National Support for Peaks Attorney Facing “Outrageous” Attacks

Posted July 26th, 2012 by
categories: On The San Francisco Peaks

Note: This article has been translated into French, here.

When attorney Howard Shanker first filed a case against the Forest Service in 2010, he could not have known that it would turn out this way. Not only were the merits of the case virtually ignored throughout judicial proceedings, but an appointed three-judge panel of the Ninth Circuit is also holding Mr. Shanker personally financially responsible for reimbursing Snowbowl for some of its expenditures in the case.

“The situation is unbelievable,” said Mr. Shanker of the sanctions against him. There is nothing in the record to support any of the allegations against me. The panel and Snowbowl’s lawyers have accused me of all sorts of unprofessional behavior. It’s outrageous. If the judges didn’t have immunity, I’d sue them for slander or libel.”

On the day Mr. Shanker filed his response to Snowbowl’s presumptive demand that the court order him to pay over $32,000, he explained how it all came to this.

In 2005, upon hearing the Coconino National Forest approved snowmaking with reclaimed water at the Arizona Snowbowl, several tribes and environmental groups sought pro bono legal support from Mr. Shanker. They filed suit against the US Forest Service on the grounds that using reclaimed wastewater violates religious freedoms. “The lower court ruled against us on everything, said Mr. Shanker. “So we appealed it.”

The following year, a three-judge panel of the Ninth Circuit Court of Appeals ruled with Mr. Shanker and the tribes, affirming that Arizona Snowbowl could not use reclaimed wastewater to make snow artificially. “We won on both the religious and cultural issues and then we also won on this one NEPA (National Environmental Policy Act) issue, that the Forest Service didn’t adequately consider the issue of human ingestion of reclaimed sewer water in their Environmental Impact Statement.”

In October 2007, the Ninth Circuit Court of Appeals granted the Justice Department and Snowbowl’s request for appeal to rehear the case en banc. “It went to the full 11-judge panel and in an 8 to 3 decision, I think, breaking along party lines — 8 Republican [appointed by Pres. Nixon/Reagan/Bush] judges that voted against us, and 3 Democrats [appointed by Pres. Kennedy/Carter/Clinton] in our favor — the Republican majority ruled there was no substantial burden on the exercise of religion,” explained Mr. Shanker of the August 2008 decision allowing Snowbowl to make snow from reclaimed wastewater. “So they reversed on the merits of the religious and cultural issues. On this issue of ‘ingestion’ though, they held that it was never properly raised in the lower court. So it was an open issue; it was never decided on the merits according to this en banc panel.”

In January of 2009, the tribes appealed to the US Supreme Court. In June of that year, the Supreme Court announced it would “not hear” the case, thus upholding the 2008 Ninth Circuit en banc decision.

But there remained the unresolved NEPA claim never fully decided en banc, a claim the first three-judge panel provided a thorough analysis for and one that held the Forest Service failed to verify in its Environmental Impact Statement. What if people ingest the artificial snow? Surely, skiers would “faceplant” and children would be tempted to eat the snow, not realizing it being made from reclaimed wastewater. What would happen to them? How much exposure is considered safe? Nothing in the EIS quantified this valid argument, like any decent scientific study would.

In Flagstaff, posted signs warn against coming in contact with reclaimed wastewater directly. During the windy months, it recently came to light that workers who spray reclaimed wastewater over construction areas to keep the dust down are required to take hepatitis B shots as a precaution against this exposure. What are the affects of this kind of exposure on skiers, on workers? There are no answers to these questions because the Forest Service hasn’t followed through with the National Environmental Policy Act, as a matter of procedure, in answering these questions.

Regarding this “open claim,” explained Mr. Shanker, “the Save the Peaks Coalition and 9 concerned citizens that were not party to the Navajo Nation case approached me and said, ‘look, we want to bring this claim.’” So in 2010, another suit was filed with different plaintiffs. “The claim was so meritorious; the only thing out there was this three-judge panel decision saying the Forest Service didn’t adequately consider it; it was unresolved on the merits,” said Mr. Shanker. “So we brought it back to the district court and I assumed it would be a no-brainer; I thought we would win easily.”

Instead of delving into the details of Mr. Shanker’s NEPA claim, it was quickly dismissed without meaningful discussion. A district court ruled against him under the doctrine of laches, a procedural rule which declares a party has “slept on its rights,” or failed to act in a timely manner. “So I was kinda shocked with the result. So we appealed it, assuming we would prevail on the merits and on the laches issue, and we drew this hostile panel.”

