Ninth Circuit

Ninth Circuit Issues Amended Opinion in Zepeda — Same Outcome, Different Reasoning

Matthew L.M. Fletcher6 Comments

Here are the new materials:

CA9 Amended Opinion

US En Banc Petition

Zepeda Response to En Banc Petition

From Judge Watford’s now-much-shortened dissent:

I agree with much of the majority’s analysis, particularly its conclusion that whether a tribe has been recognized by the federal government is a question of law. But I disagree with the majority’s ultimate determination that the government failed to present sufficient evidence from which a rational jury could infer that Zepeda has a blood connection to a federally recognized tribe. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could certainly infer that the reference in Zepeda’s tribal enrollment certificate to “1/4 Tohono O’Odham” is a reference to the federally recognized Tohono O’odham Nation of Arizona.

Panel materials are here.

Materials on affected appeals are here.

Ninth Circuit Vacates Large Attorney Fees Award in Pakootas v. Teck Cominco Metals

Matthew L.M. Fletcher

Here are the materials:

Pakootas Brief

State of Washington Brief

Teck Cominco Brief

CA9 Unpublished Opinion

The attorney fees award, I believe, is discussed here.

Briefs in Quechan Challenge to Ocotollo Wind Energy Facility in S. California

Matthew L.M. Fletcher

Here are the briefs in Quechan Tribe of the Fort Yuma Indian Reservation v. Dept. of Interior:

Doc 11_1 Appellant’s Opening Brief 090413. wo Addendum

Doc 15 CRIT Amicus Brief

Federal Appellee Brief

Reply brief TK

Lower court materials here.

Ninth Circuit Briefs in Challenge to Repatriation of “La Jolla Skeletons” to Kumeyaay Cultural Repatriation Committee

Matthew L.M. Fletcher1 Comment

Here are the briefs in White v. University of California:

White Opening Brief

Kumeyaay Cultural Repatriation Committee Answer Brief

University Answer Brief

White Reply

Lower court materials are here.

Reply Brief in EXC, Inc. v. Jensen

Matthew L.M. Fletcher

Here:

Jensen Reply

 

Thurston County Files En Banc Petition in Ninth Circuit Appeal

Matthew L.M. Fletcher2 Comments

Here:

Thurston Co en banc petn

Panel materials are here.

Update in Chehalis v. Thurston County

Matthew L.M. Fletcher

Here are additional materials relating to a motion for clarification by the county:

Motion for Clarification

Motion to Clarify Denied

Motion to Extend Time

Motion to Extend Time Granted

Panel decision materials here.

Ninth Circuit Withdraws Zepeda Opinion

Matthew L.M. Fletcher

Here. The order:

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

Matthew 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

Matthew 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.