Ninth Circuit

Ninth Circuit (Largely) Rejects Alaska Eskimo Whaling Commission Challenge to Oil & Gas Exploration Permits

Matthew L.M. Fletcher2 Comments

Here is the opinion in Alaska Eskimo Whaling Commission v. EPA:

13-70633

From the court’s syllabus:

The panel granted in part and denied in part a petition for review brought by the Alaska Eskimo Whaling Commission, challenging the Beaufort Permit issued by the U.S. Environmental Protection Agency under the National Pollutant Discharge Elimination System provisions of the Clean Water Act, authorizing the discharge of oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with conditions set forth in the Permit.

The panel granted the petition on one issue on which the EPA admitted error in the record, and remanded to the EPA for a determination regarding whether the discharge of noncontact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment because
of the effect of such discharge on bowhead whales, including deflection from their migratory paths.

The panel denied the petition in all other respects because the EPA’s issuance of the Permit was otherwise supported by the record evidence, did not reflect a failure to consider an important respect of the problem, and was not otherwise arbitrary or capricious.

Guest Post by Bill Wood: Commentary on the Ninth Circuit (Opinion in Robinson v. Jewell) and Aboriginal Title in California (Revised)

Matthew L.M. Fletcher3 Comments

Commentary on the Ninth Circuit (Opinion in Robinson v. Jewell) and Aboriginal Title in California

A few people emailed and texted me about this opinion and suggested I write something about it. So I’ve sketched out below some initial thoughts on certain of the court’s statements concerning the laws applicable to Indian lands and aboriginal title in California generally—which reflect and perpetuate legal and historical misunderstandings that permeate federal Indian law in California—and regarding the history of the Tejon Ranch and the Tejon Reservation (the lands at issue in the case, hereinafter “Tejon” for convenience). I’m not commenting here on the merits of the plaintiffs’ claims or the lawyering (I haven’t read the briefs or the district court’s opinion). And I didn’t intend to write something this long. But I felt like I needed to provide enough detail to support my points (there are some footnotes, mostly citing historical sources, that aren’t included in this post due to technological limitations), while hopefully not getting bogged down in the particulars of the statutes and cases addressing aboriginal title in California or the histories of the military reservations established here in the 1850s and 1860s. My apologies for where I fall short in that regard or otherwise, including where things may be oversimplified.

The court notes (slip op. at 10) that the lands at issue were the subject of four different Mexican land grants that were confirmed by a commission established under an 1851 law to determine the validity of Mexican (and Spanish) land grants: the Act to Ascertain and Settle the Private Land Claims in the State of California. Pub. L. No. 31-41, 9 Stat. 631 (1851) (emphasis added). (The court calls it the California Land Claims Act of 1851, or simply the Act of 1851, conveniently omitting and ignoring the “Private Land Claims” language in the law’s title.) As the court explains (slip op. at 12; see also at 5), this 1851 Act required that “each and every person claiming lands by virtue of any right derived from the Spanish or Mexican government” (my emphasis) to present that claim to the commission by March 3, 1853, when lands for which grants were not confirmed would go into the public domain. And the court, reinforcing a jurisprudential misunderstanding dating back to the late nineteenth century, stated that “the Tribe’s failure to present a claim to the Commission pursuant to the [1851 Act] extinguished its title” (slip op. at 12), because “the Act . . . fully extinguished any existing aboriginal title or unregistered land grants” (slip op. at 16).

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Chippewa Cree Tribe Seeks Ninth Circuit Review of Whistleblower Matter

Matthew L.M. Fletcher

Here is the petition in Chippewa Cree Tribe v. Dept. of Interior:

Petition

The agency determination is here.

California Appellate Court Issues Slightly Modified Opinion in Cosentino v. Fuller

Matthew L.M. Fletcher2 Comments

Here:

Amended Opinion

Motion for rehearing here.

Panel materials here.

Ninth Circuit Rejects Nonrecognized Kawaiisu Tribe’s Claim to Tejon Ranch

Matthew L.M. Fletcher

Here is the opinion in Robinson v. Jewell.

From the court’s summary:

The panel affirmed the district court’s dismissal of the claims of the Kawaiisu, a non-federally recognized Native American group, and its elected chairperson, David Laughing Horse Robinson, asserting title to the Tejon Ranch, one of the largest continuous expanses of private land in California.

