Georgia
Court hears arguments in fight between 2 tribes over casino built on ‘sacred’ land
ATLANTA (AP) — An appeals court on Wednesday heard arguments in a long-running dispute between two federally recognized tribes over one’s construction of a casino on Alabama land that the other says is a sacred site.
The dispute involves land, known as Hickory Ground, that was home to the Muscogee Nation before removal to Oklahoma on the Trail of Tears. The site is owned by Alabama’s Poarch Band of Creek Indians, a separate tribal nation that shares ancestry with the Muscogee, and that built one of its successful Wind Creek casinos on the site. The Muscogee Nation is appealing a federal judge’s decision to dismiss their lawsuit over the casino construction.
The Muscogee Nation argued that the Alabama tribal officials broke a legal promise to protect the site when they acquired it with the help of a historic preservation grant and instead excavated the remains of 57 Muscogee ancestors to build a casino.
“Hickory Ground is sacred,” Mary Kathryn Nagle, an attorney representing the Muscogee Nation told the three-judge panel. The Muscogee officials asked the appellate court to reinstate their claims that tribal and federal officials and the university that did an archeological work at the site violated The Native American Graves Protection and Repatriation Act and other federal laws.
The Poarch Band, which maintains their work preserved much of Hickory Ground, depicted the case as an attack on their sovereignty.
Mark Reeves an attorney representing Poarch Band officials, told the panel that the Oklahoma plaintiffs are seeking to control what the Alabama tribe can do on its own land.
“We firmly believe that protecting tribal sovereignty is at the heart of this case,” Reeves said in a statement after court. “The idea that any entity, most especially another tribe, would be allowed to assume control over land it does not own is antithetical to tribal sovereignty and American values.”
The appellate court did not indicate when a decision would be issued.
U.S. Chief Circuit Judge Bill Pryor, a former Alabama attorney general, told Nagle at the start of arguments that he was “pretty sympathetic to many of your concerns here” and had questions about how the district court structured its decision. Circuit Judge Robert J. Luck questioned if the Muscogee Nation was essentially seeking “a veto” over what the Poarch Band could do with the property.
Nagle said they were encouraged by the questions asked by the panel. Members of the Muscogee Nation marched to the Atlanta courthouse ahead of the arguments.
“This is about more than just a legal battle. This is about our ancestors, our cultural identity, and the future of Native rights across the United States,” Muscogee Principal Chief David Hill said.
New York
Federal lawsuit challenging mask ban in suburban county dismissed
CENTRAL ISLIP, N.Y. (AP) — A judge on Wednesday dismissed a federal lawsuit challenging a suburban New York ban on wearing masks in public except for health and religious reasons.
The class action lawsuit was filed last month by Disability Rights New York on behalf of two individuals with disabilities against Nassau County’s Mask Transparency Act, or MTA. The law makes it a misdemeanor punishable by up to a year in jail and a $1,000 fine for anyone in the county to wear a face covering to hide their identity in public.
The lawsuit claims the ban is unconstitutional and discriminates against people with disabilities. The legal action includes two plaintiffs with various health conditions who wear medical-grade face masks to protect themselves. They said they were fearful of being harassed and possibly arrested because of the new mandate.
But U.S. District Judge Joan Azrack ruled that the plaintiffs failed to show they have legal standing to sue since the law since has exemptions for people who wear masks for health reasons.
“Plaintiffs wear masks to protect themselves from illness,” the judge wrote. “That is expressly excluded from the MTA’s reach by its health and safety exception.”
Nassau County Executive Bruce Blakeman, a Republican who signed the bill into law in August, said in a written statement that residents “can be grateful that the court dismissed a lawsuit that would have made Nassau County less safe.”
South Dakota
Judge dismisses lawsuit over mine linked to sinkholes
A judge in South Dakota has thrown out a lawsuit brought by dozens of neighbors in a Rapid City-area subdivision whose homes were built above an old, underground mine linked to sinkholes in the neighborhood.
