Here are those materials:
BMG Petition for En Banc Rehearing
Chukchansi Response to Petition for Rehearing En Banc
Here are the earlier materials, and a link to an Indian Country Today piece on the case.
en banc petition
United States Petition for Rehearing in In re United States
Here: In re United States Petition for Rehearing
Recall that the question involved is whether the United States can avoid producing certain documents in the Jicarilla Apache v. United States case (materials here).
D.C. Circuit Denies Petition for Rehearing in MichGo v. Kempthorne
Here is the order — michgo-rehearing-denial
Three judges (Sentelle, Griffith, and Rogers) voted to rehear the case en banc, three short of the necessary votes. Of course, that semi-near miss gives the attorneys for MichGO fodder for making noise about a cert petition (see news report here).
I really have to think that this case is getting so much attention — not because of the merits of the case — but because these same lawyers have been working on three cases so far (TOMAC, CETAC, and now MichGO) and this is finally the end. It bears repeating that these three cases were all carbon-copy cases, with little to differentiate them at all. They have almost no merit whatsoever, and even the D.C. Circuit all but labeled them frivolous in the CETAC opinion. The Gun Lake case is no different than the previous cases, except it is the last one.
En Banc Petition in MichGO v. Kempthorne
We don’t have the petition yet, but here’s the D.C. Circuit clerk’s order and the article from ICT:
WASHINGTON – In what will likely be the last of its many legal challenges, an anti-Indian casino group has asked a federal appeals court to determine if a law that has been restoring swindled and expropriated indigenous land to Indians for almost 75 years is constitutional.
Michigan Gambling Opposition, or MichGO, petitioned the U.S. District Court of Appeals for the District of Columbia May 10 for an en banc court rehearing of its 2 – 1 panel decision to allow the Interior Department to take 147 acres of land into trust for the Gun Lake Tribe’s proposed casino.
MichGO wants the full nine-judge court to determine if the Indian Reorganization Act of 1934 violates the nondelegation doctrine by unconstitutionally allowing the Interior secretary to acquire or take into trust land for Indians.
Commentary on the MichGO En Banc and Cert Petitions
MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.
This is spurious, given very recent events.
The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.
One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.
What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.
Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.
New Jersey v. EPA: Industry En Banc Petitions Denied
Here is the order-denying-rehearing-en-banc-petitions-05-1097.
Appellate Court Rejects EPA, Industry Bid To Overturn Mercury Ruling
A key appellate court has rejected EPA and utility industry requests to rehear and overturn a ruling from a three-judge panel vacating the agency’s clean air mercury rule (CAMR), leaving supporters of the contentious rule with the option to either abandon it altogether or appeal the case up to the Supreme Court.
Environmentalists, however, doubt that the government will appeal the ruling to the high court, but leave open the option that industry may. “I would be astounded if the Solicitor General’s office walked this dog up to the Supreme Court’s steps to soil those grounds. The utility industry on the other hand follows different public health practices,” John Walke, clean air director at the Natural Resources Defense Council, said in a May 20 statement.
Turtle Talk 