Author: Matthew L.M. Fletcher – Page 398

Colorado Law School Dean Finalists

February 29, 2016Matthew L.M. Fletcher1 Comment

A few of the names will be familiar to Turtle Talk readers.

University of Colorado Boulder Provost Russell L. Moore today announced four finalists for the position of dean of Colorado Law.

The finalists for the position are S. James Anaya, who is a Regents’ Professor and James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona; Mary Anne Bobinski, professor at the Allard School of Law at the University of British Columbia in Vancouver; Laura E. Gómez, professor at the UCLA School of Law; and Angela Onwuachi-Willig, Charles and Marion J. Kierscht Professor of Law at the University of Iowa College of Law.

“The opportunity to lead one of the most distinctive and innovative law schools in the nation attracted an amazing pool of exceptional candidates, and we appreciate the tremendous interest from applicants,” said Lori Bergen, chair of the search committee and founding dean of the College of Media, Communication and Information. “The search committee is honored to present these four finalists whose experience, perspectives and vision make them outstanding candidates to lead Colorado Law as the next dean.”

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Tenth Circuit Rejects Individual Water Rights in Nambé-Pojoaque-Tesuque Basin General Stream Adjudication

February 24, 2016February 24, 2016Matthew L.M. Fletcher

Here are the materials in State of New Mexico v. United States:

CA10 Opinion

Briefs:

Joint Pueblo Brief

New Mexico Brief

New Mexico Jurisdiction Brief

Trujillo Brief

Trujillo Jurisdiction Brief

Trujillo Response to Pueblo Brief

Northern Arapaho Tribe Sues BIA

February 24, 2016February 24, 2016Matthew L.M. Fletcher2 Comments

Here is the complaint in Northern Arapaho Tribe v. Lacounte (D. Mont.):

1 Complaint

Seminole Tribe v. Stranburg Cert Petition

February 24, 2016February 24, 2016Matthew L.M. Fletcher1 Comment

Here:

Seminole Tribe v. Stranburg Cert Petition

Question presented:

Florida imposes a tax on gross receipts from utility services that are delivered to retail customers. Under express statutory authority, utility providers may separately itemize this utility tax on a customer’s bill and add it to the total charge for utility services. If the utility provider does so, the customer is legally required to remit the tax to the utility provider, which then transfers the payment to the State. Here, petitioner is a federally recognized Indian tribe that has purchased utility services delivered to tribal reservations. Petitioner’s utility providers have exercised their statutory right to separately itemize the utility tax when billing the Tribe for such services.

The question presented is:

When a utility provider exercises a state-law right to expressly pass on a utility tax to a federally recognized Indian tribe for utility services delivered to the tribe’s reservations and the tribe is therefore legally obligated to pay the tax, is the tax an impermissible
direct tax on the tribe?

Lower court materials here.

Eleventh Circuit Affirms Dismissal of Title VII Action against Florida Seminole

February 24, 2016February 24, 2016Matthew L.M. Fletcher

Here is the unpublished opinion in Longo v. Seminole Indian Casino-Immokalee.

Briefs are here.

President Obama on the Pending Supreme Court Nomination

February 24, 2016Matthew L.M. Fletcher

Here.

An excerpt:

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

Federal Court Dismisses (Most of) Inter-Tribal Council of Arizona Trust Breach Claim [Updated 8/23/19]

February 23, 2016August 23, 2019Matthew L.M. Fletcher

Here are the materials in Inter-Tribal Council of Arizona v. United States (Fed. Cl.):

10 Motion to Dismiss

[Tribal response sealed]

16 Reply

22 DCT Order

An excerpt:

Pending before the court is a motion filed by defendant the United States (“government”) to dismiss this action filed by plaintiff Inter–Tribal Council of Arizona, Inc. (“ITCA”) for breach of tribal trust obligations. The ITCA, which represents nineteen Arizona tribes,¹ claims that the government is liable for a breach of trust by failing to fulfill its obligations under the Arizona–Idaho Conservation Act of 1988, Pub.L. No. 100–696, 102 Stat. 4571, 4577–93 (1988) (“the Act”); 25 U.S.C. § 162a; and the American Indian Trust Fund Management Reform Act of 1994, Pub.L. No. 103–412, 108 Stat. 4239 (1994)(“the Trust Fund Reform Act”).

