U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog


State Wins Casino Battle Against Pueblo of Pojoaque Tribe

The Skirmish in Doubtful Canyon, which left 10 Apache dead on May 3, 1864, was the last Indian battle in what would become the history of New Mexico.

The Apaches attacked a company of California soldiers there, ending about two hours later when the last Indian fled. But more than 150 years later, the Indian wars are not really over in New Mexico.

Another skirmish has broken out between the state and the Pueblo of Pojoaque, which sued the state for interfering with its casinos. The tribe lost a battle before a federal appeals court in Pueblo of Pojoaque v. State of New Mexico.

10th Circuit Tosses Marijuana Banking Suit

They are growing more than marijuana in Colorado; they are growing pot law.

Adding to a growing body of marijuana decisions, the U.S.Tenth Circuit Court of Appeals said a Colorado credit union could not force the U.S. banking system to give it a master account to serve the state's marijuana industry. In The Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City, the appeals court threw out the credit union's complaint without prejudice.

It is the second decision from the appeals court this month involving the marijuana industry, and one of many pot laws on the books in Colorado.

10th Circuit Allows RICO Case Against Pot Farm

A federal appeals court gave a family the green light to sue their neighbors for growing marijuana in violation of laws against criminal enterprises.

The growers may have been doing business legally under state law, but not federal law. The U.S. Tenth Circuit Court of Appeals said the plaintiffs alleged sufficient damages to invoke the Racketeering Influenced Corrupt Organizations Act.

"Marijuana is a controlled substance under the CSA. 21 U.S.C. sec. 802(16)," the court said in Safe Streets Alliance v. Alternative Holistic Healing, LLC. "So the manufacture, distribution, and sale of that substance is, by definition, racketeering activity under RICO."

Mexican Gray Wolves Lawfully Released Into New Mexico's Wilderness

New Mexico lost its court battle against the U.S. Fish and Wildlife Service for releasing Mexican gray wolves into the wilderness of west-central New Mexico.

Arguing that the federal government did not have its permission, the state had asked the U.S. Tenth Circuit Court of Appeals to uphold an injunction against further releases of the endangered species. But the appeals court said, in New Mexico Department of Game and Fish v. U.S. Department of the Interior, the state did not show that the releases would irreparably harm the wildlife environment.

"For example, assuming arguendo that the Department is correct in asserting, for the first time on appeal, that a Mexican wolf may kill over twenty elk and deer per year, the Department offered no evidence that the release of one, ten, fifty, or even one hundred additional wolves would affect the overall populations of the state's ungulate herds or necessitate action from the Department in order to manage and maintain those populations," Judge Carolyn B. McHugh wrote for the court.

'Claw Hand' Not a Disability Under ADA

A federal appeals court ruled that a man with a claw hand, denied a job on a locomotive, was not disabled because he could do other jobs.

The U.S. Tenth Circuit Court of Appeals affirmed a dismissal against the man, who sued for disability discrimination after a railroad company retracted a job offer because of his disfigured hand. The employer was not liable under the Americans With Disabilities Act because it considered him able to perform other jobs, the court said.

"The ADA protects disabled workers from discrimination.," Judge Gregory A. Phillips wrote for the court in Duty v. BNSF Railway Company. "But it limits its protection by recognizing that not all impairments are disabilities."

The 1985 film 'Desert Hearts,' tells the story of a divorced woman's lesbian awakening in Reno, Nevada. It's become a cult classic and a seminal work in gay cinema, but to one student assigned to watch it, 'Desert Hearts' had nothing to offer "for anyone other than lesbians who are unable to discern bad film from good."

A disagreement over that review, and the condemnation of lesbians it contained, eventually led the student, Monica Pompeo, to withdraw from the class, a graduate-level course at the University of New Mexico. She later sued, claiming that the university had violated her free speech rights. But the Tenth Circuit rejected her suit last Tuesday, ruling that there was no clear, constitutional prohibition against restricting "inflammatory and divisive statements."

Utah Prairie Dogs Win Appeal

Saved by a federal appeals court, the Utah prairie dog has re-emerged as a protected species after private landowners had won a case that would have allowed them to kill the animal.

The U.S. Tenth Circuit Court of Appeals said the landowners cannot harm the creatures under the Endangered Species Act, reversing a trial judge who said the federal law was invalid under the Commerce Clause. In a controversial decision in 2014, the judge said the prairie dog was not protected under the federal law because it lives only in Utah.

"Approximately sixty-eight percent of species that the ESA protects exist purely intrastate," the appellate panel said in reversing and remanding People for the Ethical Treatment of Property Owners v. United States Fish and Wildlife Service. "Thus, piecemeal excision of purely intrastate species would severely undercut the ESA's conservation."

The Supreme Court unanimously rejected the Tenth Circuit's interpretation of the Individuals with Disabilities Education Act on Wednesday. That law requires schools to provide disabled students with a free and appropriate public education, or FAPE. But to meet that standard, the Tenth had ruled, schools must confer an educational benefit that is "merely more than de minimis." The law is "markedly more demanding" than that, the Supreme Court ruled this morning.

The timing was a bit uncomfortable for the Tenth's Judge Neil Gorsuch, Trump's Supreme Court nominee, who was undergoing questioning before the Senate as the Supreme Court decision was released.

Court Throws Out Suit Over Bad EPA Raid

A federal appeals court threw out a lawsuit against the Environmental Protection Agency for raiding a private company's laboratory, even though an agency official later admitted there were insufficient grounds to justify the raid.

The U.S. Tenth Circuit Court of Appeals said the EPA was entitled to sovereign immunity in Garling v. U.S. Environmental Protection Agency. A trial judge had dismissed the case against Roger and Sheryl Garling as time barred, but the appeals court said the court lacked jurisdiction.

"Sovereign immunity bars all of the Garlings' seven claims and precludes federal court jurisdiction," the court said.

Court Says EEOC Subpoena Overly Broad

Cutting away at a subpoena for being too broad, a federal appeals court turned back an investigation by the Equal Employment Opportunity Commission.

The U.S. Tenth Circuit Court of Appeals affirmed a ruling against the EEOC because the agency issued a subpoena that sought more information than justified by its investigation. The agency was investigating one worker's claim of pregnancy and disability discrimination, but had issued subpoenas for "a complete list" of records about other pregnant or disabled employees.

"The district court did not abuse its discretion in determining the EEOC had not satisfied its burden to justify its expanded investigation," Judge Scott M. Matheson Jr. wrote for the unanimous panel.