Mandan, Hidatsa & Arikara Nation v. U.S. Dept. of the InteriorMandan, Hidatsa & Arikara Nation v. U.S. Dept. of the Interior
The Bureau of Land Management (BLM) approved eight applications to drill from Slawson Exploration Company, Inc. The Mandan, Hidatsa аnd Arikara Nation (MHA), an Indian nation of three affiliated tribes, challenged the approvals under
I.
Lake Sakakawea, the third-largest reservoir in the United States, is one-sixth of the surface area of the Fort Berthold Indian Reservation. The Lake is alsо MHA‘s sole source of drinking water. Beneath the reservation is the Bakken, one of the world‘s most valuable oil reserves. Oil production on the reservation accounts for about one-sixth of North Dakota‘s oil production.
In 2011, Slawson submitted eleven applications to construct a well pad to extract oil and natural gas from underneath Lake Sakakawea—the Torpedo Project. Slawson proposed drill sites set back 300 feet from the Lake. After a six-year process, including 72 stakeholder groups and nearly a dozen other agencies, BLM released a 425-page environmental assessment (EA). “An environmental assessment is a preliminary report prepared by an agency to determine if an [environmental impact statement] is required by [the National Environmental Protection Act].” Missouri еx rel. Bailey v. U.S. Dep‘t of Interior, Bureau of Reclamation, 73 F.4th 570, 580 (8th Cir. 2023), discussing
In 2012, MHA passed a resolution that all drilling operations must be set back at least a half mile from Lake Sakakawea (but аllowing MHA to grant variances). See
MHA then filed this case against BLM, raising two arguments: (1) that BLM‘s acts were arbitrary and capricious by precluding MHA from further developing the record about the threat the Project posed to the MHA‘s health and welfare; and (2) that BLM‘s approval of the Project was arbitrary and capricious due to an insufficient record. Slawson intervened. The district court granted summary judgment to BLM and Slawson, dismissing the case with prejudice. MHA appeals.
This court reviews de novo a grant of summary judgment. See Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “On a motion for summary judgment, facts must be viewed in thе light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Id. (citations omitted).
II.
“[J]udicial review of administrative decisions is governed by the Administrative Procedure Act.” El Dorado Chem. Co. v. EPA, 763 F.3d 950, 955 (8th Cir. 2014); see
This court should set aside agency action only if “arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law.” Voyageurs Nat‘l Park Ass‘n, 381 F.3d at 763, quoting
Arbitrary and capricious review, at its core, measures if an agency action was irrational. See Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962) (“the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘“). “Federal administrative agencies are required to engage in ‘reasoned decisionmaking.‘” Michigan v. EPA, 576 U.S. 743, 750 (2015), quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998). “Not only must an agency‘s decreed result be within the scope of its lawful authority, but the process by which it reaches that result
This court has held agency action is arbitrary and capricious if:
the agency hаs relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Missouri ex rel. Bailey, 73 F.4th at 577-78, quoting Cent. S.D. Co-op Grazing Dist. v. Sec‘y of U.S. Deр‘t of Agric., 266 F.3d 889, 894 (8th Cir. 2001), quoting State Farm, 463 U.S. at 43. Another way “an agency can act arbitrarily and capriciously is by ‘fail[ing] to consider [an] important aspect of [a] problem’ because it misunderstands ‘the full scope of [its] discretion.‘” Red River Valley Sugarbeet Growers Ass‘n v. Regan, 85 F.4th 881, 887 (8th Cir. 2023), quoting Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1911 (2020), quoting State Farm, 463 U.S. at 43. Further, courts must evaluate if an agency is acting within its own sphere of expertise. See Mausolf v. Babbitt, 125 F.3d 661, 669 (8th Cir. 1997), quoting State Farm, 463 U.S. at 43 (“Whether an agency‘s action is arbitrary and capricious depends on whether ‘the agency has . . . offered an еxplanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.‘“); cf. West Virginia v. EPA, 142 S. Ct. 2587, 2623 (2022) (Gorsuch, J., concurring) (discussing the major questions doctrine, “skepticism may be merited when there is a mismatch between an agency‘s challenged action and its congressionally assigned mission and еxpertise.“).
On appeal, MHA contends BLM was arbitrary and capricious by (1) approving the Project on a record with insufficient evidence of any threat to MHA‘s health or welfare, and (2) precluding MHA from further developing the record as to any threat to MHA‘s health or welfare, in violation of due process. MHA claims, for both issues, further evidence is required because it could establish the relevant factor of tribal jurisdiction over the Project.
III.
