Circuit Watcher

04-35210 Marceau v. Blackfeet Hous. Auth.
Before: Harry Pregerson, Susan P. Graber, and Ronald M. Gould, Circuit Judges.
The opinion filed on July 21, 2006, slip op. 8071, and appearing at 455 F.3d 974 (9th Cir. 2006), is replaced in part and adopted in part by the amended opinion filed concurrently with this order. Further petitions for rehearing and petitions for rehearing en banc may be filed.
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GRABER, Circuit Judge: Plaintiffs are members of the Blackfeet Indian Tribe who bought or leased houses built under the auspices of the United States Department of Housing and Urban Development (“HUD”). The houses had wooden foundations. The wood had been pressure-treated with toxic chemicals. Plaintiffs allege that the use of wooden foundations caused their houses to deteriorate and that the chemicals in the wood have caused, and continue to cause, health problems for those who live in the houses. On behalf of a class of persons similarly situated, Plaintiffs sued HUD, the Secretary of HUD, the Blackfeet Tribal Housing Authority and its board members (“the Housing Authority”) under several theories. The district court dismissed the entire complaint under Federal Rule of Civil Procedure 12(b)(6).
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On rehearing, we hold: (1) the Housing Authority forfeited its claim to tribal exhaustion and, in any event, waived its tribal immunity; (2) the government did not undertake a trust responsibility toward Plaintiffs to construct houses or maintain or repair houses; and (3) Plaintiffs alleged sufficient facts to state claims against HUD under the Administrative Procedure Act (“APA”). We readopt our earlier opinion¹ with respect to Plaintiff’s breach of contract claims. Accordingly, we affirm the district court’s dismissal of the case except as to Plaintiffs’ claims against the Housing Authority and its board members and Plaintiffs’ claims under the APA. As to those claims, we reverse and remand for further proceedings. …
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PREGERSON, Circuit Judge, dissenting: I concur in the majority’s rulings on tribal immunity and the Administrative Procedure Act. I dissent with regard to the majority’s analysis of federal trust responsibility, and write separately on that issue. … Marceau v. Blackfeet Hous. Auth.

1. Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006). [↩]