Ninth Circuit

Decision in Tulalip Tribes v. Washington

Kate Fort2 Comments

Opinion here.

Previous coverage here.

Our conclusion is consonant with our instruction in Shoshone-Bannock Tribes that courts should hold compacting parties to the ordinary meaning of terms in their agreements. Id. at 1098–100. The plain language of the Spokane Compact shows that the Inter-Tribal Fund mechanism available to the Spokane Tribe carries with it interdependent conditions and consequences. Tulalip’s amendment would not match those terms. We take no view on whether the terms of Appendix Spokane are in fact more favorable than those included in the Tulalip Compact. We hold simply that Tulalip is not entitled as a matter of law to the more selective set of terms in its proposed amendment.2 The most-favored tribe clause does not allow a “pick and choose” arrangement. The district court correctly entered judgment for the State. Simply put, Tulalip’s proposal does not mirror the restrictions of Appendix Spokane, and those are the terms to which the State agreed.

Ninth Circuit Opening Briefs in Challenge to EPA Permit for Navajo Generating Station

Matthew L.M. Fletcher1 Comment

Here:

Environmental Groups Opening Brief

To’ Nizhoni Ani Opening Brief

Yazzie Opening Brief

Gila River Brief

Navajo Brief

A second appeal involving the Hopi Tribe’s challenge has been severed from this consolidated appeal:

CA9 Order

Navajo Generating Station

Ninth Circuit Reverses Judgment Favoring Crow Nation against HUD

Matthew L.M. Fletcher1 Comment

Here is the opinion in Crow Tribal Housing Authority v. HUD.

From the court’s syllabus:

The panel vacated the district court’s order remanding the case to the Department of Housing and Urban Development (“HUD”) for a hearing, reversed the judgment, and remanded for judgment to be entered in favor of HUD in a case brought by the Crow Tribal Housing Authority, arising from a dispute involving Indian housing block grants made under the Native American Housing Assistance and Self-Determination Act of 1996.

The panel held that the district court erred in ruling that HUD violated Crow Housing’s right to Native American Housing Assistance and Self-Determination Act of 1996’s notice and reporting requirements under 25 U.S.C. §§ 4161 and 4165.

Specifically, the panel concluded that HUD did not act under § 4161, and accordingly, could not have violated a hearing requirement under that section. The panel further concluded that HUD’s actions triggered the opportunity for a hearing under § 4165 when it conducted an on-site review of Crow Housing in August 2004. Finally, the panel held that because Crow Housing did not request a hearing, HUD did not violate its statutory obligation under § 4165 and did not improperly deprive Crow Housing of a hearing under the facts of the case.

Briefs and materials are here.

 

Ninth Circuit Materials in Carsten v. Nevada Inter-Tribal Council — FMLA Claims

Matthew L.M. Fletcher

Here:

Carsten Opening Brief

ITC Answer Brief

Carsten Reply Brief

Oral argument video and audio.

Lower court materials here.

Ninth Circuit Affirms Dismissal of Challenge to Pala Disenrollments

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in Allen v. Smith:

031.1 – Memorandum Disposition(83952089_1)

Excerpt:

This relief sought by the Appellants clearly operates against the Tribe. The
requested relief would prevent the Tribe from disenrolling the Appellants and
compel it to reinstate their membership and tribal benefits. Even the request for
compensatory and punitive damages (to be paid by the Appellees, not the Tribe)
would interfere with the Tribe’s public administration, because the monetary
damages are predicated on this court’s determination that the disenrollment of the Appellants was improper. Thus, we conclude that Appellants’ suit should be
construed as a suit against the Tribe itself.

Briefs and lower court materials here.

Ninth Circuit Briefs in Consumer Financial Protection Board v. Great Plains Lending

Matthew L.M. Fletcher2 Comments

Here:

Great Plains Lending Opening Brief

CFPB Answer Brief

Great Plains Lending Reply Brief

Reply Brief

Lower court materials here.

Materials on Makah Indian Tribe’s Request for Determination Re Quileute and Quinault Usual and Accustomed Fishing Grounds in the Pacific Ocean

Matthew L.M. Fletcher2 Comments

There is the potential for an enormous amount of chaos for both US v. Washington and for any Indian tribe with extant treaty rights based on the arguments going on here now. Most notably, several tribes (Quinault, Quileute, and Hoh) are claiming that the Sherrill-based equitable defenses may apply in some way to Indian treaty claims.

I find this personally horrifying and disturbing — that any tribe would claim that Sherrill and its Second Circuit progeny apply to treaty rights. Sherrill is a statute-based claim, and so are the Second Circuit cases that purport to follow its reasoning. Treaty rights are an entirely different genre.

I sincerely hope the U.S. v. Washington tribes will opt-out of federal litigation — with its potential to undercut treaty rights for tribes all over the country — and move toward an inter-tribal treaty. There is at least one proposal on the table, and tribal leaders and tribal constituents should act quickly to adopt it. These inter-tribal disputes are doing nothing now but threatening to make bad law for everyone.

Luckily, Judge Martinez did not hold that equitable defenses apply here, but who knows what will happen in the Ninth Circuit and beyond.

