Oklahoma State of v. United States Department of the InteriorOklahoma State of v. United States Department of the Interior
ORDER
I. INTRODUCTION
The Supreme Court handed down its decision in McGirt v. Oklahoma, ___ U.S. ___, 140 S.Ct. 2452 (2020) on July 9, 2020, putting the State of Oklahoma, and millions of its citizens, in a uniquely disadvantaged position as compared to the other forty-nine states. Core functions of state government, relied upon by all Oklahomans for over a hundred years, are called into question even though only a very small portion of the land within the newly-recognized reservation is owned by tribes or individuals with a tribal affiliation. The result the court reaches in this order is a prime example of the havoc flowing from the McGirt decision. But the result the court reaches here is a legally unavoidable consequence of the application of federal statutory law in light of that decision.
After the Supreme Court held in McGirt that the Muscogee (Creek) Nation‘s reservation in eastern Oklahoma had not been disestablished, the Department of the Interior and the Office of Surface Mining and Enforcement informed Oklahoma that it could no longer regulate surface mining on the Nation‘s Reservation. Contending that McGirt‘s impact is limited to federal criminal jurisdiction under the
Now pending before the court is Plaintiffs’ Motion for Preliminary Injunction, filed August 23, 2021 (doc. no. 17), seeking to enjoin defendants from enforcing their decision to strip Oklahoma of its regulatory authority over surface mining on the Creek Reservation. Defendants filed a response in opposition (doc. no. 34) and Oklahoma filed a reply (doc. no. 42). Following a hearing in which the parties presented oral argument,1 Oklahoma submitted a supplemental brief (doc. no. 70) and defendants submitted a supplemental response (doc. no. 72). As explained below, Oklahoma has not shown a likelihood of success on the merits of its claims, and it is therefore not entitled to preliminary relief.
II. BACKGROUND
Before turning to what this case is about, it is worth emphasizing what this is not about. This case is not about whether McGirt was correctly decided. This case is not about whether inhabitants of the newly confirmed Creek Reservation should enjoy immunity from local regulation. And this case is not about whether McGirt‘s holding should apply generally in the civil context. Instead, this case turns on a much narrower issue: the interpretation and application of a federal statute. As will be seen, the contentions advanced by Oklahoma in this case collide directly with the plain language of federal legislation governing surface mining on the newly-recognized Creek Reservation.
The federal statute at the heart of this matter is the
To achieve its purposes, SMCRA relies on two major programs: Title V,
Oklahoma is a primacy state that has an approved Title V state regulatory program.2 47 Fed. Reg. 14,152 (April 2, 1982). Under the approved program, Oklahoma may monitor “coal exploration and surface coal mining and reclamation operations on non-Indian and non-Federal lands within Oklahoma.” Id.; see also
But then came McGirt. In McGirt, 140 S.Ct. at 2481, the Supreme Court held that the Creek Reservation had not been disestablished and therefore met the definition of “Indian Country” for purposes of the
Oklahoma responded to OSMRE on April 16, 2021 by challenging OSMRE‘s decision as having “no adequate basis in law” and advising OSMRE that Oklahoma‘s state agencies would not comply. Compl., Ex. 3. OSMRE then published a “Notice of decision” in the Federal Register advising the public that McGirt‘s recognition of the Creek Reservation “forecloses” Oklahoma‘s SMCRA authority over the land and that “[a]s of April 2, 2021, OSMRE initiated transfer of SMCRA Title IV and Title V program responsibilities within the exterior boundaries of the Muscogee (Creek) Nation Reservation.” 86 Fed. Reg. 26941-01 (May 18, 2021). Then, on June 29, 2021, OSMRE advised Oklahoma that it was unable to release any remaining federal funds for the Title V program. Pls. Br., Ex. 3 ¶ 7; Defs. Br., Ex. 8 ¶¶ 25-27. Finally, on July 8, 2021, OSMRE rejected Oklahoma‘s grant request for its Title IV program. Pls. Br., Ex. 2 ¶ 59. This lawsuit followed.
