The Ninth Circuit Court of Appeals today released an opinion in GUIDIVILLE BAND v. NGV GAMING LIT, No. 05-17066, a federal appeal. The panel consisted of Stephen S. Trott and N. Randy Smith, Circuit Judges, and Milton I. Shadur, Senior District Judge.

SHADUR, Senior District Judge:
This appeal presents the single, seemingly straightforward question whether the word “is” really means “is,” at least as that word is employed in 25 U.S.C. § 81. At the core of the present dispute, that statute requires the Secretary of the Department of the Interior (”Secretary”) to approve any “contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years” before such a contract can be considered valid. Section 81(a) defines the term “Indian lands” in part as “lands the title to which is held by the United States in trust for an Indian tribe” (emphasis added). Appellant NGV Gaming Ltd. (”NGV”) asks us to read Section 81 literally– as pertaining solely to contracts that implicate lands already held in trust by the federal government. Appellees Harrah’s Operating Company (”Harrah’s”) and Guidiville Band of Pomo Indians (”the Tribe”), on the other hand, urge a nonliteral reading of the statute–one that would treat Section 81 as also covering contracts in which the parties reach agreement, not with respect to already-held lands, but to acquire lands in the future that might eventually be held in. . .

N.R. SMITH, Circuit Judge, dissenting: I respectfully dissent for the following reasons. First, the majority rejects the clear and unambiguous will of Congress in its application of 25 U.S.C. § 81. Second, because of its error in the application of 25 U.S.C. § 81, the majority is thereafter forced to reverse the district court by (1) interpreting contracts that the district court did not review; (2) making its own determination that the contracts were unambiguous; (3) using parol evidence to interpret the contract even though it finds that the contracts were unambiguous; and (4) picking and choosing which parol evidence on which to rely, even though the district court had not addressed the issues of whether to admit parol evidence and, if so, what evidence to admit. I would instead affirm the district court’s summary judgment decision dismissing NGV’s tortious interference complaint against Harrah’s and dismiss the appeal for declaratory relief filed by the Tribe as moot. I. “The doctrine that the federal government stands in a fiduciary relationship to Native Americans has been a part of our common law since the early days of the Republic.” Eric v. Sec’y of HUD, 464 F. Supp. 44, 46 (D. Alaska 1978) (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831)). “Over the years courts at all levels have sustained the doctrine that in its relations with Native peoples the government owes a special duty analogous to those of a trustee.” Id. (citing Heckman v. United States, 224 U.S. 413 (1912); Seminole Nation v. United States, 316 U.S. 286 (1942); Redfox v. Redfox, 564 F.2d 361, 365 (9th Cir. 1977); Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238 . . .

The Ninth Circuit Court of Appeals today released an opinion in BARONA BAND OF MISSION INDIANS v. YEE, No. 06-55918, a federal appeal. The panel consisted of Harry Pregerson, Glenn L. Archer, Jr., and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:
We must decide whether a non-Indian contractor who purchases construction materials from non-Indian vendors, which are later delivered to a construction site on Indian land, is exempt from state sales taxes. The California State Board of Equalization (the “Board”) appeals the grant of summary judgment in favor of the Barona Band of Mission Indians (the “Tribe”) in which the district court determined that the balancing test set forth in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), preempted a state sales tax lev. . .

The Ninth Circuit Court of Appeals today released an opinion in UNITED TRANSPORTATION UNION, v. BURLINGTON NORTHERN SANTA FE RAILROAD COMPANY and LONGVIEW SWITCHING COMPANY,, No. 07-35066, a federal appeal. The panel consisted of Carlos T. Bea and Milan D. Smith, Jr., Circuit Judges, and Joseph M. Hood, Senior District Judge.

