838 F.2d 1055 (9th Cir. 1988), 87-3697, Blackfeet Indian Tribe v. Montana Power Co.

Docket Nº:87-3697.
Citation:838 F.2d 1055
Party Name:The BLACKFEET INDIAN TRIBE, Plaintiff-Appellant, v. The MONTANA POWER COMPANY, a Montana corporation; the United States of America; and Donald P. Hodel, Secretary of the Interior, Defendants-Appellees.
Case Date:January 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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838 F.2d 1055 (9th Cir. 1988)

The BLACKFEET INDIAN TRIBE, Plaintiff-Appellant,


The MONTANA POWER COMPANY, a Montana corporation; the

United States of America; and Donald P. Hodel,

Secretary of the Interior, Defendants-Appellees.

No. 87-3697.

United States Court of Appeals, Ninth Circuit

January 28, 1988

Argued and Submitted Dec. 11, 1987.

As Amended Feb. 24, 1988.

Jeanne S. Whiteing, Boulder, Colo., for plaintiff-appellant.

Michael P. Manion, Butte, Mont., Edward J. Shawaker, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, ANDERSON and SCHROEDER, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

The Blackfeet Indian Tribe seeks to have rights-of-way granted over tribal lands invalidated. The appeal presents the question of whether the Secretary of the Interior exceeded his authority by allowing a fifty-year term for natural gas pipeline rights-of-way across Blackfeet tribal lands. We hold he did not.


Between 1961 and 1969, the Secretary of the Interior ("Secretary") granted The

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Montana Power Company ("MPC") five rights-of-way for natural gas transmission pipelines across Blackfeet Indian Tribe ("Tribe") lands on the Blackfeet Indian Reservation in Montana. Each right-of-way was granted by the Secretary pursuant to his approval power, and each was for a fifty-year term. At the time of approval, the Tribe also consented to each right-of-way.

In 1981, the Tribe objected to the fifty-year term and notified MPC of its objection. The Tribe contended the terms were limited to twenty rather than fifty years. MPC responded by stating that it was entitled to the fifty-year terms approved by the Secretary.

In 1983, the Tribe filed the present suit, alleging the pipeline rights-of-way granted MPC were limited to twenty years and the Secretary exceeded his authority in approving longer terms. Under the twenty-year period, the Tribe alleged the right-of-way had expired and MPC was therefore occupying the land as a trespasser. 1

The district court granted MPC, the United States, and the Secretary partial summary judgment, declaring that the rights-of-way were for fifty years and therefore had not expired. The court held the Secretary did not exceed his authority in approving the rights-of-way for fifty years and that the Tribe had consented to these terms. The district court later issued a Fed.R.Civ.P. 54(b) order of finality on the grant of partial summary judgment. The Tribe immediately appealed.


In 1904, Congress enacted a statute authorizing the Secretary to grant rights-of-way as easements for oil and gas pipelines through any Indian reservation for a period no longer than twenty years. The statute reads as follows:

"The Secretary of the Interior is authorized and empowered to grant a right of way in the nature of an easement for the construction, operation, and maintenance of pipe lines for the conveyance of oil and gas through any Indian reservation ... Provided, That the rights herein granted shall not extend beyond a period of twenty years: Provided further, That the Secretary of the Interior, at the expiration of said twenty years, may extend the right to maintain any pipe line constructed under this section for another period not to exceed twenty years from the expiration of the first right, upon such terms and conditions as he may deem proper. The right to alter, amend, or repeal this section is expressly reserved."

25 U.S.C. Sec. 321, 33 Stat. 65, Act of March 11, 1904.

With the 1904 Act still in effect, in 1948 Congress passed the Indian Right-of-Way Act. The 1948 Act empowered the Secretary to grant rights-of-way across Indian lands for all purposes. The...

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