Oklahoma asserts six claims in its Complaint, but only relies on the following five claims in seeking preliminary injunctive relief: In count one, Oklahoma seeks a declaratory judgment that McGirt does not apply to surface coal mining and that Oklahoma has jurisdiction under SMCRA to regulate surface coal mining on the Creek Reservation. In counts two and three, Oklahoma asserts that OSMRE‘s decision to disapprove its regulatory program and deny reclamation grant funding was arbitrary and capricious in violation of the Administrative Procedure Act (“APA“),
Oklahoma now seeks an order “preliminarily enjoining the Notice of Decision and the Grant Funding Denials.” It argues that it is likely to succeed on the merits of some, if not all, of its claims and that it will suffer irreparable harm if forced to wait for a trial on the merits. In response, OSMRE contends that, following McGirt‘s conclusion that the Creek Reservation has not been disestablished, the plain language of SMCRA mandates its decision and that Oklahoma‘s APA claims are untimely.
III. STANDARD OF DECISION
A preliminary injunction is “the exception rather than the rule.” United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888 (10th Cir. 1989). Because it is “an extraordinary remedy, the right to relief must be clear and unequivocal.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1261 (10th Cir. 2004) (internal quotation marks and citation omitted). To obtain a preliminary injunction, the movant bears the burden of establishing four factors: “(1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party‘s favor; and (4) the preliminary injunction is in the public interest.” Republican Party of New Mexico v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). Where a movant fails to establish a likelihood of success on the merits, it is unnecessary to address the remaining requirements for a preliminary injunction. Warner v. Gross, 776 F.3d 721, 736 (10th Cir. 2015). For that reason, the likelihood of success on the merits will be discussed first.
A. Likelihood of Success on the Merits
1. Declaratory Judgment Claim
Oklahoma argues that it is likely to succeed on its declaratory judgment claim because SMCRA does not give OSMRE exclusive jurisdiction over Indian land in the absence of a tribal regulatory program. Because the plain language of SMCRA says otherwise, the court disagrees.
a. Text of SMCRA
The task of resolving whether Oklahoma may exercise regulatory authority under SMCRA “begins where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). Importantly, where “the statute‘s language is plain, the sole function of the courts is to enforce it according to its terms.” Id. (internal quotation marks omitted). Here, SMCRA plainly precludes a state from administering either a Title IV reclamation program or a Title V regulatory program on Indian land.
Begin with Title IV, which provides that “[e]ach State having within its borders coal mined lands eligible for reclamation under this subchapter, may submit to the Secretary a State Reclamation Plan and annual projects to carry out the purposes of this subchapter.”
A separate provision of Title IV addressing how federal funds should be allocated for reclamation activities supports this conclusion. Section 1232(g) provides that “50 percent of the reclamation fees collected annually in any State (other than fees collected with respect to Indian lands) shall be allocated annually by the Secretary to the State” subject to the state having an “approved abandoned mine reclamation program pursuant to section 1235.”
Like Title IV, the text of Title V, when read in conjunction with SMCRA‘s definitions, precludes state regulation of surface mining on Indian land. Section 1253 permits “[e]ach State in which there are or may be conducted surface coal mining operations on non-Federal lands” to submit a “State program” to the Secretary for approval. But, as previously explained, SMCRA specifically excludes Indian lands
This conclusion is bolstered by the fact that SCMRA equates Indian tribes with states and permits Indian tribes to promulgate their own regulatory and reclamation programs. For example, § 1300, which is titled “Indian lands,” provides that “[f]or purposes of this subsection and the implementation and administration of a tribal program under subchapter V, any reference to a ‘State’ in this chapter shall be considered to be a reference to a ‘tribe.‘”
Moreover, § 1300 permits Indian tribes to submit a Title V program regulating “surface coal mining and reclamation operations on reservation land under the jurisdiction of the Indian tribe using the procedures of section 1254(e).”
SMCRA‘s exclusion of Indian land from a State program establishes that Oklahoma is not likely to succeed on the merits of its declaratory judgment claim. But to the extent one could argue that the statute is ambiguous as to the appropriate regulatory authority for Indian lands, SCMRA‘s implementing regulations eliminate any confusion. These regulations provide that “OSM shall: (1) Be the regulatory authority on Indian lands” and that OSMRE is authorized to carry out reclamation projects on Indian lands.
all lands, including mineral interests, within the exterior boundaries of any Federal Indian reservation, notwithstanding the issuance of any patent, and including rights-of-way, and all lands including mineral interests held in trust for or supervised by an Indian tribe.
