case substantially
4
Although the Save the Peaks Plaintiffs are surrogates, they are not sufficiently related to the Navajo Nation Plaintiffs for an exception to the rule
against nonparty preclusion to apply. See Taylor v. Sturgell, 553 U.S. 880,
893-95 (2008).
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like this one where a prejudice finding for laches has been
considered. Unlike other cases involving laches in environmental cases, the public interest in ensuring that the USFS
complied with federal law in authorizing snowmaking at
Snowbowl was vigorously represented in the Navajo Nation
litigation. See, e.g., Ocean Advocates, 402 F.3d at 862.
Indeed, the case was litigated all the way to the Supreme
Court. See Navajo Nation, 129 S. Ct. at 2763.
[9] Notwithstanding the above, while we might otherwise
be inclined to further consider whether prejudice can be
shown under the unique facts of this case, we decline to do
so because the district court decided the ultimate question in
the alternative, making it unnecessary for us to further consider the prejudice issue here. Accordingly, we hold that neither the USFS nor ASRLP can show prejudice, and that the
district court abused its discretion in finding that the Save the
Peaks Plaintiffs’ claims are barred by laches.
B.
Merits of Save the Peaks Plaintiffs Claims
The Save the Peaks Plaintiffs contend that the district court
erred in its alternative ruling on the merits. According to the
Save the Peaks Plaintiffs, the USFS did not adequately consider the possibility of human ingestion of snow in the FEIS,
did not ensure the scientific integrity of its NEPA analysis,
and did not provide “high quality” environmental information
to the public about the safety of exposure to reclaimed water,
violating NEPA and the APA.
1.
Whether the USFS Adequately Considered the Possibility of Human Ingestion of Snow in the FEIS
Under NEPA, federal agencies must take a “hard look” at
the potential environmental consequences of proposed
actions. See N. Plains Res. Council, Inc. v. Surface Transp.
Bd., ___ F.3d ___, Nos. 97-70037, 97-70099, 97-70217, 0774348, 2011 WL 6826409, at *4 (9th Cir. Dec. 29, 2011)
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(citation omitted); Lands Council v. McNair, 629 F.3d 1070,
1075 (9th Cir. 2010) (citation omitted). The purpose of NEPA
is to “ensure that agencies carefully consider information
about significant environmental impacts” and “guarantee that
relevant information is available to the public.” Lands Council, 629 F.3d at 1075; accord N. Plains Res. Council, 2011
WL 6826409, at *14.
NEPA requires federal agencies to prepare an environmental impact statement “for all ‘major Federal actions significantly affecting the quality of the human environment.’ ” Se.
Alaska Conservation Council v. Fed. Highway Admin., 649
F.3d 1050, 1056 (9th Cir. 2011) (citation omitted); accord N.
Plains Res. Council, 2011 WL 6826409, at *1. We employ a
rule of reason standard to evaluate whether an environmental
impact statement “contains a reasonably thorough discussion
of the significant aspects of the probable environmental consequences.” League of Wilderness Defenders Blue Mountains
Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir.
2010) (citation omitted); accord Nat’l Parks & Conservation
Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677, 680 (9th Cir.
2000). “[A]s long as the agency has ‘considered the relevant
factors and articulated a rational connection between the facts
found and the choice made,’ ” we must uphold the agency’s
decision. League of Wilderness Defenders Blue Mountains
Biodiversity Project, 615 F.3d at 1130 (citation omitted).
Challenges to an agency’s compliance with NEPA are
reviewed under the standards set forth in the APA. Se. Alaska
Conservation Council, 649 F.3d at 1056 (citations omitted);
see N. Plains Res. Council, 2011 WL 6826409, at *3; Native
Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir.
2002) (citations omitted). “Under the APA, the agency’s decision may be set aside only if it is ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.’ ” Se. Alaska Conservation Council, 649 F.3d at 1056
(citation omitted); accord N. Plains Res. Council, 2011 WL
6826409, at *3. Review under the arbitrary and capricious
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standard is narrow, and we do not substitute our judgment for
the agency’s judgment. N. Plains Res. Council, 2011 WL
6826409, at *3; Barnes v. U.S. Dep’t of Transp., 655 F.3d
1124, 1132 (9th Cir. 2011) (citation omitted).
