Harvey v Ute Indian Tribe of the Uintah and Ouray Reservation

Tribe appealed the remand of the case back to Utah state court. The panel, with one judge concurring, affirmed. The majority held that under 28 USC 1447(d), as interpreted by the United States Supreme Court, review is barred if the remand decision is color ably made on subject matter jurisdiction grounds and found persuasive the 9th circuit approach to adopt the same rule for defects in the removal process. Applying here, the majority held it is colorable that the remand was done on defect grounds as the district court concluded there was a lack of unanimity to remove as some defendants, in the district court’s view, litigated too much in the state case and thus waived their right to remove. The concurrence argued that defects in the removal process include failure to follow federal procedural law, waiver by litigation is one of those laws and thus the remand must be sustained.