Paul Johnson, John Egbert and Michael O'Connor were co-counsel with Hogan & Hartson's Washington D.C. lawyers 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 reclaimed water for snowmaking purposes.
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. John Egbert and Paul Johnson wrote the en banc request for the Ninth Circuit to review an earlier panel decision, all with help from Michael O'Connor, who serves as Arizona Snowbowl's personal injury liability counsel.
The Ninth Circuit's en banc ruling overturned an earlier three-judge panel decision to the contrary. The issue has see-sawed since January 2006, when a federal judge in Prescott, Arizona first ruled that Arizona Snowbowl's upgrade plan was acceptable under federal environmental law and the Religious Freedom Restoration Act ("RFRA").
A coalition of tribes and environmental groups led by the Navajo Nation appealed the trial court decision on religious 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.