United States v Snyder

Snyder appealed the denial of his motion to vacate his sentence. The panel, with one judge concurring in result, affirmed. The majority reversed the district court’s timeliness ruling holding that the motion was timely as it was field within one year of the United states supreme court decision in Johnson holding the residual clause of the armed career criminal statute unconstitutional and the motion asserted the Johnson decision as its basis which is all 28 USC 2255(f)(3) requires. It held any procedural bar was overcome as the Johnson decision was unavailable at the time of sentencing and was in fact unexpected as similar challenges were rejected by the Supreme Court and if the Johnson challenge was correct the sentence imposed was in excess of the statutory maximum which would be prejudicial. It held the motion failed on the merits as the record demonstrated Snyder’s sentence was enhanced under the elements provision of the armed career criminal statute as the presentence report identified three burglaries, properly excluded one which was based on entry of an automobile, the two included met the elements test set out in the supreme Court’s Taylor case and there was no mention of the residual clause at sentencing. McHugh concurred in result arguing that only Johnson challenges which are based on the residual clause are timely, that Snyder’s challenge is timely only because the sentencing court did not specify which clause it was relying on and agreed the claim here failed on the merits given Taylor.

United States v Osage Wind, LLC et al. (Osage Minerals Council appellant)

Council appealed summary judgment to Winds arguing its use of materials taken from the ground to create foundations for wind power turbines was mining and also appealed the denial of its motion to intervene. The panel reversed. It first held that Council, though not a party below, was a proper appellant as it had the unique interest of actually owning the mineral rights here, it moved to intervene the first opportunity it could as the United States represented its interests at trial as trustee of the Osage tribe and thus the appeal of the intervention denial was moot. It held Winds res judicata claim failed as the extraction claim was not ripe as of eth date of the previous suit involving the proposed wind farm. The panel refused to give deference to the agency here as its positon was not persuasive given the lack of background information or analysis or was based on a different regulation which specially excluded Indian lands and was promulgated by a different agency. It held the use of materials here was “mining” under 25 CFR 211.3 and thus a lease was required under 25 USC 211.7 because the term “mineral development” is ambiguous but includes at least acting on minerals to exploit them, ambiguity is to be construed in favor of the Indian tribes and Winds removed, sorted, crushed and used the materials for backfill which is “mineral development” under the construction which favors the Osage tribe. It finally held the Osage Act did not change the outcome because the Act grants the mineral estate to the Tribe and 211.3 has a de minimus exception which allows close to unfettered use of the surface area as required by the Act.

Oldham v O.K. Farms, Inc.

Oldham appealed summary judgment to Farms in this breach of contract case. The panel reversed and remanded. It held that farms failed to raise the arguments about abandonment of chickens entrusted to Oldham by saying come get them all in their summary judgment motion and briefing and the district court erred in sua sponte granting summary judgment on the unraised theory particularly as it did not give Oldham’s attorney a chance to respond and Oldham explained that he would have presented evidence the statement was made in the context of protecting the chickens form potential flooding of their coops.