Arizona Snowbowl
Let it snow, let it snow… in Arizona’s Snowbowl
Paul Johnson and John Egbert, assisted by additional Jennings Strouss attorneys, acted as co-counsel with Hogan & Hartson’s Washington D.C. attorneys on the successful defense on appeal of a hard-fought trial in the high profile case that drew international attention concerning Arizona Snowbowl ski resort and the use of Class A+ reclaimed water to make snow.
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On June 8, 2009, the U.S. Supreme Court decided not to review the en banc decision of the Ninth Circuit Court of Appeals. The denial of review by the Supreme Court is a significant win for the Arizona Snowbowl as it allows the resort to go forward with their plans for snowmaking at the 70-year-old ski area after years of litigation. The ruling will also enable Arizona Snowbowl to replace old lifts, construct a new lodge and create more skiing terrain.
The en banc Ninth Circuit Court of Appeals ruled in the summer of 2008 that using A+ reclaimed water to make artificial snow at the Flagstaff, Arizona ski resort does not violate the religious freedom of Native Americans. Mr. Egbert and Mr. Johnson wrote the en banc request for the Ninth Circuit to review an earlier panel decision.
The Ninth Circuit’s en banc ruling overturned an earlier three-judge panel decision to the contrary. The issue had see-sawed since January 2006, when a federal judge in Prescott, Arizona first ruled that Arizona Snowbowl’s upgrade plan was acceptable under the federal environmental law and the Religious Freedom Restoration Act (“RFRA”).
A coalition of tribes and environmental groups appealed the trial court decision on religious and environmental grounds, and it was overturned in March 2007 by a three-judge panel at the Ninth Circuit. Snowbowl’s owners asked us to assist them in having the case reviewed en banc, that is, by a panel of eleven appellate judges, which came back with an 8-3 decision in favor of Arizona Snowbowl.
The 9th Cir. en banc decision is reported at 535 F.3d 1058.
Jennings Strouss continues to represent Snowbowl with litigation concerning the use of Class A+ reclaimed water to make snow.
City of Hamilton, Ohio
Hydropower project at the Captain Anthony Meldahl Locks
Alan Robbins and Debra Roby successfully secured for their client, the City of Hamilton, Ohio, a 50-year license from the Federal Energy Regulatory Commission (FERC) to construct and operate a 105 MW hydropower project at the Captain Anthony Meldahl Locks and Dam on the Ohio River. Once constructed, the Meldahl Project will be the largest hydropower project on the Ohio River and will supply emissions-free energy to customers in the Ohio Valley region for generations to come. With rising environmental concerns, obtaining a hydropower license is extremely competitive and holding that license is very valuable.
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The City of Hamilton was late to the game with already two competing applications pending for a permit to study the site. The only way Hamilton could even hope to compete was to bypass the permitting stage to elevate the proceeding directly to the more complex licensing stage. To compete, Hamilton had to be the first to file its license application in 120 days.
Robbins and Roby adopted and executed a very aggressive regulatory strategy to do in four months what normally takes closer to four years; and do so in a manner that satisfied the very detailed regulations governing the environmental and resource agency consultation process. This approach was unprecedented at FERC and required extensive meetings with State and Federal environmental and resource agencies and Indian Tribes, as well as public meetings in Kentucky and Ohio. With the help of engineering experts and environmental consultants, Robbins and Roby filed Hamilton’s three-volume license application three days before the deadline, and before Hamilton’s competitors filed their applications.
The end result was that the City of Hamilton beat its competition, including another municipality and an investor owned utility. The Meldahl license was issued to Hamilton in record time – approximately 20 months from the date the application was filed with FERC, and approximately 25 months from the date Hamilton’s “Notice of Intent” was filed – which is approximately three to four years sooner than the normal timeframe. This project now goes from a paper proposal to a $400 – 600 million project with steel in the ground (and water), which is truly exciting.
City of Page
Page Utility Enterprises
Energizing Page
The corporate boundaries of the City of Page, Arizona are now more than three times larger than they used to be, thanks to a substantial and complex annexation that Scott Rhodes handled. Not only was the annexation substantively complex, it followed on the heels of a highly unpopular, and ultimately unsuccessful, similar attempt from only a few years ago (Jennings Strouss was not involved). The project was greeted with a lot of public skepticism from the beginning.
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This annexation was highly unusual because the annexed property consists entirely of federal and state land. As a result, no signatures were required on the annexation petition; however, whether an annexation can proceed with no signatures posed a unique legal issue that the firm had to resolve. Also, because the annexation area consists of land owned and controlled by the National Park Service(NPS), the Bureau of Land Management, and the Bureau of Reclamation, the federal government initially took the position that it had a right to consent to the annexation. We were able to convince the federal agencies that they do not have a right to consent. The firm then worked cooperatively with each of the federal agencies to respond to their many practical and legal questions concerning the possible effects of the annexation on the management of their lands. As a result, in the end there not only was no federal opposition, the Park Service sent a director to the City Council annexation hearing to state that the NPS was impressed with the level of cooperation in the process and supported the annexation.
The annexation will not allow Page to expand. Rather, its purpose is to protect the electric service distribution area of Page Electric Utility, which belongs to the City. This step was considered necessary because a major water pipeline is under consideration that eventually will draw water from Lake Powell and send it to Utah. The mouth of the pipeline will be very close to the Arizona-Utah border, and because the pipeline itself is a Utah project, Page anticipated that one or more Utah electric providers might try to gain authority to provide the electricity necessary to operate the pumps at the source of the pipeline. Those pumps will require a substantial amount of electricity. If the pipeline becomes a customer of Page Electric Utility, the revenue potential for the City will be very substantial and could provide a lasting and significant financial benefit to that small community. Page already has electric infrastructure near the location of the pipeline intake. The combination of the existing infrastructure and the annexation should now make it very difficult for a Utah entity to gain permission to serve the intake area of the pipeline.