National Environmental Policy Act – Page 2

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

June 21, 2012Matthew L.M. Fletcher4 Comments

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.

Ninth Circuit Rejects Save the Peaks’ Effort to Stop the Arizona Snowbowl, Labels Effort a “Gross Abuse of the Judicial Process”

February 9, 2012Matthew L.M. Fletcher3 Comments

Here is today’s opinion in Save the Peaks v. United States Forest Service, where the court opens with:

This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on federal land all the way to the United States Supreme Court, “new” plaintiffs appeared.

Here are the briefs:

Save the Peaks Opening Brief

Federal Response Brief

Arizona Snowbowl Response Brief

Save the Peaks Reply Brief

Oral argument audio here.

Lower court decision here.