Ninth Circuit

Seattle Weekly Profile of Judge Betty Fletcher

Matthew L.M. Fletcher

From the Seattle Weekly:

Judge Betty’s Revenge

Ten years ago, federal judge Betty Fletchersaid she would step aside. It was late in the Clinton administration, and Congressional Republicans, who’d long had it in for the left-leaning 9th Circuit Court of Appeals, where Fletcher presides, were refusing to confirm the President’s nomination of Fletcher’s son William to the same Circuit as his mother. They called it “nepotism.”

As a concession, Fletcher, then 76, agreed to take a form of quasi-retirement known as “senior status.” There are loose rules governing “senior” judges, who only have to work one-quarter time to receive full pay. Accordingly, most cut back dramatically and spend the extra time at country clubs or with their grandchildren.

“Let’s just say Betty Fletcher is having the last laugh,” says Nan Aron, president of the Alliance for Justice, a liberal Washington, D.C.–based group that monitors judicial nominations. Fletcher’s son was confirmed, but she never did reduce her caseload. Today, the white-haired, Seattle-based jurist—who over the course of her career was the first woman in the city to hold virtually every title she assumed—still hears some 620 cases a year, even as she uses a walker to get around her chambers. And she continues to be a thorn in the side of conservative interests. Last year, for example, she bucked President George W. Bush and the U.S. Navy by authoring the opinion of a three-judge panel upholding restrictions on sonar exercises said to harm marine life. The year before that, she tossed out the Bush administration’s proposed fuel-efficiency standards for SUVs and “light trucks” as too weak, writing that environmental laws required the administration to take into account greenhouse-gas emissions.

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Ninth Circuit to Hear Samish Tribe’s Claim to Reenter U.S. v. Washington En Banc

Matthew L.M. Fletcher1 Comment

In an unusual procedure, after oral argument before a three-judge panel including Judge Canby, the Ninth Circuit decided to hear the United States v. Washington subproceeding involving the Samish Indian Tribe’s treaty claims en banc.

Samish Indian Tribe Opening Brief

Appellee Treaty Tribes Brief

Samish Reply Brief

USA Supplemental Brief Favoring En Banc Review

En Banc Oral Argument Order

Ninth Circuit Affirms Puget Sound Chinook Plan that Does Not Allow for “Recovery” of Fish Population

Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in Salmon Spawning & Recovery Alliance v. NOAA, and a partial dissent. Here is the tribal amicus brief (SSRA v NOAA — Tribal Amicus Brief). Judge Berzon writes in dissent:

I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.

Moreover,

Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.

Ninth Circuit Rules in Favor of Suquamish Tribe over Puget Sound Fishing Rights

Matthew L.M. Fletcher3 Comments

Here is the Ninth Circuit’s (crabby) opinion in Upper Skagit Tribe v. Washington.

The briefs:

Suquamish Opening Brief

Upper Skagit Tribe Brief

Tulalip Tribes Response Brief

Swinomish Tribe Brief

Port Gamble and Jamestown S’Klallam Tribes Brief

Suquamish Tribe Reply Brief

The key holding:

We conclude that it is at least as likely as not that Judge Boldt meant what he said; the Suquamish treaty territory “include[s] the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River.” This broad, unlimited fishery is what Dr. Lane described in her report and testimony. Dr. Lane stated that marine fisheries “are far more difficult to delimit than fresh waters.” She repeatedly underlined that her report did not, and could not, list all of the usual and accustomed fishing locations of the Suquamish. She noted that the Suquamish had more limited resources in their home area than most tribes, and thus had to travel more extensively to fish.

Dr. Lane said that she had no documentary evidence that the Suquamish fished in the San Juan Islands, but nonetheless found it likely that they did so. Judge Boldt agreed, deciding in the absence of any specific evidence that the Haro and Rosario Straits were part of the Suquamish traditional fishing grounds. This demonstrates a lack of specific evidence would not have precluded Judge Boldt from including Skagit Bay and Saratoga Passage in Suquamish’s territory.

And why we think the court is being crabby:

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Ninth Circuit Affirms Dismissal of Contract Breach Claim against Pyramid Lake Paiute

Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in High Desert Recreation v. Pyramid Lake Pauite Tribe of Indians. An excerpt:

In addition, both Supreme Court precedent and that of this court hold that Indian tribes enjoy sovereign immunity from suits on commercial contracts, whether made on or off a reservation, so long as the subject business activity functions as an arm of the tribe. See Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 760 (1998); Allen, 464 F.3d at 1046-47. Since (a) the Tribe is a party to the lease alleged in this case, (b) the lease contemplates the use of marina property owned by the Tribe and is located on the tribal reservation, (c) economic advantages of both the lease and the operation of HDR’s business inure to the Tribe’s benefit, and (d) immunity under the lease protects the Tribe’s treasury from HDR’s suit for over one million dollars in compensatory and punitive damages, the business transacted via the lease is properly deemed an activity of the Tribe for sovereign-immunity purposes.

Ninth Circuit Reverses Dismissal of Civil Rights Claims against Tribal Officers

Matthew L.M. Fletcher

Here is the opinion in Bressi v. Ford, authored by Judge Canby, which is a sort of companion case to Murgia v. Reed. The court did affirm the dismissal of a Bivens-type action against the officers. Here are the lower court materials in Bressi.

