Assiniboine and Sioux Tribes of Fort Peck Indian Reservation v. Board of Oil and Gas Conservation of State of Montana

• Decision Date: 17 June 1986
• Docket Number: No. 85-3573,85-3573
• Parties: ASSINIBOINE AND SIOUX TRIBES OF the FORT PECK INDIAN RESERVATION, Plaintiffs- Appellants, v. The BOARD OF OIL AND GAS CONSERVATION OF the STATE OF MONTANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 782

792 F.2d 782

ASSINIBOINE AND SIOUX TRIBES OF the FORT PECK INDIAN

RESERVATION, Plaintiffs- Appellants, v. The BOARD OF OIL AND GAS CONSERVATION OF the STATE OF

MONTANA, et al., Defendants-Appellees.

No. 85-3573.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 10, 1985.

Decided June 17, 1986.

Marvin J. Sonosky, Kevin A. Griffin, Sonosky, Chambers & Sachse, Washington, D.C., for plaintiffs-appellants.

Blake A. Watson, Dirk D. Snel, Dept. of Justice, Washington, D.C., for defendants-appellees.

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

Before SKOPIL, FLETCHER and WIGGINS, Circuit Judges.

FLETCHER, Circuit Judge:

The Assiniboine and Sioux Tribes of the Fort Peck Reservation appeal from the district court's order granting the Secretary of the Interior's motion to dismiss. The Tribes claim that the Secretary of the Interior unlawfully delegated his authority by entering into a Cooperative Agreement with the Board of Oil & Gas Conservation of the State of Montana. The district court dismissed the action, holding that there was no justiciable controversy. We reverse and remand for further proceedings.

FACTUAL BACKGROUND

In November, 1983, the district court entered a judgment in Assiniboine and Sioux Tribes v. Board of Oil and Gas Conservation, Civ. No. CV-83-79-GF (D.Mont. Nov. 7, 1983), an action between the Tribes and the Board of Oil and Gas Conservation of the State of Montana (State Board). The court held that the Department of the Interior, and not the State Board, has jurisdiction over the spacing and location of oil and gas wells on lands the United States holds in trust for the Tribes or its individual members (Trust lands). The court enjoined the State Board from enforcing Order Number 19-83, which affected Trust lands. No appeal was taken.

The State Board regulates the oil and gas industry's discovery and development of mineral resources in Montana. See Assiniboine and Sioux Tribes v. Calvert Exploration Co., 223 F.Supp. 909, 911 (D.Mont.1963) rev'd on jurisdictional grounds sub nom. Yoder v. Assiniboine and Sioux Tribes, 339 F.2d 360 (9th Cir.1964). The Board establishes field rules governing oil and gas fields in Montana, including well spacing requirements, in part, to prevent unfair exploitation of mineral resources by operators extracting oil and gas from a given reservoir.

Often, surface rights over a reservoir are shared by several different owners, including the federal government, the Tribes, the state, and private landowners. Through careful well placement, the State Board presumably attempts to protect the rights of all surface owners and to ensure the fair development of resources.

When an applicant seeks an exemption from the rules, the State Board holds hearings to gather technical and other data. The Board then issues an order establishing guidelines for permissible well placement. The State Board's decision-making authority is restricted to drilling applications relating to non-federal and non-Indian lands.

One month after the district court's November 1983 judgment issued, the State Board held hearings and issued two "advisory orders" affecting well placement on Trust lands owned by individual tribal members. The State Board was acting pursuant to an informal arrangement with the Department of Interior, acting through the Montana office of the Bureau of Land Management (BLM). The BLM required the State Board to hear exemption applications submitted by Buckhorn Petroleum, Inc. and Anadarko Production Company as a prerequisite to considering their drilling requests. In its "advisory orders" the State Board admitted it had "no jurisdiction over said lands and that the jurisdiction over said lands is vested in the United States Department of Interior." The State Board indicated that it was hearing application requests and making recommendations In March 1984 the Tribes filed suit in federal district court under 28 U.S.C. Sec. 1362 and 42 U.S.C. Sec. 1983 naming the State Board and its members, the Secretary of the Interior (the Secretary), Anadarko Production Company, and Buckhorn Petroleum, Inc. as defendants. In their complaint, the Tribes objected to the proposed written "Cooperative Agreement," with its delegation of "powers of responsibility" to the State Board, and its retroactive ratification of existing State Board decisions. The Tribes sought injunctive relief (1) to prohibit the State Board from making any decisions or exercising any jurisdiction over Trust lands through the use of advisory opinions or other means, and (2) to prohibit the Secretary from delegating Interior Department trust oil and gas responsibilities to the State Board or requiring applicants to submit matters initially to the State Board. The Tribes also sought parallel declaratory judgments under 28 U.S.C. Sec. 2201, and nullification of the Anadarko and Buckhorn advisory orders.