HOOD, Senior District Judge:
In its Complaint, Plaintiff-Appellant United Transportation Union, General Committee of Adjustment GO-386 (”Union”) alleged that Defendants-Appellees Burlington Northern Santa Fe Railroad Company (”BNSF”) and Longview Switching Company (”LSC”) violated the Railway Labor Act (”RLA”), 45 U.S.C. § 151, et seq., by implementing a trackage rights agreement approved through the process prescribed by the Interstate Commerce Act (hereinafter, “ICA”), 49 U.S.C. § 10101, et seq., without bargaining with the Union. The Union objected to the unilateral transfer of certain work to employees of LSC and the cancellation of BNSF jobs, which effected a change in the “terms and conditions of employment” of individuals represented by the Union. In the present appeal, the Union challenges the district court’s grant of BNSF and LSC’s motion to dismiss on grounds that the court lacked subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I. BACKGROUND LSC is a Class III rail carrier, jointly owned by BNSF and another, non-party railroad, Union Pacific (”UP”). BNSF and . . .

The Ninth Circuit Court of Appeals today released an opinion in FULFILLMENT SERVICES v. UPS, No. 06-15970, a federal appeal. The panel consisted of Barry G. Silverman, M. Margaret McKeown, and Richard C. Tallman, Circuit Judges.

McKEOWN, Circuit Judge:
The Interstate Commerce Act (”ICA”) was adopted to bring uniformity to shipping regulations previously governed by inconsistent state laws. George W. Wright, Slouching Toward a Morass: The Case For Preserving Complete Carmack Preemption, 1 DePaul Bus. & Com. L.J. 177 (2003). Historically, the Interstate Commerce Commission had responsibility for enforcing the ICA. Continuing the deregulation initiatives begun in the 1970s and early 1980s, in 1995 Congress passed the Interstate Commerce Termination Act (”Termination Act”), which abolished the Interstate Commerce Commission and transferred primary responsibility for enforcement of the ICA to the Surface Transportation Board (the “Board”). The Motor Carrier Act (”MCA”) is among the ICA provisions whose enforcement was transferred under the Termination Act. This case concerns the availability of a private civil remedy for violations of the MCA, specifically establishment of shipping rates in the trucking industry. In particular, we consider whether, under § 14704(a)(2), a private party can sue for violations of § 13703. See 49 U.S.C. § 14704(a)(2); 49 U.S.C. § 13703. We hold that § 14704(a)(2) provides for a private cause of action, but that a plaintiff must allege actual damages arising from the violation in order to state a claim successfully. BACKGROUND United Parcel Service (”UPS”) describes itself as “the world’s largest package delivery company.” As a motor carrier transporting goods interstate, UPS is subject to the jurisdiction of the Secretary of Transportation and the Board and is governed by certain substantive provisions of the MCA. See 49 U.S.C. § 13501. Fulfillment Services, Inc., a freight ship. . .

The Ninth Circuit Court of Appeals today released an opinion in GERLINGER v. AMAZON.COM, No. 05-17328, a federal appeal. The panel consisted of Mary M. Schroeder, Jay S. Bybee, Circuit Judges, and George H. Wu, District Judge.

SCHROEDER, Circuit Judge:
The plaintiff, Gary Gerlinger, like so many of us, purchases books and related items online. He filed this antitrust action to challenge a marketing agreement between Amazon.com Inc., an online bookseller, and Borders Group, Inc., a brickand-mortar bookseller. He appeals the district court’s dismissal for lack of standing. We agree with the district court that the plaintiff lacks standing because he did not show that he ever purchased an item for a higher price than he would have paid had there been no marketing agreement and thus has suffered no injury-in-fact. . . .

The Ninth Circuit Court of Appeals today released an opinion in DUARTE v. BARDALES, No. 06-56808, a federal appeal. The panel consisted of Myron H. Bright, Harry Pregerson, and Carlos T. Bea, Circuit Judges.

BRIGHT, Circuit Judge:
On January 23, 2006, Emilia Duarte (”Duarte”) filed in United States District Court for the Southern District of California a petition for the return of her children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (”Hague Convention”), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (”ICARA”). After Duarte failed to appear before the court for a scheduled hearing, the district court entered judgment denying Duarte’s Hague Petition. Duarte . . .

