Southern Pacific Transp. Co. v. Watt

• Decision Date: 01 March 1983
• Docket Number: Nos. 80-4505,80-4506,s. 80-4505
• Citation: 700 F.2d 550
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff-Appellee, v. James G. WATT, Secretary of the Interior, et al., Defendant-Appellant, and Walker River Paiute Tribe of Nevada, Defendant-Intervenor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 550

700 F.2d 550

SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff-Appellee, v. James G. WATT, Secretary of the Interior, et al., Defendant-Appellant and Walker River Paiute Tribe of Nevada, Defendant-Intervenor-Appellant.

Nos. 80-4505, 80-4506.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1982.

Decided March 1, 1983.

Laura Frossard, Atty., Dept. of Justice, Washington, D.C., for Watt.

Yvonne T. Knight, Jeanne S. Whiteing, Native American Rights Fund, Boulder, Colo., for Walker River Paiute Trial.

Nathan Jenkins, Reno, Nev., William R. Foley, Robert J. Foley, Foley, McIntosh & Foley, Albany, Cal., for Southern Pacific.

James McCartney, Houston, Tex., for amicus curiae Transwestern Pipeline Co.

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

Before FLETCHER, POOLE and CANBY, Circuit Judges.

CANBY, Circuit Judge:

The Walker River Paiute Tribe of Nevada (Tribe) and the Secretary of the Interior (Secretary) appeal from the district court's grant of summary judgment in favor of Southern Pacific Transportation Company (Southern Pacific). The district court held that tribal consent is not a condition precedent to the filing and processing of an application for a right-of-way across tribal lands under the Act of March 2, 1899, ch. 374, 30 Stat. 990 (codified at, 25 U.S.C Secs. 312-318 (1976)) (1899 Act or Act). We disagree and reverse the grant of summary judgment in favor of Southern Pacific.

I. Facts

The relevant facts are undisputed. Since 1882 Southern Pacific and its predecessors have operated a railway and adjoining telephone and telegraph lines over lands within the Walker River Indian Reservation. In 1976, this court held that Southern Pacific "does not have and has never had a valid right-of-way across lands within the original 1874 executive order boundaries of the Walker River Reservation except through the lands ceded by the Tribe to the United States in 1906." United States v. Southern Pacific Transpor., 543 F.2d 676, 699 (9th Cir.1976) (Southern Pacific I). As a result, on April 28, 1977, Southern Pacific filed an application with the Western Nevada Agency of the Bureau of Indian Affairs for a railroad, telephone and telegraph right-of-way through 10.89 miles of tribal lands within the Walker River Indian Reservation. Southern Pacific sought the right-of-way under the provisions of the 1899 Act. On May 4, 1977, the Agency Superintendent rejected the application without filing it, because it did not include evidence that the Tribe had consented to the right-of-way. Southern Pacific appealed the Agency Superintendent's decision within the agency, and the decision was upheld at all administrative levels.

Southern Pacific sought review of the agency action in federal district court. The Tribe intervened as a party-defendant. After cross motions for summary judgment, the district court entered judgment in favor of Southern Pacific. This appeal followed.

II. Discussion

We must determine whether Congress has authorized the Secretary to impose a condition of tribal consent on an application for a right-of-way under the 1899 Act. The Secretary and the Tribe contend that the 1899 Act itself vests in the Secretary the authority to impose conditions, including tribal consent, on railroad rights-of-way across Indian tribal lands. They argue that the district court erred in characterizing the 1899 Act as an eminent domain statute and a grant in praesenti. The Tribe argues in the alternative that even if the 1899 Act is a grant in praesenti, that fact would not preclude the Secretary from establishing conditions with which prospective grantees must comply before a grant becomes effective. We conclude that the 1899 Act is not an eminent domain statute. We further conclude that the 1899 Act--whether a grant in praesenti or not--authorizes the Secretary to establish, by regulation, grant preconditions, including one of tribal consent. The Secretary has exercised that authority and promulgated a regulation providing that "[n]o right-of-way shall be granted over and across any tribal land ... without the prior consent of the tribe." 25 C.F.R. Sec. 161.3(a) (1981). We reject Southern Pacific's contention that the regulation constitutes an unlawful redelegation of the Secretary's authority.

