Thursday, February 09, 2012

Grossly Abuse The Judicial Process, Don't Get Hit With Costs Or Fees

In a decision released today, the US Court of Appeals for the Ninth Circuit begins its opinion with the following.
This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on federal land all the way to the United States Supreme Court, “new” plaintiffs appeared. Represented by the same attorney as the losing parties in the first lawsuit, the “new” plaintiffs—who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation—brought certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development. Years had passed since the original proposal had been made. According to the record, ASRLP, which operated the ski resort, faced a looming prospect of financial ruin without the ability to proceed with the plan to produce snow. Neither fact deterred the “new” plaintiffs’ lawsuit. Nor did the meritless nature of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

Nevertheless, it ends with:

the Save the Peaks Plaintiffs’ request for reasonable
fees and costs is denied.

If it is a gross abuse of judicial process, punish it by requiring plaintiffs to pay defendants their costs and attorney fees. If it doesn't merit that punishment, maybe one shouldn't call it a gross abuse of judicial process. The case is SAVE THE PEAKS COALITION v. USFS, 10-17896.