Here:
Petition for Rehearing En Banc
Panel materials are here.
Ninth Circuit
Ninth Circuit Affirms EPA Decision to Issue Permits for Offshore Drilling in Alaska
Here is the opinion in Resisting Environmental Destruction on Indigenous Lands v. EPA.
From the court’s syllabus:
The panel denied a petition for review, and upheld a decision of the Environmental Protection Agency granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels.The panel upheld the EPA’s statutory and regulatory interpretations. Specifically, the panel held that the Clean Air Act is ambiguous as to the applicability of the best available control emissions to support vessels not attached to an Outer Continental Shelf source, and concluded under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), deference that the EPA’s construction of the statute was permissible and reasonable. The panel also held that the EPA’s grant of a 500 meter ambient air exemption was not plainly erroneous or inconsistent with the EPA’s regulations.
Related opinion from last December here.
Perhaps as Many as Three Ninth Circuit Indian Criminal Cases Uncertain as Feds Ponder En Banc Petition in U.S. v. Zepeda
Today, the Ninth Circuit withdrew an opinion affirming a conviction in United States v. Alvirez. The Alvirez materials are here. The Zepeda materials are here. The federal government has until April 18 to file an en banc petition. A third decision that may be implicated as well is United States v. PMB (materials here).
The issue in Zepeda is here:
The panel held that a Certificate of Enrollment in an Indian tribe, entered into evidence through the parties’ stipulation, is insufficient evidence for a rational juror to find beyond a reasonable doubt that a defendant is an Indian for purposes of § 1153, where the government offers no evidence that the defendant’s bloodline is derived from a federally recognized tribe.
Miller v. Wright Cert Petition
Here:
Questions presented:
The questions presented in this case are:
1. Whether Indian tribal immunity from suit allows the Indian tribe, a price fixing competitor, to be immune from federal anti-trust laws?
2. Whether the officials of an Indian tribe, acting beyond their authority, can be protected by tribal immunity when prospective relief is sought?
Lower court materials here.
Ninth Circuit Reverses Another Conviction under Zepeda (Tribal CDIB Insufficient Evidence of Indian Status)
Here is yesterday’s unpublished order in United States v. PMB.
The Zepeda post is here.
Montana Federal Judge Cebull Retires over Racist Obama Email
Here. Via. News coverage. From the CA9:
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
Here:
Lower court materials are here.
Supreme Court Denies Cert in New 49ers v. Karuk Tribe
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
Here are the materials in United States v. Alvirez (opinion here):
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
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.
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