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

U District of Arizona, NITED STATES FOREST SERVICE;

Phoenix JOSEPH P. STRINGER, Acting Forest

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 PlaintiffsAppellants 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
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. Nevertheless, 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 proceedings.” 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

7298 SAVE THE PEAKS COALITION v. USFS
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 Coalition 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 development” 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 development 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 inherent power because Shanker acted in bad faith and for oppressive 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 proceedings.” 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 attorSAVE THE PEAKS COALITION v. USFS 7299
ney’s fees that it incurred 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.) We

hereby award these costs to Snowbowl against Shanker personally. The case is hereby referred to the Appellate Commissioner 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.

7300 SAVE THE PEAKS COALITION v. USFS



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