Ninth Circuit

Ninth Circuit Rules in Favor of Lummi over Klallam Tribes in U&A Litigation

Matthew L.M. Fletcher

Here is the opinion in Lower Elwha Klallam Tribe v. Lummi Nation.

From the syllabus:

The panel reversed the district court’s summary judgment in favor of the Lower Elwha Klallam Indian Tribe, and held that the disputed waters west of Whidbey Island, Washington were included in the Lummi Nation’s right of taking fish at usual and accustomed grounds and stations (“U & A”) under the 1855 Treaty of Point Elliot.

In United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), Judge Boldt developed a framework for determining U & As for Indian signatories to the Treaty. In Finding of Fact 46, Judge Boldt stated that the U & A for the Lummi Indians “included the marine areas of Northern Puget Sound from the Fraser River south to the present
environs of Seattle.” 

To determine whether the waters west of Whidbey Island were included in the Lummi’s U & A, the panel followed a two-step procedure. At step one, the panel held that Fact 46 was ambiguous because it did not clearly include or exclude the disputed waters. At step two, the panel examined the record before Judge Boldt to clarify his intent, and concluded that the district court erred in excluding the disputed waters
from the Lummi’s U & A. The panel held that the district court improperly imposed a heightened standard in holding that logic or linguistics needed to “compel the conclusion” that contested waters be included in a U & A.

Briefs here.

Oral Argument Video in Casino Pauma v. NLRB

Matthew L.M. Fletcher

Here.

Briefs here.

Ninth Circuit Materials in Nisqually Indian Tribe v. Squaxin Island Indian Tribe

Matthew L.M. Fletcher

Here (aka United States v. Washington subproceeding 14-2):

Nisqually Opening Brief

Lower court materials here.

Ninth Circuit Decides Koniag v. Kanam

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion.

Briefs:

opening brief

answer brief

reply brief

Ninth Circuit Remands Makah v. Quileute/Quinault Ocean U&A Dispute

Matthew L.M. Fletcher1 Comment

Here is the opinion in Makah Indian Tribe v. Quileute Indian Tribe.

 Briefs are here.

Nooksack Update in Federal RICO Action

Matthew L.M. Fletcher

Here are new materials in Rabang v. Kelly (W.D. Wash.):

122 Plaintiffs’ Supplemental Summary Judgment Response

Ninth Circuit briefs in Rabang v. Kelly are here.

Interior Prevails in Defense of Ione Band Trust Land Acquisition in Ninth Circuit

Matthew L.M. Fletcher4 Comments

Here is the opinion in County of Amador v. Dept. of Interior. UPDATE: And the unpublished opinion in No Casino in Plymouth v. Zinke.

An excerpt:

This case involves a dispute over a proposed casino in Amador County, California. Plaintiff, the County of Amador (“County”), challenges a 2012 record of decision (“ROD”) issued by the United States Department of the Interior (“Interior”) in which the agency announced its intention to take land into trust for the benefit of the Ione Band of Miwok Indians (“Ione Band” or “Band”). The ROD also allowed the Ione Band to build a casino complex and conduct gaming on the land once it is taken into trust. Reviewing Interior’s decision under the Administrative Procedure Act (“APA”), we conclude that the agency did not err. Accordingly, we affirm the district court’s award of summary judgment to Interior and the Ione Band.

Briefs here.

Ninth Circuit Decides Sturgeon Hovercraft Matter on Remand from SCOTUS

Matthew L.M. Fletcher

Here is the opinion in Sturgeon v. Masica. An excerpt:

John Sturgeon would like to use his hovercraft in a national preserve to reach moose hunting grounds. The State of Alaska is fine with that; the federal government is not. Sturgeon’s case turns on which entity—state or federal—gets to decide the matter. On remand from the Supreme Court, we again conclude that the federal government properly exercised its authority to regulate hovercraft use on the rivers within conservation system units in Alaska.

Briefs:

Alaska Brief

Enviro Groups Brief

Federal Brief

Mentasta Traditional Village et al Brief

Sturgeon Brief

Ninth Circuit Briefs in Rabang v. Kelly (Nooksack RICO Matter)

Matthew L.M. Fletcher2 Comments

Here:

6 – Defendant-Appellants’ Opening Brief

11 – Plaintiff-Appellees’ Answering Brief

16 Appellants’ Reply Brief

More posts here.

 

Upper Skagit Prevails over Suquamish in Ninth Circuit U&A Fishing Territory Appeal

Matthew L.M. Fletcher

Here is the opinion in Upper Skagit Indian Tribe v. Suquamish Indian Tribe.

An excerpt:

In this treaty fishing rights case, the Upper Skagit Indian Tribe (“the Upper Skagit”) filed a Request for Determination as to the geographic scope of the Suquamish Indian Tribe’s (“the Suquamish”) usual and accustomed fishing grounds and stations (“U&A”) as determined by Judge Boldt in 1975. Specifically, the Upper Skagit sought a determination that the Suquamish’s U&A determinations do not include Chuckanut Bay, Samish Bay, and a portion of Padilla Bay where the Upper Skagit has its own court-approved U&A determinations (“the Contested Waters”). On cross-motions for summary judgment, the district court concluded that Judge Boldt did not intend to include the Contested Waters in the Suquamish’s U&A determinations and, accordingly, granted summary judgment to the Upper Skagit. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, we affirm.

Briefs here.