District of Arizona

Katie John Subsistence Ruling

Matthew L.M. Fletcher3 Comments

Katie John Which Waters Order

An excerpt:

These consolidated cases involve challenges to regulations that were promulgated by the Secretaries of Interior and Agriculture on January 8, 1999 (herein “the 1999 final rule”). The regulations primarily implemented a Ninth Circuit Court of Appeals’ decision that the definition of “public lands” for purposes of Title VIII of the Alaska National Interest Lands Conservation Act includes navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine. See Alaska v. Babbitt, 72 F.3d 698, 703-04 (9th Cir. 1995). This decision addresses legal issues flowing from the Secretaries’ application of the reserved water rights doctrine to broad categories of Alaskan waters.

Order in Water Wheel v. LaRance Finding Tribal Court Jurisdiction over Non-Indian Business

Matthew L.M. Fletcher

Here is the order — Order – WW v. LaRance – D.Ariz.

Previous materials are here.

An excerpt:

Plaintiffs Water Wheel Camp Recreational Area, Inc. and Robert Johnson have been sued for eviction in an action pending in the Tribal Court of the Colorado River Indian Tribes (“CRIT”). Plaintiffs ask this Court to prevent Defendants – a judge and clerk of the Tribal Court – from proceeding with the Tribal Court action. Plaintiffs argue that the Tribal Court lacks subject matter jurisdiction under Montana v. United States, 450 U.S. 544 (1981).

After hearings on two requests for temporary restraining orders, extensive litigation
in the Tribal Court and Tribal Court of Appeals, and considerable briefing and oral argument, the Court concludes that the Tribal Court properly exercised jurisdiction over Water Wheel, but not over Robert Johnson. The Court will grant Plaintiffs’ request for declaratory relief with respect to Mr. Johnson and deny it with respect to Water Wheel.

New Suit Filed in Arizona Snowbowl Dispute

Matthew L.M. Fletcher2 Comments

Here is the complaint in Save the Peaks Coalition v. USFS (D. Ariz.) — Save the Peaks Coalition Complaint

And the motion for a TRO — Motion_for_TRO

From the press_release:

According to Arizona Department of Environmental Quality regulations, treated sewer water can be
graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has
been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and
narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and
pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which
have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments
made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs
involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might
happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from
treated sewage effluent.

According to Arizona Department of Environmental Quality regulations, treated sewer water can be graded A+ even when it contains fecal matter in three out of every ten samples. This same effluent has been found to contain pharmaceuticals, hormones, endocrine disruptors, industrial pollutants, and narcotics. It may also contain bio-accumulating antibiotics, such as triclosan and triclocarban, and pathogens, such as e. coli, hepatitis, and norovirus. The human and environmental health risks, which have been largely ignored by the media, have their roots as far back as 2001 in the scoping comments made to the Forest Service about Arizona Snowbowl’s proposed expansion and upgrade. Plaintiffs involved in this lawsuit have consistently insisted that the Forest Service take a hard look at what might happen to the people, land, plants, and wildlife when they come in contact with or eat snow made from treated sewage effluent.

Thanks to Fred for these materials.

Federal Court Dismisses Tort Claim against US and Remands to State Court

Matthew L.M. Fletcher

The opinion in this matter is here: Loza v Native American Air Ambulance An excerpt:

On January 29, 2009, Plaintiffs filed a complaint in the Maricopa County Superior Court alleging medical malpractice against certain named defendants, including Dr. Jesus Carpio. On February 2, 2009, Plaintiffs filed an administrative tort clam with allegations pertaining to Dr. Carpio similar to those contained in Plaintiffs’ January 29 complaint. At the time of the alleged acts of malpractice, Dr. Carpio was an employee of Parker Indian Hospital-a hospital operated by the Indian Health Service, an agency of the United States Department of Health and Human Services.

On May 11, 2009, the United States, on behalf of Dr. Carpio, removed Plaintiffs’ action to this Court and substituted the United States for Defendant Dr. Carpio under 28 U.S.C. § 2679(d)(2). Shortly thereafter, Defendant United States filed its Motion to Dismiss.