The panel held that the district court properly determined that the Tribe had no ownership interest in the Tejon Ranch and that no reservation was established. Specifically, the panel held that the district court correctly concluded that the Tribe’s failure to present a claim to the Board of Commissioners created by the California Land Claims Act of 1851 extinguished its title; that the Treaty with the Utah did not convey land rights to the signatory tribes or recognize aboriginal title; and that Treaty D was never ratified and conveyed no rights. The panel rejected the Tribe’s complaints of alleged forgery and deception in obtaining patents for the four Mexican land grants comprising Tejon Ranch because all of the alleged acts occurred prior to the submission of the claims to the Board of Commissioners, and the Tribe could not challenge the validity of land patents after more than a century of time had passed.

The panel held that the claims against Kern County were subsumed into the Tejon Ranch ownership determination. The panel further held that the Tribe’s claims originally asserted against the Secretary of the United States Department of the Interior, and Robinson’s individual claims, were waived for failure to assert them on appeal. The panel
declined to consider the Tribe’s new arguments on appeal.

Briefs:

Robinson Opening Brief

Kern County Brief

Tejon Mountain Village Answer Brief

US Answer Brief

Robinson Reply

Lower court materials.

Ninth Circuit Rejects Habeas Petition of Navajo Man Sentenced to Death

Matthew L.M. Fletcher2 Comments

Here is the opinion in United States v. Mitchell.

Brief tk.

California Tribes Seek Rehearing Or Depublication Of Official Immunity Ruling

Matthew L.M. Fletcher1 Comment

Here are the materials:

Petition for Rehearing

Cosentino – Application and Amicus Brief

Here’s a snippet from the petition:

The Opinion effectively holds that the Tribe’s Gaming Commission lacks authority to revoke a gaming license unless it cites to reasons for its actions that are expressly and affirmatively authorized to do so by codified law. That is incorrect as a matter of law. The Opinion also wrongly asserts that tribal sovereign immunity can be overcome by alleging that a tribal official acted in excess of his or her authority and that, upon such allegation, tribal official immunity is subject to an evidentiary weighing and balancing that involves shifting burdens of production and persuasion, similar to California’s law of qualified immunity. Tribal official immunity, however, is an absolute privilege, like the absolute immunity enjoyed by the Justices of this Court.

We previously covered this case here.

 

Ninth Circuit Holds Indian Tribes are not “Persons” Subject to Federal False Claims Act Liability

Matthew L.M. Fletcher1 Comment

Here are the materials and the unpublished decision in Howard v. Shoshone-Bannock Tribes:

2015-05-15 Weldy and Thomas v Sho Pai (9th Cir 2015)

Dkt. Entry 11 Appellant’s Opening Brief-10-11-13

Dkt. Entry 20-1 Appellee’s Answering Brief-12-11-13

Dkt. Entry 27 Appellant’s Reply Brief-01-27-14

Lower court decision here:

Docket No. 32 Order Granting Defendant’s Motion to Dismiss & Denying Plaintiff’s Counter Motion-12-26-12

Ninth Circuit Materials Navajo Nation NAGPRA Dispute with Federal Government

Matthew L.M. Fletcher2 Comments

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

Navajo Opening Brief

US Answer Brief

Navajo Reply

Oral argument video and audio.

CA9 opinion here. Opinion after settlement here.

District court materials:

13 US Motion to Dismiss

17 Navajo Response

18 US Reply

25 DCT Order

An excerpt:

This action stems from the long-standing desire of the plaintiff, the Navajo Nation, to obtain the immediate repatriation of 303 sets of human remains and other associated cultural objects removed by the National Park Service (“NPS”) from the Canyon de Chelly National Monument (“the Monument”), which is a unit of the NPS located within the exterior boundaries of the Navajo Reservation; the human remains and cultural objects at issue are currently being held by the NPS at its Western Archeology Conservation Center in Tucson, Arizona.

Ninth Circuit Sitting En Banc Rules in Favor of Big Lagoon Rancheria in Gaming Dispute with California

Matthew L.M. Fletcher1 Comment

Here is the opinion in Big Lagoon Rancheria v. State of California:

10-17803

From the court’s syllabus:

The en banc court affirmed the district court’s summary judgment in favor of a tribe that alleged that the State of California had failed to negotiate in good faith for a gaming compact under the Indian Gaming Regulatory Act for Class III gaming on a parcel of land taken into trust for the tribe by the Bureau of Indian Affairs.

Rejecting California’s argument that the tribe lacked standing to compel it to negotiate in good faith under the IGRA, the en banc court held that the State’s argument amounted to an improper collateral attack on the BIA’s decisions to take the parcel of land into trust and to designate the tribe as a federally recognized Indian tribe. The en banc court held that the district court did not abuse its discretion in failing to grant a continuance for additional discovery under Fed. R. Civ. P. 56(f).

The en banc court dismissed the tribe’s cross-appeal as moot.

Links to oral argument and briefs here.