Ninth Circuit – Page 75

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

June 27, 2012Matthew L.M. Fletcher

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

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 Affirms Judgment Favoring HUD in Blackfeet Housing Authority Negligence Claims

June 7, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in Marceau v. Blackfeet Housing Authority (and HUD):

CA9 Opinion

Marceau Opening Brief

HUD Brief

Marceau Reply

En Banc Ninth Circuit Holds Forest Service Violated the Endangered Species Act in Approving Mining at Klamath Nat’l Forest

June 1, 2012June 1, 2012Matthew L.M. Fletcher2 Comments

Here is today’s opinion in Karuk Tribe of California v. USFS.

Audio and video of the en banc argument here. Briefs here.

An excerpt:

There are two substantive questions before us.

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

Continue reading →