The Ninth Circuit Court of Appeals today released an opinion in RFK MEDICAL CENTER v. LEAVITT, No. 06-56367, an appeal in a civil action against the United States. The panel consisted of Alfred T. Goodwin, Harry Pregerson, and Dorothy W. Nelson, Circuit Judges.

GOODWIN, Circuit Judge: Robert F. Kennedy Medical Center (”RFK”) appeals the district court’s summary judgment, which affirmed the denial of RFK’s Medicare reimbursement request by the Secretary of Health and Human Services (”Secretary”). RFK contends that the Secretary must reimburse it for depreciation losses resulting from its disposal of assets through a statutory merger. The district court held that RFK is not eligible for reimbursement because this merger did not qualify as a “bona fide sale” under 42 C.F.R. § 413.134(f). We agree, and affirm the judgment. I Title XVIII of the Social Security Act establishes Medicare, a federally funded health insurance program for the . . .

The Ninth Circuit Court of Appeals today released an opinion in BUONO v. KEMPTHORNE, No. 05-55852, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and Ronald M. Whyte, District Judge.

McKEOWN, Circuit Judge:
A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (”Preserve”). Our court previously held that the presence of the cross in the Preserve–which consists of more than 90 percent federally-owned land, including the land where the cross is situated–violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 . . .

The opinion filed September 6, 2007, slip op. 11793, and appearing at 502 F.3d 1069, is amended as follows:
1. At slip op. 11816, footnote 13, delete “Although the Seventh Circuit adopted a presumption that “a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion” in the absence of “unusual circumstances,” Marshfield, 203 F.3d at 491, we decline to adopt such presumption. The Supreme Court’s Establishment Clause jurisprudence recognizes the need to conduct a factspecific inquiry in this area” and substitute: “The Seventh Circuit stated that “[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion. We are aware, however, that adherence to a formalistic standard invites manipulation. To avoid such manipulation, we look to the substance of the transaction as well as its form to determine whether government action endorsing religion has actually ceased.” Marshfield, 203 F.3d at 491. Read as a whole, the Seventh Circuit position looks at the issue on a transaction-by-transaction basis. We agree with this approach. However, to the extent that Marshfield can be read to adopt a presumption of the effectiveness of a land sale to end a constitutional violation, we decline to adopt such a presumption. The Supreme Court’s Establishment Clause jurisprudence recognizes the need to conduct a fact-specific inquiry in this area.” . . .

O’SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by TALLMAN, BYBEE, CALLAHAN, and BEA, Circuit Judges:
The opinion in this case announces the rule that Congress cannot cure a government agency’s Establishment Clause violation by ordering sale of the land upon which a religious symbol previously was situated. Because such a novel rule contravenes governing Supreme Court precedent, creates a split with the Seventh Circuit on multiple issues, and invites courts to encroach upon private citizens’ rights under both the speech and religion clauses of the First Amendment, I respectfully dissent from our order rejecting rehearing en banc. I Seventy-four years ago, the Veterans of Foreign Wars (”VFW”) erected atop Sunrise Rock in the Mojave National . . .

The Ninth Circuit Court of Appeals today released an opinion in SIERRA FOREST LEGACY v. REY, No. 07-16892, an appeal in a civil action against the United States. The panel consisted of REINHARDT, NOONAN, FISHER, Circuit Judges Opinion by Judge Noonan NOONAN, Circuit Judge: Sierra Forest Legacy (Sierra Forest) appeals the decision of the district court denying a preliminary injunction against the United States Forest Service (the USFS or the Forest Service) in a suit challenging its decision to permit logging in accordance with changes made in 2004 by the USFS in the relevant forest plan. Other parties, noted in the caption, have intervened on each side. The Attorney General of California, Edmund G. Brown, Jr., has filed an amicus brief in support of Sierra Forest.

