California COA Affirms (again) California Gambling Control Commission Denial of Revenue Sharing Funds to Burley Faction of California Miwok Tribe; Attorney Sanctioned for Filing Frivolous Appeal

Here is the unpublished opinion in California Valley Miwok Tribe v. California Gambling Control :


Ninth Circuit Panel Withdraws Sanctions against Howard Shanker (Atty in San Francisco Peaks Case)


174 Order Withdrawing Sanctions

The order with the sanctions included is here. En banc petition and amicus brief seeking the withdraw of the sanctions are here and here.

Amicus Brief Supporting En Banc Petition in Save the Peaks Case



The petition is here (or will be). The panel opinion is here.

Save the Peaks Coalition Petition for En Banc Hearing


Plaintiffs Petition for Rehearing en Banc (7.05.12)

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.” Continue reading

Ninth Circuit Personally Sanctions Howard Shanker, Attorney for Save the Peaks Coalition

Here is today’s from the Ninth Circuit panel that decided Save the Peaks Coalition v. USFS (materials here). And the pleadings leading up to today’s order:

Save the Peaks En Banc Petition

Arizona Snowbowl Motion for Attorney Fees

Save the Peaks Opposition to Motion

Arizona Snowbowl Reply

An excerpt from today’s order:

Intervenor-Defendant-Appellee Arizona Snowbowl Resort Limited Partnership (Snowbowl) has moved for attorney’s fees and costs. The court is well aware that Plaintiffs-Appellants and Howard M. Shanker (Shanker), their counsel, grossly abused the judicial process in prosecuting this second case. However, a majority of the panel has concluded that an award of attorney fees would be inequitable because Plaintiffs-Appellants appear to have been misled by their counsel concerning the issues that remained part of the appeal, and Shanker was acting in a pro bono capacity. Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate.


As an appropriate remedy, we hold Shanker “personally liable for excessive costs for unreasonably multiplying proceedings.” Gadda, 377 F.3d at 943 n.4. Because this entire case was designed to harass Snowbowl, we conclude that Snowbowl is entitled to an award of all costs other than attorney’s fees that it incurred in litigating Save the Peaks Coalition v. U.S. Forest Service before both the district court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner to determine the monetary amount of costs to award in Snowbowl’s favor against Shanker.

Plaintiffs’ Attorney in MacArthur v. San Juan County Tribal Court Jurisdiction Case Sanctioned

Here are the materials in Rose v. Utah State Bar (D. Utah):

DCT Order Enjoining Further Rose Lawsuits

DCT Order on Motion for Sanctions