Ninth Circuit

Has implications, one would think, in the Native Village of Kivalina case….

This week the Acting Solicitor General filed a brief on behalf of the Tennessee Valley Authority in American Electric Power Co. v. Connecticut, urging the Court to vacate a Second Circuit ruling that would permit lawsuits against greenhouse gas emitters for their contributions to climate change. The New York Times covered the filing (via Gabriel Nelson of Greenwire), as does the San Francisco Chronicle’s Bob Egelko, the Washington Post’s Steven Mufson, and Stephen Power of the Wall Street Journal’s Washington Wire.

Industry Side Briefs in the Kivalina Climate Change Case

August 27, 2010Matthew L.M. Fletcher2 Comments

The power arrayed against the tribal interests here is simply incredible, and telling about the potential ramifications of the case.

Kivalina opening brief is here.

Add’l Brief supporting Kivalina:

Solar Industry Amicus Brief

Industry Side briefs:

BP Answering Brief

Peabody Answering Brief

American Electric Brief

Amici supporting defendants:

American Chemistry Council Amicus Brief

Center for Constitutional Jurisprudence Amicus Brief

Intl Automobile Manufacturers Amicus Brief

Natl Assn of Manufacturers Amicus Brief

NATSO Amicus Brief

Reps. Smith and Sensenbrenner Amicus Brief

US Chamber of Commerce Amicus Brief

Ninth Circuit Reverses Horsely Sohappy’s Conviction for Violation of Probation Conditions

August 18, 2010Matthew L.M. Fletcher

Here are the materials (unpublished opinion here):

Sohappy Opening Brief

Government’s Answering Brief

Sohappy Reply Brief

Briefing in City of Vancouver v. US — Challenge to NIGC Cowlitz Gaming Decision

August 7, 2010Matthew L.M. Fletcher

Here are the materials (argued last week, the panel is WILLIAM C. CANBY, JOHN T. NOONAN and MARSHA S. BERZON):

City of Vancouver Opening Brief

NIGC Answering Brief

City of Vancouver Reply Brief

Lower court materials here.

Pit River Tribe v. USFS in Ninth Circuit

August 2, 2010Matthew L.M. Fletcher

Opinion here. The court rejected Pit River’s challenge to the district court remand back to the USFS for NEPA violations, holding that the agency did not have to start over on the underlying question (Calpine’s proposed lease extensions near Medicine Lake).

Heather Kendall Miller Noted for Ninth Circuit Spot

July 26, 2010Matthew L.M. Fletcher

From Law.com:

A lawyer under serious consideration for the 9th U.S. Circuit Court of Appeals would, if picked, become the only American Indian currently in the federal judiciary and the first ever to serve on an appellate court, according to sources familiar with the search process.

Heather Kendall-Miller, a staff attorney for the Native American Rights Fund, is in the running to succeed Judge Andrew Kleinfeld for an Alaska-based seat. But Kendall-Miller has some competition from Alaska Supreme Court Justice Morgan Christen, part of a complicated 9th Circuit puzzle the White House is trying to assemble.

Christopher Cameron, a professor at Southwestern Law School, is the leading California contender for a separate seat that has long been in dispute between California and Idaho, multiple sources said. But the administration is also apparently looking for an Idaho nominee, these sources said, because the turf war is still going strong.

“I have long stated that the seat vacated by Judge Stephen Trott, a Californian who made a personal decision to set up his judicial chambers in Idaho, should reside in California,” Sen. Dianne Feinstein said in an e-mail.

But Idaho’s two senators — Michael Crapo, who once clerked for former 9th Circuit Judge James Carter, and James Risch — aren’t backing down. In April the two Republicans told White House Counsel Robert Bauer that they still believe the nominee should come from Idaho, according to a Crapo spokeswoman.

Sources familiar with the administration’s stance said the White House decided it would not intervene in the dispute, though Feinstein said she looked forward to “working with the White House” to find a nominee from California.

The White House didn’t have an immediate comment on its plans.

Cameron once clerked for 9th Circuit Judge Harry Pregerson. He’s been on the Southwestern faculty since 1991, specializing in labor and employment law. He did not return a call for comment.

In Alaska, Kendall-Miller has worked on high-profile Native American rights cases, and argued in the U.S. Supreme Court — once facing off against future Chief Justice John Roberts, according to a 1997 profile in Indian Country magazine (Kendall-Miller lost).

She also has a personal connection to President Obama: They were classmates at Harvard Law School in the early 1990s. And she has a compelling life story, having dropped out of high school and marrying at 17, then going on to work on an oil pipeline, getting divorced and putting herself through college and law school as a single mother, Indian Country reported.

Kendall-Miller did not return a call for comment.

American Indian advocacy groups are pushing hard for her, said Richard Guest, a Washington, D.C.-based staff attorney for her organization. Two American Indians have served as district court judges in the past, said Guest, but there aren’t any on the bench now.

“It’s not just that we don’t have anyone on the bench. We don’t have anyone who can act as mentors to young Native lawyers and law students,” Guest said. “That’s what we’re looking for: folks not who would just be great judges, but great mentors.”

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