When evaluating a NEPA challenge, our review is limited
to whether an environmental impact statement “took a ‘hard
look’ at the environmental impacts of a proposed action.”
Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt.,
606 F.3d 1058, 1072 (9th Cir. 2010) (citation omitted). This
requires “a ‘pragmatic judgment whether the [environmental
impact statement]’s form, content and preparation foster both
informed decision-making and informed public participation.’ ” Id. (citation omitted). The environmental impact statement is reviewed as a whole. See Nat’l Parks & Conservation
Ass’n, 222 F.3d at 682. Once we are satisfied that an agency
has taken a “hard look” at a decision’s environmental consequences, our review ends. See Nw. Envtl. Advocates v. Nat’l
Marine Fisheries Serv., 460 F.3d 1125, 1135 (9th Cir. 2006)
(citation omitted).
According to the Save the Peaks Plaintiffs, the FEIS contains “no real discussion or analysis of potential impacts of
human ingestion.” They also alleged that the USFS discussed
the potential impacts only in five paragraphs in its response
to comments and never discussed them in the FEIS. In support, the Save the Peaks Plaintiffs rely heavily on the panel
opinion in Navajo Nation that was ordered not to be cited as
precedent when the Ninth Circuit accepted the case for
rehearing en banc. See Navajo Nation, 506 F.3d at 718.
As an initial matter, the Save the Peaks Plaintiffs’ reliance
on our three-judge panel’s vacated opinion is misplaced. The
en banc court did not reach the merits of the issue of whether
the FEIS failed adequately to consider the risks posed by
human ingestion of snow made from reclaimed water. See
Navajo Nation, 535 F.3d at 1079-80. Because the en banc
court did not adopt the three-judge panel’s conclusion on this
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issue, the panel’s conclusion has no precedential value. See
Navajo Nation, 506 F.3d at 718; see also Tampubolon v.
Holder, 610 F.3d 1056, 1059 n.4 (9th Cir. 2010); Marley v.
United States, 567 F.3d 1030, 1037 (9th Cir. 2009).
Moreover, the Save the Peaks Plaintiffs’ assertion that the
USFS did not consider the risk of human ingestion of snow
in the FEIS is incorrect. The FEIS is replete with examples of
the USFS considering the risks posed by ingestion and the
safety of using reclaimed water to make snow. Throughout
the FEIS, the USFS was well aware that untreated reclaimed
water “may present known or potential health risks to
humans, if ingested.” Accordingly, the USFS carefully considered the contaminants in untreated water and the degree to
which treatment at Rio de Flag would remove those contaminants to make the snow a safe alternative to natural snow.
[10] The USFS evaluated studies finding no adverse health
effects from drinking reclaimed water. 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 treated at Rio de Flag 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
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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.
Underscoring the USFS’s attention to the risks posed by
human ingestion of snow, the response to comments specifically addressed the concerns raised by the Save the Peaks Plaintiffs.5 The USFS noted that two major studies had found no
adverse health effects to drinking groundwater commingled
with reclaimed water. It specifically mentioned the possibility
of ingestion of snow and steps that would be taken to minimize the risks of ingestion, such as placing signs advising the
public that reclaimed water was used to make snow and to
avoid intentional ingestion of snow. It also discussed its conclusion that “the use of reclaimed water in the proposed snowmaking is not considered to have a major adverse impact to
the public during recreational skiing and snowplay” and the
basis for its conclusion that ingestion of snow would not
cause illness.
[11] Having discussed the issue at length in the FEIS and
the response to comments, the USFS clearly took a “hard
look” at the environmental impacts of permitting the snowmaking project to proceed. The FEIS contains a thorough discussion of the significant aspects of the probable
environmental consequences, including the risks posed by
human ingestion of snow. Indeed, it is hard to imagine how
the USFS’s analysis could have been more exhaustive. The
form, content, and preparation of the FEIS fostered both
informed decision-making and informed public participation.
