Ninth Circuit – Page 44

Ninth Circuit Rules in Favor of Agua Caliente Reserved Groundwater Claims

March 7, 2017Matthew L.M. Fletcher2 Comments

Here is the opinion in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District:

An excerpt:

The Coachella Valley Water District (“CVWD”) and the Desert Water Agency (“DWA”) (collectively, the “water agencies”) bring an interlocutory appeal of the district court’s grant of partial summary judgment in favor of the Agua Caliente Band of Cahuilla Indians (the “Tribe”) and the United States. The judgment declares that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe’s reservation in California’s arid Coachella Valley. We agree. In affirming, we recognize that there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater. However, because we conclude that it does, we hold that the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.

Briefs here.

Amended Panel Decision in the Culverts Case

March 2, 2017March 7, 2017Ann Tweedy1 Comment

Here. All aspects of the substantive holding are retained. This new order adds analysis on a couple of issues (recoupment and the State’s futility argument). No word yet on the court’s response to the request for rehearing en banc.

View previous coverage here and here and here.

En banc stage briefs:

Washington Rehearing/En Banc Petition

Idaho and Montana Amicus Brief

Klamath Critical Habitat Landowners Amicus Brief

US Response

Tribal Response

Panel materials here.

Ninth Circuit Briefs in U.S. v. Bearcomesout — Federal Defenders Seek End of the Dual Sovereignty Exception for Indian Tribes

March 2, 2017April 27, 2017Matthew L.M. Fletcher1 Comment

Here are the briefs in United States v. Bearcomesout:

Opening Brief

Answer Brief

An excerpt from the opening brief:

Because the Northern Cheyenne Constitution cedes almost unfettered authority to the federal government, Ms. Bearcomesout’s prior conviction in Tribal Court bars subsequent federal prosecution in U.S. District Court as a violation of the Double Jeopardy clause. What is more, the frequency of litigation attacking identical and successive prosecutions says something about the inherent unfairness and counter intuitive legal analysis imposed on what seems to be a simple constitutional prohibition. Perhaps it is time to eschew the ‘separate sovereign’ concept altogether; because the harm it is intended to proscribe is hardly served by current separate sovereigns doctrine. See Puerto Rico v. Sanchez Valle, 579 U.S ___, 136 S.Ct. 1863, 1877 (2016) (Ginsberg, J., concurring).

Ninth Circuit Briefs in Northern Arapaho Tribe v. LaCounte

February 17, 2017March 28, 2017Matthew L.M. Fletcher

Here:

BIA Opening Brief

Northern Arapaho Tribe Answer Brief

Other briefs TK.

Lower court materials here.

Ninth Circuit Materials in Navajo Nation Water Rights Claim to Colorado River

February 15, 2017February 15, 2017Matthew L.M. Fletcher3 Comments

Here are the briefs in Navajo Nation v. Dept. of Interior:

Water Districts Brief

Navajo Reply

Oral argument video here.

Lower court materials here.

Ninth Circuit Materials in Guidiville Rancheria v. United States

February 15, 2017Matthew L.M. Fletcher

Here are the briefs:

Guidiville Rancheria Opening Brief

City of Richmond Brief

Oral argument video here.

Lower court materials here.

Update in Paskenta Band v. Crosby

January 26, 2017Matthew L.M. Fletcher

Here are updated orders in Paskenta Band of Nomlaki Indians v. Crosby (E.D. Cal.):

299-dct-order-dismissing-umpqua-bank

342-dct-order-dismissing-gdk-consulting

358-dct-order-granting-cornerstone-bank-motion

359-dct-order-denying-moore-insurance-motion

360-dct-order-denying-pi-motion

Recall the CA9 recently revived the tribe’s effort to freeze Crosby assets, post here.

Also, the federal indictment of the Crosby family is here.

Ninth Circuit Holds Consumer Financial Protection Act Applies to Tribes

January 20, 2017Matthew L.M. Fletcher1 Comment

Here is the opinion in Consumer Financial Protection Board v. Great Plains Lending.

An excerpt:

We have consistently held in our post-Stevens precedent that generally applicable laws apply to Native American tribes unless Congress expressly provides otherwise. In the Consumer Financial Protection Act, a generally applicable law, Congress did not expressly exclude tribes from the Bureau’s enforcement authority. Although the Act defines “State” to include Native American tribes, with States occupying limited co-regulatory roles, this wording falls far short of demonstrating that the Bureau plainly lacks jurisdiction to issue the investigative demands challenged in this case, or that Congress intended to exclude Native American tribes from the Act’s enforcement provisions. Neither have the Tribes offered any legislative history compelling a contrary conclusion regarding congressional intent. At this stage of the proceedings, we affirm the district court’s order enforcing the investigative demands against the Tribal Lending Entities.

And:

At this stage of the proceedings, we conclude that the district court properly held that the Bureau does not plainly lack jurisdiction to issue investigative demands to the tribal corporate entities under the Act. See id. at 1002. Although the Tribal Lending Entities make some appealing arguments, none of the arguments suffices to breach or evade the barrier to their success provided by the Coeur d’Alene revetment.

Briefs here.