Ninilchik Traditional Council v. Towarak et al

Filing 37

ORDER granting in part and denying in part 22 Motion for judicial notice. NTC's request for the court to take judicial notice of Ninilchik Traditional Council v. United States, 152 F.3d 928 tbl. (9th Cir. 1998) is DENIED; in all other respects NTC's motion is GRANTED. Signed by Judge John W. Sedwick on 4/8/16. (GMM, CHAMBERS STAFF)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 11 12 Ninilchik Traditional Council, 13 14 15 16 Plaintiff, vs. Tim Towarak, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 3:15-cv-00205 JWS ORDER AND OPINION [Re: Motion at Docket 22] 17 18 19 I. MOTION PRESENTED At docket 22 plaintiff Ninilchik Traditional Council (“NTC”) moves for the court to 20 take judicial notice of various documents pursuant to D.Ak. L.R. 7.1(c) and (d). At 21 docket 29 Defendants oppose NTC’s motion only as to NTC’s Exhibit 8, the Ninth 22 Circuit’s unpublished decision in Ninilchik Traditional Council v. United States, 152 F.3d 23 928 tbl. (9th Cir. 1998) (“Ninilchik”). NTC replies at docket 33. 24 25 26 Oral argument was not requested and would not assist the court. II. DISCUSSION According to Ninth Circuit Rule 36-3(c), unpublished decisions issued bef ore 27 January 1, 2007, generally may not be cited to the courts of this circuit. NTC argues 28 that this court should nonetheless take judicial notice of Ninilchik, relying on three 1 authorities. First, an exception to Ninth Circuit Rule 36-3(c) exists for cases that are 2 cited for “factual purposes, such as to show double jeopardy, sanctionable conduct, 3 notice, entitlement to attorneys’ fees, or the existence of a related case.”1 Second, 4 Federal Rule of Evidence 201 allows courts to take judicial notice of “adjudicative facts” 5 but not “legislative facts.” The advisory committee’s notes define “adjudicative facts” as 6 “the facts of the particular case,” and “legislative facts” as “those which have relevance 7 to legal reasoning and the lawmaking process, whether in the formulation of a legal 8 principle or ruling by a judge or court or in the enactment of a legislative body.”2 Third, 9 a court may take judicial notice of facts from its own records in other cases. 3 10 If NTC were offering Ninilchik to establish a relevant fact in this case, such as the 11 existence of a decision relevant to whether res judicata applies here, its argument 12 would be valid. But NTC is clearly offering Ninilchik for persuasive, not factual, 13 purposes.4 NTC’s argument to the contrary, that it is offering the case “to demonstrate 14 15 16 17 18 1 19 Ninth Circuit Rule 36-3(c)(ii). 2 20 21 22 23 24 25 26 27 28 Fed. R. Evid. 201 advisory committee’s notes to 1972 proposed rules. 3 D.Ak. L.R. 7.1(c)(2) (allowing parties to cite the contents of case files within the District of Alaska to establish that other proceedings have taken place, that the same or similar claims have been raised and adjudicated, or “like or similar matters.”). See also United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.”) (citing Kasey v. Molybdenum Corp. of Am., 336 F.2d 560, 563 (9th Cir. 1964) (the court took judicial notice of a previous decision “for a better understanding of the complicated factual situation [t]here existing.”)). 4 Doc. 21 at 10 n.8 (NTC argues that “[t]he Ninth Circuit has also rejected the argument that an RFR is an absolute prerequisite to subject matter jurisdiction under §807 even when the plaintiff was aggrieved by the FSB action under litigation and had, but did not exercise, the opportunity to file an RFR pursuant to FSB regulations. See Exhibit 8, Ninilchik Traditional Council et al. v. United States, 152 F.3d 928 (9th Cir. 1998) (unpublished decision).”). -2- 1 as a matter of fact that a federal court has waived the section 807 exhaustion 2 requirement,”5 has been rejected by the Ninth Circuit.6 3 III. CONCLUSION 4 Based on the preceding discussion, NTC’s motion at docket 22 is GRANTED IN 5 PART AND DENIED IN PART. NTC’s request for the court to take judicial notice of 6 Ninilchik Traditional Council v. United States, 152 F.3d 928 tbl. (9th Cir. 1998) is 7 DENIED; in all other respects NTC’s motion is GRANTED. 8 DATED this 8th day of April 2016. 9 10 /s/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5 25 6 26 27 28 Doc. 33 at 3. Sorchini v. City of Covina, 250 F.3d 706, 708 (9th Cir. 2001) (“If precedent were a ‘fact’ for purposes of the exception [to Ninth Circuit Rule 36-3(c)], then the exception would swallow up the rule. It would permit an argument such as this: ‘I am not citing this unpublished disposition as precedent, but only to inform the court of the fact that a prior panel held precisely what I would like the court to hold in my case.’ Obviously, this is not what the exception was meant to permit.”). -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?