10th Circuit holds EEOC case against employer is not moot; that New Mexico regulatory actions against vendors doing business with tribal gambling entities are not preempted by Indian Gaming regulatory Act; holds gathering of data about natural resources while on public land is protected by the First Amendment; and holds immigration appeals board lacked any factual or legal basis to deny motion to reopen asylum application.

Equal Employment Opportunity Commission v CollegeAmerica Denver, Inc.

Commission appealed the dismissal of their action against Denver arguing the case was not moot. The panel agreed and reversed holding Denver asserted a new theory about how a former employee was breaching a settlement agreement by giving information to Commission without telling Denver, Denver thus failed to prove it voluntarily ceased interfering with former employee’s rights, an injunction in this case would bar Denver form using its new theory in a parallel state case and whether Commission can bring suit under 29 USC 626(f)(4) should be decided by the district court in the first instance.

Pueblo of Pojoaque v State of New Mexico

Pueblo appealed the dismissal of its claim for declaratory and injunctive relief arguing New Mexico is preempted from interfering with gambling activities on Pueblo land by denying licenses to do business with non-Indian gambling establishments to vendors doing business with Pueblo. The panel, 2-1, affirmed. The majority held that the special preemption analysis for Indian tribes which has been used in the taxation context did not apply here as the actions of New Mexico were aimed at vendor operations off Pueblo land and the indirect effects on Pueblo were insufficient to trigger the special balancing test. It held the dissent’s reliance on the Ramah Navajo circuit precedent was inapposite as that case relied on traditional notions of a compressive and pervasive scheme. It held the Indian Gaming Regulatory Act does not explicitly preempt New Mexico’s regulation of offsite vendor activity and the Act does not implicitly preempt as the Act does not fully occupy the field and there is no requirement for a license for vendors to do business with Pueblo and thus no conflict preemption. Bacharach dissented arguing the case should be remanded for analysis under the stricter balancing preemption test because that test applies under the Ramah Navajo case and United States Supreme Court precedent on state regulation of tribal activities on tribal land and New Mexico’s actions against the vendors has more than a truly minimal effect on Pueblo.

Western Watersheds Project v Michael

Project and two other advocacy groups appealed the dismissal of their First Amendment challenge to Wyoming statutes limiting gathering of natural resource data and setting penalties for violations. The panel reversed and remanded. It held that provisions in question limit gathering of information about resources while on public land, these limits regulate protected creation of speech, the creation of protected speech is itself protected by the first Amendment under United States Supreme court precedent and taking photographs of animals or recording observations of water conditions are similar to recording police interactions which has been held to be protected activity and the activities here are aimed at furthering public debate about natural resources and environmental issues and thus the district court ruling the activities here are unprotected must be reversed. The case was remanded for further proceedings.

Qiu v Sessions

Qiu sought review of the immigration appeals board denial of her motion to reopen her asylum application. The panel reversed holding the board abused its discretion as its decision lacked any factual or legal support given it declared there was no increase in persecution of Christians in China despite evidence from Qiu’s mother and the State Department there has been an increase, erred in finding increased persecution irrelevant as this would result in the absurd result in allowing frivolous claims to be reopened while preventing viable claims to say closed, erred in concluding increased persecution is not a material change in country conditions for purposes of reopening, erred in finding a statement submitted to be unsworn when it was sworn to, and erred in adopting a blanket rule of assigning little to no weight to evidence created after the initial filing or not submitted in the form of a sworn affidavit.