Ronald M. Gould

“ The tribal council of the Makah Tribe has shown admirable restraint in limiting its aim to a small number of whales, and seeking the umbrella approval of the United States for a share of a quota approved by the IWC. But it is not clear the extent to which the Tribe's treaty right is limited to the approvals of the IWC or the Tribe's Gray Whale Management Plan. The intent of Congress cannot be hostage to the goodwill or good judgment or good sense of the particular leaders empowered by the Tribe at present ”

“ RCRA regulates the generation and disposal of hazardous waste, whereas CERCLA imposes liability to clean up a site when there are actual or threatened releases of hazardous substances into the environment. It is RCRA, not CERCLA, that governs prospectively how generators of hazardous substances should dispose of those substances, and it is the Canadian equivalent of RCRA, not CERCLA, that regulates how Teck disposes of its waste within Canada. ”

“ Had Sweetwater’s witnesses been allowed to testify at trial, Plaintiffs would have had to depose them—or at least to consider which witnesses were worth deposing—and to prepare to question them at trial. See Yeti by Molly, 259 F.3d at 1107. The record demonstrates that the district court’s conclusion, that reopening discovery before trial would have burdened Plaintiffs and disrupted the court’s and the parties’ schedules, was well within its discretion. The last thing a party or its counsel wants in a hotly contested lawsuit is to make last-minute preparations and decisions on the run. ”

“ Plaintiffs’ counsel sent Sweetwater a demand letter in July 2006 regarding Title IX violations at Castle Park; and Plaintiffs filed their class action complaint in April 2007. These are indisputably protected activities under Title IX, and the district court’s finding to that effect was not clearly erroneous.
It is not a viable argument for Sweetwater to urge that a class may not “sue a school district for retaliation in a Title IX athletics case.” As we have previously held: “The existence of a private right of action to enforce Title IX is well-established.” ”

“ If Congress wanted to exempt subsequent amendments, then Congress could have done so explicitly. But Congress did not do so. That Congress did not intend to exempt subsequent amendments is clear when § 1372 (a) (2) is considered alongside the mandates of § 1378 (a) (4) . Section 1378 (a) (4) requires "the amendment of any existing international treaty for the protection and conservation of any species of marine mammal to which the United States is a party in order to make such treaty consistent with the purposes and policies of this [Act] ." ”

“ Teck argues that the phrase "by any other party or entity" refers to "or otherwise arranged for disposal or treatment," and so, the argument runs, arranger liability does not attach unless one party arranged with another party to dispose of hazardous substances. If we accept this position, then a generator of hazardous substances who disposes of the waste alone and with no other participant may defeat CERCLA liability, because the generator had not "arranged" with a second party for disposal of the waste. ”

“ Schiff and Parker based their proposed testimony on superficial inspections of the Castle Park facilities. Even if a visual walkthrough, without more, could be enough in some cases to render expert testimony admissible under Rule 702, it certainly does not compel that conclusion in all cases. Moreover, as the district court found, Schiff and Parker’s conclusions were based on their “personal opinions and speculation rather than on a systematic assessment of [Castle Park’s] athletic facilities and programs.” ”

“ A significant amount of slag has accumulated and adversely affects the surface water, ground water, sediments, and biological resources of the Upper Columbia River and Lake Roosevelt. Technical evidence shows that the Trail Smelter is the predominant source of contamination at the Site. The physical and chemical decay of slag is an ongoing process that releases arsenic, cadmium, copper, zinc, and lead into the environment, causing harm to human health and the environment. ”

“ When the United States presented its request for a quota for the Makah Tribe to the IWC, the United States, in response to issues raised by the IWC during subcommittee, represented that the IWC had adopted the following definition of aboriginal subsistence whaling:
whaling, for purposes of local aboriginal consumption carried out by or on behalf of aboriginal, indigenous, or native peoples who share strong community, familial, social, and cultural ties related to a continuing traditional dependence on whaling and on the use of whales. ”

“ Stated another way, a school where fewer girls than boys play sports does not violate Title IX if the imbalance is the result of girls’ lack of interest in athletics.
The Department of Education’s 1996 guidance is again instructive: In evaluating compliance under the third prong, we must consider whether there is (1) “unmet interest in a particular sport”; (2) ability to support a team in that sport; and (3) a “reasonable expectation of competition for the team.” Id. Sweetwater would be Title IX-compliant unless all three conditions are present. ”

“ The Court held that "any person or persons" did not include crimes "committed by a person on the high seas, on board of any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a vessel belonging exclusively to subjects of a foreign state." ”

“ The EA prepared by the federal defendants notes that other Pacific Coast tribes that once hunted whales have reserved traditional "hunting and fishing" rights in their treaties. These less specific "hunting and fishing" rights might be urged to cover a hunt for marine mammals. Although such mammals might not be the subject of "fishing," there is little doubt they are "hunted."
Defendants argue that the conservation necessity test under Fryberg is not triggered until species preservation emerges as an issue. ”

“ On April 19, 2007, Plaintiffs filed a class action complaint against Sweetwater alleging unlawful sex discrimination under Title IX of the Education Amendments of 1972 (“Title IX”) , see 20 U.S.C. § 1681 et seq., and the Equal Protection Clause of the Fourteenth Amendment, see 42 U.S.C. § 1983. [4] They alleged that Sweetwater “intentionally discriminated” against female students at Castle Park High School (“Castle Park”) by “unlawfully fail [ing] to provide female student athletes equal treatment and benefits as compared to male athletes.” ”

