Response by Don’t Waste Arizona to Ninth Circuit’s Sanctioning of Howard Shanker

JUNE 25, 2012 /

The message from the Ninth Circuit Court of Appeals was clear: if you are concerned about the environment; if you want to protect Native American sacred areas; or even if you simply want to make sure that the federal government complies with its own environmental obligations, go home. You are not welcome in the Ninth Circuit. You have no right to due process.

Recently a three judge panel of the Ninth Circuit imposed sanctions on a pro bono attorney for the Save the Peaks Coalition. In an opinion issued on June 21, 2012, Ninth Circuit Judges, J. Clifford Wallace, John T. Noonan, and Milan D. Smith, Jr., held that environmental and Indian rights attorney Howard Shanker acted in “bad faith,” that he “grossly abused the judicial process,” and that he “misled his clients.” As a result, according to the Ninth Circuit, Shanker has to personally pay all the costs of the intervenor-defendant Snowbowl Resorts Limited Partnership. Here, however, is the rub. The only thing Shanker is guilty of is providing competent representation to his clients for free (pro bono) on a politically charged matter of public importance.

Nothing in the entire record of this case provides any basis for a finding of bad faith, or an abuse of process, nor does it provide any other indication of unethical or unprofessional behavior on the part of Shanker. Indeed, even the court’s opinion is void of any reference to any specific behavior in the context of the case that could warrant a
sanction. Further, Shanker’s clients are adamant that he never misled them about anything – an allegation that appeared for the very first time in the Ninth Circuit’s opinion.

As Gary Marchant, the Lincoln Professor of Emerging Technologies, Law & Ethics at Arizona State University’s Sandra Day O’Connor College of Law explains, “there is no question that [the San Francisco Peaks case involved] a valid set of claims that could have been decided either way [and] therefore is clearly not a case where sanctions would be appropriate or warranted.” Professor Marchant adds that “applying sanctions in a case such as this would have a chilling effect on the willingness of qualified counsel to take on controversial and important public interest matters of any type.”

Judges are supposed to be neutral arbiters of the law. Here, however, Judges Wallace, Noonan, and Smith are attacking Shanker’s credibility and reputation, and imposing sanctions on him for bringing a case simply because it appears to be at odds with their ideological and political bent. More recently, Judge Smith, the judge who wrote the Save the Peaks opinion, launched a political tirade in a dissenting opinion in Karuk Tribe of California v. U.S. Forest Service, where he rails against the enforcement of environmental laws as bad for business. But that was just a dissenting opinion. Smith didn’t have the political majority in the Karuk case, like he did in Save the Peaks. The chilling effect that the Save the Peaks Coalition case could have on any attorney who
might have otherwise been willing to help a community group, an environmental organization, or even a Native American tribe cannot be overstated. The message is clear, bring a case we disagree with and we will rule against you, attack your credibility, and impose sanctions on you – regardless of the facts or law of the case. Apparently the
federal courts no longer have to even try to keep up the facade of impartiality.

This particular case has a long and complex history. The Snowbowl ski area is located on federal land on the San Francisco Peaks, outside of Flagstaff, Arizona. The for profit company operates under a special use permit with the U.S. Forest Service, part of the Department of Agriculture. In 2002 Snowbowl proposed using 100% non-potable,
reclaimed sewer water to make snow. There are no federal treatment standards for reclaimed sewer water. It is, however, clear from Arizona’s own laws that even when such water is treated to the highest Arizona standards, it remains non-potable and unsafe for ingestion. No other ski area in the world uses 100% undiluted, reclaimed sewer water
to make snow – especially treated to Arizona standards. Nevertheless, based on Snowbowl’s proposal, the Forest Service began its “decision-making” process as required by the National Environmental Policy Act or NEPA. NEPA requires the preparation of a detailed Environmental Impact Statement or EIS for federal projects that have a
potentially significant impact on the environment. In 2005, the Forest Service approved Snowbowl’s proposal, in spite of vehement opposition to the project from environmental groups, Native American Tribes, public health advocates, and others. Shortly thereafter, a number of entities filed suit in the federal district court in Arizona. Shanker represented, in part, the Navajo Nation, the Yavapai-Apache Nation, the White Mountain Apache Tribe, the Havasupai Tribe, the Sierra Club, the Center for Biological Diversity, and others in this case. The Hopi Tribe and the Hualapai Tribe also joined the litigation, but they had their own lawyers. The plaintiffs in this “Navajo Nation” case, asserted that the Forest Service approval of spraying reclaimed water on this sacred site violated the Religious Freedom Restoration Act – Native Americans have no First Amendment rights when it comes to government land use and could not assert a violation of Constitutional rights. Plaintiffs also, in part, asserted that the Forest Service failed to adequately consider and discuss the impacts associated with the potential ingestion of snow made from reclaimed sewer water. By law, such analysis must be included in the Environmental Impact Statement.

