951 F.3d 1142
9th Cir.2020Background
- In the late 1800s a predecessor railroad built and operated a line across the Swinomish Reservation without tribal consent; litigation followed decades later.
- In 1989 the Tribe, United States, and Burlington Northern settled, producing an Easement Agreement and a DOI right-of-way under the Indian Right of Way Act: limits of one train each direction of up to 25 cars per day (unless Tribe consents) and annual cargo reporting by the railroad.
- BNSF (successor) began running ~100-car unit crude-oil trains across the Reservation beginning in 2012 and failed to provide the required cargo disclosures; Tribe demanded compliance and then sued in 2015 for breach, trespass, declaratory and injunctive relief.
- BNSF argued the Interstate Commerce Commission Termination Act (ICCTA) preempts the Tribe’s remedies; the district court rejected preemption and found BNSF breached the Easement Agreement but reserved remedy specifics.
- The Ninth Circuit affirmed: ICCTA does not repeal the Indian Right of Way Act, does not abrogate the Treaty of Point Elliott or treaty-based federal common law allowing the Tribe to exclude and condition use of Reservation lands, and the Tribe may seek injunctive relief to enforce the Easement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICCTA preempts or repeals the Indian Right of Way Act and remedies to enforce easement terms | Tribe: ICCTA does not repeal the Right of Way Act; easement enforcement lies under federal law and DOI authority | BNSF: ICCTA’s broad preemption of rail regulation displaces any conflicting federal remedies or statutes | Held: ICCTA does not repeal the Indian Right of Way Act; statutes harmonize and both remain effective |
| Whether ICCTA abrogates treaty-based federal common-law rights and the Treaty of Point Elliott (tribal power to exclude/condition access) | Tribe: Treaty and federal common law remain intact; Congress did not clearly abrogate treaty rights | BNSF: ICCTA preempts/conflicts with treaty-based restrictions on rail operations | Held: ICCTA does not abrogate treaty or treaty-based federal common law; abrogation requires clear congressional language and none exists |
| Whether the Easement Agreement and its conditions (train/car limits; cargo reporting) are enforceable and subject to injunctive relief | Tribe: The Agreement (and DOI right-of-way incorporating it) is enforceable; injunction is available to enforce conditions | BNSF: Enforcement via injunction would impermissibly regulate rail operations and is preempted by ICCTA | Held: The Easement is enforceable; injunctive relief to enforce its terms is available and not categorically preempted by ICCTA |
| Whether enforcing the easement’s terms would unreasonably interfere with national rail operations | Tribe: Conditions were negotiated, include built-in accommodation for shipper needs, and are not an unreasonable interference | BNSF: Limits (e.g., 25-car cap) unreasonably interfere with rail operations and commerce | Held: Conditions are not categorically an unreasonable interference; factual assessment of remedy impact is required (no categorical preemption) |
Key Cases Cited
- Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (recognizing tribal authority to exclude and set conditions on use of tribal lands)
- County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) (tribes may bring federal common-law actions to protect possessory interests)
- United States v. Winans, 198 U.S. 371 (1905) (treaties enforceable in equity against third parties)
- Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968) (treaty or abrogation standard: Congress must clearly express intent to abrogate Indian rights)
- Morton v. Mancari, 417 U.S. 535 (1974) (statutes construed to preserve Indian interests; implied repeal disfavored)
- Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979) (treaties creating reserved Indian rights are self-enforcing)
- Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984) (legislative silence is insufficient to abrogate treaties)