First, Oklahoma fails to persuasively explain why an out-of-context statement from the BIA‘s website should inform the court‘s interpretation of SMCRA. Second, SMCRA‘s definition of Indian lands plainly encompasses land not held in trust because the definition includes fee-patented land within a reservation‘s borders.
b. Oklahoma‘s Equitable Defenses
Likely cognizant that the text of SCMRA presents a formidable barrier to its claim, Oklahoma devotes a significant portion of its brief to arguing that fundamental principles of equity preclude OSMRE from asserting regulatory jurisdiction over land that has long been regulated by Oklahoma under SMCRA. This argument is based on City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), where the Supreme Court held that equitable principles precluded the Oneida Indian Nation from reviving its sovereignty over land that was formerly part of its historic reservation. This argument is not without appeal, based, as it is, on the justifiable expectations of millions of Oklahomans, expectations which go back over a hundred years and are rooted in the very existence of Oklahoma as a state. But, as will be seen, the court is hard-put to apply the equitable considerations which were decisive in Sherrill where, as here, the federal defendants invoke the plain terms of federal statutory law.
In Sherrill, 544 U.S. at 202, the Oneida Indian Nation (“OIN“) purchased parcels of land in the
Other courts have relied on Sherrill‘s equitable defense concept to reject tribal claims that would be disruptive of long-held societal expectations. In Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 269 (2d Cir. 2005), the Cayuga Indian Nation filed suit against the State of New York claiming that a flaw in the original transfer of its reservation over 200 years ago violated federal law and it is therefore entitled to present possession of the land. Relying on Sherrill, the Second Circuit held that the claim was barred by laches because “this type of possessory land claim—seeking possession of a large swath of central New York State and the ejectment of tens of thousands of landowners—is indisputably disruptive.” Id. at 275-277. Similarly, in Oneida Indian Nation of New York v. Cty. of Oneida, 617 F.3d 114, 135 (2d Cir. 2010), the Second Circuit rejected the Oneida Indian Nation‘s ancient land claims because equitable principles bar claims that “are disruptive of significant and justified societal expectations that have arisen as a result of a lapse of time during which the plaintiffs did not seek relief.”
Here, like in Sherrill, Cayuga, and Oneida, there can be little argument that McGirt‘s recognition of the ongoing existence of the Creek Reservation will disrupt significant and justified expectations concerning the character of the land. For that reason, Sherrill may well be a powerful weapon in Oklahoma‘s attempts to resist claims that the Creek Nation or inhabitants of the reservation enjoy broad immunity from local regulation. But Sherrill provides no help to Oklahoma in this case, which deals not with an Indian tribe‘s attempt to re-possess land or evade state regulation, but with the application of the plain language of a federal statute which specifically addresses the matters in dispute in this case.
The Second Circuit reached a similar conclusion when asked to interpret and apply the
Here, like in Tanner, Oklahoma cannot rely on Sherrill or equitable principles to avoid the consequences of SMCRA. McGirt itself teaches as much. Although recognizing that legal doctrines such as laches may be deployed to protect individuals who have labored under a mistaken understanding of the law, McGirt squarely rejected any notion that reliance interests could undermine the enforcement of a federal statute. McGirt, 140 S.Ct. at 2478 (“So, once more, it seems Oklahoma asks us to defer to its usual practices instead of federal law, something we will not and may never do.“). See also Ute Indian Tribe of the Uintah v. Myton, 835 F.3d 1255, 1263 (10th Cir. 2016) (applying MCA to Indian land and stating that “[s]urely, too, it is not for this court to override Congress‘s commands on the basis of claims of equity from either side.“).
Oklahoma‘s first claim for relief seeks a declaratory judgment that the state has jurisdiction over surface coal mining and reclamation activities under SMCRA on the Creek Reservation. But given SMCRA‘s exclusion of Indian lands from state regulation, and the fact that claims of equity cannot undermine the enforcement of a federal statute, Oklahoma is not likely to succeed on the merits of this claim.
