Here is the majority and here is the dissent.
Here is the tribal amicus brief.
Jamestown S’Klallam Tribe
Split D.C. Circuit Grants Attorney Fees to Tribal Intervenors in EPA Mercury Rule Case (New Jersey v. EPA)
Here is the opinion. And the briefs:
The underlying merits decision from the D.C. Circuit vacating a Bush-era EPA mercury rule is here. BLT coverage is here.
Here are the intervening tribes and organizations:
Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, National Congress of American Indians, Nisqually Tribe, and Swinomish Indian Tribe Community
Concern over Whether Indian Law Will Continue to Be a Part of the Washington State Bar Exam
Here are three letters recently sent on this issue, which we believe is arising in the context of an overhaul of the Washington State Bar exam:
Galanda, Letter_to_WSBA_Board_of_Governors_and_Deans_at_WA_Law_Schools
Jamestown S’Kallam, Allen Letter re State Bar Exam Including Indian Law – July 9-2010
Ninth Circuit Dismisses Appeal of U.S. v. Washington Subproceeding (Lower Elwah v. Lummi)
Here is the unpublished opinion. The underlying dispute apparently is the usual and accustomed fishing area of the Lummi Indian Tribe.
Here are the materials:
Suquamish Tribe Files Cert Petition in U.S. v. Washington Dispute
Here is the petition in Suquamish Tribe v. Upper Skagit Tribe: Suquamish Cert Petition.
Here is the question presented:
Whether a court implementing an unambiguous court order is bound to apply that order according to its plain terms, or whether the court should instead determine whether the judge who initially issued the order “intended something other than its apparent meaning,” as the Ninth Circuit held in this case.
Lower court materials here.
Ninth Circuit Rules in Favor of Suquamish Tribe over Puget Sound Fishing Rights
Here is the Ninth Circuit’s (crabby) opinion in Upper Skagit Tribe v. Washington.
The briefs:
Port Gamble and Jamestown S’Klallam Tribes Brief
The key holding:
We conclude that it is at least as likely as not that Judge Boldt meant what he said; the Suquamish treaty territory “include[s] the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River.” This broad, unlimited fishery is what Dr. Lane described in her report and testimony. Dr. Lane stated that marine fisheries “are far more difficult to delimit than fresh waters.” She repeatedly underlined that her report did not, and could not, list all of the usual and accustomed fishing locations of the Suquamish. She noted that the Suquamish had more limited resources in their home area than most tribes, and thus had to travel more extensively to fish.
Dr. Lane said that she had no documentary evidence that the Suquamish fished in the San Juan Islands, but nonetheless found it likely that they did so. Judge Boldt agreed, deciding in the absence of any specific evidence that the Haro and Rosario Straits were part of the Suquamish traditional fishing grounds. This demonstrates a lack of specific evidence would not have precluded Judge Boldt from including Skagit Bay and Saratoga Passage in Suquamish’s territory.
And why we think the court is being crabby:
Ninth Circuit Rejects Skokomish Bid for Fishing Allocation in U.S. v. Wash. Subproceeding
Here is the opinion in United States v. Washington, though as the court points out, neither the U.S. nor the State of Washington were parties to this one. An excerpt:
The district court granted the Port Gamble and Jamestown Tribes’ motion to dismiss. The district court held that “[t]he dispute here does not arise from the Hood Canal Agreement, and it cannot be settled by looking to its terms. Instead, the Skokomish are asking the court to bypass the Agreement and create an allocation for the parties because they cannot agree among themselves as required by the Agreement.” The court noted that nothing in the agreement “empowers the court to allocate harvest shares in the absence of the agreement of the parties.” The provision in Judge Boldt’s decree retaining jurisdiction for “[d]isputes concerning the subject matter of this case which the parties have been unable to resolve among themselves,” did not apply because “[t]he subject matter of this case is treaty fishing rights, not the equitable rights of any one tribe to harvest a certain allocation of fish…. Nowhere in these decisions is there a finding that inter-tribal allocation (as opposed to allocation between treaty- and non-treaty fishermen) is the subject matter of this case.” As for the catch-all language in Judge Boldt’s order, “[s]uch other matters as the court may deem appropriate,” “[t]his is a discretionary section, and … the Court does not deem it appropriate to take jurisdiction of this matter.” Because the request for allocation did not fall within the purposes of enforcing the treaty or the Hood Canal Agreement, and neither provided for court allocation if the tribes could not agree among themselves, the court exercised its discretion to refrain from granting equitable relief. Though we do not reach, or rule upon, all the conclusions of the district court and the challenges to them, we conclude that dismissal was proper, and affirm.
Turtle Talk 