Eastern District of Washington – Page 5

Although the NHPA and its accompanying regulations do not mandate a particular substantive outcome, its procedural requirements are obligatory. This Court would be derelict in its duties if it failed to enforce the minimal procedural protections guaranteed the Tribes. True, the Service, after reopening consultation with the parties, may reasonably conclude that the expanded program of wildflower tours will have no adverse effect on the Lalíik TCP. But this hypothetical cannot influence the Court’s current analysis. Instead, the relevant focus is whether the Service complied with the relevant statute and regulations: did the Service “stop, look, listen,” and carefully consider tribal input before moving ahead with the greatly expanded undertaking? Or, instead, did the Service stop, look at past tribal consultations on similar proposals, and inappropriately assume that each Tribe would merely voice its blanket opposition rather than providing additional insight to or suggested mitigation measures for the expanded undertaking? Because this Court concludes the latter occurred here, the only remedy is to set aside the Agency’s no adverse effect finding on the updated proposal and order the Service to reengage in the consultation process before conducting any additional wildflower tours within the Lalíik TCP, if it still chooses to pursue the undertaking.

Confederated Tribes and Bands of the Yakama Indian Reservation v. McKenna Cert Petition

February 11, 2015Matthew L.M. Fletcher1 Comment

Here:

cert petition

Question presented:

Whether federal courts called upon to enforce Indian treaty protections in tribal challenges to State regulation may enter judgment against the Indian Tribe without considering evidence and entering findings of fact on the Indians’ understanding of the United States’ treaty promises.

Lower court materials here.

Yakama Nation Education Dept. Employees Indicted by Feds for Theft from a Tribal Organization

January 28, 2015Matthew L.M. Fletcher

Here is the indictment in United States v. Gardee (E.D. Wash.):

1 Indictment

Ninth Circuit Briefs in Yakama/King Mountain Tax Dispute

January 8, 2015August 31, 2016Matthew L.M. Fletcher1 Comment

Here are the materials in Confederated Tribes and Bands of the Yakama Indian Nation v. Alcohol and Tobacco Tax and Trade Bureau:

Oral argument video.

Lower court materials in King Mountain Tobacco Co. v. Alcohol and Tobacco Tax and Trade Bureau (E.D. Wash.) are here.

Federal Tort Claim Arising on Colville Job Site May Proceed against US

October 23, 2014Matthew L.M. Fletcher

Here are the materials in Farmer v. United States (E.D. Wash.):

14 US Motion to Dismiss

22 Opposition

27 US Reply

34 DCT Order

An excerpt:

Plaintiff seeks to recover damages for injuries sustained as a result of alleged negligence by Defendant Ron Shaffer. According to Plaintiff’s First Amended Complaint (ECF No.20), he was working for Jones Brothers Construction in Inchelium, Washington on October 25, 2011. Plaintiff was part of a construction crew that was building a pole-style structure for the local Fire Hall/EMT Unit. The structure was being constructed pursuant to a contract between Confederated Tribes Of The Colville Indian Reservation and Jones Brothers Construction. Plaintiff alleges that on that day, “[a]n EMT on duty for the Colville Confederated Tribes EMT Unit, Ronald L. Shaffer, took it upon himself to [2] help the construction crew.” According to the First Amended Complaint, while Plaintiff was on a ladder setting girder trusses, “Mr. Shaffer negligently swung a sledge hammer and struck [Plaintiff’s] left hand with the sledge hammer causing [a] fracture to his long finger and other injuries.”

Plaintiff sues the United States under the Federal Tort Claims Act (FTCA), 26 U.S.C. §2674. He sues Mr. Shaffer and his wife, presumably, for common law negligence under this court’s supplemental jurisdiction, 28 U.S.C. §1367(a). Pursuant to Fed. R. Civ. P. 12(b)(1), the United States now moves to dismiss the FTCA claim against it, asserting there is no subject matter jurisdiction because Mr. Shaffer was not acting pursuant to the contract between the U.S. Department of Health and Human Services (HHS) and the Colville Confederated Tribes, and furthermore, was not acting within the scope of his employment with the Tribes.

Ninth Circuit Rejects Treaty Argument in King Mountain Tobacco v. McKenna

September 26, 2014Matthew L.M. Fletcher2 Comments

Here is the opinion.

The court’s syllabus:

Affirming the district court’s summary judgment, the panel held that the Yakama Treaty of 1855 did not preclude enforcement of the State of Washington’s escrow statute, which requires tobacco companies to place money from cigarette sales into escrow to reimburse the State for health care costs related to the use of tobacco products.

The panel held that Washington’s escrow statute was a nondiscriminatory law and that the activities of King Mountain Tobacco Co., a company owned and operated by an enrolled member of the Yakama Indian Nation, were largely off-reservation. Accordingly, absent express federal law to the contrary, King Mountain was subject to the escrow statute. The panel held that the plain text of the Yakama Treaty did not create a federal exemption from the escrow statute. Specifically, Article II of the Treaty, which established the boundaries of the Yakama reservation and reserved it for Yakama use and benefit, was not an express federal law that exempted King Mountain from the escrow statute. Nor was Article III, which reserved to the tribe the right to travel on public highways and the right to hunt and fish. The panel held that the district court did not err by declining to make findings regarding the Treaty’s meaning to the Yakama people at the time of its signing because the meaning to the Yakama people could not overcome the clear words of the Treaty.

Briefs here.