Circuit Court Judge Eric J. Strawn in a ruling posted online Wednesday granted the state’s motion for summary judgment and dismissed all the claims, ruling that the state has sovereign immunity, a sort of legal protection against lawsuits.
The plaintiffs’ attorney, Kathy Barrow, said her Hideaway Hills clients will appeal to the state Supreme Court.
The plaintiffs are arguing that the state’s mining activities and the way it ultimately closed the mine created conditions ripe for sinkholes to develop. They also fault the state for failing to disclose the problematic conditions.
The plaintiffs want the Supreme Court to sort out the “blurred lines” of the legal theory behind their claims, Barrow said.
An attorney for the state referred The Associated Press to Ian Fury, spokesman for Gov. Kristi Noem, who didn’t reply to The AP’s email seeking comment.
The lawsuit was originally filed in 2020. That same year, a giant sinkhole opened in the neighborhood, which later revealed the extent of the mine beneath. About 150 neighbors in 94 homes are seeking $45 million. Other holes and sinkings have occurred since, imperiling houses, roads and utilities, according to the homeowners.
The former state cement plant mined gypsum for several years in the area decades ago. Attorneys for the state have argued that the cement plant did not mine underground and the collapse would have occurred regardless of the plant’s mining activities.
Montana
Court upholds finding that clinic submitted false asbestos claims
BILLINGS, Mont. (AP) — A federal appeals court has upheld a lower court determination that a Montana health clinic submitted hundreds of false asbestos claims on behalf of patients.
A jury decided last year that the clinic in a town where hundreds of people have died from asbestos exposure submitted more than 300 false asbestos claims that made patients eligible for Medicare and other benefits they shouldn’t have received.
The Center for Asbestos Related Disease (CARD) in Libby, Montana, had asked the 9th Circuit Court of Appeals to reverse last year’s ruling. The clinic’s attorney argued its actions were deemed acceptable by federal officials and that the judge in the case issued erroneous jury instructions.
But a three-judge panel said in a decision issued late Tuesday that the clinic couldn’t blame federal officials for its failure to follow the law. The panel also said that Judge Dana Christensen’s jury instructions were appropriate.
The federal Centers for Disease Control and Prevention recently awarded the clinic a new five-year asbestos health screening grant, CARD said in a Wednesday statement from executive director Tracy McNew. The appeals court ruling will not affect its daily operations, she said.
“We want to reassure our patients and the community that not a single person lost Medicare benefits as a result of the trial. Our diagnoses are sound, and we stand behind the care we provide,” McNew wrote. “CARD is financially stable and is continuing its mission.”
The clinic has received more than $20 million in federal funding and certified more than 3,400 people with asbestos-related disease, according to court documents.
Most of the patients for whom false claims were made did not have a diagnosis of asbestos-related disease that was confirmed by a radiologist, the 9th Circuit said.
The case resulted from a lawsuit brought against the clinic by BNSF Railway. The railroad has separately been found liable over contamination in Libby and is a defendant in hundreds of asbestos-related lawsuits, according to court filings.
The clinic was ordered to pay almost $6 million in penalties and fees following last year’s ruling. However, it won’t have to pay that money under a settlement reached in bankruptcy court with BNSF and the federal government, documents show.
BNSF representatives did not immediately respond to emailed messages seeking comment.
The Libby area was declared a Superfund site two decades ago following media reports that mine workers and their families were getting sick and dying due to asbestos dust from vermiculite that was mined by W.R. Grace & Co. The tainted vermiculite was shipped through the 3,000-person town by rail over decades.
New York
Jury awarded $2.78M to nanny over camera hidden in bedroom
NEW YORK (AP) — A jury has awarded $2.78 million to an au pair whose employer used a hidden camera to videotape her while she slept in their New York City home.
The jury in Brooklyn federal court ordered Michael and Danielle Esposito to pay Kelly Andrade $780,000 for emotional distress and $2 million in punitive damages for the camera that Michael Esposito had placed over Andrade’s bed after she moved in to their Staten Island home to care for their four children.
