Entek GRB, LLC v Stull Ranches, LLC

Ranch appealed the order of the district court allowing Entek access to Ranch’s land to access minerals. The panel, with one judge concurring, affirmed. The majority held that all but one of Ranch’s issues had been or could have been raised in an earlier appeal in the case and Ranch made no showing how applying law of the case would work a manifest injustice here. It held that Ranch’s due process and equal protection arguments were forfeited or waived as Ranch did not raise them before the district court. The concurrence agreed that four issues Ranch raised were bared by law of the case or waver/forfeiture and argued the constitutional issues were forfeited as the specific due process notice argument was not raised until the opening brief in this appeal and the equal protection argument was forfeited as it was not made to the district court nor in the petitions for rehearing or certiorari.

Brown v Perez

On rehearing, the panel concluded that it mistakenly decided one issue in this FOIA case because it treated certain screenshots as preserved and recoverable form electronic storage when in fact the agency here would have to recreate images and nothing in FOIA requires that to happen. It thus affirmed summary judgment to Perez on the screenshot issue and issued a revised opinion.