to the BLM. The BLM later approved the two drilling applications. ¹

In June 1984, the BLM and State Board signed the Cooperative Agreement discussed in the Tribes' complaint, formalizing the advisory relationship. The relevant provisions are summarized as follows: applicants seeking permits related to Trust lands are required to submit the matter initially to the State Board. The State Board notifies the BLM of applications, enabling the BLM to present testimony or protest the application. In the event the BLM does protest, the State Board is required to either incorporate the BLM's objections or relinquish jurisdiction. Silence by the BLM "[is] considered as concurrence by the Montana BLM pending the approval of the authorized officer of the BLM." The State Board is required to notify the BLM of "any disposition". According to the Agreement's terms, orders pertaining to Trust lands are not binding without signature of the BLM's authorized officer. Under the Agreement, the applicant must notify the Tribes of pending matters before the State Board that affect Trust lands. At an Indian landowner's request, the BLM must hold a pre-conference to discuss the application and any grievances. Finally, the Cooperative Agreement retroactively affirmed prior State Board decisions affecting Trust lands, by including a statement that "all existing decisions of the State Board involving Indian lands will remain in effect subject to the right of all parties to request that specific orders be reviewed. This shall also apply to those decisions not previously placed in effect on Indian lands or those recommended to the BLM for approval."

On June 28, 1984, the Secretary filed a motion to dismiss the Tribes' action for failure to state a claim. The Tribes moved in August 1984 for a preliminary injunction, asking the court to enjoin implementation of the Cooperative Agreement's procedures and nullify specific orders approved pursuant to the Agreement's provisions.

In August 1984, while the motion to dismiss was pending, the Tribes appealed the BLM's approval of the Cooperative Agreement, and its approval of an application relating to tribal Trust land, to the Interior Board of Land Appeals (IBLA). The IBLA constitutes the highest appeal level within the Department of the Interior on such matters. ²

In November, 1984, the district court dismissed the action in its entirety, holding that there was no justiciable controversy. The court gave three reasons for this conclusion: (1) no final action affecting tribal interests had been taken by the Secretary; (2) the Secretary's action with respect to After the Tribes timely appealed the district court's order to this court, the IBLA upheld both the Cooperative Agreement and a specific order affecting trust lands that the Tribes had appealed.

                the Cooperative Agreement was a matter committed to Agency discretion;  and (3) the issues in the complaint were not ripe for review, because "the challenged action does not have an immediate impact on the Tribes, in that no irremedial adverse consequences have resulted from the action at issue."    The district court further explained that adverse consequences from implementation of advisory orders could be appealed through Interior Department channels and later through court action.  Although the district court dismissed for lack of a justiciable controversy, the court also discussed the merits.  The court found that the Cooperative Agreement did not constitute an unlawful delegation of authority, because it "merely represents a means the Secretary has chosen to elucidate facts in an effort to render an informed decision."
                

In March 1985 the Tribes filed a second suit in federal district court in the District of Columbia, challenging the Cooperative Agreement and its retroactive provisions. The Tribes requested relief similar to that requested in the Ninth Circuit suit. After the Secretary requested a stay of that action, pending the outcome of the proceedings here, the District of Columbia court dismissed the case without prejudice to reinstatement following this court's decision.

DISCUSSION

I. JUSTICIABILITY

The court below dismissed the Tribe's case as nonjusticiable. Justiciability is "not a legal concept with a fixed content or susceptible of scientific verification." Poe v. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961). The doctrine is a blend of constitutional limitations and prudential considerations, which are not easily distinguishable and "make the justiciability doctrine one of uncertain and shifting contours." Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). Concerns of justiciability most often touch upon "both the appropriateness of the issues for decision by courts and the hardship of denying judicial relief." Joint Anti-Facist Refugee Committee v. McGrath, 341 U.S. 123, 156, 71 S.Ct. 624, 640, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).

The parties and the district court raised several interrelated issues that...