The Sept. 12 civil verdict resolved the lawsuit Andrade filed in 2021 against the Espositos. She settled earlier with the agency that had placed her with the couple, Massachusetts-based Cultural Care Au Pair, for an undisclosed sum.
According to court papers, Andrade was living in Colombia when she signed a contract with Cultural Care in 2020. In order to move to the United States and secure an au pair placement, Andrade had to pay a fee, take courses in child care and accrue 200 hours of child care experience.
After completing the training, Andrade moved to the United States in March 2021 and was placed in the Espositos’ home, where she was given a bedroom, her lawsuit said.
Andrade noticed over the next few weeks that the smoke detector over her bed was constantly being repositioned.
She examined the smoke detector and found a hidden camera with a memory card that contained hundreds of recordings of her nude or getting dressed and undressed, the lawsuit said.
Andrade “did not have knowledge of the surveillance device and did not give the defendant permission or authority to record her in any way,” according to the lawsuit.
Immediately after Andrade discovered the hidden camera, Michael Esposito arrived home and tried to get her to leave the house, the lawsuit said. She locked herself inside the bedroom. He tried to break the door down, and she escaped through a window, went to the police and filed a complaint against the Espositos.
Michael Esposito was arrested but avoided jail time by pleading guilty to a second-degree felony charge of unlawful surveillance. After completing one year of counseling, he was allowed to withdraw his felony plea and plead to a misdemeanor charge of attempted unlawful surveillance.
Andrade, who is now 28 and living in New Jersey, believes that justice was not served in the criminal case, as Esposito “only received probation and was able to continue living his life,” an attorney for Andrade, Johnmack Cohen, said in an email.
But she is happy with the civil verdict, Cohen said.
“We hope that Ms. Andrade’s case will inspire other sexual harassment victims to speak up and seek justice as Ms. Andrade was able to do,” he added.
A lawyer for the Espositos, Michael Gervasi, said the pair “are exploring all post-verdict options, including an appeal.”
Court hears arguments in fight between 2 tribes over casino built on ‘sacred’ land
ATLANTA (AP) — An appeals court on Wednesday heard arguments in a long-running dispute between two federally recognized tribes over one’s construction of a casino on Alabama land that the other says is a sacred site.
The dispute involves land, known as Hickory Ground, that was home to the Muscogee Nation before removal to Oklahoma on the Trail of Tears. The site is owned by Alabama’s Poarch Band of Creek Indians, a separate tribal nation that shares ancestry with the Muscogee, and that built one of its successful Wind Creek casinos on the site. The Muscogee Nation is appealing a federal judge’s decision to dismiss their lawsuit over the casino construction.
The Muscogee Nation argued that the Alabama tribal officials broke a legal promise to protect the site when they acquired it with the help of a historic preservation grant and instead excavated the remains of 57 Muscogee ancestors to build a casino.
“Hickory Ground is sacred,” Mary Kathryn Nagle, an attorney representing the Muscogee Nation told the three-judge panel. The Muscogee officials asked the appellate court to reinstate their claims that tribal and federal officials and the university that did an archeological work at the site violated The Native American Graves Protection and Repatriation Act and other federal laws.
The Poarch Band, which maintains their work preserved much of Hickory Ground, depicted the case as an attack on their sovereignty.
Mark Reeves an attorney representing Poarch Band officials, told the panel that the Oklahoma plaintiffs are seeking to control what the Alabama tribe can do on its own land.
“We firmly believe that protecting tribal sovereignty is at the heart of this case,” Reeves said in a statement after court. “The idea that any entity, most especially another tribe, would be allowed to assume control over land it does not own is antithetical to tribal sovereignty and American values.”
The appellate court did not indicate when a decision would be issued.
U.S. Chief Circuit Judge Bill Pryor, a former Alabama attorney general, told Nagle at the start of arguments that he was “pretty sympathetic to many of your concerns here” and had questions about how the district court structured its decision. Circuit Judge Robert J. Luck questioned if the Muscogee Nation was essentially seeking “a veto” over what the Poarch Band could do with the property.