An excerpt detailing what tribal officers may do during a traffic stop of non-Indians:

We conclude that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians.

And an excerpt recognizing the implications of the decision:

We recognize that one result of our ruling is that tribal officers who are authorized to enforce state as well as tribal law, and proceed to exercise both powers in the operation of a roadblock, will be held to constitutional standards in establishing roadblocks. That result is consistent with our prior decision inEvans v. McKay, 869 F.2d 1341, 1348(9th Cir.1989), which held that officers acting pursuant to both tribal and city authority in making arrests were subject to a § 1983 claim. This result also appears to us to be an inevitable consequence of the accommodation of tribal authority over rights-of-way within Indian country and the rights of non-Indians to travel those rights-of-way. If a tribe wishes to avoid such constitutional restraints, its officers operating roadblocks will have to confine themselves, upon stopping non-Indians, to questioning to determine non-Indian status and to detention only for obvious violations of state law.

Ninth Circuit Rejects Constitutional Challenge to Phoenix-Area “DUI Courts”

Matthew L.M. Fletcher

Here is the opinion in Thomas v. Mundell, a case brought by the Maricopa County Attorney and others, challening the establishment of separate “DUI courts” in Phoenix for Spanish-speaking and American Indian people. The court tossed the challenge on standing grounds.

An excerpt:

With respect to the Native American DUI court, the amended complaint alleges that probationers here are generally required to appear on the same day. Probationers in the Native American DUI court also allegedly participate in “cultural programs, specially designed for them, such as being sent to sweat lodges and participating in talking circles.” Administrators of the DUI court program also allegedly treat participants in the Native American DUI court “as a separate group” for grant reporting purposes.

Ninth Circuit Rejects Challenge to Nooksack Casino

Matthew L.M. Fletcher1 Comment

Here is the opinion, with dissent, in North County Community Alliance v. Salazar.

Briefs:

North County Community Allliance Brief

Federal Appellee Brief

An excerpt from the majority:

We hold that the Alliance’s challenge to the NIGC’s 1993
approval of the Ordinance, insofar as it relates to the licensing
and construction of the Casino, is not time-barred. We hold on
the merits that the NIGC did not have a duty under IGRA to
make an Indian lands determination in 1993 before approving
the Nooksacks’ non-site-specific proposed gaming Ordinance.
We also hold that the NIGC did not have a duty under IGRA
to make an Indian lands determination in 2006 when the
Nooksacks licensed and began construction of the Casino pursuant
to the approved Ordinance. Finally, we hold that there
was no violation of NEPA.

We hold that the Alliance’s challenge to the NIGC’s 1993 approval of the Ordinance, insofar as it relates to the licensing and construction of the Casino, is not time-barred. We hold on the merits that the NIGC did not have a duty under IGRA to make an Indian lands determination in 1993 before approving the Nooksacks’ non-site-specific proposed gaming Ordinance. We also hold that the NIGC did not have a duty under IGRA to make an Indian lands determination in 2006 when the Nooksacks licensed and began construction of the Casino pursuant to the approved Ordinance. Finally, we hold that there was no violation of NEPA.

And from the dissent:

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Ninth Circuit Rejects Skokomish Bid for Fishing Allocation in U.S. v. Wash. Subproceeding

Matthew L.M. Fletcher1 Comment

Here is the opinion in United States v. Washington, though as the court points out, neither the U.S. nor the State of Washington were parties to this one. An excerpt:

The district court granted the Port Gamble and Jamestown Tribes’ motion to dismiss. The district court held that “[t]he dispute here does not arise from the Hood Canal Agreement, and it cannot be settled by looking to its terms. Instead, the Skokomish are asking the court to bypass the Agreement and create an allocation for the parties because they cannot agree among themselves as required by the Agreement.” The court noted that nothing in the agreement “empowers the court to allocate harvest shares in the absence of the agreement of the parties.” The provision in Judge Boldt’s decree retaining jurisdiction for “[d]isputes concerning the subject matter of this case which the parties have been unable to resolve among themselves,” did not apply because “[t]he subject matter of this case is treaty fishing rights, not the equitable rights of any one tribe to harvest a certain allocation of fish…. Nowhere in these decisions is there a finding that inter-tribal allocation (as opposed to allocation between treaty- and non-treaty fishermen) is the subject matter of this case.” As for the catch-all language in Judge Boldt’s order, “[s]uch other matters as the court may deem appropriate,” “[t]his is a discretionary section, and … the Court does not deem it appropriate to take jurisdiction of this matter.” Because the request for allocation did not fall within the purposes of enforcing the treaty or the Hood Canal Agreement, and neither provided for court allocation if the tribes could not agree among themselves, the court exercised its discretion to refrain from granting equitable relief. Though we do not reach, or rule upon, all the conclusions of the district court and the challenges to them, we conclude that dismissal was proper, and affirm.

Ninth Circuit Rejects Equal Protection Challenge to Indian Country Criminal Sentencing

Matthew L.M. Fletcher

Though one judge did strongly criticize the sentence, for a separate reason. Here is the opinion in U.S. v. Lamere (unpublished), and a separate concurrence.