Clients

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.

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.