Ninth Circuit

Ninth Circuit Affirms Tribal Immunity from Antitrust Claims relating to Tribal Tax Agreement

Matthew L.M. Fletcher5 Comments

Here is the opinion and materials in Miller v. Wright.

The court’s syllabus:

Affirming the district court’s dismissal of an antitrust action brought by cigarette vendors challenging taxes imposed by virtue of the authority vested in an Indian tribe, the panel held that the district court lacked subject matter jurisdiction in light of the tribe’s sovereign immunity. The panel held that the tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures nor by ceding its authority to Washington State when entering into a cigarette tax contract. The panel also held that federal antitrust law did not explicitly abrogate tribal immunity, and the Sherman Antitrust Act was not a law of general applicability vis-a-vis the tribe. The panel held that tribal officials were protected by the tribe’s sovereign immunity because they acted pursuant to the tribe’s authority. The panel also affirmed the district court’s alternative ruling that the action was barred by res judicata in light of prior litigation in state and tribal courts.

Here are the briefs:

Miller Opening Brief

Puyallup Answer Brief

Miller Reply Brief

Lower court materials here.

Judge Nelson’s Comments on Judge Betty Fletcher

Matthew L.M. Fletcher

Here. H/t to How Appealing.

An excerpt:

Betty and I were on calendar together the week before she died. I could tell that she was not feeling well, but nonetheless, as we discussed the cases at our post-hearing conference, she was her usual brilliant self. She had what she termed a distinguished record of reversals by the U.S. Supreme Court, often joined by me. One such case was National Resources Defense Council v. Winter that we heard in 2008 together with Judge Stephen Reinhardt. This was an environmental case and if you knew Betty, you knew that she was a passionate environmentalist. She and her sisters were the first women to hike the Wonderland Trail, a rugged 93-mile trail that includes a complete loop around Mount Rainier, the highest mountain in Washington state. I understand that one of her eight grandchildren later followed in her footsteps.

The Natural Resources case was about mammals, especially whales. Environmental organizations were concerned about the Navy’s use of high-intensity, mid-frequency sonar exercises that would cause serious harm to various mammals in Southern California waters. Similar exercises around the world had caused the beaching and deaths of many whales. The environmentalists brought a motion for a preliminary injunction in the district court seeking to prevent this activity. The district court judge, while allowing the training activities to continue, imposed restrictive conditions on them. Betty, in a bold, thoughtful, level-headed, fearless and eloquent 45-page opinion, affirmed the district court. Judge Reinhardt and I concurred. I should mention that at oral argument, Betty was superb. When an attorney challenged the court’s right to tell the Navy what to do, Betty, never confrontational, simply smiled and said something to the effect that it was the court’s duty to protect the planet.

We were reversed, of course, by the U.S. Supreme Court, in a 5-4 opinion. As her son, Willie, now a judge on our court, later commented: “Damn the whales, full speed ahead.”

Materials in Ninth Circuit Challenge to Uranium Mine Permit by Havasupai Nation

Matthew L.M. Fletcher2 Comments

Here are the Ninth Circuit briefs in Center for Biological Diversity v. Salazar (Arizona 1 Mine):

CBD Opening Brief

Denison Mines Answer Brief

Federal Answer Brief

Oral argument audio here.

Lower court materials here.

Materials in prior appeal here.

Ninth Circuit Judge Betty Fletcher Walks On

Matthew L.M. Fletcher3 Comments

Sad, sad day.

News coverage from How Appealing here. Ninth Circuit press release here. From the ABA Journal site:

Betty Fletcher, a judge with the San Francisco-based 9th U.S. Circuit Court of Appeals, died Monday, the Associated Press reports.

Fletcher, 89, was appointed to the court by President Jimmy Carter, and has been on the bench since 1979. She graduated from University of Washington Law School in 1956, according to a 2009 Seattle Weekly profile of the jurist. Then 33, she had four young children and went to work at the firm that is now K&L Gates.

Two of her children, William and Susan, became lawyers, and William Fletcher is also now a 9th Circuit justice. Betty Fletcher is well-known for telling U.S. Senate Republicans, who according to the Associated Press delayed her son’s judicial appointment, that to ease his confirmation she would take senior status so they could appoint someone for her seat.

William Fletcher’s nomination was confirmed in 1998.