Indian tribes are “separate sovereigns pre-existing the Constitution.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014); see Soaring Eagle Casino & Resort v. NLRB, 791 F.3d 648, 666 n.11 (6th Cir. 2015) (explaining that in disputes between an Indian tribe and the federal government the role of the courts is to “determine the balance of power between a silent greater sovereign and the lesser sovereign, not the balance of power between two sovereigns of similar status attempting tо assert jurisdiction over the same conduct.“). Yet, Congress has “plenary and exclusive” power to legislate about them. United States v. Lara, 541 U.S. 193, 200 (2004). “[U]ntil Congress acts, the tribes retain’ their historic sovereign authority.” Bay Mills Indian Cmty., 572 U.S. at 788, quoting United States v. Wheeler, 435 U.S. 313, 323 (1978). Cf. Haaland v. Brackeen, 599 U.S. 255, 271-75 (2023) (grappling with the scope of
It is a “general proposition” that MHA‘s inherent sovereign powers as an Indian tribe do not extend to the civil activities of non-Indians on fee simple lands. See Montana v. United States, 450 U.S. 544, 565 (1981). There are “two important exceptions” to this general proposition. Cooley, 141 S. Ct. at 1643. The second exception is relevant here: A “tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 566. (emphasis added). “Although the issue in the Montana case was about tribal regulatory authority over nonmember fee land within the reservation . . . Montana‘s analytic framework now sets the outer limits of tribal civil jurisdiction . . . .” Atty‘s Process & Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 936 (8th Cir. 2010).
MHA claims it has the power to enforce its law against Slawson, by way of the BLM permitting process, under Montana‘s second exception for regulating the “health or welfare of the tribe.” Montana, 450 U.S. at 566. When BLM approved the Project, it said that “[i]t is the responsibility of the operator to obtain all necessary permits, and to comply with all applicable . . . tribal laws.” BLM did not, however, conduct a jurisdictional analysis under Montana. APA review does not allow this court to address issues that were not the basis for the agency‘s decision, suсh as the alleged threat posed to MHA‘s water source as justification for tribal jurisdiction over Slawson‘s Project. It is a “‘foundational principle of administrative law’ that judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action.‘” Regents, 140 S. Ct. at 1907, quoting Michigan, 576 U.S. at 758. The agency‘s “action must be measured by what [it] did, not by what it might have done.” Michigan, 576 U.S. at 758, quoting SEC v. Chenery Corp., 318 U.S. 80, 93-94 (1943). Because BLM did not evaluate MHA‘s setback law, this court cannоt conduct a Montana analysis of it.
Further production of evidence is not required because tribal jurisdiction was not a relevant factor to the approval of the application. This court “conclude[s] that there is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 296 (1974).
For BLM‘s approval of the Project to be arbitrary and capricious, the agency must have failed to rely on the relevant factors, failed to consider an important aspect of the problem, or otherwise not engaged in reasoned decisionmaking in a manner not supportable by a rational basis. See Missouri ex rel. Bailey, 73 F.4th at 577-78.
The relevant factors for considering applications start with Congressional statute—the Mineral Leasing Act of 1920 (as amended by the Federal Onshore Oil and Gas Leasing Reform Act of 1987),
The Department of the Interior‘s regulations do not direct BLM to evaluate a lesser sovereign‘s jurisdiction. See
BLM did not fail to consider an important aspect of the problem. BLM instead placed the burden on Slawson to determine tribal jurisdiction and to comply with applicable tribal law. There are many rational bases for this dеtermination—i.e., administrative efficiency, leaving to MHA and Slawson the important issue of tribal sovereignty, and MHA‘s discretion not to enforce its setback laws. Before its blanket 1000-foot setback law, MHA had a half-mile setback law allowing for variances that were “generally all . . . approved.” Moreover, if an agency were required to consider eleventh-hour change in tribal laws for a project nеaring approval, then agency action could stall indefinitely if it were about reservation lands held in fee simple by non-Indians—contrary to Montana‘s general proposition that tribal authority does not extend to fee simple lands. See Montana, 450 U.S. 544.
