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Law Profs, Rights Groups Back Call for En Banc Review re Pro Bono Lawyer Sanctioned by 9th Circuit

Posted Aug 7, 2012 8:54 AM CDT
By Martha Neil

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A coalition of public interest groups and two law professors are supporting a call for en banc review of sanctions imposed on an Arizona pro bono attorney in a blistering opinion by a federal appeals court panel.

In a June 21 opinion (PDF), the 9th U.S. Circuit Court of Appeals made a personal award of costs against attorney Howard M. Shanker, finding that he "grossly abused the judicial process" by pursuing a harassing, duplicative lawsuit on behalf of his clients. The same three-judge panel also held in a Feb. 9 opinion (PDF) that laches did not apply because prejudice could not be established.

However, Shanker says he did nothing wrong. And his supporters, who have joined a motion seeking en banc review by a larger 11-member panel of 9th Circuit judges, are concerned that the sanctions award could create a significant roadblock for other public-interest litigation, reports Indian Country Today.

If not reversed, “[t]his panel decision is going to have a chilling effect on the availability of free legal counsel for sovereign tribes and public interest organizations of all political persuasions,” said interim general counsel John Buse of the Center for Biological Diversity. He is representing the group of supporters backing Shanker on the sanctions appeal.

At issue in the sanctions matter is an earlier case known as Navajo Nation v. U.S. Forest Service, the article explains. Represented by Shanker, who practices out of Phoenix, the Native American group fought an Arizona ski resort's plan to use reclaimed wastewater to make snow in a resort on federal land in a mountain range the Navajo Nation considers sacred ground.

A federal district court judge ruled against the plaintiff in 2008, but a 9th Circuit panel reversed. Then an en banc panel upheld the district court's finding that U.S. Forest Service American approval of the snow-making plan complied with the Indian Religious Freedom Act of 1978, and the National Environmental Policy Act of 1970.

After the disappointing en banc decision, a group of activists not involved in the original case approached Shanker, the article recounts. They asked him to bring another suit protesting the snow-making plan under a different legal theory, that the possibility users would ingest the recycled effluent posed a posed a threat to public health.

That suit is the litigation that aroused the ire of the 9th Circuit panel, which described the case in its Feb. 9 opinion as "certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development."

The panel also suggested that the the “'new' plaintiffs—who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation" weren't much different than the plaintiffs in the Navajo Nation suit.

Those backing Shanker in his quest for en banc review of the sanctions award, in addition to the Center for Biological Diversity, include two law professors from Arizona State University, Ralph Nader, and the Association on American Indian Affairs, the Native American Rights Fund, the Morning Star Institute and the Women’s Earth Alliance, reports Indian Country Today.

“The issue isn’t that a pro bono attorney is being hit for costs. The issue is that I’m being sanctioned when I haven’t done anything wrong," says Shanker of the sanctions award. "This is purely political or ideological on the part of the three-judge panel.”

The amount of costs he would have to pay if the three-judge appellate panel's determination isn't reversed hasn't yet been determined.

An earlier Indian Country Today article provides additional details.

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