NOONAN, Circuit Judge, concurring: Impaired Impartiality. That judges cannot supplement their salaries, however inadequate they may be, by imposing fines provided by law on those convicted of lawbreaking seems to be a pretty elementary principle of justice. Yet the civilized state of Ohio and the Supreme Court of that state saw nothing to object to in the practice until the Supreme Court of the United States unanimously held it to be a deprivation of due process for a municipal officer to get $12 out of a $100 fine that he had legally imposed. Tumey v. Ohio, 273 U.S. 510 (1927). Almost as elementary is the extension of this principle to administrative adjudicators. See Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (citation omitted). The bias created need not be personal, that is, the adjudicator to be found biased need not be paid off by his decision. The bias can arise from his decision being a way of raising money for the municipality he serves. Ward v. Vill. of Monroeville, 409 U.S. 57 (1972). Once again, the civilized state of Ohio and its Supreme Court had to be corrected by the United States Supreme Court finding a denial of due process when fines imposed by the mayor were “a substantial portion” of the municipality’s income, although the mayor’s own salary was fixed 13 . . .

The Ninth Circuit Court of Appeals today released an opinion in LAWRENCE v. DEPARTMENT INTERIOR, No. 06-35448, an appeal in a civil action against the United States. The panel consisted of William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.

CANBY, Circuit Judge:
Phillip Lawrence, a member of the Standing Rock Sioux Indian Tribe, has been employed for many years by the Bureau of Indian Affairs (”BIA”). He brought this action to challenge the denial of increased retirement benefits payable to employees whose duties included firefighting. He alleges that the BIA failed to notify him of an application deadline for retroactive reclassifications of service to reflect firefighting service. As a result of this failure, Lawrence missed the deadline and corresponding benefits were denied. In this action, he claims that the BIA’s failure to notify him constituted a violation of federal trust responsibility toward Indians, a violation of the Indian Preference Act, and employment discrimination on the basis of race. The district court granted summary judgment for the BIA, and we affirm. FACTS Since June 1976, Lawrence has worked with the BIA as a forester and silviculturalist. The job descriptions for those . . .

The Ninth Circuit Court of Appeals today released an opinion in LANE v. DEPT OF INTERIOR, No. 06-15191, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Cynthia Holcomb Hall and Jay S. Bybee, Circuit Judges.

HALL, Circuit Judge:
Plaintiff Melinda Lane appeals the district court’s summary judgment in favor of the United States Department of the Interior in her action for violations of the Freedom of Information Act and Privacy Act. She also appeals the district court’s denial of her discovery request and motion to seal records. We affirm. I. FACTS AND PROCEDURAL HISTORY A. Introduction This case stems from a dispute between Melinda Lane, a former park ranger, and her supervisors at the National Parks Service (NPS), a division of the Department of the Interior. Lane, who worked at the Lake Mead National Recreation Area, was promoted to a position with law enforcement duties in August of 2001, and experienced employment problems soon after. On October 21, 2001, Chief Park Ranger Dale Antonich received a letter from a citizen complaining that Lane acted unprofessionally when she stopped him for a traffic violation. Lane disputed certain aspects of the complaint, but agreed to undertake a plan to improve her skills. In March of 2002, Lane used profane language to describe some of her instructors at the Federal Law Enforcement Training Center, . . .

The Ninth Circuit Court of Appeals today released an opinion in FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS v. UNITED STATES FOREST SERVICE, No. 05-36221, an appeal in a civil action against the United States. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Consuelo M. Callahan, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether the United States Forest Service must publicly release the identities of agency personnel who responded to a wildfire that killed two Forest Service employees. I On July 20, 2003, the Forest Service engaged a wildfire in the Salmon-Challis National Forest in Idaho, which would later become known as the “Cramer Fire.” Two days later, . . .

The Ninth Circuit Court of Appeals today released an amended order in BERING STRAIT CITIZENS FOR RESPONSIBLE RESOURCEDEVELOPMENT v. UNITED STATES ARMY CORPS OF ENGINEERS, No. 07-35506, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher, Andrew J. Kleinfeld, and Ronald M. Gould, Circuit Judges.

GOULD, Circuit Judge:
This appeal concerns a permit issued to DefendantAppellee Alaska Gold Company (”AGC”), by DefendantAppellee Army Corps of Engineers (”the Corps”) for a major gold-mining project near Nome, Alaska. The permit was issued pursuant to Section 404 of the Clean Water Act (”CWA”), 33 U.S.C. § 1344, which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States. The project, known as the “Rock Creek Mine Project,” would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering and processing gold ore. Once the project is commenced, about 15,592,411 cubic yards of fill from the mine will be placed in wetlands totaling 346.5 acres. Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, Susan Steinacher, and Jana Varrati (collectively, “BSC”), allege that the Corps violated the CWA and the National Environmental Policy Act (”NEPA”) by granting a permit for the Rock Creek Mine Project. BSC appeals the district court’s denial of its motion for a tempo. . .