2. Claims under the Administrative Procedure Act and SMCRA
For its remaining claims, Oklahoma asserts that OSMRE‘s decision to disapprove the state program was arbitrary and capricious in violation of the APA and
To succeed on its APA claims, Oklahoma must show that an agency decision “fail[ed] to meet statutory, procedural or constitutional requirements,” or was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1260 (10th Cir. 2001) (citing
SMCRA significantly limits the time within which a plaintiff may seek judicial review of actions taken pursuant to the Act:
A petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day.
The letter to ODM states in no uncertain terms that “the State of Oklahoma may no longer administer a SMCRA regulatory program on lands within the exterior boundaries of the Muscogee (Creek) Nation Reservation.” Compl., Ex. 1. Lest there be any confusion, the letter further states that “[f]or lands within the exterior boundaries of the Muscogee (Creek) Nation Reservation, OSMRE is now the SMCRA Title V regulatory authority.” Id. The letter to OCC likewise states that Oklahoma “may no longer administer a SMCRA regulatory program” on the land and that “OSMRE will assume authority over Oklahoma‘s AML reclamation program.” Id. at Ex. 2. These letters unambiguously informed Oklahoma that it was no longer authorized to operate a Title V or Title IV program on the Creek Reservation. Because the letters memorialize OSMRE‘s final decision and affect Oklahoma‘s rights and obligations,6
This deadline is not altered by OSMRE‘s publication of a notice of decision in the Federal Register because the notice merely served to convey OSMRE‘S decision to the public. See 86 FR 26941-01 (stating that OSMRE is “notifying the public” of Oklahoma‘s loss of jurisdiction). Further, the notice itself makes clear that
OSMRE‘s decision took effect “[a]s of April 2, 2021.” Id. Given this statement, it is not reasonable for Oklahoma to rely on the notice of decision in calculating its time to challenge OSMRE‘s actions.
Oklahoma‘s failure to challenge OSMRE‘s decision within sixty days defeats three of its claims: count two, asserting that OSMRE‘s decision was arbitrary and capricious under the APA; count four, asserting that the notice of decision was arbitrary and capricious under SMCRA; and count five, asserting that the notice of decision failed to satisfy APA‘s procedural requirements.7 All that remains, then, is
SMCRA permits OSMRE to fund portions of a Title V state regulatory program or Title IV state reclamation program through federal grants.
Put another way, it is not arbitrary and capricious to refuse to fund an unauthorized program. The rationale behind these funding decisions was apparent from the June 2nd letters, and OSMRE therefore provided a reasoned explanation for its decision. Further, Oklahoma‘s suggestion that the funding decisions violated the APA because OSMRE failed to consider Oklahoma‘s reliance interests is undermined by the thirty-day transition period OSMRE provided for in its April 2nd letters.
Accordingly, Oklahoma is not likely to succeed on the merits of claims one, three or four because they are untimely or on claim two because the decision was not arbitrary and capricious.
B. Remaining Preliminary Injunction Factors
Principles of judicial restraint instruct that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). Having determined that Oklahoma has not shown a likelihood of success on the merits of its claims, it is not necessary to resolve the remaining preliminary injunction factors. See Warner, 776 F.3d at 736.
V. CONCLUSION
The majority opinion in McGirt candidly recognized that the Creek “reservation,” as an Indian reservation in the commonly accepted sense, has been thoroughly hollowed out by more than a hundred years of legal, extra-legal, economic and demographic events. Thus, the Creek Reservation, even as found by the Supreme Court to exist, is essentially a perimeter, a line zig-zagging around a major swath of eastern Oklahoma (including most of Tulsa), within which Oklahomans of all races are born and live their lives, oblivious to any notion that the lands on which they live their lives are in a category apart from the lands on which their fellow citizens would live their lives in any other state (or in the western half of Oklahoma). The court is nevertheless compelled to conclude that Oklahoma has not shown a likelihood of success on the merits of its claims, and it is
Accordingly, Plaintiffs’ Motion for Preliminary Injunction (doc. no. 17) is DENIED.
IT IS SO ORDERED this 22nd day of December, 2021.
STEPHEN P. FRIOT
UNITED STATES DISTRICT JUDGE
21-0719p020.docx