Title IV of the Act, which is sometimes referred to as the Arizona–Florida Land Exchange Act, ratified an agreement between the government and the Barron Collier Company, Collier Development Corporation, and Collier Enterprises (together “Collier”) to exchange federally owned property in Arizona for wetlands in Florida owned by Collier. Compl. ¶ 57. The ITCA alleges that under the Act the government is required to make payments into a trust that was established for the benefit of the ITCA’s member tribes and for ensuring a lump sum payment to the ITCA’s trust fund at the end of a 30–year payment period. Under the Act, the trust was held by the government and maintained by annual payments from Collier. Under the terms of the trust agreement, Collier was also obligated to pay into an annuity fund designed to ensure a lump sum payment at the end of 30 years. The trust agreement gave the government a security interest in land owned by Collier as collateral on the 30–year payment obligation.

Collier stopped making payments into the trust and into the annuity fund in 2012. The ITCA alleges that the government has breached its trust obligations by failing to make the payments itself when Collier stopped paying. The ITCA also charges that the government is liable for breach of trust by allowing a private bank, rather than the government, to hold the annuity and by failing to make payments into the annuity fund when Collier stopped paying. The ITCA also claims that the government breached its trust responsibility by failing to properly maintain collateral intended to ensure a full payment at the end of the 30–year period. Finally, the ITCA claims that the government breached its trust obligations by failing to prudently invest the trust funds and by failing to provide a proper accounting of the funds.

The government has filed a motion to dismiss the complaint on the grounds that the government does not have any obligation under the Act to make up Collier’s missed payments to either the trust fund or the annuity. The government further argues that it has no trust obligation under the Act to monitor or supplement the value of the collateral or security obtained from Collier. In this connection, the government also argues that to the extent the ITCA’s breach of trust claims relate to the release of collateral more than 6 years ago, this portion of the claim is barred by the 6–year statute of limitations in 28 U.S.C. § 2501. In addition, the government asserts that the ITCA’s claims with regard to the collateral are not ripe because the government is in ongoing litigation against Collier in United States District Court for the District of Arizona (“the district court”) to resolve the collateral issues. The government further argues that the ITCA has failed to state a claim with regard to the government’s management of the trust fund. The government states that the Act gave the government unreviewable discretion in making investment decisions and that there is no allegation of facts to show mismanagement. Finally, the government asserts that the court lacks jurisdiction to grant the ITCA’s claim for an accounting on the grounds that the ITCA cannot establish a claim for money damages based on management of the trust fund. In such circumstances, the government argues that the ITCA must go to the district court for an accounting. Based on these arguments, the government asks the court to dismiss the ITCA’s claims for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and for failure to state a claim pursuant to RCFC 12(b)(6).

For the reasons below, the court agrees with the government that this court does not have jurisdiction over the ITCA’s claims based on the government’s failure to make up Collier’s missed payments. These claims fail for lack of jurisdiction on the grounds that the ITCA has not established a fiduciary obligation to make the payments under the Act and thus the ITCA has failed to establish a money-mandating breach of trust claim.

However, the court finds that the ITCA has identified potential money-mandating breach of trust claims with regard to the government’s alleged failure to monitor and maintain adequate collateral to ensure the final payment into the fund. Yet, a portion of the collateral-related claims may be barred by the 6–year statute of limitations. Thus, the court finds that a final decision on its jurisdiction to hear those claims must await a determination of the merits. See Oswalt v. United States, 41 F. App’x 471, 472 (Fed.Cir.2002) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 237 (2d ed.1990)). In addition, the court finds that the ITCA has failed to state a claim to the extent that it argues the government breached its trust obligations by failing to hold the trust fund payments security in trust at the Department of Treasury rather than in a private annuity and certain interests in real property.

Update (8/23/19):

58 Second Amended Complaint

59 US Motion to Dismiss

62 Response

63 Reply

69 DCT Order

74 Plaintiffs Motion for Entry of Judgment

82 Response

83 Reply

84 DCT Order re 74