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From BIGMTLIST

Here is my quick take on the
9th Circuit Court "OPINION" just posted.

No mention of "accommodation agreement" in the text. Apparently this opinion relates to other appeals.

"The Navajo appeal the judgment in the use case and the Navajo and the Hopi both appeal the judgments in the owelty and damages cases. We affirm the use case in its entirety, and in large part, we affirm the owelty and damages cases as well. We discuss each case separately."

i.e., the appeal has been denied in the "use case" and mostly denied in the "owelty and damages cases."

"use case" (No. 94-17022)

"The district court awarded the Hopi $18,187,132 for the Navajo's combined grazing and agricultural use of the Tribe's one-half interest in the JUA from 1962 to 1979. The case was litigated pursuant to 25 U.S.C. S 640d-17(a)(2), which allowed the Hopi to recover one-half the "fair value of the [Navajo] grazing and agricultural use" between the time of the JUA's creation (Healing decision of September 28, 1962) and the partition of the JUA on April 18, 1979"

"owelty case" (Appeal Nos. 94-17031, 95-15015)

"Owelty is a sum of money paid by one former joint tenant to another after a partition results in an unequal division of their land; the owelty compensates the former tenant who received the lesser value for the disparity."

"In this owelty case, the district court held that after partition there was no statistically meaningful difference in value between the Hopi half of the land and the Navajo half. Thus, it ordered no owelty award."

"damage case" (Appeals Nos. 94-17032, 95-15029)

"In the action giving rise to these appeals, the Hopi sued the Navajo and the United States to recover for damages to the HPL caused by Navajo overgrazing prior to the 1979 partition. The district court held that while the conduct creating liability occurred before the 1979 partition, the Hopi's compensation would be measured by the value of the lost grazing opportunity that the Hopi suffered after partition. In other words, the Hopi could recover the post-partition difference in value between the land "as is" and the land fully restored. None of the parties contest this ruling on appeal.

[15] After trial, the district court awarded the Hopi $3,167,388.84 in damages against the Navajo, and absolved the United States of liability on the ground that the government made reasonable efforts to protect the range. Both the Hopi and the Navajo challenge the district court's calculations. Their contentions lack merit, except for the Hopi complaint that the district court wrongly denied damages for lost grazing opportunity on lands that the Hopi set aside for wildlife. Accordingly, we remand so the district court can add the value of that lost opportunity to the damages award. Further, the Navajo argue that the United States should be held liable for its failure to adequately protect the range. We agree with the district court's application of a reasonableness standard and affirm the district court's denial of liability on the basis of factual findings that are not challenged as clearly erroneous." 

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Bob Dorman
redorman@plix.com "The Activist Page"
http://www.plix.com/~users/redorman/

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