Here are the new materials in subproceeding 09-01 of United States v. Washington (No. 70-9213) (W.D. Wash.):

248 Makah Motion for Summary J on Equitable Defenses

251 Quinault and Quileute Motion for Summary J

267 Quinault and Quileute Response to 248 Motion

274 Makah Reply in Support of 248 Motion

275 Interested Tribes Response to 251 – Equitable Defenses

276 Hoh Tribe Response to 251

277 Makah Response to 251

279 Quileute and Quinault Reply in Support of 251

281 Quileute and Quinault Reply in Support of 251

283 Quileute and Quinault Motion to Define Burden of Proof

284 Interested Tribes Response to 283 — Burden of Proof

285 US Response to 283 — Burden of Proof

286 Upper Skagit Tribe Response to 283 — Burden of Proof

287 Makah Response to 283 — Burden of Proof

288 State of Washington Response to 283 — Burden of Proof

289 Quileute and Quinault Reply to 284 in Support of 283

290 Quileute and Quinault Reply in Support of 283

296 Makah Surreply re 283

304 DCT on Motions for Summary J

306 DCT Pretrial Order

Materials in a related pending Ninth Circuit matter in subproceeding 09-01 are here.

Confederated Tribes and Bands of the Yakama Indian Reservation v. McKenna Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

cert petition

Question presented:

Whether federal courts called upon to enforce Indian treaty protections in tribal challenges to State regulation may enter judgment against the Indian Tribe without considering evidence and entering findings of fact on the Indians’ understanding of the United States’ treaty promises.

Lower court materials here.

Ninth Circuit Rules (Preliminarily) in Favor of Black Mesa Water Coalition in Attorney Fees Dispute

Matthew L.M. Fletcher

Here is the opinion in Black Mesa Water Coalition v. Jewell. From the court’s summary:

The panel reversed in part, and vacated in part, the district court’s judgment in an action for costs and expenses brought by a plaintiff group of environmental and community organizations against the federal Office of Surface Mining Reclamation and Enforcement after plaintiff participated in a successful challenge to OSM’s grant of a coal mining permit revision.

Plaintiff petitioned the agency under the Surface Mining Control and Reclamation Act’s administrative fee-award provision to recover costs and expenses from OSM. The administrative law judge dismissed the fee petition based on the conclusion that plaintiff was not “eligible,” and was not “entitled” to costs and expenses, under 43 C.F.R. § 4.1294(b).

The panel held that its review of the agency’s “eligibility” determination was de novo, and its review of the “entitlement” determination was for substantial evidence. The panel concluded that plaintiff was “eligible” for fees because it showed some degree of success on the merits, and the agency’s contrary conclusion was error as a matter of law. The panel vacated the portion of the district court’s decision as related to the question of entitlement. The panel declined to reach the issue whether plaintiff was “entitled” to fees, and remanded for the agency to consider the issue. Finally, the panel rejected plaintiff’s argument that the Secretary of the Interior had waived a challenge to the reasonableness of any award amount that the agency might grant on remand for costs and expenses reasonably incurred for plaintiff’s participation in the proceedings at the agency level.

And the briefs:

Black Mesa Opening Brief

Interior Appellee Brief

Black Mesa Reply

Black Mesa Supplemental Brief

Interior Supplemental Brief

Black Mesa Supplemental Reply Brief

Oral argument audio here.

 

Ninth Circuit Decides Redding Rancheria v. Jewell (Affirming Section 20 Regulations)

Matthew L.M. Fletcher

Here is the opinion. The court’s summary:

The panel affirmed the district court’s judgment in favor of the federal government insofar as it upheld the Secretary of the Interior’s denial of the application of Redding Rancheria (the Tribe) to operate multiple casinos on restored lands, and reversed in part and remanded to the agency for consideration of the Tribe’s proposal to close its existing Tribal gaming operation upon construction of a new facility.

The Secretary denied the Tribe’s request to take into trust a substantial parcel the Tribe recently acquired for the construction and operation of a new gambling casino. The Indian Gaming Regulatory Act generally banned gaming on lands that tribes acquired after its enactment in 1988, but created an exception for tribes with restored lands. The agency denied the Tribe’s application because, at the time it was submitted, the Tribe was operating a modest casino on land it acquired earlier. The district court granted summary judgment to the government because the Tribe was seeking to operate multiple casinos, which the applicable regulations sought to prevent. While the application was pending, the Tribe advised the agency that it was willing to close down its original casino once the new one was in operation. 

The panel held that the regulation at issue was reasonable, and the Secretary reasonably implemented the restored lands exception. The panel further held that the Indian canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of Indians) did not apply in the circumstances of this case. The panel also held that the Secretary’s denial of the Tribe’s application was not inconsistent with prior agency practice, and was not arbitrary and capricious. 

The panel held that the agency should have considered the Tribe’s alternative offer to move all gaming to the new casino, and vacated in part the district court’s summary
judgment with instructions to remand to the agency to address the issue.

Judge Callahan concurred in parts I, II, and III of the majority’s opinion; and agreed that the regulation at issue was reasonable, the Indian canon did not apply, and there was no unexplained change in agency policy. Judge Callahan dissented from part IV of the opinion because the Tribe did not fairly prompt the Secretary to consider its alleged offer to move its casino and did not ask the district court to consider the alleged offer to remove the casino. Judge Callahan would not reverse in part and remand for further consideration.

Briefs and other panel materials here.

Lower court materials here and here.