Supreme Court

AP Article on Asian Carp Case

Matthew L.M. Fletcher

From the AP via How Appealing:

TRAVERSE CITY, Mich. (AP) — The U.S. Supreme Court on Tuesday refused to order immediate closure of shipping locks near Chicago to prevent Asian carp from infesting the Great Lakes.

The court rejected a request by Michigan for a preliminary injunction to close the locks temporarily while a long-term solution is sought to the threatened invasion by the ravenous fish. The one-sentence ruling didn’t explain the court’s reasoning.

Asian carp, primarily bighead and silver varieties, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. They have swarmed waterways near Chicago leading to Lake Michigan.

Scientists fear that if they reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery.

The biggest Asian carp can reach 4 feet in length and weigh 100 pounds while consuming up to 40 percent of their body weight daily in plankton, the foundation of the Great Lakes food web.

Many scientists say they could starve out popular species such as trout and salmon.

They also are spooked by passing motors and often hurtle from the water, colliding with boaters forcefully enough to break bones.

Officials poisoned a section of the canal in December after discovering genetic material that suggested at least some carp might have eluded an electric barrier on the Chicago Sanitary and Ship Canal and could be within six miles of Lake Michigan. If so, the only other obstacles between them and the lake are shipping locks and gates.

Last week, the U.S. Army Corps of Engineers said additional carp DNA – but no live fish – had been found in three different spots along the Chicago River within a mile of where it flows into Lake Michigan.

Michigan, joined by Minnesota, New York, Ohio and Wisconsin and the Canadian province of Ontario, asked the high court to order the locks closed as a stopgap measure while considering a permanent separation between Lake Michigan and the Mississippi River basin. Continue reading →

Asian Carp Plea Denied

Matthew L.M. Fletcher

From SCOTUSblog:

The Supreme Court refused on Tuesday to order emergency measures sought by the state of Michigan to stop the migration of an invasive fish species, Asian carp, toward Lake Michigan from rivers and a sanitary canal in Illinois.  Without comment, the Court refused to issue a permanent injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers.  The Court’s order did not dispose of Michigan’s plea to reopen a decades-old decree to address the carp migration issue on its merits. That will come later in cases 1, 2 and 3 Original, Wisconsin, Michigan and New York v. Illinois.

News Coverage Update on Asian Carp Case

Matthew L.M. Fletcher1 Comment

From How Appealing:

“Something’s Fishy at the High Court”: Tony Mauro of The National Law Journal has this report.

And last Sunday’s edition of The Chicago Tribune contained an article headlined “Asian carp: Take that carp and fry it; River invader is more tasty morsel than maligned in some quarters.”

Supreme Court Grants Cert in Criminal Restitution Case Involving Mescalero Apache Man

Matthew L.M. Fletcher

From Indianz:

The U.S. Supreme Court has agreed to hear a restitution case involving a member of Mescalero Apache Nation of New Mexico.

Brian Russell Dolan pleaded guilty to a violent attack on the reservation. He was sentenced to prison time and parole but restitution wasn’t determined by a federal judge until months later.

Dolan says the Mandatory Victims Restitution Act requires a judge to act within 90 days. The 10th Circuit Court of Appeals did not agree but the Supreme Court will review the decision.

The case is Dolan v. US, No. 09-367.

Continue reading →

Amicus Brief Supporting Cert Petition in Wolfchild v. United States

Matthew L.M. Fletcher

Here: Historic Shingle Springs Miwok Amicus Brief

Other materials in this case are here.

Indian Country Implications for NFL Supreme Court Case?

Matthew L.M. Fletcher

A guest post from MSU 2L Adrea Korthase:

Following the Supreme Court denial of cert in Harjo v. Pro Football, Inc., a new group of plaintiffs has emerged to challenge the laches defense. However, maybe there is the potential for a new defendant as well.

On Wednesday, January 13th, the Supreme Court will hear American Needle v. National Football League. American Needle brought a claim against the NFL for violating antitrust statutes when the football league signed an exclusive license agreement with Reebok. The district court granted summary judgment to the NFL and the Seventh Circuit affirmed the district court’s decision, agreeing that the NFL could act as a single entity. The Supreme Court granted cert.

There is wide ranging speculation as to what will happen if the NFL prevails and the Court defines the league as a single entity. Those who are concerned cite everything from higher ticket prices to union lockouts as possible outcomes. However, if the NFL is considered a single entity, it may help the mascot fight.

