Here:
Petition for Rehearing En Banc
Panel materials are here.
en banc petition
Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda
Today, the Ninth Circuit withdrew an opinion affirming a conviction in United States v. Alvirez. The Alvirez materials are here. The Zepeda materials are here. The federal government has until April 18 to file an en banc petition. A third decision that may be implicated as well is United States v. PMB (materials here).
The issue in Zepeda is here:
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Supreme Court Denies Cert in New 49ers v. Karuk Tribe
Here is the order list for today.
And the briefs are here.
Cert Stage Briefing Complete in New 49er’s v. Karuk Tribe
Here, from SCOTUSblog. The case is set for Conference on March 15, 2013.
Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS). Previous post here.
Ninth Circuit Denies Rehearing/En Banc Review of Maxwell v. County of San Diego — Tribal Officials Not Immune under Section 1983
Here is the order:
Maxwell v. County of San Diego (9th 2013)
An excerpt:
The panel has voted to deny the petition for rehearing in case number 10-56671; Judges Clifton and Ikuta vote to deny the petition for rehearing en banc, and Judge Farris so recommends. Judges Farris and Clifton vote to deny the petition for rehearing in case number 10-56706; Judge Clifton votes to deny the petition for rehearing en banc, and Judge Farris so recommends. Judge Ikuta votes to grant the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petitions for rehearing en banc and no judge has requested a vote on whether to rehear the matters en banc. Fed. R. App. P. 35. The petitions for panel rehearing and the petitions for rehearing en banc are DENIED.
Earlier materials are here: panel opinion materials and en banc petition.
Pending Ninth Circuit En Banc Petition Materials in Maxwell v. County of San Diego
You’ll recall the panel opinion here found that tribal employees have no official immunity for official actions.
Here are the en banc petition materials:
Yocha Dehe Wintun Nation Amicus Brief
Maxwell Response to En Banc Petition
Maxwell Supplemental Authorities Letter
The petition is still pending, but perhaps the Miller v. Wright amendment is evidence that the Ninth Circuit could take this case for en banc review.
Second Circuit, over a Dissent, Denies En Banc Review of Shinnecock Casino Construction/Aboriginal Title Suit
Here is the dissent from the order denying en banc review:
CA2 Dissent from Denial of En Banc Petition — Shinnecock
The panel opinion and briefs are here.
Cert Petition in Klamath National Forest Endangered Species Act Case
Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:
Questions presented:
- Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute “agency action” for purposes of § 7(a)(2) of the Endangered Species Act.
- Whether the federal courts lack jurisdiction over the action in light of changed circumstances.
Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS).
I don’t know the merits of this petition, but it probably should be denied because of the cheese ball (if not downright tacky) caption here.
Ninth Circuit Panel Agrees to Re-Hear Rincon Mushroom Tribal Court Exhaustion Case
Here is that order, along with the unpublished opinion ordering a stay of the trial court case.
The petition stage materials:
Santa Ynez et al Amicus Brief in Support of Petition
Pala Band et al Amicus Brief in Support of Petition
Mazzetti Request to Take Judicial Notice
Rincon Mushroom Opposition to Judicial Notice Request
Panel materials are here.
Trial court materials are here.
En Banc Ninth Circuit Holds Forest Service Violated the Endangered Species Act in Approving Mining at Klamath Nat’l Forest
Here is today’s opinion in Karuk Tribe of California v. USFS.
Audio and video of the en banc argument here. Briefs here.
An excerpt:
There are two substantive questions before us.
The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.
The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.
We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.
Turtle Talk 
You must be logged in to post a comment.