In interpreting the 1899 Act, we are guided by our earlier determination in this case that the Act was intended fully to protect Indian interests. Southern Pacific I, 543 F.2d at 692; see H.R.Rep. No. 1896, 55th Cong., 3d Sess. 2 (1899). It must therefore be liberally construed in favor of the Indians. Id.; see Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976). We must also bear in mind that the construction of a statute rendered by the agency charged with its administration is ordinarily entitled to substantial deference. United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2475, 61 L.Ed.2d 68 (1979); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Central Lincoln Peoples' Utility Dist. v. Johnson, 673 F.2d 1076, 1078 (9th Cir.1982); Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 3494, 73 L.Ed.2d 1373 (1982). Our review is limited to determining whether the Secretary's interpretation is reasonable. Central Lincoln, 673 F.2d at 1078; Columbia Basin Land Protection Assoc'n v. Schlesinger, 643 F.2d 585, 600 (9th Cir.1981).

A. The 1899 Act

The 1899 Act provides in part:

A right of way for a railway, telegraph and telephone line through any Indian reservation ... is granted to any railroad company organized under the laws of the United States, or of any State or Territory, which shall comply with the provisions of sections 312-318 of [the 1899 Act] and such rules and regulations as may be prescribed thereunder.

25 U.S.C. Sec. 312 (1976). Provisos follow that establish certain conditions that the Secretary must assure have been fulfilled. The district court held that the 1899 Act grants to a railroad the power of eminent domain to condemn rights-of-way through Indian reservations and that "[t]he concept of tribal consent as a pre-condition to the grant of a right-of-way is the very antithesis of the exercise of the power of eminent domain." The district court also held the 1899 Act to be a grant in praesenti subject to the performance of conditions precedent and conditions subsequent. Therefore, in the district court's view, the Act does not vest in the Secretary authority to establish grant preconditions beyond those contained in the statute but rather expressly specifies the conditions the Secretary must find to be satisfied prior to approving an application. The Secretary and the Tribe challenge the district court's determination that the 1899 Act is a grant of the power of eminent domain and a grant in praesenti. They argue that Section 312 of the Act delegates to the Secretary authority to promulgate legislative rules and, thereby, the authority to establish grant preconditions by regulation. We conclude that the interpretation advanced by the Secretary and the Tribe is both reasonable and in accord with our obligation to construe the 1899 Act liberally in the Tribe's favor. Having concluded that the interpretation advanced by the Secretary of Interior, the head of the agency charged with administration of the 1899 Act, is reasonable, we need not inquire further into the meaning of the provisions of the Act. "[W]e need not find that [the Secretary's] construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." Udall v. Tallman, supra, 380 U.S. at 16, 85 S.Ct. at 801, quoting Unemployment Compensation Comm'n of Alaska v. Aragon, 329 U.S. 143, 67 S.Ct. 245, 91 L.Ed. 136 (1946). It is enough that the Secretary's interpretation is reasonable, and there are several grounds for concluding that it is.

The plain language of the Act supports the interpretation of the Secretary and the Tribe. Section 1 provides that a right-of-way "is granted" to a railroad company that complies "with the provisions of sections 312-318 of this title [the 1899 Act] and such rules and regulations as may be prescribed thereunder ...." 25 U.S.C. Sec. 312 (1976) (emphasis added). Thus, section 1 may be read to establish two sources of conditions precedent: the statutory provisions and the Secretary's regulations. That reading of section 1 is reinforced by the fact that section 7 directs the Secretary to "make all needful rules and regulations, not inconsistent with sections 312-318 of this title, for the proper execution and carrying into effect of all the provisions of said sections." Id. at Sec. 317. The grant of rulemaking authority in section 1 would be superfluous if it did not confer authority to promulgate requirements, beyond those specified in the Act. Furthermore, the use of the phrase "rules and regulations, not inconsistent with sections 312-318 of this title" (emphasis added) in section 7 (Sec. 317) rather than such a phrase as "rules and regulations, in furtherance of the provision of sections 312-318 of this title" supports a broad interpretation of the grant of rulemaking authority.

Nothing in the legislative history of the 1899 Act suggests that the interpretation urged by the Secretary and the Tribe is unreasonable. That history is silent on the question of the scope of the authority vested in the Secretary by the Act. See H.R.Rep. 1896, 55th Cong., 3d Sess. 1-2 (1899); 32 Cong.Rec. 1753-55, 1849, 2041-42, 2471-72 (1899).

The construction we approve here is also consistent with the 1948 General Rights-of-Way Act, Pub.L. No. 80-407, 62 Stat. 17 (codified in 25 U.S.C. Secs. 323-328 (1976)) (1948 Act), which provides that "[n]o grant of a right-of-way over and across any lands belonging to a tribe organized under [the Indian Reorganization Act of...