The district court ruled against the “Navajo Nation” plaintiffs. On appeal, however, a three judge panel of the Ninth Circuit ruled: (1) that the Forest Service action did violate the Religious Freedom Restoration Act; and (2) that the Forest Service did fail to adequately consider impacts associated with ingestion of snow made from reclaimed
sewer water. Indeed, after a detailed analysis, this first three judge panel of the Ninth Circuit found that “[t]he Forest Service has not provided a ‘reasonably thorough discussion’ of any risks posed by human ingestion of artificial snow made from treated sewage effluent . . . the [Environmental Impact Statement] does not satisfy NEPA with respect to the possible risks posed by human ingestion of the artificial snow.”

Defendants petitioned the Ninth Circuit for a rehearing en banc, which is rarely granted. Such review was, however, granted this time. In an 8 to 3 decision of the en banc panel, broken down largely on political party affiliation, the Ninth Circuit reversed the earlier panel decision with regard to Native American religious rights. With regard to the
issue of ingesting snow made from reclaimed sewer water, however, the majority of the en banc panel simply asserted that the issue had never been properly raised in the lower court – even though it was ruled on by the lower court and the prior three judge panel. The majority of the en banc panel never reversed the prior decision or even addressed the
merits of the “ingestion” issue. Its actions simply rendered the earlier decision non-precedential. That is, the ingestion issue was, once again, an unresolved issue. Navajo Nation plaintiffs subsequently filed a petition for review or certiorari with the U.S. Supreme Court which asked the Court to consider the Native American religious issue,
not the ingestion issue. In June, 2009, the Supreme Court denied the petition filed by the petitioner Indian Tribes and declined to hear the case.

Shortly thereafter, the Save the Peaks Coalition approached Shanker to see if he would represent them in a case against the Forest Service, asserting, among other things, that the Service had failed to adequately consider the “ingestion” issue in its Environmental Impact Statement . According to Shanker, “there was no legal connection or relationship
between any of the plaintiffs in the Navajo Nation case and the Save the Peaks Coalition.” Indeed, this same finding was made by the lower court in the Save the Peaks Coalition case when it held that the case was not precluded by the legal doctrine of res judicata. This finding was not challenged in the Ninth Circuit, although allegations of such a relationship were included in the Ninth Circuit panel’s assault on Shanker. Moreover, according to Shanker, the “ingestion” issue was “an unresolved matter of significant public importance.” In fact, according to Shanker, “not only was there no adequate discussion of the issue in the EIS, there was a Ninth Circuit decision that provided a detailed analysis of the issue and that found that the Forest Service had, in fact, failed to adequately consider the impacts on people who might ingest snow made from reclaimed sewer water.” According to Shanker, “even though this decision was rendered non-precedential by the en banc ruling, it remained instructive.” In fact, under the circumstances, Shanker assumed that the Save the Peaks Coalition would easily prevail in its case.

In the district court, Judge Mary Murguia ruled that the Save the Peaks Coalition plaintiffs were precluded from bringing suit because of the doctrine of laches. Laches applies in cases where the harm plaintiffs seek to prevent is largely complete and irreversible. The Save the Peaks Coalition filed suit over two-years before Snowbowl even received its approvals to begin construction. Judge Murguia went on to hold that
the Forest Service adequately analyzed the ingestion issue in its EIS.

Shortly thereafter, Judge Murguia’s appointment to the Ninth Circuit was confirmed by the Senate. Shanker appealed Murguia’s rulings to the Ninth Circuit, where, by luck of the draw, the Save the Peaks Coalition ended up with an openly hostile three judge panel. Even Judges Noonan, Smith, and Wallace were, however, begrudgingly compelled to admit that the doctrine of laches could not be applied to the Save the Peaks Coalition case. Notwithstanding, the three judges took the opportunity to uphold the lower court ruling on the merits of the ingestion issue and to accuse Shanker of a “gross abuse of the judicial process.” Based on the language in the opinion, Snowbowl’s lawyers filed a motion for sanctions against Shanker, which brings us back to square one. The panel sanctioned Shanker. They also reiterated that Shanker had “grossly abused the judicial process.” Moreover, this time, for good measure, the panel, again with no basis in fact or support from the record, added that Shanker had “misled his clients.”

Shanker has indicated that he intends to file a petition for a rehearing en banc with the Ninth Circuit. Such petitions are, however, discretionary and only rarely granted. The one thing we can truly learn from this process, is that no good deed goes unpunished. Let this be a warning to attorneys, if there are any left, that want to protect the environment, ensure the integrity of Native American rights and sacred areas, and who feel compelled to champion the public interest over the short term economic gain of a few, especially if the attorney is willing to work for free. According to the Ninth Circuit, such misguided
practitioners will from now on be punished for their willingness to stand up to the machine and to challenge the status quo – the law or facts be damned.

Stephen Brittle
President, Don’t Waste Arizona