In January of this year, the three-judge panel — all of whom were appointed by Nixon/Reagan/Bush — ignored the merits of Mr. Shanker’s NEPA claim and continued to hammer him with procedural issues. When he argued how the claim was left unresolved from the Navajo Nation case, he was told that the case “didn’t exist” anymore. “What they’re saying, and they’re mistaken, is that the en banc panel vacated that case. En banc review, however, does not result in automoatice vacatour, the en banc panel simply provided that the prior decision could not be cited as precedent,” Mr. Shanker continued. “It could, however, be discussed as informative. That is, the court does not have to make believe it never happened.”

Judge Milan D. Smith, Jr. expressed his opinion when he handed down the panel’s decision in February, writing that Mr. Shanker “Grossly abused the judicial process,” by bringing this second case against the resort after losing a “virtually identical” case with a different client; even though the NEPA claim was never fully vetted by the en banc panel.

“It’s extremely frustrating. I’ve been pretty cynical before, but our judicial system is obviously broken. I mean, here you have the exact same law and facts that a prior three-judge panel ruled in our favor on and now they’re ruling against it on the merits and accusing me of abusing the judicial process,” Mr. Shanker continued. “It just makes no sense.”

When Mr. Shanker petitioned to rehear the case, he was denied by the very same presiding judge who ruled in the overturn of the original 2006 Ninth Circuit decision —Chief Judge Alex Kosinski, an appointment of the Reagan years. Snowbowl’s lawyers then used the language of Judge Smith’s decision to petition the court for sanctions against Mr. Shanker and the plaintiffs, originally seeking over $280,000. In providing an opinion for that motion, Judge Smith went even further, accusing Mr. Shanker not only of “bad faith” and abusing the judicial process, but of actually “misleading his clients.”

“They based their motion for sanctions on the panel’s language,” said Mr. Shanker. “There are now these two Ninth Circuit published opinions that say I ‘grossly abused the judicial process.’ Smith and the other two judges on the panel have attacked my credibility and professionalism without cause. There is nothing in the record on appeal or in any findings of fact in the lower court to support any of these inaccurate factual accusations raised for the first time on appeal by an actual panel of judges.

Mr. Shanker finds it curious that Snowbowl would seek sanctions, as they were a “private intervener” in the case. “So essentially the court is finding me in ‘bad faith’ because we were trying to insist the Federal Government comply with federal law. We never sued Snowbowl,” said Shanker. “They filed briefs so they could intervene in the case as a defendant. They wanted to be in the case. It’s just remarkable what’s going on.”

Amicus Curiae is a Latin phrase that means “friend of the court.” An Amicus Brief is the legal document that is prepared by individuals or groups of individuals who, although not party to a given case, have a strong interest in or views on the subject of a court’s decision.”

Such a document was filed on July 16 in support of Mr. Shanker, pro-bono attorney for the Save the Peaks Coalition et al. The brief was submitted on behalf of consumer advocate and social critic Ralph Nader, Arizona State University professors of law Myles V. Link and Gary Marchant, as well as the Association on American Indian Affairs, Native American Rights Fund, Women’s Earth Alliance, The Morning Star Institute, and Center for Biological Diversity. For many reasons outlined in the brief, the signees of the Amicus Brief support Mr. Shanker’s appeal of this decision.

The prevailing sentiment among those who support Shanker’s appeal stem from concerns that such actions by the court, whether intentionally or not, might deter legal involvement in similarly politically- charged environmental and human rights-related cases. As Mr. Marchant points out, this implication has nothing to do with the merits of the case. “While taking no position on the merits of the underlying case in this matter … applying sanctions in a case such as this would deter attorneys from bringing controversial cases on matters of public policy, and would impede the important role of courts in providing a public forum for hearing and resolving such matters.”

Groups like the Native American Rights Fund (NARF) are concerned that sanctions against Mr. Shanker will impact what they do, that holding pro-bono attorneys like Shanker personally responsible for Snowbowl’s costs “will seriously and negatively impact NARF’s ability to take up claims that may be particularly difficult or unpopular.” Similarly, The Morning Star Institute “is concerned that sanctioning the attorney in this case will serve to dampen the enthusiasm of other attorneys who are requested to help tribes, nations, pueblos and other Native American peoples who have no other way to seek justice.”

