San Francisco, CA – A three-member panel of the Ninth U.S. Circuit Court of Appeals in San Francisco on Thursday ruled unanimously in favor of Arizona Snowbowl in a case designed to derail the ski resort’s plan to install a snowmaking system using reclaimed water.

The court called the latest attempt by Native Americans and environmentalists to block the snowmaking plan a “gross abuse of the judicial process,” noting that the current litigation involves many of the same plaintiffs and the same attorney that unsuccessfully filed an earlier action against the plan.

“Some of the Save the Peaks plaintiffs are either members of, or associated with, the same organizations that participated in the Navajo Nation litigation,” the three judges wrote in their decision. “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.’

“The Navajo Nation plaintiffs, in effect, got a second bite at the apple through their surrogates, the Save the Peaks plaintiffs,” the panel added.

Members of the Hopi, Navajo, Havasupai, Hualapai, Yavapai Apache and White Mountain Apache tribes have tried for more than a decade to stop the plan, as the ski area is located in the San Francisco Peaks that they consider sacred. Thursday’s decision follows arguments heard in the case last month.

Snowbowl has negotiated an agreement to buy treated wastewater from the nearby City of Flagstaff and pipe it to the resort. After first failing to stop the plan on religious grounds, a second lawsuit was filed on the basis that a more thorough environmental analysis of the health risks associated with using treated wastewater for snowmaking should take place before the project moves forward. Attorney Howard Shanker, representing the plaintiffs in both actions, argued before the three-judge panel last month that no analysis adequately considered the possibility of ingesting the snow.

Attorney Lane McFadden with the U.S. Department of Justice countered that the plaintiffs are merely using another tactic to try to delay or stop the development, which has already gained U.S. Forest Service approval.

The earlier effort by the plaintiffs to stop the plan on the grounds of religious freedom failed after the full Ninth Circuit Court of Appeals determined that a three-judge panel’s decision in favor of the tribes resulted from an erroneous analysis under the Religious Freedom Restoration Act that radically limited the government’s ability to manage millions of acres of federally owned land considered sacred by some Native American religious practitioners.

The current litigation was filed after the U.S. Supreme Court in June 2009 refused to review the ruling over religious freedoms issued by the Ninth U.S. Circuit Court of Appeals. In this latest lawsuit, Arizona U.S. District Judge Mary Murguia ruled in December 2010 that the Forest Service and the Arizona Department of Environmental Quality adequately considered the impacts of the snowmaking plan and that the plaintiffs waited too long to file their litigation, and upheld the plan’s approval. An appeal of that decision is what was decided Thursday by  the Ninth Circuit’s panel. While the panel found on Thursday that the plaintiffs had not waited too long, they determined that the Forest Service acted properly in approving the plan.

The plaintiffs are currently considering an appeal of Thursday’s decision. Ski area officials, meanwhile,  hope to have the snowmaking system up and running in time for the 2012-13 ski and snowboard season.