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Court Upholds Order to Save Salmon

Favoring fish over farmers, a federal appeals court upheld a water agency's decision to divert water to the lower Klamath River in California

The U.S. Ninth Circuit Court of Appeals said the Bureau of Reclamation lawfully diverted the water to prevent a die-off of salmon in 2013, when water levels fell precariously low for the migrating fish. The last time the river dropped so low, more than 34,000 salmon died there.

Writing for a unanimous panel, Judge N. Randy Smith said Congress gave the BOR authority to divert water resources to protect fish more than 70 years ago. Despite challenges from various water districts, the appeals court said the BOR secretary had discretion to take "appropriate measures" in releasing the water.

Hunter Misses the Mark in Anti-SLAPP Case

Shooting down a motion to strike, the U.S. Ninth Circuit Court of Appeals lyrically laid out a case between a hunter and an international sport hunting club.

The court told the story of Dr. Lawrence Rudolph, who was once an award-winning member of the Safari Club. He rose to the top of the 50,000-member club, but then was exiled for allegedly breaching his duties to the organization.

"That's when the season opened," wrote Judge Richard Seeborg in an opinion notable for its many hunting references as much as its ruling.

Indian Tribes Subject to Lending Laws

The Ninth Circuit has ruled that lending companies operated by Native American tribes are subject to investigation by federal lending authorities.

According to the circuit's ruling, the companies, operated by various tribes, must comply with civil investigative demands from the Consumer Financial Protection Bureau. The court rejected the tribes' argument that they were sovereign and that the bureau had no authority over them. The judges said that general laws apply to tribes, unless Congress excludes them.

"In the Consumer Financial Protection Act, a generally applicable law, Congress did not expressly exclude tribes from the Bureau's enforcement authority," the court said.

Court Says No Trademark Infringement for Copying Karaoke Files

When a day-jobber gets up and belts out a rendition of "New York, New York," at the local karaoke club, does anyone actually think they are hearing Frank Sinatra?

Even when Sinatra was alive, it would be hard to confuse an imitation with the King of the Hill. I mean, we're talking about the original "Voice," the "Chairman of the Board," "Ol' Blues Eyes" himself.

It's just as hard to imagine that anyone would sue over a karaoke performance as somehow confusing listeners about the origin of the music. But that's what happened, in a digital media-shifting sense, in a case recently decided by the Ninth Circuit.

No Immunity for Lying Social Workers

In an icy rebuke to Orange County social workers, a federal appeals court said they are not entitled to immunity for lying in a child custody case.

The Ninth Circuit Court of Appeals said the social workers allegedly presented false evidence to wrest custody away from the mother of Preslie Hardwick, the plaintiff in the case. The court said that no law permits false testimony, and sharply upbraided the social workers for ignoring the obvious.

"No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law," Judge Stephen S. Trott wrote for the unanimous panel.

Apple Gets Legal Setback at the App Store: Antitrust Suit Revived

A federal appeals court has revived a lawsuit against Apple that alleges the company monopolizes the market for apps that run on its products.

The Ninth Circuit Court of Appeals said that Apple distributes third-party developers' applications directly from its App Store, giving purchasers standing to sue the company under anti-competition laws. Apple unsuccessfully argued that the plaintiffs did not have standing because they purchased the third party apps indirectly from Apple.

"Apple is a distributor of the iPhone apps, selling them directly to purchasers through its App Store," the appeals court said. The court then reversed a trial judge's dismissal of the case and remanded for further proceedings.

The Supreme Court isn't the only federal court with a longstanding empty seat. There are currently 114 outstanding federal judicial vacancies, including 17 on federal appellate courts. Four of those open appellate seats are on the Ninth Circuit.

Outstanding nominations expired when the new Congress convened on January 3rd, meaning that now-pending Obama nominees, like Judge Lucy H. Koh, won't fill those vacancies. That means that President-elect Trump could have an outsized impact on the courts, moving nominees more quickly through a Republican-controlled Senate. Here's what this could mean for the Ninth Circuit.

Law Firm Loses $1 Million Tax Deduction for Standby Airplane

To the lawyer who wanted a standby deduction for his aircraft, the Ninth Circuit said, "Oh no, that's not gonna fly."

At least, that's the gist of what the Ninth Circuit said about the lawyers' ill-fated attempt to deduct more than $1 million in travel expenses.

Engstrom, a plaintiff's firm in Los Angeles, tried to write off "standby" expenses for a Gulfstream IV and a Beechcraft King Air 350 turboprop between 2008 and 2010. Partner Walter Lack and attorney Thomas Girardi, a partner in his own firm, set up an aviation company to split the cost of keeping the aircraft.

A U.S. Tax Court found that Engstrom owed $1.12 million for improper travel expense deductions on more than 100 flights. The Ninth Circuit, in an unpublished opinion, said the tax court was correct.

The Second Amendment, a Ninth Circuit panel ruled in a 2-1 decision last May, protects not just the right to bear arms for self-defense, but the "right to acquire weapons for self-defense." The ruling came after a challenge to an Alameda County zoning law that allegedly barred all new gun stores in unincorporated areas. It meant that gun store regulations could be subjected to Second Amendment scrutiny, requiring the government to provide a strong public-safety justification for such restrictions.

Now, the circuit has agreed to rehear that case, Teixeira v. County of Alameda, en banc. Yesterday, a majority of Ninth Circuit judges voted to vacate the panel decision and rehear the case before an 11-judge panel.

A federal appeals court ruled the California legislature wrongly carved out a law to help workers' unions in lawsuits against their employers.

In a final order to elaborate its earlier decision, the Ninth Circuit Court of Appeals explained that the Legislature passed a "safe harbor" provision in Assembly Bill 1513 to gain the support of the the United Farm Workers of America. The UFW was engaged in litigation against one the plaintiffs at the time, and the safe harbor provision denied them a defense in the case.

"The only reason the carve-outs were included in the final bill was to procure the support of the UFW," the court said in upholding an Equal Protection claim while rejecting a Bill of Attainder claim. "A law making a defendant ineligible to assert an affirmative defense in a civil lawsuit simply does not fit within that category of legislative action."