en banc petition – Page 8

Ninth Circuit, on Reconsideration, Orders Interior Review of Gila Bend Act in Tohono O’odham Gaming Lands Appeal

May 21, 2013May 20, 2013Matthew L.M. Fletcher5 Comments

Here are the materials in City of Glendale v. United States:

Superceding panel opinion

Arizona & Glendale En Banc Petition

Gila River En Banc Petition

Federal Response

TON Response

The court’s syllabus:

The panel withdrew its prior opinion and published a superseding opinion affirming in part, and reversing and remanding in part, the district court’s summary judgment in favor of federal defendants in an action by the City of Glendale seeking to set aside the United States Department of Interior’s decision to accept in trust, for the benefit of the Tohono O’odham Nation, a 54-acre parcel of land known as Parcel 2 on which the Nation hoped to build a resort and casino.

The panel held the Gila Bend Indian Reservation Lands Replacement Act, read as a whole, was unambiguous and that § 6(c) of the Act created a cap only on land held in trust for
the Nation, not on total land acquisition by the tribe under the Act. The panel held that § 6(d) of Act was ambiguous as to whether Parcel 2, located on a county island fully surrounded by city land, was within the City of Glendale’s corporate limits. The panel held further that the Secretary of the Interior was mistaken in concluding that the term has a plain meaning, and remanded for the agency to consider the question afresh in light of the ambiguity the panel saw. Finally, the panel held that passage of the Act was within congressional power under the Indian Commerce Clause and was not trumped by the Tenth Amendment

News coverage here.

Previous panel materials here.

Grand Canyon Skywalk Development Files Petition for En Banc Review of Tribal Court Jurisdiction Panel Decision

May 13, 2013Matthew L.M. Fletcher

Here:

Petition for Rehearing En Banc

Panel materials are here.

Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda

April 15, 2013Matthew L.M. Fletcher3 Comments

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

March 18, 2013Matthew L.M. Fletcher

Here is the order list for today.

And the briefs are here.

Cert Stage Briefing Complete in New 49er’s v. Karuk Tribe

February 25, 2013Matthew L.M. Fletcher

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

February 14, 2013February 14, 2013Matthew L.M. Fletcher1 Comment

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

January 14, 2013Matthew L.M. Fletcher3 Comments

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:

Viejas Band En Banc Petition

Gila River Amicus Brief

Suquamish Tribe Amicus Brief

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

November 28, 2012Matthew L.M. Fletcher1 Comment

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.

Lower court materials are here and here.

Cert Petition in Klamath National Forest Endangered Species Act Case

September 17, 2012Matthew L.M. Fletcher2 Comments

Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:

New 49ers Cert Petition

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.