(CN) – An Arizona environmental attorney must personally pay court costs for an unsuccessful fight that he waged, pro bono, to keep snow made with reclaimed water off of mountains that several Native American tribes consider sacred, the 9th Circuit ruled Thursday.
The San Francisco-based federal appeals court found that Howard Shanker had misled his clients and “grossly abused the judicial process” by filing a lawsuit that was “largely a rehash” of a previously unsuccessful action.
Shanker told Courthouse News that the order was “a failure of our system of justice” and said he would request rehearing before a full panel of the court.
“The panel seems intent on personally attacking my credibility,” he said.
The dispute arose when the Arizona Snowbowl Ski Resort announced plan to cover the drought-ravaged San Francisco Peaks above Flagstaff with artificial snow made from reclaimed water.
Shanker represented members of the Navajo Nation in a 2005 complaint that said the snowmaking plan violated religious rights because many members of Arizona’s Navajo and Hopi tribes consider the peaks sacred.
They also claimed that the Forest Service had failed to study the possible health effects of ingesting reclaimed water. The U.S. Supreme Court ultimately rejected these claims in 2009.
That same year, Shanker and Save the Peaks filed a new complaint alleging that the plan violated Federal environmental laws.
After the Snowbowl Ski Resort intervened in the second case, the 9th Circuit gave it permission to start making snow.
The February decision said that the Forest Service had properly studied the issue and that the plaintiffs were trying to take a “second bite” at the defendants.
“Some of the Save the Peaks plaintiffs are either members of, or associated with, the same organizations that participated in the Navajo Nation litigation,” the ruling said. “Moreover, some of the Save the Peaks plaintiffs solicited money to pay for the Navajo Nation litigation, and some organized and attended protests and events in support of the Navajo Nation plaintiffs. The attorney who represented the Navajo Nation plaintiffs before the district court and our court also represents the Save the Peaks Plaintiffs in this case. A statement on the Save the Peaks Plaintiffs website even calls Navajo Nation ‘our prior court case.'”
Later, Snowbowl moved for costs, attorneys’ fees and sanctions against Shanker.
While the three-judge panel on Thursday found Shanker personally liable for costs, it let him and the Save the Peaks Coalition off the hook for attorneys’ fees.
“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,” the order states. “Nevertheless, the panel unanimously concludes that some sanction against Shanker personally is appropriate.”
Shanker “engaged in tactics with the intent of increasing expenses and delaying development at Snowbowl, unreasonably multiplying proceedings after losing in Navajo Nation v. U.S. Forest Service,” the unsigned order states.
“His intent was to harass Snowbowl.”
Shanker said the court went further than Snowbowl and the other defendants ever had in accusing him of misleading clients.
“There is nothing in the record to support any of these assertions of alleged fact made by the panel,” he said.
When Snowbowl sought fees and sanctions in May, Shanker accused the resort of seeking revenge.
“Plaintiffs and their counsel were mortified by the language and assertions included in the panel decision,” he wrote. “The ‘legal nightmare’ here has become that of the plaintiffs and their counsel, who will have to live with the panel’s statements for the balance of their lives and careers. While Snowbowl clearly senses the opportunity to exact additional pounds of flesh, there exists no basis here to worsen the nightmare through the imposition of the sanctions it seeks.”
The 9th Circuit referred the matter to the appellate commissioner “to determine the monetary amount of costs to award in Snowbowl’s favor against Shanker.”