Nagle said they were encouraged by the questions asked by the panel. Members of the Muscogee Nation marched to the Atlanta courthouse ahead of the arguments.
“This is about more than just a legal battle. This is about our ancestors, our cultural identity, and the future of Native rights across the United States,” Muscogee Principal Chief David Hill said.
New York
Federal lawsuit challenging mask ban in suburban county dismissed
CENTRAL ISLIP, N.Y. (AP) — A judge on Wednesday dismissed a federal lawsuit challenging a suburban New York ban on wearing masks in public except for health and religious reasons.
The class action lawsuit was filed last month by Disability Rights New York on behalf of two individuals with disabilities against Nassau County’s Mask Transparency Act, or MTA. The law makes it a misdemeanor punishable by up to a year in jail and a $1,000 fine for anyone in the county to wear a face covering to hide their identity in public.
The lawsuit claims the ban is unconstitutional and discriminates against people with disabilities. The legal action includes two plaintiffs with various health conditions who wear medical-grade face masks to protect themselves. They said they were fearful of being harassed and possibly arrested because of the new mandate.
But U.S. District Judge Joan Azrack ruled that the plaintiffs failed to show they have legal standing to sue since the law since has exemptions for people who wear masks for health reasons.
“Plaintiffs wear masks to protect themselves from illness,” the judge wrote. “That is expressly excluded from the MTA’s reach by its health and safety exception.”
Nassau County Executive Bruce Blakeman, a Republican who signed the bill into law in August, said in a written statement that residents “can be grateful that the court dismissed a lawsuit that would have made Nassau County less safe.”
South Dakota
Judge dismisses lawsuit over mine linked to sinkholes
A judge in South Dakota has thrown out a lawsuit brought by dozens of neighbors in a Rapid City-area subdivision whose homes were built above an old, underground mine linked to sinkholes in the neighborhood.
Circuit Court Judge Eric J. Strawn in a ruling posted online Wednesday granted the state’s motion for summary judgment and dismissed all the claims, ruling that the state has sovereign immunity, a sort of legal protection against lawsuits.
The plaintiffs’ attorney, Kathy Barrow, said her Hideaway Hills clients will appeal to the state Supreme Court.
The plaintiffs are arguing that the state’s mining activities and the way it ultimately closed the mine created conditions ripe for sinkholes to develop. They also fault the state for failing to disclose the problematic conditions.
The plaintiffs want the Supreme Court to sort out the “blurred lines” of the legal theory behind their claims, Barrow said.
An attorney for the state referred The Associated Press to Ian Fury, spokesman for Gov. Kristi Noem, who didn’t reply to The AP’s email seeking comment.
The lawsuit was originally filed in 2020. That same year, a giant sinkhole opened in the neighborhood, which later revealed the extent of the mine beneath. About 150 neighbors in 94 homes are seeking $45 million. Other holes and sinkings have occurred since, imperiling houses, roads and utilities, according to the homeowners.
The former state cement plant mined gypsum for several years in the area decades ago. Attorneys for the state have argued that the cement plant did not mine underground and the collapse would have occurred regardless of the plant’s mining activities.
Montana
Court upholds finding that clinic submitted false asbestos claims
BILLINGS, Mont. (AP) — A federal appeals court has upheld a lower court determination that a Montana health clinic submitted hundreds of false asbestos claims on behalf of patients.
A jury decided last year that the clinic in a town where hundreds of people have died from asbestos exposure submitted more than 300 false asbestos claims that made patients eligible for Medicare and other benefits they shouldn’t have received.
The Center for Asbestos Related Disease (CARD) in Libby, Montana, had asked the 9th Circuit Court of Appeals to reverse last year’s ruling. The clinic’s attorney argued its actions were deemed acceptable by federal officials and that the judge in the case issued erroneous jury instructions.