The formal support provided by the signatories of the Amicus Brief echo the concerns of many who were outraged upon hearing sanctions had been ordered against Mr. Shanker. So wrote Bennet Kelley, in an article for the Huffington Post, “Imagine an America in which lawyers dared not challenge the mightiest, no matter how egregious their offenses may be for fear of financial ruin. No Thurgood Marshalls, no Ralph Naders and no Howard Shankers.”

“The message from the Ninth Circuit Court of Appeals was clear,” wrote Stephen Brittle, president of Don’t Waste Arizona, defending Mr. Shanker. “If you are concerned about the environment; if you want to protect Native American sacred areas; or even if you simply want to make sure that the federal government complies with its own environmental obligations, go home. You are not welcome in the Ninth Circuit. You have no right to due process.”

NOTE: On August 18, myself and many others are participating in a Teach-In focusing on the obvious and complex issues that surround this controversy. It will be a lot of fun and a great chance to learn and get involved. Flier below and more info here.

The Rhetoric of Exclusion on the San Francisco Peaks

Posted June 25th, 2012 by
categories: On The San Francisco Peaks, Rhetoric

The very idea that there is a multi-generational controversy over development on the San Francisco Peaks should make at least one point clear: the mountain and it’s surrounding areas are imagined in startlingly different ways. It is a contested space, yet no people reside there. What does reside there are narratives that often clash; yet, in a lot of ways, one of these narratives continues to dominate the way the Peaks are meant to be experienced. That the controversy persists, and continues to receive national media coverage, indicates that there are a growing number of people who resist that narrative.


photo: indigenous action media

As a writer, it was this contention that initially drew me into the complexities of this controversy. In the fall of 2006, I was a new writer for the publication you presently hold in your hands. I was eager for story ideas and thus became a regular attendee at Flagstaff City council meetings. I had positioned myself in my usual spot in the back of the room, armed only with a worn pad of paper and a stubby pencil; right away, I realized this wasn’t a typical meeting.

While I couldn’t say now what was on the agenda that day, I can easily recall the moment when the public was asked to give comments; this was the moment when I first realized that the controversy surrounding development on the San Francisco Peaks would give me more than enough to write about for the rest of my life.

An elderly Native women, who I later learned was quite famous for her activism in the Big Mountain region of Black Mesa, approached the microphone slowly, clenching the arm of a man who steadied her steps. As she pulled the microphone down to meet the reach of her voice, the reverberation of her silver rings against the metal of the microphone echoed throughout the Chambers; all eyes were on her.

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“Flagstaff: Owned and Operated by Snowbowl”

Posted March 26th, 2012 by
categories: On The San Francisco Peaks

Confident after a win at the Ninth Circuit Court in San Francisco, Snowbowl’s expansions—improvements to some, desecration to others—continue to move forward, to be completed by the start of next year’s ski season. The resort moves forward despite a recent appeal to the full 11-member panel of the Ninth Circuit en banc Court. And the City of Flagstaff administratively renewed their wastewater contract with the resort for another 5 years despite the findings of a recently released report commissioned by the Hopi Tribe. The economic analysis debunks any preconceived notions that Snowbowl’s expansions translate to any “significant or measureable economic impact on the Flagstaff area,” according to a press release announcing the study.

Upon driving up to the Arizona Snowbowl, one will notice many new signs. These signs, alongside the road, the walkways, and adorning the wooden slats of buildings are messages that appear to be about health and safety. “Construction Zone, No Public Entry,” says one, “This area is closed to public entry for health and safety concerns.” Another: “Caution: Icy, changing and irregular conditions may exist.”

However, other signs seem to be cloaked in thinly veiled paranoia. “Notice! For our guests and staff, in the interest of safety and security, all Snowbowl facilities are under 24-hour video surveillance. Smile!” Considering the history of resistance to development on the mountain, including instances of property damage and nonviolent direct actions dating back to the mid-eighties, perhaps they have every right to be paranoid.

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Rebalancing the Rhetoric of Sustainability

Posted March 19th, 2012 by
categories: Rhetoric

I wrote this last year (2011) for The Noise. I must have forgot to post the digital copy.

“’Sustain’ is a pretty ancient word in the English vocabulary. As far back as the 13th or 14th century, we see verbal forms of that word. They are analogous to way we today use the abstract noun ‘sustainability,’” explained environmental historian, William Cronon, to a packed auditorium during his key note lecture, “The Riddle of Sustainability: A Surprisingly Short History of the Future,” during the annual conference for the American Society for Environmental History, which happened to be in Phoenix this year. To sustain is, “to cause to continue in a certain state, to keep up without intermission, to keep up a community without failing, or giving away.”

