San Francisco Peaks seen from O'Leary Lookout

Support Grows for Activists Lawyer in Arizona Snowbowl Case

Anne Minard
8/7/12

A coalition of high-profile attorneys and activists are rallying around a lawyer who’s under fire for suing the U.S. Forest Service to stop snowmaking with wastewater on a sacred mountain in Arizona.

Howard Shanker, a Phoenix-based lawyer, represents Native activists fighting to keep Arizona Snowbowl near Flagstaff, Arizona from using the reclaimed effluent to make snow at the high desert resort. No fewer than 13 tribes consider the San Francisco Peaks sacred, and their members have long opposed the mountain’s use for a ski resort. But when Arizona Snowbowl proposed in 2005 to use reclaimed wastewater to make snow – and the U.S. Forest Service approved the plan – opposition reached a fever pitch, and touched off years of trials.

A federal judge in Arizona ruled against Shanker and the plaintiffs in the first case, Navajo Nation v. U.S. Forest Service, in 2008. That judge decided the Forest Service was acting legally both with respect to the American Indian Religious Freedom Act of 1978, and the National Environmental Policy Act of 1970, which spells out guidelines for environmental review. Shanker won that case on both grounds when he appealed it to a three-judge panel at the 9th Circuit Court of Appeals. Arizona Snowbowl filed an appeal on that appellate ruling, though, and when it was heard by the full, 11-judge 9th Circuit panel – the usual next step in the appeals process – the case turned out much like it had in the original Arizona court; Shanker and the Navajo activists lost.

The legal battles didn’t end there. Shortly after the full panel ruling, a group of disappointed activists who hadn’t been involved in his first case approached Shanker. They wanted to sue on an issue that the courts hadn’t considered to that point – whether the possibility of ingesting of the fake snow posed a significant threat to public health. So a new case, Save The Peaks Coalition v. U.S. Forest Service, started through the District Court system.

This time, a different Arizona judge ruled against the plaintiffs, saying that it was too late for their case – construction had already begun. Oddly, Shanker recalls, they’d filed the case when construction was still two years out – so he and his new set of plaintiffs appealed again.

And that’s when things got ugly. The three-judge panel that heard the second case ruled against Shanker and the Save the Peaks Coalition with venom. Their final opinion, issued this spring, said Shanker “grossly abused the judicial process.” Later, the panel added: “Shanker acted with subjective bad faith. He 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.”

Shanker and the legal experts who are coming to his aid complain that the opinions about Shanker’s motives rely on circumstantial evidence; the court has cited no record to support them.

Arizona Snowbowl’s attorneys have perpetuated the attacks. In documents demanding repayment for their legal fees and arguing against Shanker’s right to appeal to the full 9th Circuit panel, attorneys for the ski resort have ramped up their rhetoric.

“Mr. Shanker’s cramped reading of the panel’s order is neither legally sound nor logical,” they write in one place, adding later, “Mr. Shanker is grasping at technicalities.” In the same document, they support the “goal of punishing Mr. Shanker for his vexatious litigation conduct.”

It’s unclear how much Shanker would be charged if the first appeals ruling sticks; Snowbowl is seeking just over $32,000, but about $26,000 of that may not be allowable.

The money isn’t the problem, Shanker says – for him, it’s a question of being falsely accused.

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

And for the impressive roster of attorneys and activists that have come to stand behind Shanker, there is a significant issue at stake that matters for all public interest cases.

Ralph Nader, the Association on American Indian Affairs, the Native American Rights Fund, the Women’s Earth Alliance, The Morning Star Institute, the Center for Biological Diversity and two Arizona State University law professors have joined to file a motion supporting Shanker’s request for an appeal before the full, 11-judge 9th Circuit panel.

The high-powered coalition says sanctions against Shanker in this case could set up a roadblock for aggrieved citizens needing free representation to plead their cases.

“This 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 John Buse, the Center for Biological Diversity attorney who is representing Shanker’s newly assembled backers.

Shanker and his supporters were dealt a disappointing blow on July 27, when the three-judge 9th Circuit panel flatly denied both Shanker’s appeal and the attorneys’ and activists’ move to formally support him. But in an unusual turnaround on Thursday afternoon, that panel abruptly reversed its decision and agreed to consider both motions.

Meanwhile, even as construction began this spring on the pipeline that would bring the treated wastewater to the Peaks, another wrinkle has emerged for the ski resort outside the courtroom. At the request of the Hopi Tribe, the U.S. Forest Service has re-opened consultation with the U.S. Fish and Wildlife Service over possible threats to an endangered alpine plant near the ski slopes. The Forest Service’s initial review didn’t take into account that mountain winds could blow the nitrogen-rich effluent within range of the plant, imperiling its survival. But a thorough review by Phoenix-based SWCA Environmental Consultants, hired by the Hopi Tribe, indicated there’s enough risk to warrant further review.

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