The Ninth Circuit Court of Appeals today released an opinion in ADKINS v. MIRELES, No. 06-56005, a federal appeal. The panel consisted of Betty B. Fletcher, Daniel M. Friedman, and N. Randy Smith, Circuit Judges.

B. FLETCHER, Circuit Judge:
This appeal arises out of a union-negotiated collective bargaining agreement (”CBA”) governing employees of Lucky Stores, Inc.’s (”Lucky”) general merchandise warehouse. David Adkins and other former employees at Lucky’s Fullerton, California warehouse (collectively, “Appellants”), all members of Teamsters Local 952 (”the Union”), appeal the district court’s judgment, following a partial summary judgment and jury trial, in favor of the Union, Ed Mireles, secretary-treasurer of the Union, and Harry Ashley, president of the Union (collectively, “Appellees”). . . .

The Ninth Circuit Court of Appeals today released an opinion in GARCIA v. BROCKWAY, No. 05-35647, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Harry Pregerson, Stephen Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, Johnnie B. Rawlinson, Richard R. Clifton, Carlos T. Bea and N. Randy Smith, Circuit Judges.

KOZINSKI, Chief Judge:
We consider when the statute of limitations begins to run in a design-and-construction claim under the Fair Housing Act (FHA). . . .

The three-judge panel decision, Garcia v. Brockway, 503 F.3d 1092 (9th Cir. 2007), is adopted as the opinion of the en banc court. The opinion is amended as follows: . . .

panel’s decision, Garcia v. Brockway, 503 F.3d 1092, 110111 (9th Cir. 2007) (Fisher, Circuit Judge, dissenting), which also appears immediately below, as the dissenting opinion of the en banc minority. We write additionally only to emphasize the extent to which the majority’s holding perverts the purpose and intent of the statute. Indeed, the majority’s decision well illustrates how statutes of limitations have been twisted by courts to limit the scope and thrust of civil rights laws. The majority takes an Act that was designed to protect disabled persons by mandating that multifamily housing be made accessible to them and construes its statute of limitations in a way that solely benefits the housing construction industry and renders the statute of far less use to disabled individuals than Congress intended. The Fair Housing Act (”FHA”) contains a 30 month grace period that gave developers building new multifamily housing clear notice of what was required to satisfy the statute’s accessibility standards. See 42 U.S.C. § 3604(f)(3)(C). There is no reason that a developer who fails to comply with these requirements should not be held accountable for such violations. Nevertheless, the majority holds that unless a disabled person happens to become aware of the developer’s failure to comply within two years after the certificate of completion is issued, the developer is home-free –completely immune from suit. Thus, a disabled person. . .

FISHER, Circuit Judge, dissenting:
I respectfully dissent. The majority erroneously treats a building’s improper design and construction as the event that triggers the Fair Housing Act’s (FHA) two-year statute of limitations. It does so by finding an ambiguity in the statute and then resolving that ambiguity contrary to the overall purpose and structure of the FHA and its legislative and judicial history. I believe instead that the most plausible reading of the statute is that the limitations period begins (at the earliest) when a disabled person actually experiences discrimination -either in attempting to buy or rent a noncompliant housing unit, in “testing” such a unit or upon moving in as a tenant. The majority contravenes the general rule that statutes of limitations are triggered by the accrual of a plaintiff’s cause of action. Under the majority’s approach, a real estate developer or landlord of a noncompliant building will often be immunized from suit long before a particular disabled individual has been injured and able to challenge the noncompliant features. Importantly, the majority’s position is at odds with the FHA’s legislative history, with Supreme Court precedent regarding the statute’s construction and with the longstanding interpretation of the government agency charged with administering the FHA. As a result of the majority’s reading, disabled persons -the statute’s actual intended beneficiaries — will be stripped of their ability to enforce the FHA’s most important protec. . .