5
The Save the Peaks Plaintiffs contend that the USFS’s response to
comments is irrelevant to a court’s analysis of whether the USFS took a
“hard look.” As the district court concluded, however, courts may consider
responses to comments for confirmation that an agency has taken a “hard
look” at an issue under NEPA. See Envtl. Prot. Info. Ctr. v. U.S. Forest
Serv., 451 F.3d 1005, 1014-15 (9th Cir. 2006); Native Ecosystems Council
v. U.S. Forest Serv., 428 F.3d 1233, 1241 (9th Cir. 2005); Okanogan
Highlands Alliance v. Williams, 236 F.3d 468, 477 (9th Cir. 2000).
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See Nat’l Parks & Conservation Ass’n, 606 F.3d at 1072. We
affirm the district court’s conclusion that the USFS took the
requisite “hard look” at the possibility and the risks of persons
ingesting snow made from reclaimed water, at Snowbowl.
2.
Whether the USFS Ensured the Scientific Integrity
of Its NEPA Analysis
The Save the Peaks Plaintiffs also contend that the USFS
failed to ensure the scientific integrity of its analysis because
it allegedly based its decision entirely on an assumption that
ADEQ’s analysis of the reclaimed water’s safety was sound.
This argument is based on the following sentence in the
USFS’s response to comments: “Because ADEQ approved
the use of reclaimed water, it is assumed different types of
incidental contact that could potentially occur from use of
class A reclaimed water for snowmaking were fully considered.” According to the Save the Peaks Plaintiffs, the “assumption” contained in the sentence does not ensure the
scientific integrity of the USFS’s analysis because the USFS
did not oversee the ADEQ’s decision-making process or
review the ADEQ’s conclusions.
[12] The Save the Peaks Plaintiffs are mistaken. The USFS
had a duty to ensure the scientific integrity of the FEIS’ discussion and analysis. See Earth Island Inst. v. Carlton, 626
F.3d 462, 472 (9th Cir. 2010); 40 C.F.R. § 1502.24. This duty
required the USFS to disclose its methodologies and scientific
sources. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1213
(9th Cir. 2004). Contrary to the Save the Peaks Plaintiffs’
assertion, however, the USFS did not base its decision on an
assumption that the ADEQ’s analysis was sound. As discussed above, it carefully considered the risks posed by
human ingestion of snow throughout the FEIS, most of which
made no reference to the ADEQ analysis. Nevertheless, in
performing its analysis, the USFS also properly considered
the conclusions of the ADEQ about the safety of reclaimed
water from Rio de Flag and the safety of making snow from
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Class A+ reclaimed water like that produced at Rio de Flag.
See, e.g., Edwardsen v. U.S. Dep’t of the Interior, 268 F.3d
781, 789 (9th Cir. 2001); Okanogan Highlands Alliance, 236
F.3d at 477; Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 993 (9th Cir. 1993). Federal policy
encouraged the USFS to do so. See 42 U.S.C. §§ 4331(a),
4332(C). Thus, we affirm the district court’s conclusion that
the USFS did not fail to ensure the scientific integrity of its
analysis in considering the ADEQ’s conclusions.
3.
Whether the USFS Provided “High Quality” Environmental Information to the Public About the
Safety of Exposure to Reclaimed Water
We decline to reach the issue of whether the USFS failed
to provide “high quality” information about the impacts of
ingesting snow made from reclaimed water because the Save
the Peaks Plaintiffs have waived it on appeal. The district
court found that the Save the Peaks Plaintiffs had abandoned
this claim by failing to respond to the USFS’s summary judgment motion on this issue. Moreover, in their opening brief,
the Save the Peaks Plaintiffs do not argue that the district
court erred in finding that it had abandoned this claim. Thus,
the Save the Peaks Plaintiffs have waived this claim on
appeal. See Ramirez v. City of Buena Park, 560 F.3d 1012,
1026 (9th Cir. 2009); Walsh v. Nev. Dep’t of Human Res., 471
F.3d 1033, 1037 (9th Cir. 2006); Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999).
CONCLUSION
For the foregoing reasons, we affirm the district court.
Accordingly, the Save the Peaks Plaintiffs’ request for reasonable fees and costs is denied.
AFFIRMED.
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