Ninth Circuit

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.

Ninth Circuit Affirms SORNA Conviction of Former Northern Cheyenne Indian Reservation Resident (UPDATED)

Matthew L.M. Fletcher

Here is the opinion in United States v. Elk Shoulder.

Update — here are the briefs:

Elk Shoulder Opening Brief

USA Answer Brief

Elk Shoulder Supplemental Brief

USA Supplemental Brief

Here is the Fifth Circuit opinion with which the CA9 disagrees:

US v Kebodeaux CA5 Opinion

Ninth Circuit Affirms Dismissal of Native Village of Kivalina Claims against Oil Companies

Matthew L.M. Fletcher1 Comment

The opinion is here.

Briefs and oral argument materials are here.

Lower court materials here.

Cert Petition in Klamath National Forest Endangered Species Act Case

Matthew L.M. Fletcher2 Comments

Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:

New 49ers Cert Petition

Questions presented:

  • Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute “agency action” for purposes of § 7(a)(2) of the Endangered Species Act.
  • Whether the federal courts lack jurisdiction over the action in light of changed circumstances.

Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS).

I don’t know the merits of this petition, but it probably should be denied because of the cheese ball (if not downright tacky) caption here.

 

Split Ninth Circuit Panel Affirms Gila River Indian Community v. United States

Matthew L.M. Fletcher2 Comments

Here is today’s opinion.

An excerpt:

This case illustrates the nuances of our federalist system of government, pitting Indian tribe against Indian tribe, and State and local governments against the federal government and an Indian tribe. The City of Glendale and various other parties (“Glendale”) seek to set aside the Department of the Interior’s decision to accept in trust, for the benefit of the Tohono O’odham Nation (“the Nation”), a 54-acre parcel of land known as Parcel 2. The Nation hopes to build a destination resort and casino on Parcel 2, which is unincorporated county land, entirely surrounded by the City of Glendale. To say this plan has been controversial is an understatement. But the strong feelings and emotional drama of the casino fight do not dictate the outcome here. This appeal relates only to the status of the land as trust land and does not involve the particulars of Indian gaming, which are the subject of separate proceedings and pending legislation. The district court granted summary judgment for the government after concluding that the Secretary of the Interior reasonably applied the Gila Bend Indian Reservation Lands Replacement Act (“Gila Bend Act”), and that the Act did not violate the Indian Commerce Clause or the Tenth Amendment. We affirm.

Briefs here.

Lower court materials here.

Marceau v. Blackfeet Housing Authority Cert Petition

Matthew L.M. Fletcher3 Comments

Here:

Marceau Cert Petition

Questions presented:

1) Whether the Ninth Circuit misconstrued and misunderstood requirements for finding a Federal Trust Responsibility to Indians. Is the pervasive role of the federal government based on the administration of the law as well as the letter of the law?
2) Is there a conflict in the Circuits on this issue? Compare Brown v. United States, 86 F.3d 1554, 1560-61 (Fed. Cir. 1996) and other cases in the Federal Circuit with the decision of the Ninth Circuit in this case below (Marceau III, 540 F.3d 916, 928 (9th Cir. 2008).
3) Is there a special burden on the federal government as it relates to Indian Housing in view of the Congressional Acts on Housing, the disadvantage to Indians caused by the Indian Allotment Act which prohibits Indians from holding title to their land, and the Indian Trust Responsibility of the federal government?
4) Was the Ninth Circuit wrong in summarily dismissing Plaintiffs’ APA claim as time barred when the true state of affairs was not discovered until well within the statute of limitations? Was the Ninth Circuit wrong in not considering the federal Indian Trust Responsibility in connection with this decision?
5) Was the Ninth Circuit wrong in holding that HUD had no duty to act on a specific request of the Housing Authority and the Blackfeet Tribe to “fix it?” Was the Ninth Circuit wrong in not considering the federal Indian Trust Responsibility in connection with this decision.
Lower court materials here.
The Supreme Court denied cert in an earlier stage of this litigation here.

Ninth Circuit Affirms Dismissal of Title VII Complaint against Quinault

Matthew L.M. Fletcher

Here are the materials in Gilbertson v. Quinault Indian Nation:

CA9 unpublished opinion

Gilbertson Brief

Quinault Brief

BIA Agent Subject to Bivens Action Files Cert Petition

Matthew L.M. Fletcher2 Comments

Here is the petition in Oravec v. Cole:

Oravec v Crane Cert Petition

The question presented:

Whether a motion to dismiss brought by a federal law enforcement officer asserting qualified immunity should be granted under Aschroft v. Iqbal, 556 U.S. 662 (2009), where the complaint alleges a Bivens claim through nothing more than a formulaic recitation of the elements of the cause of action, general and unsupported statistics and musings, and alleged policy problems having nothing to do with the particular officer.

Lower court materials here.