Ninth Circuit – Page 69

Montana Federal Judge Cebull Retires over Racist Obama Email

April 3, 2013Matthew L.M. Fletcher

In March 2012, U.S. District Judge Richard F. Cebull, District of Montana, wrote to Ninth Circuit Chief Judge Kozinski and asked that an inquiry be conducted as to whether Judge Cebull’s transmittal of an email containing racially offensive content constituted misconduct under the Judicial Conduct and Disability Act. 28 U.S.C. § 351 et seq.

Judge Cebull’s self-filed complaint and another were referred to a Special Committee which conducted a thorough and extensive investigation, interviewed numerous witnesses, considered voluminous documentation, including emails, and conducted an interview with Judge Cebull. The Special Committee’s Report was submitted to the Judicial Council in December 2012. On March 15, 2013 the Judicial Council issued an Order and Memorandum. Judicial Conduct Rule 20(f). Pursuant to Judicial Conduct Rules 22 and 24(a), the Order and Memorandum remains confidential during the appeal period.

At this time, Judge Cebull has submitted his retirement letter, pursuant to 28 U.S.C. § 371(a), effective May 3, 2013. The Council will have no further statement on this matter until Judge Cebull’s retirement is effective.

We posted about this last year here.

Ninth Circuit Briefs in Evans v. Shoshone-Bannock Land Use Commission

March 28, 2013Matthew L.M. Fletcher2 Comments

Here:

Appellant Opening Brief

Appellee Answer Brief

Appellant Reply Brief

Lower court materials are here.

Supreme Court Denies Cert in New 49ers v. Karuk Tribe

March 18, 2013Matthew L.M. Fletcher

Here is the order list for today.

And the briefs are here.

Ninth Circuit Holds Unauthenticated Tribal Membership Card Insufficient for Proving Indian Status under Major Crimes Act

March 18, 2013Matthew L.M. Fletcher2 Comments

Here are the materials in United States v. Alvirez (opinion here):

Alvirez Brief

Federal Appellee Brief

Alvirez Reply

From the court’s syllabus:

Reversing a conviction for assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 113(a)(6), the panel held that the district court abused its discretion when it admitted an unauthenticated Certificate of Indian Blood issued by the Colorado River Indian Tribes as evidence that the defendant has tribal or federal government recognition as an Indian. The panel wrote that because Indian tribes are not listed among the entities that may produce self-authenticatingdocuments, the district court abused its discretion in admitting the Certificate pursuant to Fed. R. Evid. 902(1) as a self-authenticating document.

Native Village of Kivalina v. ExxonMobile Cert Petition

March 14, 2013Matthew L.M. Fletcher1 Comment

Here:

Native Village of Kivalina Cert Petition

Question presented:

Petitioners Native Village of Kivalina and the City of Kivalina, a federally-recognized tribe and an Alaskan municipality, are the governing bodies of an Inupiat village located on an Arctic barrier island that is being destroyed by global warming. Greenhouse gases have caused the Earth’s temperature to rise, especially in the Arctic, which has melted the land-fast sea ice that protects the village from powerful oceanic storms. Kivalina is thus now exposed to erosion and flooding from the sea and must relocate or face imminent destruction.

Petitioners seek damages — not injunctive relief–from the largest U.S. sources of greenhouses gases under the federal common law of public nuisance. In American Electric Power Co. v. Connecticut (“AEP”), 131 S. Ct. 2527 (2011), the Court dismissed a federal common law claim for injunctive relief, holding that the Clean Air Act displaces “any federal common law right to seek abatement” of emissions because the Clean Air Act “provides a means to seek limits on emissions [2] of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law.” AEP, 131 S. Ct. at 2537, 2538 (emphasis added).

The question presented is: Whether the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displaces federal common-law claims for damages.

Lower court materials here.

Table Mountain Rancheria Prevails In Membership Dispute Before The Ninth Circuit

March 13, 2013Matthew L.M. Fletcher1 Comment

Materials in Lewis v. Salazar here:

12 – Appellants’ Opening Brief

24 – Secretary Salazar’s Answering Brief

26 – Tribal Defendants Answering Brief

34.2 – Appellants Corrected Reply Brief

52.1 – Memorandum Opinion

Ninth Circuit Briefs in Dispute between “Advantage Gamblers” and Tonto Apache Tribal Casino

March 7, 2013Matthew L.M. Fletcher1 Comment

Here are the materials in Pistor v. Garcia:

DCT Order Denying Motion to Dismiss (D. Ariz.)

Garcia Opening Brief

Pistor Answering Brief

Garcia Reply

From the trial court order (Judge Martone):

Plaintiffs, non-Indians, describe themselves as advantage gamblers. All three gambled at the Mazatzal Hotel & Casino (“Mazatzal”) in Payson, Arizona, which is owned and operated by the Tonto Apache Tribe (“the Tribe”) and is located on tribal land. Plaintiffs each won a substantial amount of money playing some of Mazatzal’s video blackjack machines. Moving defendants are all employed by the Tribe. Hoosava is the General Manager of Mazatzal. Kaiser is employed by the Tribe as a Tribal Gaming Office Inspector. Garcia is employed by the Tribe as Chief of the Tonto Apache Police Department. On October 25, 2011, plaintiffs allege that they were seized while inside Mazatzal. Pistor and Abel were handcuffed, and all three plaintiffs were brought to private rooms and questioned. Plaintiffs were eventually released and were not charged with any crime. Defendants seized thousands of dollars in cash and casino cash redemption tickets from plaintiffs. The property has not yet been returned.