Arizona Snowbowl Seeks Attorneys' Fees in Snowmaking Dispute

 A late April 2012 snowstorm at Arizona Snowbowl (photo credit: Arizona Snowbowl)

Arizona's KTAR Radio is reporting that Arizona Snowbowl has filed a motion to recover $270,000 in attorneys' fees after winning its legal battle with Native American tribes over the use of reclaimed water for snowmaking. 

The dispute dates back over a decade to when the Flagstaff area resort first proposed using reclaimed wastewater for snowmaking. Arizona Snowbowl suffers from inconsistent natural snowfall and the resort wanted to ensure better ski conditions throughout the winter by installing a snowmaking system.  As anyone who lives in the Southwest knows, water rights are big deal. Water is a scare resource and allocating water rights is a complex area of property law. Suffice it to say that using potable water for snowmaking instead of treated wastewater would have been a far more difficult proposition for the resort...or so one would have thought.

Several local Indian tribes objected to the plan because they consider the mountain range to be sacred. The use of reclaimed wastewater, the tribes argue, was sacrilegious and violated their First Amendment righs. A federal district court and then, on appeal, the Ninth US Circuit Court of Appeals disagreed. The dispute should have ended there.

However, according to the Ninth Circuit, the tribes recruited surrogate plaintiffs to re-file the lawsuit pursuing a slightly different theory - that a more thorough environmental analysis of the health risks associated with using treated wastewater for snowmaking should take place before the Forest Service approved the project. Normally, such a suit would be barred by the doctrine of res judicata. (Ski, Esq. Tip: res judicata translated from Latin loosely means "the thing has been judged." The doctrine bars subsequent lawsuits where a prior lawsuit has already decided the same issue between two parties.) In this instance, the tribes should have included this claim in their initial lawsuit. Failing to do so barred their subsequent claim.  In February, the Ninth US Circuit Court of Appeals in San Fransisco ruled in favor of the resort on the second lawsuit. Now, the resort is seeking attorneys' fees.

Generally under the American system, each party pays its own legal fees. This is in contrast to the English system where the loser pays. However, under certain circumstances a prevailing party may be entitled to legal fees. Normally that award of legal fees is a result of frivolous litigation or pursuant to a fee-shifting statute designed to encourage lawsuits in the public interest. In this case, the resort alleges it is entitled to legal fees because the tribes filed essentially the same lawsuit with different plaintiffs and the resort incurred significant expense in defending a suit that was clearly barred.

Typically, it is quite unusual for a court to award legal fees. However, given that the Ninth Circuit called the tribes' second lawsuit a "gross abuse of the judicial process,” the resort's chances of being awarded fees are fairly good.

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