|(photo credit: Arizona Snowbowl)|
Some readers may recall the ongoing fight over snowmaking at the Arizona Snowbowl. Ski, Esq. wrote an article in May discussing the battle, but in short, the dispute dates back over a decade to when the Flagstaff area resort first proposed using reclaimed wastewater for snowmaking. Two rounds of litigation and hundreds of thousands of dollars later, the Snowbowl finally prevailed, but not before the Ninth Circuit Court of Appeals found that the plaintiffs' had attempted to game the system by bringing a second, nearly identical lawsuit against the resort.
The Snowbowl filed a motion for attorneys' fees, to which the tribes' attorney, Mr. Howard Shanker has just replied.
It's a pretty severe slap on the wrist for a court to tell an attorney that his actions constitute "a gross abuse of the judicial process." When the court goes so far as to include those words in a written opinion, it's generally a pretty safe bet that the attorney has done something far outside professional norms. When that court is the San Fransisco-based Ninth Circuit, the most left-leaning, environmentally-conscious court in the United States, you know you're really in trouble.
The plaintiffs could hardly have picked a court more sympathetic to their claims. After all these are the same jurists who many legal scholars believed might actually allow animals to sue in federal court. (see Cetacean Community v. Bush, 386 F. 3d 1169 (9th Cir. 2004). Thankfully the 9th Circuit made the right call and none of us will be sued by our goldfish anytime soon, but you get the point. If even the Ninth Circuit thinks Mr. Shanker grossly abused the judicial process, attorneys' fees may be the least of his worries. Sanctions may also follow if the allegations prove to be true.
For one, I heartily support the Snowbowl's motion for attorneys' fees. The local indian tribes had every right to have a court review their claims. What they did not have a right to was a second bite at the apple.