WASHINGTON – A federal appeals court said Thursday that a Tempe-based attorney should be held personally responsible for costs that Arizona Snowbowl incurred to defend itself against “bad faith” suits the lawyer brought against the resort.
A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected Snowbowl’s request to be reimbursed for attorney fees in the case. But it ordered Howard Shanker to pay all other expenses that the ski resort racked up at the federal district and circuit court levels.
The court said Shanker “grossly abused the judicial process” by pressing a second case against the resort after losing a “virtually identical” case with a different client, forcing Snowbowl to incur “excessive costs for unreasonably multiplying proceedings.”
Officials at Snowbowl declined comment on the ruling Thursday. But Shanker said he was surprised by the decision and that he plans to ask the full circuit court to reconsider it.
“It was clearly a hostile panel,” Shanker said. “I’m really not thrilled with this ad hominem attack on my credibility.”
The legal fight began in 2004, when the U.S. Forest Service first approved Snowbowl‘s plans to use reclaimed water from federal land for snowmaking at the ski resort.
The Navajo Nation, represented by Shanker, sued the resort. It claimed the snowmaking plan violated the Religious Freedom Restoration Act and that the environmental reviews on the project were not sufficiently strict under federal law.
The tribe lost its case at the district and circuit court levels, and the Supreme Court refused to consider the case in 2009.
Several months after the high court declined to take the case, Shanker sued again, this time with the Save the Peaks Coalition as his client. The district court rejected the second suit and the circuit court in February agreed, calling the Save the Peaks lawsuit “virtually identical” to the Navajo Nation suit.
Thursday’s ruling called the second case against Snowbowl a personal attempt by Shanker to delay litigation, increase expenses and postpone the resort’s development.
The court panel Thursday said the Save the Peaks Coalition “appears to have been misled by their counsel concerning the issues that remained part of the appeal.” The judges said they unanimously agreed that “some sanction against Shanker personally is appropriate.”
Shanker said Thursday that he had “no idea” what the judges meant and that he “actually assumed we would win this case.”
“This was a legitimate unresolved issue of public importance,” said Shanker, who represented the parties in both cases pro bono.
He said there was no factual support for the ruling, and that he “doesn’t know what the abuse is” that the court claimed. He predicted that Thursday’s ruling will affect the willingness of other lawyers “to take on these cases in the future.”
The court did not set an amount of damages against Shanker. It referred the matter to the appellate commissioner to determine the amount.