If the Court determines that the NFL is a single entity and has the power to license and market their intellectual property, it is possible that the Redskin’s trademark would be part of that property. A determination of a change in hands, a change in control, could weaken a laches defense because it would have been impossible to bring an action against a single entity that did not exist until now.

In addition, because a laches defense, unlike statute of limitations, is a decision of the court, the change in the NFL’s distinction may be influential. It is possible that a court will find that the NFL has a greater responsibility, as a single entity, to rid the league of racist and disparaging trademarks.

Grand River Enterprises Files Cert Petition in Tobacco Case

Matthew L.M. Fletcher

Here is the cert petition in Grand River Enterprises Six Nations v. Beebe: Grand River Enterprises Cert Petition

And the lower court opinion: CA8 Opinion

The questions presented:

1. In 2002, Petitioner, Grand River Enterprises Six Nations, Ltd. (“Grand River”), commenced a lawsuit against the Attorneys General of thirty-one (31) States in federal district court in New York, challenging model legislation adopted by their respective States to implement the Tobacco Master Settlement Agreement (“MSA”). The Second Circuit Court of Appeals has twice held that Petitioner’s antitrust and Commerce Clause challenges to the model legislation state a claim for relief under Fed. R. Civ. P. 12(b)(6). Although the State of Arkansas adopted the same model legislation, the Arkansas Attorney General was not included in that lawsuit, because, at that time, the State of Arkansas had not enforced, nor threatened enforcement of, the model legislation against Petitioner. In this later-filed action against the Arkansas Attorney General, the Court of Appeals for the Eighth Circuit, with one Judge dissenting, has held that challenges to the model legislation in Arkansas – challenges identical to those permitted by the Second Circuit – fail to state a claim. As such, the question presented is whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSA violates the Sherman Act, the Eighth Circuit erred in affirming dismissal of Petitioner’s Sherman Act challenge to the same model legislation enacted by the State of Arkansas, pursuant to Fed. R. Civ. P. 12(b)(6).

2. Whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSAviolates the Commerce Clause, the Eighth Circuit erred in affirming dismissal pursuant to Fed. R. Civ. P. 12(b)(6) of Petitioner’s Commerce Clause challenge to the same model legislation enacted by the State of Arkansas.

Continue reading →

Cert Petition Filed over Nooksack Casino

Matthew L.M. Fletcher1 Comment

Here is the petition in North Country Community Alliance v. Salazar: North County Community Alliance Cert Petition

Lower court materials are here.

The questions presented:

Must the National Indian Gaming Commission establish its jurisdiction over a tribe’s potential gaming sites, by determining that such sites qualify as “Indian lands”, before approving the tribe’s gaming ordinance?

Does the National Indian Gaming Commission act ultra vires when it approves a tribal gaming ordinance which allows construction and operation of a gaming facility on land which is never determined by the Commission to be “Indian lands”?

There doesn’t appear to be any reason to grant cert in this case. By the petitioner’s own admission, there is no circuit split. This is a case of first impression before the Court, and that usually means a death knell for the petition.

News Coverage of Asian Carp Case

Matthew L.M. Fletcher

From SCOTUSblog:

Following an editorial yesterday decrying the recent suit filed against the State of Illinois by the State of Michigan, the Chicago Tribune has a news story on recent fillings questioning the science behind Michigan’s claim that carp emerging through locks from Illinois waters could endanger the local fish.  The filings, in defense of Illinois, come from the Illinois Department of Natural Resources, the Metropolitan Water Reclamation District of Greater Chicago and the U.S. Army Corps of Engineers.  UPI reports that the Obama Administration has come out in favor of Illinois as well, while the Christian Science Monitor has Michigan’s side of the story.

US Opposes Michigan’s Bid to Close Chicago Canal in SCT

Matthew L.M. Fletcher

From SCOTUSBlog:

The federal government, saying that it, too, is worried about an invasive species of fish making its way into Lake Michigan and is doing something about it, urged the Supreme Court on Tuesday to turn down the state of Michigan’s new plea for major Court-ordered steps to head off that migration.  It also implied that the Court should not allow Michigan to go ahead with its underlying lawsuit in the Court against Illinois and others, arguing that the proper place for the dispute is in a lower federal court, if anywhere.  The new federal document can be found here.

Continue reading →