The Save the Peaks Coaltion v. Usfs , 683 F.3d 1140 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE SAVE THE PEAKS COALITION; 
KRISTIN HUISINGA; CLAYSON
BENALLY; SYLVAN GREY; DON
FANNING; JENEDA BENALLY;
FREDERICA HALL; BERTA BENALLY; No. 10-17896
RACHEL TSO; LISA TSO,
D.C. No.
Plaintiffs-Appellants,
3:09-cv-08163-
v.  MHM
UNITED STATES FOREST SERVICE; District of Arizona,
JOSEPH P. STRINGER, Acting Forest Phoenix
Supervisor for the Coconino ORDER
National Forest,
Defendants-Appellees,
ARIZONA SNOWBOWL RESORT LP,
Intervenor-Defendant-Appellee.

Filed June 21, 2012
Before: J. Clifford Wallace, John T. Noonan, and
Milan D. Smith, Jr., Circuit Judges.
ORDER
Intervenor-Defendant-Appellee Arizona Snowbowl Resort
Limited Partnership (Snowbowl) has moved for attorney’s
fees and costs. The court is well aware that Plaintiffs-
Appellants and Howard M. Shanker (Shanker), their counsel,
grossly abused the judicial process in prosecuting this second
case. However, a majority of the panel has concluded that an
award of attorney fees would be inequitable because
7297
7298 SAVE THE PEAKS COALITION v. USFS
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. Never-
theless, the panel unanimously concludes that some sanction
against Shanker personally is appropriate.
Under 28 U.S.C. § 1927, any attorney “who so multiplies
the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.” 28 U.S.C. § 1927. Section 1927
provides us with authority “to hold attorneys personally liable
for excessive costs for unreasonably multiplying proceed-
ings.” Gadda v. Ashcroft, 377 F.3d 934, 943 n.4 (9th Cir.
2004). “Sanctions pursuant to section 1927 must be supported
by a finding of subjective bad faith.” New Alaska Dev. Corp.
v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989). “Bad
faith is present when an attorney knowingly or recklessly
raises a frivolous argument or argues a meritorious claim for
the purpose of harassing an opponent.” Id. (citation omitted).
“Tactics undertaken with the intent to increase expenses, or
delay, may also support a finding of bad faith.” Id. (internal
citations omitted). Indeed, “[e]ven if an attorney’s arguments
are meritorious, his conduct may be sanctionable if in bad
faith.” Id. (citation omitted).
We also have the inherent power to sanction a losing party
who “has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons, delaying or disrupting litigation, or has
taken actions in the litigation for an improper purpose.” Fink
v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001). Under a court’s
inherent power, “a court ‘certainly may assess [sanctions]
against counsel who willfully abuse judicial processes.’ ” Id.
at 991 (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752,
766 (1980)). “Before awarding sanctions under its inherent
powers, however, the court must make an explicit finding that
counsel’s conduct ‘constituted or was tantamount to bad
faith.’ ” Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d
SAVE THE PEAKS COALITION v. USFS 7299
644, 648 (9th Cir. 1997) (citation omitted). “A finding of bad
faith is warranted where an attorney ‘knowingly or recklessly
raises a frivolous argument, or argues a meritorious claim for
the purpose of harassing an opponent.’ ” Id. at 649; see also
In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986).
Here, we find that Shanker’s conduct merits sanctions
against him personally. As detailed in Save the Peaks Coali-
tion v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012),
Shanker grossly abused the judicial process in bringing this
case solely “to ensure further delay and forestall develop-
ment” at Snowbowl. Save the Peaks Coal., 669 F.3d at 1028.
Shanker acted with subjective bad faith. He engaged in tactics
with the intent of increasing expenses and delaying develop-
ment at Snowbowl, unreasonably multiplying proceedings
after losing in Navajo Nation v. U.S. Forest Service, 535 F.3d
1058 (9th Cir. 2008) (en banc). His intent was to harass
Snowbowl. Therefore, we conclude that Shanker is subject to
sanctions under § 1927. See B.K.B. v. Maui Police Dep’t, 276
F.3d 1091, 1107 (9th Cir. 2002); New Alaska Dev. Corp., 869
F.2d at 1306.
We also find that sanctions are appropriate under our inher-
ent power because Shanker acted in bad faith and for oppres-
sive reasons. See Fink, 239 F.3d at 992. Shanker’s “conduct
‘constituted, or was tantamount to, bad faith.’ ” Primus Auto.
Fin. Servs., 115 F.3d at 648. He willfully abused the judicial
process by acting with the improper purpose of imposing
delays and costs on Snowbowl. Therefore, we exercise our
inherent power to sanction Shanker. See Fink, 239 F.3d at 991
(noting a court’s inherent power to impose sanctions against
counsel who willfully abuse the judicial process).
As an appropriate remedy, we hold Shanker “personally
liable for excessive costs for unreasonably multiplying pro-
ceedings.” Gadda, 377 F.3d at 943 n.4. Because this entire
case was designed to harass Snowbowl, we conclude that
Snowbowl is entitled to an award of all costs other than attor-
7300 SAVE THE PEAKS COALITION v. USFS
ney’s fees that it incurred in litigating Save the Peaks Coali-
tion v. U.S. Forest Service before both the district court (D.C.
No. 3:09-cv-08163-MHM) and our court (No. 10-17896.) We
hereby award these costs to Snowbowl against Shanker per-
sonally. The case is hereby referred to the Appellate Commis-
sioner to determine the monetary amount of costs to award in
Snowbowl’s favor against Shanker.
Therefore, the court awards costs in litigating Save the
Peaks Coalition v. U.S. Forest Service before both the district
court (D.C. No. 3:09-cv-08163-MHM) and our court (No. 10-
17896) to Snowbowl, to be paid entirely by Shanker, counsel
for Plaintiffs-Appellants. Thus, Snowbowl’s Motion for
Attorneys’ Fees is DENIED, and its accompanying motion for
costs is GRANTED, as modified by this order.
SO ORDERED.
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