BLM‘s explanation for its consistent refusal to evaluate MHA‘s setback law was not a prohibited post hoc rationalization. “Mere[] ‘post hoc’ rationalizations . . . havе traditionally been found to be an inadequate basis for review.” Overton Park, 401 U.S. at 419, citing Burlington Truck Lines, 371 U.S. 168-69. “The prohibition on post hoc rationalization applies only when the agency proceeds by” elaborating “on its original reasons for taking action.” Biden v. Texas, 597 U.S. 785, 788 (2022), citing Regents, 140 S. Ct. at 1908. The applicability of MHA‘s setback law was not an original reason for approving the applications because the setback law was not a relevant factor tо the approval. This court declines to adopt the novel position that an agency must explain not evaluating
MHA claims the federal government neglected its trust responsibilities by failing to give effect to tribal law. “Under the General Allotment Act of 1887, 24 Stat. 388, many Indian lands were divided and allotted to individual Indians but were held in trust for their benefit by the federal government.” Kodiak Oil & Gas (USA) Inc. v. Burr, 932 F.3d 1125, 1135 (8th Cir. 2019), citing Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652-53 (2018). MHA argues that the federal government, as trustee, owes them certain trust responsibilities. True, a “trust responsibility of the federal government includes protecting tribal sovereignty.” Davis v. Muellar, 643 F.2d 521, 525 (8th Cir. 1981). BLM placed the responsibility on Slawson to comply with tribal law without impeding MHA‘s ability as a sovereign to try to enforce its laws. BLM‘s decision not to evaluate tribal law does not impact tribal sovereignty.
MHA argues the record is insufficient to conduct a thorough Montana analysis—a point BLM agrees with, though Slawson does not. However, the Montana analysis is not before this cоurt in this APA review. Because a Montana analysis was not a relevant factor to the approvals, the record is sufficient for BLM‘s approvals of the applications. The only deficiency in the EA that MHA asserts is the lack of evidence for a Montana analysis. See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978) (explaining that issues must be raised before an agency so that the agency may address the conсerns) (“Not only did the record before the agency give every indication that the project was actually needed, but also there was nothing before the Board to indicate to the contrary.“). Even without a jurisdictional analysis, the record here was sufficient for BLM‘s approval of the applications.
MHA claims the record is underdeveloped because it does not assess the threat to thеir drinking water. To the contrary, the EA discusses the Lake as MHA‘s sole source of drinking water and identifies no adverse impacts due to mitigation measures. BLM consulted with agencies and stakeholders that oversee MHA‘s water system. Ultimately, BLM made its decision on a record gathered over six years—with a 425-page EA after input from 72 stakeholder groups and nearly a dozen other agencies. Based on the EA, which found no significant impact, BLM required the Project be setback several hundred feet further from the Lake than Slawson requested and approved only eight of eleven applications.
BLM‘s approval of the Project based on the record was not arbitrary or capricious because it met the statutory and regulatory requirements—reasoned decisionmaking.
IV.
MHA contends BLM improperly precludеd it from developing a sufficient record on the relevant issues by denying MHA an evidentiary hearing. “Required procedures [under the Due Process clause] may vary according to the interests at stake, ‘but [t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.‘” Bus. Commc‘ns, Inc. v. U.S. Dep‘t of Educ., 739 F.3d 374, 380 (8th Cir. 2013), quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976). To require further development of the record, MHA must “provide adequate justification for its failure to present [the additional] materials to the agency during its decision-making process.” Newton County Wildlife Ass‘n v. Rogers, 141 F.3d 803, 808 (8th Cir. 1998), citing Vermont Yankee, 435 U.S. at 553-54.
MHA claims it was denied the opportunity to submit relevant evidence and to supplement the record with “a thorough hearing of setback requirements for oil and gas development around Lake Sakakawea.” MHA believes this would develop more information about its jurisdiction over the Project under Montana. “A hearing is nеcessary only where there is a material issue of fact requiring resolution through the introduction of testimony and other evidence. In the absence of such an issue, no hearing is required.” Orion Rsrvs. Ltd. P‘ship v. Salazar, 553 F.3d 697, 708 (D.C. Cir. 2009), quoting KernCo Drilling Co., 71 I.B.L.A. 53, 56 (1983); see
Herе, MHA had (and used) multiple opportunities to submit evidence and present arguments to BLM during the six-year process evaluating the Project. Before approving the Project, BLM afforded MHA with adequate process—five face-to-face meetings with Tribal representatives, two additional phone conferences, and several written communications. After the approval of the Project, MHA hаd multiple stages of administrative appeals to present its claims.
MHA‘s jurisdiction over Slawson‘s Project is an open question, which is not before this court because it was not a relevant factor to the Project‘s approval. MHA did not plead a claim asserting jurisdiction over Slawson based on a threat to “the health or welfare of the tribe” due to Slawson‘s drilling near its primary drinking-water source on fee land within the exterior boundaries of the reservation. See Montana, 450 U.S. at 566. In this case, and on this record, MHA has received all process required by the Constitution, laws, and required by agency regulation. Due process does not require an evidentiary hearing here. BLM met the requirements to approve the Project.3
The judgment is affirmed.
*******
-13-