Ninth Circuit – Page 65

The opinion in this case filed on January 18, 2013, and reported at 705 F.3d 1052 is hereby withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. The court will file a new opinion in due course. As the court’s opinion is withdrawn, the government’s petition for rehearing and rehearing en banc is moot.

Materials in this case and related cases are here.

Ninth Circuit Materials in Native Village of Point Hope v. EPA

August 14, 2013Matthew L.M. Fletcher

Here:

Native Village of Point Hope Opening Brief

EPA Brief

NANA Regional Corporation Answer Brief

Native Village of Point Hope Reply Brief

Oral argument audio here.

EPA’s statement of the issue:

Whether EPA’s approval of Alaska’s site-specific water quality criterion for total dissolved solids (“TDS”) in the Main Stem of Red Dog Creek during Arctic grayling spawning season was arbitrary or capricious where EPA based its approval on a comprehensive review of existing scientific evidence and, consistent with a recent study’s recommendation, an additional study into the impacts of TDS exposure on fertilization success in Arctic grayling.

Ninth Circuit Rejects Fort Belknap Housing Petition re: HUD Overpayments

August 8, 2013Matthew L.M. Fletcher1 Comment

Here are the materials in Fort Belknap Housing Authority v. Office of Public and Indian Housing (HUD):

CA9 Opinion

Fort Belknap Opening Brief

Federal Answer Brief

Fort Belknap Reply Brief

An excerpt:

The panel dismissed a petition for review of a decision of the Department of Housing and Urban Development to withhold overpayments made to the Fort Belknap Housing Department under the federal rent-subsidy program for Indian Tribes and Tribal Designated Housing Entities.

The panel held that because the Department of Housing and Urban Development had taken no “action” pursuant to 25 U.S.C. § 4161(a), it lacked jurisdiction to entertain the appeal. The panel held it lacked jurisdiction because HUD neither alleged nor found that Fort Belknap failed to comply substantially with the provisions of the Native American Housing Assistance and Self Determination Act of 1996; and because HUD did not impose the remedies listed in 25 U.S.C. § 4161(a)(1). The panel dismissed Fort Belknap’s petition without reaching the merits.

And:

At oral argument, HUD’s counsel suggested that Fort Belknap could raise its claims in the appropriate district court. We do not decide whether any other court has jurisdiction, as that issue is not before us, but we note that our holding does not necessarily mean Fort Belknap is without judicial recourse.

Ninth Circuit Affirms Conviction of Former Chukchansi CEO for Fraud and Theft from a Tribal Gaming Establishment

August 7, 2013Matthew L.M. Fletcher

Here is the opinion in United States v. Livingston. An excerpt:

The panel affirmed convictions for mail fraud (18 U.S.C. § 1341) and theft by an officer or employee of a gaming establishment on Indian lands (18 U.S.C. § 1168(b)).

The panel held that the location of the gaming establishment is not an element of the offense under § 1168(b), and that the allegations in the indictment were sufficiently specific to apprise the defendant of the specific offenses with which he was charged.

The panel also held that the district court’s jury instructions correctly defined “intent to defraud,” and that the district court did not abuse its discretion by admitting prior acts evidence under Fed. R. Evid. 404(b).

Here are the materials:

Livingston Opening Brief

US Answer Brief

Livingston Reply

Lower court materials here, here, here, and here.

Jeff Livingston was also the gaming manager at Grand Traverse Band.