But a three-judge panel said in a decision issued late Tuesday that the clinic couldn’t blame federal officials for its failure to follow the law. The panel also said that Judge Dana Christensen’s jury instructions were appropriate.
The federal Centers for Disease Control and Prevention recently awarded the clinic a new five-year asbestos health screening grant, CARD said in a Wednesday statement from executive director Tracy McNew. The appeals court ruling will not affect its daily operations, she said.
“We want to reassure our patients and the community that not a single person lost Medicare benefits as a result of the trial. Our diagnoses are sound, and we stand behind the care we provide,” McNew wrote. “CARD is financially stable and is continuing its mission.”
The clinic has received more than $20 million in federal funding and certified more than 3,400 people with asbestos-related disease, according to court documents.
Most of the patients for whom false claims were made did not have a diagnosis of asbestos-related disease that was confirmed by a radiologist, the 9th Circuit said.
The case resulted from a lawsuit brought against the clinic by BNSF Railway. The railroad has separately been found liable over contamination in Libby and is a defendant in hundreds of asbestos-related lawsuits, according to court filings.
The clinic was ordered to pay almost $6 million in penalties and fees following last year’s ruling. However, it won’t have to pay that money under a settlement reached in bankruptcy court with BNSF and the federal government, documents show.
BNSF representatives did not immediately respond to emailed messages seeking comment.
The Libby area was declared a Superfund site two decades ago following media reports that mine workers and their families were getting sick and dying due to asbestos dust from vermiculite that was mined by W.R. Grace & Co. The tainted vermiculite was shipped through the 3,000-person town by rail over decades.
New York
Jury awarded $2.78M to nanny over camera hidden in bedroom
NEW YORK (AP) — A jury has awarded $2.78 million to an au pair whose employer used a hidden camera to videotape her while she slept in their New York City home.
The jury in Brooklyn federal court ordered Michael and Danielle Esposito to pay Kelly Andrade $780,000 for emotional distress and $2 million in punitive damages for the camera that Michael Esposito had placed over Andrade’s bed after she moved in to their Staten Island home to care for their four children.
The Sept. 12 civil verdict resolved the lawsuit Andrade filed in 2021 against the Espositos. She settled earlier with the agency that had placed her with the couple, Massachusetts-based Cultural Care Au Pair, for an undisclosed sum.
According to court papers, Andrade was living in Colombia when she signed a contract with Cultural Care in 2020. In order to move to the United States and secure an au pair placement, Andrade had to pay a fee, take courses in child care and accrue 200 hours of child care experience.
After completing the training, Andrade moved to the United States in March 2021 and was placed in the Espositos’ home, where she was given a bedroom, her lawsuit said.
Andrade noticed over the next few weeks that the smoke detector over her bed was constantly being repositioned.
She examined the smoke detector and found a hidden camera with a memory card that contained hundreds of recordings of her nude or getting dressed and undressed, the lawsuit said.
Andrade “did not have knowledge of the surveillance device and did not give the defendant permission or authority to record her in any way,” according to the lawsuit.
Immediately after Andrade discovered the hidden camera, Michael Esposito arrived home and tried to get her to leave the house, the lawsuit said. She locked herself inside the bedroom. He tried to break the door down, and she escaped through a window, went to the police and filed a complaint against the Espositos.
Michael Esposito was arrested but avoided jail time by pleading guilty to a second-degree felony charge of unlawful surveillance. After completing one year of counseling, he was allowed to withdraw his felony plea and plead to a misdemeanor charge of attempted unlawful surveillance.
Andrade, who is now 28 and living in New Jersey, believes that justice was not served in the criminal case, as Esposito “only received probation and was able to continue living his life,” an attorney for Andrade, Johnmack Cohen, said in an email.
But she is happy with the civil verdict, Cohen said.
“We hope that Ms. Andrade’s case will inspire other sexual harassment victims to speak up and seek justice as Ms. Andrade was able to do,” he added.
A lawyer for the Espositos, Michael Gervasi, said the pair “are exploring all post-verdict options, including an appeal.”