The Ninth Circuit Court of Appeals today released an opinion in WILLSTON BASIN v. AN EXCLUSIVE GAS STORAGELEASEHOLD AND EASEMENT IN THECLOVERLY SUBTERRANEANGEOLOGICAL FORMATION, No. 06-35660, a federal appeal. The panel consisted of Raymond C. Fisher, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.

IKUTA, Circuit Judge:
Williston Basin Interstate Pipeline Company (Williston) claims that it has lost and is continuing to lose natural gas stored in its Elk Basin Storage Reservoir due to the operation of gas production wells owned by Howell Petroleum Corporation and Anadarko Petroleum Corporation (Howell/ Anadarko). Two of those wells are located within the lateral boundaries of Williston’s storage reservoir, but are completed in geologic formations (the Morrison and Sundance formations) below the geologic formation in which Williston stores its natural gas (the Cloverly formation). Williston brought an action in federal district court, seeking damages and injunctive relief pursuant to its state law claims of conversion and negligence and also seeking to condemn the two Howell/ Anadarko wells located within the lateral boundaries of the Elk Basin Storage Reservoir. The district court dismissed Williston’s action. In this appeal, we consider Williston’s arguments that the district court erred in dismissing Williston’s complaint for lack of subject matter jurisdiction or for failure to state a claim under the Natural Gas Act (NGA), 15 U.S.C. §§ 717-717z. Williston contends that the district court erred in holding that Williston needed authorization from the Federal Energy Regulatory Commission (FERC) before it could condemn Howell/Anadarko’s wells, and therefore erred in dismissing Williston’s condemnation claim. Williston also contends that its state law claims raised a substantial federal question because they were aimed at enforcing a duty created by the NGA. We reject both of Williston’s arguments and affirm the district court. I Williston is an interstate natural gas pipeline company that delivers gas to a variety of customers in Montana, North Dakota, South Dakota and Wyoming. As part of its opera. . .

The Ninth Circuit Court of Appeals today released an opinion in DORAN v. 7-ELEVEN INC, No. 05-56439, a federal appeal. The panel consisted of Jerome Farris and Ronald M. Gould, Circuit Judges, and Kevin Thomas Duffy, District Judge.

GOULD, Circuit Judge:
We review an order of the district court granting summary judgment to 7-Eleven, Inc. in Jerry Doran’s suit under the Americans With Disabilities Act (”ADA”). We affirm the district court’s summary judgment on certain alleged ADA violations Doran encountered or of which he had personal knowledge. However, because the district court erred in concluding that Doran did not have standing to challenge other barriers related to his disability and identified in his expert’s site inspections, we partially vacate the district court’s order granting summary judgment, and we remand for further proceedings. I Doran is a paraplegic who uses a wheelchair for mobility and travels in a wheelchair-accessible minivan. Doran lives in . . .

The Petition for Panel Rehearing is GRANTED. The opinion, and related dissent, in the above-captioned matter filed on November 9, 2007, and published at 506 F.3d 1191, are WITHDRAWN. The superseding opinion and dissent shall be filed concurrently with this order. The parties shall have fourteen (14) days from entry of the superseding opinion to file petitions for rehearing or petitions for rehearing en banc in the above-captioned matter. OPINION GOULD, Circuit Judge:
We review an order of the district court granting summary judgment to 7-Eleven, Inc. in Jerry Doran’s suit under the Americans With Disabilities Act (”ADA”). We affirm the district court’s summary judgment on certain alleged ADA violations Doran encountered or of which he had personal knowledge. However, because the district court erred in concluding that Doran did not have standing to challenge other barriers related to his disability and identified in his expert’s site inspections, we partially vacate the district court’s order granting summary judgment, and we remand for further proceedings. I Doran is a paraplegic who uses a wheelchair for mobility and travels in a wheelchair-accessible minivan. Doran lives in . . .