Yoder v. Assiniboine and Sioux Tribes of Fort Peck Ind. Res., 19155.

• Citation: 339 F.2d 360
• Decision Date: 13 January 1965
• Docket Number: No. 19155.,19155.
• Parties: G. W. YODER, Chairman, Ted Hawley, Vice Chairman, E. L. Anderson, Member, Allen Zimmerman, Member, Winston Cox, Member, of the Oil and Gas Conservation Commission of the State of Montana, Appellants, v. ASSINIBOINE AND SIOUX TRIBES OF the FORT PECK INDIAN RESERVATION, MONTANA, William Youpee, a Member of the Assiniboine and Sioux Tribes of the Fort Peck Reservation on Behalf of Himself and All Members of the Tribes, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

339 F.2d 360 (1964)

G. W. YODER, Chairman, Ted Hawley, Vice Chairman, E. L. Anderson, Member, Allen Zimmerman, Member, Winston Cox, Member, of the Oil and Gas Conservation Commission of the State of Montana, Appellants,
v.
ASSINIBOINE AND SIOUX TRIBES OF the FORT PECK INDIAN RESERVATION, MONTANA, William Youpee, a Member of the Assiniboine and Sioux Tribes of the Fort Peck Reservation on Behalf of Himself and All Members of the Tribes, Appellees.

No. 19155.

United States Court of Appeals Ninth Circuit.

November 25, 1964.

Rehearing Denied January 13, 1965.

339 F.2d 361

Forrest H. Anderson, Atty. Gen., of Montana, John H. Risken, Helena, Mont., for appellants.

Marvin J. Sonosky, John S. White, Washington, D. C., and John M. Schiltz, Billings, Mont., for appellees.

A. Pratt Kesler, Atty. Gen., for Utah, and Ronald N. Boyce, Chief Asst. Atty. Gen., Salt Lake City, Utah, for amicus curiae state of Utah.

John F. Raper, Atty. Gen., for Wyoming, Helgi Johanneson, Atty. Gen., for North Dakota, R. L. Smith, Chairman, Nebraska Oil & Gas Conservation Comm., Samuel R. Freeman, Asst. Atty. Gen., of Colorado, for the Colorado Oil & Gas Conservation Comm., all amici curiae.

Allan G. Shepard, Atty. Gen., and Stephen W. Boller, Asst. Atty. Gen., for State of Idaho, Boise, Idaho, amicus curiae state of Idaho.

Before CHAMBERS, MERRILL and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

By this suit the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in Montana (the "Tribes") sought an injunction to restrain the Montana Oil and Gas Conservation Commission (the Commission) from enforcing its order "pooling" lands owned by the Tribes with lands of the Calvert Exploration Company, in order to form a "spacing unit" in which to drill an oil and gas well.

The Tribes, predicating jurisdiction of the district court on 28 U.S.C. § 1331, alleged in their complaint "* * * that the matter in controversy arises under the laws of the United States, as hereinafter more fully appears and * * * exceeds, exclusive of interest and costs, the sum of $10,000." This jurisdictional allegation was followed by a statement of the Tribes' claim. The Commission's answer challenged the jurisdiction of the district court and put in issue a number of the allegations material to the claim itself.

Following a pre-trial conference, at which was entered an order reflecting some facts agreed upon and conceded by the respective parties, the matter was submitted to the district court upon cross-motions for summary judgment. The district court found for the Tribes and against the Commission. In its written opinion Assiniboine and Sioux Tribes of Fort Peck Indian Reservation v. Calvert Exploration Co., 223 F.Supp. 909 the court concluded that the claim was within its jurisdiction. Turning to the merits, it declared that by virtue of 25 U.S.C. § 396d and several regulations promulgated by the Secretary of the Interior regarding operations under oil and gas leases of Indian lands, "the approval of well spacing programs by the supervisor as the representative of the Secretary of the Interior is required." Judgment was rendered voiding the Commission's order and awarding the Tribes injunctive relief. The Commission has appealed.

The record shows that the Calvert Exploration Company owns the lessees' interests in oil and gas leases covering two adjoining 40 acre tracts of land belonging to the Tribes and situated in the Benrud Oil Field in Eastern Montana. The leases were duly approved by the Secretary of the Interior, as required by 25 U.S.C. § 396a. They require the lessee to drill a well on the land and reserve to the Tribes as rental a royalty consisting of 12½ per cent of all gas and oil produced. All lands within the Benrud Field are subject to an oil conservation order of the Commission,¹

339 F.2d 362

which fixed 160 acres as the minimum geographical area, or "spacing unit", for any one oil or gas well. To meet this requirement, Calvert first sought permission from the Tribes to include or "pool" their two 40 acre tracts with an adjoining 80 that Calvert also had under lease from non-Indians, but the Tribes refused. Calvert then invoked a state statute Sec. 60-130 R.C.M., 1947 and, over the Tribes' objection, secured from the Commission an order combining the several tracts into a single "spacing unit" and "pooling all interests in the spacing unit for the development and operation of the spacing unit." Calvert then started to drill. The well was completed after this suit was commenced, but proved to be a dry hole and was abandoned

On appeal, the Commission has continued its attack on jurisdiction. As in the district court, the challenge is rested on the sole ground that the matter in controversy is entirely lacking in value. Thus the Commission has never suggested that matter is not one "arising under" federal law, but what it has consistently contended is that...