Ninth Circuit

En Banc Ninth Circuit Panel Decides Important NEPA Intervention Case

Matthew L.M. Fletcher

Here is the opinion in Wilderness Society v. USFS.

And the tribal amicus brief: Tribal Amicus Brief

An excerpt:

Today we revisit our so-called  “federal defendant” rule, which categorically prohibits private parties and state and local governments from intervening of right on the merits of claims brought under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321  et seq. Because the rule is at odds with the text of Federal Rule of Civil Procedure 24(a)(2) and the standards we apply in all other intervention of right cases, we abandon it here. When construing motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether a putative intervenor demonstrates the “significantly protectable” interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether  “the interest is protectable under some law,” and whether “there is a relationship between the legally protected interest and the claims at issue.” Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993). Since the district court applied the “federal defendant” rule to prohibit intervention of right on the merits in this NEPA case, we reverse and remand so that it may reconsider the putative intervenors’ motion to intervene.

Murder Conviction of Navajo Man Reinstated by Ninth Circuit En Banc Panel

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Begay (8-3).

The panel decision that vacated a first-degree murder conviction for insufficiency of evidence of premeditation is here.

The three judges that dissented from the reversal, under Judge Reinhardt’s byline, write:

This is a case in which there is no conflict among circuits, no intra-circuit conflict, and no issue of national importance.The court went en banc not over any legal issue, but only to decide whether a few specific facts identified in the majority opinion were sufficient to warrant a finding of premeditation.A similar combination of facts is not likely to occur again in a future case, especially as there are few federal murder cases—this one happened on an Indian reservation—and even fewer in which the question whether the murder was first- or second-degree hinges exclusively on whether there is sufficient circumstantial evidence to prove premeditation. Nevertheless, a majority of this court decided that it was worthy of en banc review when the three-judge panel found that the prosecution had failed to prove murder in the first as opposed to  second degree. Because I disagree with the majority that the minimal facts that it sets forth in its opinion are sufficient to establish premeditation beyond a reasonable doubt, whatever reasonable inferences may be drawn, I dissent.

Opening Brief in Chehalis Tribes v. Thurston County

Matthew L.M. Fletcher2 Comments

Here: Appellants Opening Brief.

Lower court materials here.

Materials in Lyon v. Gila River Indian Community (CA9)

Matthew L.M. Fletcher2 Comments

We previously posted the opinion here. Here are the briefs:

GRIC Opening Brief 09-08-08

Lyon Answer & Opening Brief 11-21-08

GRIC Reply & Answer Brief 01-16-09

Lyon Reply Brief 01-30-09

Ninth Circuit Remands Pauma Band Gaming Dispute to Trial Court in Light of Colusa Case

Matthew L.M. Fletcher1 Comment

Here is that unpublished order.

An excerpt:

This case is remanded to the district court for reconsideration of all four ofthe Winter factors (see Winter v. Natural Res. Def. Council, – U.S. –, 129 S.Ct.365, 374 (2008)), and to re-analyze them in light of our recent decisions inAlliance for Wild Rockies v. Cottrell, 09-35756, 2010 WL 3665149 (9th Cir. July28, 2010) (amended Sept. 22, 2010) (articulating a post-Winter “sliding-scale”test), and Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v.California, No. 09-16942, 2010 WL 3274490 (9th Cir. Aug. 20, 2010) (altering theEastern District Court of California’s interpretation of the IGRA Compact formulafor determining the total number of Class III gaming licenses at issue). If uponreconsideration the district court determines injunctive relief is warranted, it mustjustify any alteration of the status quo. See Tanner Motor Livery, Ltd. v. Avis, Inc.,316 F.2d 804 (9th Cir. 1963).

Yet More Holiday Reading: Ninth Circuit Decides Lyon v. Gila River Indian Community

Matthew L.M. Fletcher1 Comment

Here is the opinion.

An excerpt:

This appeal involves a dispute between an Indian tribe andthe trustee of a bankruptcy estate over the rights of access toand occupation of a parcel of land completely surrounded byIndian reservation land. The district court had jurisdictionpursuant to 28 U.S.C. §§ 1331 and 1334. We have jurisdictionto hear this appeal pursuant to 28 U.S.C. § 1291, and weaffirm in part and vacate in part.

Ninth Circuit Vacates Major Crimes Act Conviction on Sixth Amendment Grounds

Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. War Club.

An excerpt:

We conclude that bylimiting cross-examination of Green’s brother, the district court precluded War Club from developing evidence that Green’s brother had a motive to commit the murder. The court thereby deprived War Club of the “meaningful opportunity to present a complete defense” guaranteed by the Constitution. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690(1986)). Because we cannot say that the error was “harmless beyond a reasonable doubt,” United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), we vacate the conviction and remand for a new trial.

Prisoner Response Brief in Miranda v. Nielson (Ninth Circuit)

Matthew L.M. Fletcher2 Comments

Here: Responsive Brief in Miranda 111010

Parties Agree that Bustamante v. Valenzuela Ninth Circuit Appeal is Moot

Matthew L.M. Fletcher

Here are the materials:

Pascua Motion to Dismiss

Bustamante Consent

Opening brief is here, and lower court materials here.

Details here, from the Bustamante filing:

Respondents argue that because Mr. Bustamante has completed his sentence and been released from custody, and because Mr. Bustamante’s habeas petition challenges only the length of his sentence, his appeal should be dismissed on grounds of mootness. Upon review of Respondents’ motion and pertinent authorities, including North Carolina v. Rice, 404 U.S. 244 (1971), Mr. Bustamante, by and through undersigned counsel, agrees with Respondents’ contention and does not oppose Respondents’ motion.

Ninth Circuit Declines to Review Panel Decision to Force Challengers to Native Hawaiian School Preferences to Disclose Their Names Publicly

Matthew L.M. Fletcher1 Comment

Here is today’s order — with dissents (filled with outrage) from both Chief Judge Kozinski and Judge Reinhardt, as well as a concurrence signed by the three panel judges — denying en banc review in Doe v. Kamehameha Schools.

Here is the panel decision.