Judge Fletcher’s track record in Indian cases was simply amazing. Lots of well-known cases below:

Crow Tribe v State of Montana 1981

Cultee v US 1983

Puyallup Indian Tribe v Port of Tacoma 1983

White Mountain Apache v Williams (dissent) 1984

US v Adair 1984

Blackfeet Tribe v Montana 1984

National Farmers Union v Crow Tribe 1984

Andersen v BIA 1985

Chemehuevi Indian Tribe v Cal State Board of Equalization 1986

US ex rel Chunie v Ringrose 1986

Assiniboine & Sioux Tribes of Fort Peck v Board of Oil & Gas Conservation of Montana 1986

Yakima Indian Nation v Whiteside (Brendale) 1987

Sanders v Robinson 1988

McClendon v US 1989

Sisseton-Wahpeton Sioux Tribe v US 1990

US v Orr Water Ditch Co 1990

Gila River Indian Community v Waddell 1992

LaPier v McCormick 1993

Salt River Pima-Maricopa Indian Community v Yavapai County 1995

Salt River Pima-Maricopa Indian Community v Arizona 1995

Nevada v Hicks 1999

Owens Valley Indian Housing Authority v Turner 1999

US v Webb 2000

AT&T Corp. v Coeur d’Alene Tribe 2002

Native Village of Quinhagak v US 2002

US v Errol D Jr 2002

Boozer v Wilder 2004

US v Smith 2004

Ninth Circuit Vacates Condition of Indian Country Sex Offender’s Supervised Release

Matthew L.M. Fletcher

Here is the opinion in United States v. Wolf Child.

An excerpt:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

Ninth Circuit Decides Gaming Case — Blackjack Card Counters Beware!

Matthew L.M. Fletcher

Here is the opinion in LAURIE TSAO V. DESERT PALACE, INC.

Update in Ruby Pipeline Case

Matthew L.M. Fletcher

Guess the big win wasn’t all that big. Here are two unpublished opinions from the Ninth Circuit in related cases that are not so excellent for the tribes.

CENTER FOR BIOLOGICAL DIVERS. V. BLM

SUMMIT LAKE PAIUTE TRIBE V. BLM

Ninth Circuit Hands Summit Lake Paiute Tribe & Fort Bidwell Indian Community Big Win in Challenge to BLM Approval of Ruby Pipeline

Matthew L.M. Fletcher

Here is the opinion in Center for Biological Diversity v. BLM.

An excerpt:

Our case concerns a decision by the Bureau of Land Management (“BLM”) to authorize the Ruby Pipeline Project (“Project”). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and  streams that support federally endangered and threatened fish species. According to a Biological Opinion (“the Biological Opinion” or “the Opinion”) formulated by the Fish and Wildlife Service (“FWS”), the project “would adversely affect” nine of those species and five designated critical habitats. The FWS nonetheless concluded that the project “would not jeopardize these species or adversely modify their critical habitat.” The propriety of the FWS’s “no jeopardy” conclusion, and the BLM’s reliance on that conclusion in issuing its Record of Decision, are at the heart of this case. This opinion addresses those challenges to the Project that petitioners Center for Biological Diversity, Defenders of Wildlife et al., and Summit Lake Paiute Tribe have raised under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. Specifically, we resolve petitioners’ claims that the Biological Opinion and its accompanying Incidental Take Statement were arbitrary and capricious because: (1) the Biological Opinion’s “no jeopardy” and “no adverse modification” determinations relied on protective measures set forth in a conservation plan not enforceable under the ESA; (2) the Biological Opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from sixty-four wells along the pipeline; (3) the Incidental Take Statement miscalculated the number of fish to be killed, by using a “dry-ditch construction method” for water crossings; and (4) the Incidental Take Statement placed no limit on the number of “eggs and fry” of threatened Lahontan cutthroat
trout to be taken during construction. We agree with the first two contentions and so set aside the Biological Opinion as arbitrary and capricious. We also set aside the Record of Decision, as it relied on the invalid Biological Opinion.

Briefs here.

Congrats to Colette Routel and the tribes.

Ninth Circuit Oral Argument Audio in Grand Canyon Skywalk — UPDATE

Matthew L.M. Fletcher1 Comment

Here.

News coverage from WaPo. More detail from HuffPo.

I will note that at the end of oral argument one of the Ninth Circuit judges found part of the Grand Canyon Skywalk Development LLC’s opening brief “offensive,” “histrionic,” and “vituperative.” There was a “big frown face on the opening brief.” Lots of frustration in this case.

 

Ninth Circuit Affirms Dismissal of Pregnancy-Based Employment Discrimination Suit against National American Indian Housing Council

Matthew L.M. Fletcher

Here is the unpublished opinion in McDade v. National American Indian Housing Council.