Blackfeet Indian Tribe v. Montana Power Co., 87-3697

Decision Date24 February 1988
Docket NumberNo. 87-3697,87-3697
Citation838 F.2d 1055
PartiesThe 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.
CourtU.S. Court of Appeals — Ninth Circuit

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.

I.

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

II.

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 statute provides:

"The Secretary of the Interior be, and he is empowered to grant rights-of-way for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands, or nations, or any lands now or hereafter owned, subject to restrictions against alienation, by individual Indians or Indian tribes, communities, bands, or nations, including the lands belonging to the Pueblo Indians in New Mexico, and any other lands heretofore or hereafter acquired or set aside for the use and benefit of the Indians."

25 U.S.C. Sec. 323, 62 Stat. 17, Act of February 5, 1948. The 1948 Act included a second statute which required tribal consent for rights-of-way, stating, in relevant part: "No grant of a right-of-way over and across any lands belonging to a tribe ... shall be made without the consent of the proper tribal officials." 25 U.S.C. Sec. 324, 62 Stat. 18. Additionally, the 1948 Act provided that:

"Sections 323 and 328 of this title shall not in any manner amend or repeal the provisions of the Federal Water Power Act, ... nor shall any existing statutory authority empowering the Secretary of the Interior to grant rights-of-way over Indian lands be repealed."

25 U.S.C. Sec. 326, 62 Stat. 18.

Pursuant to the authority granted by the 1948 Act, 25 U.S.C. Sec. 323, empowering the Secretary to grant rights-of-way "subject to such conditions as he may prescribe," the Secretary promulgated a regulation in 1960 which allowed rights-of-way for oil and gas pipelines for a period not to exceed fifty years:

"All rights-of-way granted under the regulations in this part shall be in the nature of easements or permits for the period stated therein. They are terminable upon abandonment or discontinuance of the use for which granted. Rights-of-way for railroads, telephone lines, telegraph lines, public highways, and water control projects including but not limited to dams, reservoirs, flowage easements, ditches and canals shall be without limitation as to term of years. Rights-of-way for all other purposes shall be for a period of not to exceed 50 years, as fixed by the Secretary and stated in the grant, and shall be subject to renewal for a like term upon compliance with the applicable regulations."

25 C.F.R. Sec. 161.19 (1960). In 1968, the regulation was amended to allow the Secretary to grant rights-of-way for all easements, including oil and gas pipelines, for an unlimited term of years. 25 C.F.R. Sec. 161.18 (1968). See also United States v. Mitchell, 463 U.S. 206, 223, 103 S.Ct. 2961, 2971, 77 L.Ed.2d 580 (1983).

However, the regulation promulgated pursuant to the 1904 Act limited oil and gas pipeline rights-of-way to not more than 20 years: "Rights of way, granted under [25 U.S.C. Sec. 321], for oil and gas pipelines, ... shall not extend beyond a term of 20 years...." 25 C.F.R. Sec. 161.25(b) (1968). Thus the rights-of-way acquired by MPC could be subject to section 161.18 covering all rights-of-way and allowing unlimited terms; or subject to section 161.25(b) covering only oil and gas pipeline rights-of-way and limiting the term of years to not more than twenty; or subject to the original regulation, 25 C.F.R. Sec. 161.19 (1960), providing for not more than a fifty-year term for all rights-of-way.

Because the rights-of-way at issue here were limited to fifty years, we need not consider the validity of the 1968 amendment insofar as it allowed terms in excess of fifty years. Also, we note that each regulation was promulgated pursuant to the authority of the Acts of 1904 and 1948. As a result, the essential question is whether the 1904 Act, the 1948 Act, or both, control the five rights-of-way the Secretary granted MPC. 2

III.

Since we are reviewing an issue involving statutory construction and a grant of summary judgment, the standard of review is de novo. Native Village of Stevens v. Smith, 770 F.2d 1486, 1487 (9th Cir.1985), cert. denied, 475 U.S. 1121, 106 S.Ct. 1640, 90 L.Ed.2d 185 (1986). However, when faced with an issue of statutory construction, we give deference to the agency charged with administering that statute. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, reh. den., 380 U.S. 989, 85 S.Ct. 1325, 14 L.Ed.2d 283 (1965); Southern Pacific Transportation Co. v. Watt, 700 F.2d 550, 552 (9th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 747, 79 L.Ed.2d 204 (1983). Consequently, we will sustain the Secretary's construction of the statutes if it is reasonable, even though another construction appears equally plausible. Southern Pacific, 700 F.2d at 552; Lanning v. Marshall, 650 F.2d 1055, 1057 n. 4 (9th Cir.1981).

IV.

The starting point for an issue involving statutory construction is the language in the statute itself. Watt v. Alaska, 451 U.S. 259, 265, 101 S.Ct. 1673, 1677, 68 L.Ed.2d 80 (1981). Where two statutes are involved, legislative intent to repeal an earlier statute must be clear and manifest. In the absence of such intent, apparently conflicting statutes must be read to give effect to each if such can be done by preserving their sense and purpose. Id. at 267, 101 S.Ct. at 1678; 1A Sutherland Stat. Const. Sec. 23.09 (4th Ed.1985) (if the inconsistency between a later act and an earlier one is not fatal to the operation of either, the two may stand together and no repeal will be effected). This is because statutory repeals by implication from a later enacted statute are disfavored. SDC Development Corp. v. Mathews, 542 F.2d 1116, 1118 n. 5 (9th Cir.1976). Also, where possible, we resolve legal ambiguities in favor of Indians, but we cannot ignore the plain intent of Congress. See South Carolina v. Catawaba Indian Tribe, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986).

Here, the language in neither Act speaks to the relationship of the Acts inter se. We therefore look to congressional intent with an eye toward upholding both statutes. Id. The 1904 Act is specific. It authorizes the Secretary to grant rights-of-way for oil and gas pipelines for up to a twenty-year period. 25 U.S.C. Sec. 321. The later enacted Act of 1948 is more...

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