Court Denies Motion to Dismiss in FTCA Claim against Tribal Police

Matthew L.M. Fletcher

Here are the materials in Russell v. United States (D. Ariz.), a claim against the United States under the Federal Tort Claims Act for actions by tribal police. The court denied the government’s motion to dismiss.

Government Motion to Dismiss

Russell Opposition

Government Reply Brief

DCT Order Denying Motion to Dismiss Russell Complaint

Salt River Pima-Maricopa Indian Community Wins Major Issue in Suit against Government

Matthew L.M. Fletcher

Here is the District of Arizona’s opinion in Salt River Pima-Maricopa Indian Community v. United States — Salt River DCT Order. An excerpt:

On May 30, 2008 the Salt River Pima-Maricopa Indian Community and various Community members (Plaintiffs/Counterdefendants) filed a tort class action against the United States and its officers (Defendants/Counterclaimants) relating to the unauthorized presence of federal power lines on Plaintiffs’ property, seeking monetary, declaratory and injunctive relief (Doc. 1). On August 11, 2008 Defendants filed a Motion to Stay Proceedings, pending the outcome of a related action for breach of contract before the Federal Court of Claims (Docs.21-22). On October 27, 2008 the Motion was denied and Defendants were ordered to file an Answer (Doc. 29). On November 5, 2008 Defendants filed an Answer and Counterclaim requesting equitable relief against Plaintiffs (Doc. 32). On November 25, 2008 Plaintiffs filed a Motion to Dismiss Counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6)(Docs.39-40). On December 12, 2008 Defendants responded and, on December 31, 2008, Plaintiffs replied (Docs.47, 50). Before the Court is Plaintiffs’ Motion to Dismiss, which will be granted.

US v. Watchman — Indian Country SORNA Case

Matthew L.M. Fletcher

Here are the materials in United States v. Watchman, out of the District of Arizona. The case involves a SORNA/Adam Walsh Act violation by a Navajo Nation member. The defendant made an interesting argument that may recur in Indian Country, which is that the tribe had not yet implemented its sex offender registration statute.

watchman-motion-to-dismiss

us-response-to-motion-to-dismiss

watchman-reply-brief

us-v-watchman-dct-order

LVD Contract Claim Remanded Back to State Court

Matthew L.M. Fletcher1 Comment

Here is the opinion from the District of Arizona in Lac Vieux Desert Band v. Atlico USA — lvd-v-cardona-dct-order

Here is the complaint from an earlier post.

Murgia v. Reed — CA9 Materials in Bivens Claim against Tribal Officers

Matthew L.M. Fletcher2 Comments

Here are the materials in this case, in which the district court refused to dismiss a Bivens claim against tribal police. It was apparently argued on the same day last November as Bressi v. Ford (materials here):

D. Ariz. Order

appellants-opening-brief

appellees-response-brief

reply-brief

There seems to be a rash of federal civil rights cases against tribal police (see also Jeanlouis v. Vidallia) under a wide variety of theories — FTCA, Sections 1981, 1982, 1985, and now Bivens. The Bivens claim is most unpredictable, of course, given that it is unprecedented as against tribal police. I’m sure insurers should be aware of this kind of claim and may be watching carefully.

LVD Claim against Mexican Business Partners — UPDATED

Matthew L.M. Fletcher2 Comments

Here is the amended complaint — lvd-complaint

From ICT:

WATERSMEET, Mich. – The chairman of the Lac Vieux Desert Band of Lake Superior Chippewa Indians has some advice to tribes who are thinking about economic development projects outside the United States. If it looks too good to be true, it probably is, Chairman Jim Williams warned.

The Lac Vieux Desert Band (LVD) has filed a lawsuit against Arturo Rojas Cardona and Juan Jose Rojas Cardona and their company, alleging that the brothers have defrauded the tribe of its $6.5 million investment in a casino in Guadeloupe, Mexico.

The lawsuit was filed originally in Arizona Superior Court in April 2008, and moved to the U.S. District Court in Arizona in July 2008. The action lists multiple claims, including “breach of contract, conversion, breach of fiduciary duty, fraud, breach of the implied covenant of good faith and fair dealing, constructive trust, and piercing the corporate veil against” the brothers and the host of companies in Mexico, the U.S. and Panama that comprise their gaming empire of 16 casinos and sports books in Mexico.

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