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UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

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,No. 10-17896

Plaintiffs-Appellants,

D.C. No.v.3:09-cv-08163-

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, Acting ForestOPINIONSupervisor for the CoconinoNational Forest,

Defendants-Appellees,

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Intervenor-Defendant-Appellee.

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Appeal from the United States District Courtfor the District of ArizonaMary H. Murguia, District Judge, PresidingArgued and SubmittedJanuary 9, 2012—San Francisco, CaliforniaFiled February 9, 2012Before: J. Clifford Wallace, John T. Noonan, Jr., andMilan D. Smith, Jr., Circuit Judges.Opinion by Judge Milan D. Smith, Jr.

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Case: 10-17896 02/09/2012 ID: 8062463 DktEntry: 68-1 Page: 1 of 21

COUNSEL

Howard M. Shanker (argued), The Shanker Law Firm, PLC,Tempe, Arizona, for the plaintiffs-appellants.Ignacia S. Moreno, John Tustin, Cynthia Huber, Lane N.McFadden (argued), United States Department of Justice,Environment and Natural Resources Division, Washington,D.C., for the defendants-appellees.Catherine E. Stetson (argued), Hogan Lovells US LLP, Wash-ington, D.C., for the intervenor-defendant-appellee.

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OPINION

M. SMITH, Circuit Judge:This case represents a gross abuse of the judicial process.Just when Defendants-Appellees United States Forest Serviceand Joseph P. Stringer (USFS), and Intervenor-DefendantArizona Snowbowl Resort Limited Partnership (ASRLP) hadsuccessfully defended an agency decision to allow snowmak-ing at a ski resort on federal land all the way to the UnitedStates Supreme Court, “new” plaintiffs appeared. Representedby the same attorney as the losing parties in the first lawsuit,the “new” plaintiffs—who had closely monitored and, insome cases, actively encouraged and helped finance the firstlitigation—brought certain environmental claims that werevirtually identical to some that the attorney had improperlyattempted to raise in the earlier lawsuit, for no apparent rea-son other than to ensure further delay and forestall develop-ment. Years had passed since the original proposal had beenmade. According to the record, ASRLP, which operated theski resort, faced a looming prospect of financial ruin withoutthe ability to proceed with the plan to produce snow. Neitherfact deterred the “new” plaintiffs’ lawsuit. Nor did the merit-less nature of their claims under the National EnvironmentalPolicy Act (NEPA), 42 U.S.C. §§ 4321

et seq.

, and theAdministrative Procedure Act (APA), 5 U.S.C. §§ 701-706.Although it is apparent to us that the “new” plaintiffs andtheir counsel have grossly abused the judicial process by stra-tegically holding back claims that could have, and shouldhave, been asserted in the first lawsuit (and would have beendecided earlier but for counsel’s procedural errors in raisingthose claims), we are compelled to hold that laches does notapply here because the USFS and ASRLP cannot demonstratethat they suffered prejudice, as defined by our case law.

SeeKlamath Siskiyou Wildlands Ctr. v. Boody

, 468 F.3d 549, 555(9th Cir. 2006);

Neighbors of Cuddy Mountain v. U.S. Forest Serv.

, 137 F.3d 1372, 1381 n.8 (9th Cir. 1998). Nevertheless,

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