Interpretation of Outer Continental Shelf Lands Act, and Criminal and Indian Law Matters - Criminal Law - U.S. Ninth Circuit
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Interpretation of Outer Continental Shelf Lands Act, and Criminal and Indian Law Matters

Evans v. US Dept. of Interior, No. 08-35938, involved an appeal by the Tulalip Tribes from an order of the district court denying them the right to intervene in an action brought by the  Snohomish Tribe of Indians to achieve federal recognition of the Snohomish Tribe.  The court of appeals affirmed, on the ground that the recognition of the Snohomish Tribe, if it occurred, would have no effect on its own treaty rights or the treaty rights of the Tulalip Tribes.

Emery v. Clark, No. 08-55249, concerned a habeas petition relating to a murder prosecution.  The court of appeals certified the following questions to the California Supreme Court:  1) Does California's criminal street gang enhancement statute, in particular the element of "specific intent to promote, further, or assist in any criminal conduct by gang members" in California Penal Code section 186.22(b)(1), require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction?  2) Is gang expert testimony tied to the facts of the case - regarding the centrality of "respect" in gang culture, and how the defendant's use of lethal force to avenge a minor slight to a member of an affiliated gang would enhance the "respect" he gets from other gang members, raise his status within the gang hierarchy, and teach the community not to interfere with even the most minor criminal activities of his fellow gang members -- sufficient to satisfy the requirement that the murder was committed with the "specific intent to promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?  3) Does evidence that the defendant committed the attempted robbery and murder in concert with the brother of a young gang member, whom the victim allegedly "disrespected," satisfy the requirement that the crimes were committed with the specific intent to "assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?

Valladolid v. Pac. Ops. Offshore, LP, No. 08-73862, concerned a petition for review of the denial of workers' compensation benefits under the Outer Continental Shelf Lands Act (OCSLA) and the Longshore and Harbor Workers' Compensation Act (LHWCA) based on an injury on an offshore drilling platform.  The court of appeals granted the petition in part, holding that 1) the most natural reading of the OCSLA provided coverage for any injury caused by outer continental shelf operations regardless of where the injury occurred; 2) Congress intended to provide LHWCA coverage regardless of the applicability of state law; and 3) the OCSLA claimant must establish a substantial nexus between the injury and extractive operations on the shelf.  However, the court denied the petition in part, on the ground that petitioner was not entitled to LHWCA benefits, on the ground that the drilling platform's use as a convenient dumping ground for scrap metal did not convert it into a maritime situs.

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