Swinomish Indian Tribal Cmty. v. BNSF Ry. Co.

Citation951 F.3d 1142
Decision Date04 March 2020
Docket NumberNo. 18-35704,18-35704
Parties SWINOMISH INDIAN TRIBAL COMMUNITY, a federally recognized Indian Tribe, Plaintiff-Appellee, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Benjamin J. Horwich (argued) and Teresa A. Reed Dippo, Munger Tolles & Olson LLP, San Francisco California; Sarah G. Boyce, Munger Tolles & Olson LLP, Washington, D.C.; Stellman Keehnel, Andrew R. Escobar, and Jeffrey B. DeGroot, DLA Piper LLP (US), Seattle, Washington; for Defendant-Appellant.

Christopher I. Brain (argued) and Chase Alvord, Tousley Brain Stephens PLLC, Seattle, Washington; Stephen T. LeCuyer, Office of the Tribal Attorney, La Conner, Washington; for Plaintiff-Appellee.

Thomas H. Dupree Jr. and David A. Schnitzer, Gibson Dunn & Crutcher LLP, Washington, D.C.; Kathryn D. Kirmayer and Timothy J. Strafford, Association of American Railroads, Washington, D.C.; for Amicus Curiae Association of American Railroads.

Philip J. Bezanson, Bracewell LLP, Seattle, Washington, for Amicus Curiae Tesoro Refining & Marketing Company LLC.

Jeffrey M. Harris, Consovoy McCarthy Park PLLC, Arlington, Virginia; Allison Starmann, Deputy General Counsel, American Chemistry Council, Washington, D.C.; Richard Moskowitz, General Counsel, American Fuel & Petrochemical Manufacturers, Washington, D.C.; Andrew S. Miles, Senior Counsel, American Petroleum Institute, Washington, D.C.; Daryl L. Joseffer and Michael B. Schon, U.S. Chamber Litigation Center, Washington, D.C.; Peter C. Tolsdorf and Leland P. Frost, National Association of Manufacturers, Washington, D.C.; Katie Sweeney, National Mining Association, Washington, D.C.; for Amici Curiae American Chemistry Council, American Fuel & Petrochemical Manufacturers, American Petroleum Institute, Chamber of Commerce of the United States of America, National Association of Manufacturers, and National Mining Association.

Robert W. Ferguson, Attorney General; Julian H. Beattie, Assistant Attorney General; Laura Watson, Senior Assistant Attorney General; Office of the Attorney General, Olympia, Washington; Letitia James, Attorney General, Albany, New York; Ellen F. Rosenblum, Attorney General, Salem, Oregon; for Amici Curiae Washington State, New York, and Oregon.

Jan E. Hasselman and Ashley N. Bennett, Earthjustice, Seattle, Washington, for Amici Curiae Suquamish Tribe, Tulalip Tribes, and Quinault Indian Nation.

Before: Michael Daly Hawkins, William A. Fletcher, and Mark J. Bennett, Circuit Judges.

W. FLETCHER, Circuit Judge:

Over one hundred years ago, the predecessor to BNSF Railway Co. ("BNSF") built a railroad line across the Reservation of the Swinomish Indian Tribal Community ("Tribe") without the Tribe's permission. In the 1970s, the Tribe and the United States brought suit against the railroad for trespass. That litigation eventually resulted in a Settlement Agreement and an Easement Agreement. As a result of those Agreements, BNSF applied for and obtained a right-of-way across the Reservation, issued by the Department of the Interior under the Indian Right of Way Act of 1948. The right-of-way incorporates the terms of the Easement Agreement. BNSF agreed to a daily maximum of one train in each direction, with a maximum number of rail cars, unless the Tribe agreed in writing to an increase in that number. BNSF also agreed to submit to the Tribe annual reports of the cargo carried by the trains.

In 2011, the Tribe learned that BNSF was violating the parallel terms of the right-of-way and the Easement Agreement by running more trains and cars across the Reservation than permitted by its terms. BNSF had also failed for many years to submit to the Tribe the required annual cargo reports. The Tribe requested that BNSF comply with the terms of the Agreement. BNSF refused. The Tribe then sued BNSF in federal district court.

BNSF argued in the district court that the Interstate Commerce Commission Termination Act ("ICCTA") preempts the Easement Agreement. The district court disagreed, holding in several orders that the ICCTA does not defeat the Tribe's right to an injunction to enforce the Agreement. The district court reserved for later decision the terms of any injunction, as well as the Tribe's right to recover damages.

We granted interlocutory review of the district court's orders under 28 U.S.C. § 1292(b). We affirm.