The opinion filed on January 3, 2008 and published at 511 F.3d 1011 (9th Cir. 2008), is AMENDED as follows. The sixth sentence of the final paragraph in section V-B-1 states: The impact of isolated placer mining, which often involves only small-scale operations, in our view is not germane to the cumulative impacts assessment of the Rock Creek Mining Project. That sentence is deleted in its entirety and replaced with the following language: The Corps also considered the cumulative impact of placer mining in the region. In our view, the impact of the isolated, small-scale placer mining that exists in the Nome region today is not germane to the cumulative impacts assessment of the large-scale hard rock mining project at issue here. In addition, we understand that reclamation is required at the end of placer mining projects. See Alaska Stat. § 27.19.020. Because nearly all of the Nome district has been previously mined, much of it prior to the introduction of reclamation requirements, any new placer mining projects will result in remediation of historic mining impacts. The panel has unanimously voted to deny the petition for panel rehearing. Judges Kleinfeld and Gould voted to deny . . .

The Ninth Circuit Court of Appeals today released an opinion in STATE OF CALIFORNIA v. LEAVITT, No. 06-56136, an appeal in a civil action against the United States. The panel consisted of David R. Thompson, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
In State of California Dep’t of Soc. Servs. v. Thompson, 321 F.3d 835, 856-57 (9th Cir. 2003) (referred to as “Rosales,” after intervenor-appellant Enedina Rosales), we rejected a U.S. Department of Health and Human Services (”HHS”) interpretation of the statute determining eligibility for the Aid to Families with Dependent Children-Foster Care (”AFDC-FC”) program. See 42 U.S.C. § 672. We remanded to the district court to implement what we held to be the. . .

The Ninth Circuit Court of Appeals today released an opinion in NATIONAL WILDLIFE FEDERATION v. STATE OF IDAHO, No. 06-35011, an appeal in a civil action against the United States. The panel consisted of A. Wallace Tashima, Sidney R. Thomas, and Richard A. Paez, Circuit Judges.

THOMAS, Circuit Judge:
These consolidated appeals bring us once more to the Pacific Northwest, for another round in the complex and longrunning battle over salmon and steelhead listed under the Endangered Species Act (”ESA”), 16 U.S.C. §§ 1531-1544. In this ESA action brought by the National Wildlife Federation and other plaintiffs (collectively “NWF”), we consider a November 2004 Biological Opinion (”2004 BiOp”) addressing the effects of proposed operations of Federal Columbia River Power System (”FCRPS” or “Columbia River System”) dams and related facilities on listed fish in the lower Columbia and Snake Rivers. The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of . . .

The Ninth Circuit Court of Appeals today released an opinion in KOTROUS v. BAYER CROPSCIENCE, No. 06-15162, an appeal in a civil action against the United States. The panel consisted of Alex Kozinski, Chief Judge, A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.

TASHIMA, Circuit Judge: We are required to consider the continued viability of Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 (9th Cir. 1997), in light of the Supreme Court’s most recent precedent addressing the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (”CERCLA”). Sections 107 and 113(f) of CERCLA, 42 U.S.C. §§ 9607 and 9613, “allow private parties to recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 127 S. Ct. 2331, 2333 (2007). In Atlantic Research, the Supreme Court held that § 107(a) provides “so-called potentially responsible parties (PRPs) . . . with a cause of action to recover costs from other PRPs,” id. at 2334, whereas § 113 provides an action for contribution. In so holding, the Court undermined Pinal Creek’s holding that § 107 entitles PRPs to seek only contribution, not cost recovery, from other PRPs. To the extent, therefore, that Pinal Creek conflicts with Atlantic Research, we conclude that Pinal Creek has been overruled. This opinion addresses two separate appeals, in separate actions, seeking recovery of costs associated with the cleanup of hazardous waste sites. In the first appeal, James Kotrous sued numerous defendants, including Bayer CropScience, Inc., seeking contribution under CERCLA for costs he had incurred in cleaning soil and groundwater contamination on land he owned. The district court denied Bayer’s motion to dismiss Kotrous’ claim under CERCLA § 107 for. . .