During his talk, which provided not only an etymology of the word “sustainability,” but also a cultural narrative surrounding its relatively recent emergence as part of the English language and its solidification as an ideal upon which the human future is imagined.

If you look up the word “sustainability” in the dictionary, you won’t find it. The adjective, “sustainable,” however, is defined in The American Heritage Dictionary as “capable of being continued with minimal long term effect on the environment,” and in Merriam Webster’s College Dictionary, “of, relating to, or being a method of harvesting or using a resource so that the resource is not depleted or permanently damaged.”

However, when the word “sustainable” entered the English language, it had nothing to do with the environment; let alone social justice. Until the middle of the 1960’s, “it had to do with the legal usage of arguments that are sustainable…it’s not until 1965 that we see the adjective ‘sustainable’ coupled with the word that describes social systems—sustainable growth, or sustainable economic growth—that’s how the word entered the English language.

The first appearance of the word “sustainability” was by the neo-conservative economist Thomas Sowell in his University of Chicago doctoral dissertation. “Notice that 1972, in the context of a discussion about the history of economics, is where that word first appeared,” said Cronon. “Nobody in the 1970’s used that word at all.”

While we can recognize that early conservationists were focused on questions related to the way we think of sustainability today, usage of the word did not gain ground until recently. “The efficient use of natural resources by eliminating waste is something that, of course, Gifford Pinchot introduced in that famous quotation, borrowed and modified from Jeremy Bentham, ‘the greatest good for the greatest number, for the longest time.’”

For a clear illustration of how quickly the word “sustainability” entered the English lexicon, Cronon had the audience consider the 2004 anniversary edition to the 1972 international best seller, The Limits of Growth. In the 1972 edition, the word “sustainable” occurs only a few times, while “sustainability” and “unsustainability” do not appear at all. Though if you read the 2004 edition, “you will find there the world sustainability occurring dozens of times and the words ‘sustainable’ and ‘unsustainable’ occurring hundreds of times…which is a measure of how much the linguistic universe we’re talking about changed in the interval between 1972 and the beginning of the 21st century.”

The most widely reproduced definition of sustainability comes from the United Nations Brundtland Commission: “To meet the needs of the present without compromising the ability for future generations to meet their own needs.”

In the 1980’s, as environmental justice movements exposed the disproportionate exposure poor communities suffered as a result of environmental degradation and pollution as well as illuminating the often racist rhetoric surrounding issues of overpopulation, “one of the features, interestingly, of sustainability, will be it’s assertion, from the beginning that concerns about the environment can never be tackled by themselves…all definitions of sustainability, the argument will be you cannot solve environmental problems without also worrying about sustainable economic growth…and worrying about social equity. Social justice. It all must be done simultaneously,” said Cronon, providing historical insight into the creation of the now ubiquitous, “three legged stool” of sustainability, which is articulated in various ways: economy, society, ecology; economy, equity, environment; the triple-bottom line of people, planet, profit.

The incarnation of this triple concern arose “to move away from an environmentalism that seems to be focused too much on nature and not enough on people.”

Cronon’s “Riddle of Sustainability,” lies in, among other things, negotiating the tension between the idea of a balanced stool and the current reality, which is one that in many ways places our current economic system as a priority over the environment or social justice. “Is sustainability sustainable?” he asked. “Can it be sustained? What are its virtues? What are its unresolved tensions? What are the paradoxes built into it?”

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Earth First! Journal Publishes My coverage of June’s Direct Actions on the Peaks

Posted February 6th, 2012 by
categories: On The San Francisco Peaks

Back in June, I covered the direct actions that temporarily blockaded the road to Snowbowl, significantly delaying construction.

It was an especially beautiful morning on June 16, when at least 15 people participated in a direct action on the San Francisco Peaks that temporarily halted construction of a pipeline on the mountain. Six mostly indigenous youth were arrested during the coordinated action and another was cited for third degree trespassing and released.

I knew the events wouldn’t be meaningfully covered in the mainstream press, so I sent it off to a few different sources and I made the pictures I took that morning available to anybody who wanted them. My pictures appeared on Censored News and Indigenous Action Media to name a few (though I think The Noise wrongly gave photo credit to Klee…). As it turns out, I’m honored that the Earth First! Journal just printed that article in their latest issue.

You can read it here and here. Though most folks that visit this site probably already read this article back in July.