Here:
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.
Save the Peaks Coalition v. USFS
Amicus Brief Supporting En Banc Petition in Save the Peaks Case
Save the Peaks Coalition Petition for En Banc Hearing
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
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”
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:
Arizona Snowbowl Response Brief
Oral argument audio here.
Lower court decision here.
Ninth Circuit Oral Argument Audio in Save the Peaks Coalition v. USFS
Here.
Order in Save the Peaks v. USFS
The judge in Save the Peaks Coalition v. USFS found against the Coalition, and granted USFS’s motion for summary judgment. The complaint is here. Here’s the order.
Plaintiffs fail to explain how their failure to join the prior case is materially distinguishable from that of the plaintiffs in Apache Survival II, and the Court finds that Defendants will be sufficiently prejudiced to satisfy laches. Therefore, based on the particular circumstances of this case, the Court finds that Defendants have established this affirmative defense.
And here is the press release from Save the Peaks coalition:
FOR IMMEDIATE RELEASE
DATE: Wednesday December 1, 2010
CONTACT: Howard Shanker
928-699-3637
NOTE TO EDITORS: For a background, legal documents, photos, updates, and further information please visit: www.TrueSnow.org . Interviews can be arranged.
District Court Rules For USFS in Save the Peaks Case
Plaintiffs will Appeal the Court’s Decision to the Ninth Circuit Court
FLAGSTAFF, AZ — The case known as The Save the Peaks Coalition, et al. v. U.S. Forest Service (USFS) was heard before Honorable Judge Mary H. Murguia and today a decision was made.
The Court ruled against the plaintiffs claims that the final FEIS prepared by the USFS ignores thorough consideration of a number of critical health issues. The plaintiffs contend that a new and thorough FEIS should be filed by the USFS. If this reveals that the use of reclaimed sewage water is a public health risk then snowmaking should not be permitted for the Arizona Snowbowl on the San Francisco Peaks.
Howard Shanker, representing the Save the Peaks Coalition and additional plaintiffs, will file an appeal to the Ninth Circuit Court. According to Shanker, “ the decision misstates the facts of this case and misapplies the law. That’s why there is an appeal process.” Further, according to Shanker, “it is remarkable that the Obama Administration is complicitous in this effort to put treated sewer water on the San Francisco Peaks. Not only is the site sacred to Native Americans in the Southwestern United States, the Forest Service has, at best, no idea what the long term health impacts will be on people who ingest this snow made from treated effluent. Who figured the Snowbowl ski area was ‘too big to fail’”.
Continue reading
News Coverage of New Arizona Snowbowl Suits
From How Appealing:
“Lawsuit challenges Snowbowl snowmaking on environmental grounds”: This articleappears today in The Arizona Daily Sun.
And The Associated Press has a report headlined “Lawsuit aims to stop expansion at Snowbowl; Critics: Forest Service didn’t consider health risks from man-made snow.”
New Suit Filed in Arizona Snowbowl Dispute
Here is the complaint in Save the Peaks Coalition v. USFS (D. Ariz.) — Save the Peaks Coalition Complaint
And the motion for a TRO — Motion_for_TRO
From the press_release:
According to Arizona Department of Environmental Quality regulations, treated sewer water can be
graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has
been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and
narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and
pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which
have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments
made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs
involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might
happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from
treated sewage effluent.
According to Arizona Department of Environmental Quality regulations, treated sewer water can be graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from treated sewage effluent.
Thanks to Fred for these materials.
Turtle Talk 