I. Factual and Procedural Background

The Swinomish Indian Tribal Community is a federally recognized Indian Tribe organized under the Indian Reorganization Act of 1934, 25 U.S.C. § 5123. The Tribe is a successor to signatories of the Treaty of Point Elliott of 1855, 12 Stat. 927 ("Treaty"). The Treaty established the Swinomish Reservation on Fidalgo Island in Washington State, roughly halfway between the towns of Burlington and Anacortes. The Tribe's reservation land is held in trust for the Tribe by the United States.

In about 1889, the Seattle and Northern Railway Company—a predecessor to BNSF—began constructing a railroad line across the northern part of the Reservation. The Tribe objected. W.H. Talbott, the U.S. Indian Agent of the Tulalip Agency, Washington Territory, investigated. Based on Talbott's findings, the U.S. Attorney for Washington Territory was "directed to institute proceedings to prevent the building of the railroad across the said Indian reservation." It is unclear whether the U.S. Attorney ever instituted proceedings.

In response, on December 21, 1889, the Seattle and Northern Railway Company petitioned the U.S. Department of the Interior ("DOI") for permission and a right-of-way to build the railroad line across the Reservation. On April 26, 1890, the Acting Commissioner for the Office of Indian Affairs in DOI sent a letter denying the petition. The letter advised the Company that "in all cases where right of way for railroads through Indian reservations is not provided for by treaties or agreements by the United States with the Indians, congressional action is necessary to ratify agreements by railway companies with the Indians for such right of way &c." There is no indication that the Seattle and Northern Railway Company ever obtained permission or approval from the Tribe, the Department of the Interior, or Congress to build a railroad line across the Reservation. The Seattle and Northern Railway Company built the line nonetheless. The Company and its successors have continued to use the line ever since.

In about 1970, the Tribe contacted Burlington Northern Railroad Company ("Burlington Northern")—a successor to the Seattle and Northern Railway Company and the immediate predecessor of BNSF—concerning Burlington Northern's continuing use of the Tribe's land for its railroad line. The Tribe was unsuccessful in attempts to negotiate a settlement with Burlington Northern. In August 1977, the Tribe asked the United States, in its role as trustee, to bring suit against Burlington Northern seeking damages and removal of the line.

Under threat of litigation, on September 27, 1977, Burlington Northern filed an application with the Western Washington Agency of the Bureau of Indian Affairs ("BIA"), seeking a railroad right-of-way across the Reservation. The Indian Right of Way Act of 1948, 62 Stat. 17, 25 U.S.C. §§ 323 – 28, "empower[s]" the Secretary of the Interior 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." 25 U.S.C. § 323. Under the Act, "[n]o grant of a right-of-way over and across" a tribe's land "shall be made without the consent of the proper tribal officials." 25 U.S.C. § 324. Such consent "may impose restrictions or conditions" on the grant of a right-of-way. 25 C.F.R. § 169.107 (2016). "[A]ny restrictions or conditions automatically become conditions and restrictions in the grant." Id. ; see also 25 C.F.R. § 169.125 (2016) ("The grant [of a right-of-way] will incorporate the conditions or restrictions set out in the Indian landowners' consents."); 25 C.F.R. § 161.15 (1968). The Indian Right of Way Act explicitly applies to railroad rights-of-ways. See, e.g. , 25 C.F.R. § 169.5(a)(1) (2016) ("This part covers rights-of-way over and across Indian or BIA land, for uses including but not limited to ... (1) Railroads."); 25 C.F.R. § 161.23 (1968).

Without conceding that its line ran across Reservation land, Burlington Northern acknowledged that the Tribe had not consented to a right-of-way as required under the Indian Right of Way Act of 1948. Burlington Northern stated in its application that it was instead applying under the "Act of March 2, 1899," 25 U.S.C. § 312 ("1899 Act"). The 1899 Act provided for grants of rights-of-way for railroads through Indian reservations. It did not require permission of a tribe, but it did require compliance with its various provisions, including payment of compensation to the tribe. Burlington Northern had not previously applied for a right-of-way under the 1899 Act and had never compensated the Tribe.

The Western Washington Agency of the BIA forwarded Burlington Northern's application to the Portland Area Director of the BIA. The Agency's cover memorandum stated, inter alia , that "local review finds this case to be lacking under current CFR regulations in that ... [t]he landowners have not concurred. In fact the [T]ribe ... has gone on record ... requesting removal of said railroad." On October 17, 1978, the Agency denied Burlington Northern's application due to lack of tribal consent.

Burlington Northern appealed to the Portland Area Director, arguing that tribal consent was not required. On May 4, 1979, the Area Director affirmed the decision of the Western Washington Agency, concluding that for tribes organized under the Indian Reorganization Act of 1934, tribal consent was required before the United States could alienate...

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