“ Rather, we adopt the district court's conclusion that there is specific personal jurisdiction over Teck here, based on Washington State's longarm statute, which applies to "the commission of a tortious act" within Washington, Wash. Rev. Code § 4.28.185, and our case law holding that "personal jurisdiction can be predicated on (1) intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered--and which the defendant knows is likely to be suffered--in the forum state." ”

“ Indeed, because the states do not have the power held by Congress to regulate affairs with Indian nations, state regulation of treaty hunting or fishing rights may be more limited in scope than federal regulation. See Eberhardt, 789 F.2d at 1362. We express no opinion as to whether and, if so, the extent to which our decision has relevance to assessment of state conservation regulation that touches on treaty rights. ↑ Fryberg addressed whether the Eagle Protection Act, 16 U.S.C. § 668 et seq., abrogated treaty hunting rights by prohibiting the taking and killing of bald eagles. ”

“ Sweetwater contends, in essence, that it complied with Rule 26 because Plaintiffs knew of the contested witnesses’ existence.
The district court did not abuse its discretion by rejecting Sweetwater’s argument. The theory of disclosure under the Federal Rules of Civil Procedure is to encourage parties to try cases on the merits, not by surprise, and not by ambush. ”

“ The treaty language, when considered on its face, supports our conclusion that the conservation purpose of the MMPA requires it be applied to the Tribe. The Treaty of Neah Bay provides the Tribe with a right to fish and hunt whales "in common with all citizens of the United States." 12 Stat. 939, 940 (1855) . We have recognized that the "in common with" language creates a relationship between Indians and non-Indians similar to a cotenancy, in which neither party may "permit the subject matter of [the treaty] to be destroyed." ”

“ There is no requirement that the generator of hazardous substances intend that the waste come to be located at a CERCLA facility. "In the case of an actual release, the plaintiff need only prove that the defendant's hazardous materials were deposited at the site, that there was a release at the site, and that the release caused it to incur response costs." ”

“ With their softball coach fired, Plaintiffs’ prospects for competing were hampered. Stated another way, Plaintiffs’ Title IX retaliation claim seeks to vindicate not Coach Martinez’s rights, but Plaintiffs’ own rights. Because Plaintiffs were asserting their own “legal rights and interests,” not a claim of their coach, the generally strict limitations on third-party standing do not bar their claim. ”

“ The "fair share" formula, however, does not provide a ready answer in this case, which involves now-protected marine mammals rather than salmon and other fish available, within limits, for fishing. The question presented to us is not how whaling rights can be fairly apportioned between Indians and non-Indians. Rather, the Tribe asserts a treaty right that would give the Tribe the exclusive ability to hunt whales free from the regulatory scheme of the MMPA. Just as treaty fisherman are not permitted to "totally frustrate . ”

“ The district court gave summary judgment to Plaintiffs on their unequal participation claim in March 2009. See Ollier v. Sweetwater Union High Sch. Dist., 604 F. Supp. 2d 1264 (S.D. Cal. 2009) . The court found that “substantial proportionality requires a close relationship between athletic participation and enrollment,” and concluded that Sweetwater had not shown such a “close relationship” because it “fail [ed] to provide female students with opportunities to participate in athletics in substantially proportionate numbers as males.” ”

“ The Order defines the facility as being entirely within the United States, and Teck does not argue that the Site is not a CERCLA facility. Because the CERCLA facility is within the United States, this case does not involve an extraterritorial application of CERCLA to a facility abroad. The theory of Pakootas's complaint, seeking to enforce the terms of the Order to a "facility" within the United States, does not invoke extraterritorial application of United States law precisely because this case involves a domestic facility. ”

“ And, when certain permits are issued, the permit may be suspended if the taking results in "more than a negligible impact on the species or stock concerned." 16 U.S.C. § 1371 (a) (5) (B) (ii) . One need only review Congress's carefully selected language to realize that Congress's concern was not merely with survival of marine mammals, though that is of inestimable importance, but more broadly with ensuring that these mammals maintain an "optimum sustainable population" and remain "significant functioning elements in the ecosystem." ”

“ Castle Park’s decision to cut field hockey twice during the relevant time period, coupled with its inability to show that its motivations were legitimate, is enough to show sufficient interest, ability, and available competition to sustain a field hockey team. ”

“ Title IX—indeed, students are the statute’s very focus.
Coach Martinez gave softball players extra practice time and individualized attention, persuaded volunteer coaches to help with specialized skills, and arranged for the team to play in tournaments attended by college recruiters. The softball team was stronger with Coach Martinez than without him. After Coach Martinez was fired, Sweetwater stripped the softball team of its voluntary assistant coaches, canceled the team’s 2007 awards banquet, and forbade the team from participating in a Las Vegas tournament attended by college recruiters. ”

“ Sweetwater contends that while Coach Martinez would have had standing to bring a Title IX retaliation claim himself, the “third party” students cannot “maintain a valid cause of action for retaliation under Title IX for their coach’s protected activity and the adverse employment action taken against the coach.”
We reject this argument. It misunderstands Plaintiffs’ claim, which asserts that Sweetwater impermissibly retaliated against them by firing Coach Martinez in response to Title IX complaints he made on Plaintiffs’ behalf. ”