SWINOMISH INDIAN TRIBAL COMMUNITY, a federally recognized Indian Tribe, Plaintiff-Appellee, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellant.
No. 18-35704
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed March 4, 2020
D.C. No. 2:15-cv-00543-RSL. Appeal from the United States District Court for the Western District of Washington. Robert S. Lasnik, District Judge, Presiding. Argued and Submitted May 14, 2019 Seattle, Washington.
Before: Michael Daly Hawkins, William A. Fletcher, and Mark J. Bennett, Circuit Judges. Opinion by Judge W. Fletcher
SUMMARY*
Indian Law
The panel affirmed the district court‘s interlocutory orders denying defendant BNSF Railway Co.‘s motion for summary judgment on Swinomish Indian Tribal Community‘s claim that BNSF violated a right-of-way and easement agreement limiting train traffic across the Tribe‘s reservation.
The district court held that BNSF violated the terms of the easement agreement, issued pursuant to the Indian Right of Way Act, and the Tribe was entitled to injunctive relief.
The panel held that the Interstate Commerce Commission Termination Act did not repeal the Indian Right of Way Act and did not defeat the Tribe‘s right to enforce conditions in the easement agreement. The panel further held that the ICCTA did not abrogate the Treaty of Point Elliott and the Tribe‘s treaty-based federal common law right to exclude and condition a third party‘s presence on, and use of, reservation lands. Finally, the panel held that the Tribe had the right to pursue injunctive relief to enforce the terms of the easement agreement. The panel remanded the case to the district court.
COUNSEL
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.
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
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
I. Factual and Procedural Background
The Swinomish Indian Tribal Community is a federally recognized Indian Tribe organized under the
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
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,
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,”
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
On October 12, 1979, Burlington Northern filed a complaint in federal district court seeking to compel the Secretary of the Interior to grant a right-of-way across the Reservation. See Burlington N., Inc. v. Andrus et al., No. C79-1199V (W.D. Wash., filed Oct. 15, 1979). The Tribe intervened, and the parties filed cross-motions for summary judgment. The district court deferred consideration of the motions until our court issued a ruling in a factually similar case, Southern Pacific Transportation Co. v. Watt, 700 F.2d 550 (9th Cir. 1983). We held there that tribal consent is a condition precedent to a grant of a railroad right-of-way across tribal lands. After our decision, the district court entered judgment against Burlington Northern. Burlington Northern had appealed to our court but dismissed its appeal after the Supreme Court denied certiorari in Southern Pacific.
Meanwhile, on July 18, 1978, the Tribe filed a trespass action against Burlington Northern in district court seeking damages and an injunction requiring removal of the railroad line from the Reservation. See Swinomish Tribal Cmty. v. Burlington N., Inc., Case No. C78-429V (W.D. Wash., filed July 18, 1978) (“Trespass Litigation“). The United States intervened on the side of the Tribe in 1983. The Interstate Commerce Commission (“ICC“), the predecessor to the Surface Transportation Board, had also sought leave to intervene. The ICC argued that it had “exclusive jurisdiction to determine whether the abandonment” of the railroad—that is, the Tribe‘s request that Burlington Northern remove the railroad entirely—was “in the national interest.” The district court denied the ICC‘s motion as premature, noting that the motion could be renewed if and when the question of remedy arose.
In 1989, after over a decade of litigation, the Tribe, the United States, and Burlington Northern reached a settlement. The parties’ agreement was formalized in a Settlement Agreement and an Easement Agreement. In 1991, the BIA approved the Settlement Agreement and granted a right-of-way under the Indian Right of Way Act, consistent with the terms specified in the Easement Agreement.
Under the settlement, Burlington Northern agreed to apply to the BIA for a right-of-way consistent with the terms and conditions specified in the Easement Agreement. Burlington Northern also agreed to a one-time payment of $125,000 “for all rent, damages and compensation of any sort, due for past occupancy of the right-of-way from date of construction in 1889 until January 1, 1989.” It agreed to pay thereafter an annual rental fee of at least $10,000, subject to periodic increases based on the Consumer Price Index and changes in property values. In turn, the Tribe agreed to consent to the right-of-way subject to the specified terms.
The Easement Agreement and corresponding right-of-way grant Burlington Northern the right to run a specified maximum number of trains, with a maximum number of cars, across the Reservation, unless the Tribe agrees in writing to an increase. The relevant language provides:
Burlington Northern agrees that, unless otherwise agreed in writing, only one eastern bound train, and one western bound train, (of twenty-five (25) cars
or less) shall cross the Reservation each day. The number of trains and cars shall not be increased unless required by shipper needs. The Tribe agrees not to arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs. It is understood and agreed that if the number of crossings or the number of cars is increased, the annual rental will be subject to adjustment . . . .
During negotiations leading up to the agreements, Burlington Northern had written in a June 22, 1989, letter that it “doubt[ed]” that it would operate more trains than the agreed-upon amount, but that it might need to “[o]n occasion.”
The Easement Agreement also requires Burlington Northern to submit annual cargo reports to the Tribe:
Burlington Northern will keep the Tribe informed as to the nature and identity of all cargo transported by Burlington Northern across the Reservation. Initially, Burlington Northern shall prepare a summary of all such commodities expected to cross the Reservation and the quantities of such commodities. Thereafter, the disclosure shall be updated periodically as different products, or commodities, are added or deleted. Such updates shall occur at least annually. The disclosure updates shall identify any previously shipped cargo that is different in nature, identity or quantity from the cargo described in previous disclosures. Burlington Northern will comply strictly with all Federal and State Regulations regarding classifying, packaging and handling of rail cars so as to provide the least risk and danger to persons, property and the natural environment of the Reservation.
The right-of-way and Easement Agreement have an initial term of forty years, with two twenty-year extensions at Burlington Northern‘s option. The right-of-way and Easement Agreement therefore terminate no later than 2071.
The railroad line and underlying right-of-way run across the northern part of the Reservation and next to the Tribe‘s primary economic development enterprises, including a casino, a lodge, a Chevron service station and convenience store, and an RV park. According to the Tribe, “[h]undreds of guests and employees are present at the economic development facilities at all times, 24 hours a day, 7 days a week.” “This economic development infrastructure serves as the primary financial source for funding of the Tribe‘s essential governmental functions and programs.”
The railroad line crosses a swing bridge over the Swinomish Channel and a trestle bridge across Padilla Bay, both of which are within the Reservation. Both bodies of water connect directly to the Puget Sound (the Salish Sea), where the Tribe has treaty rights to fish at its usual and accustomed fishing grounds and stations. See United States v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1978).
A. Events Giving Rise to Present Action
In October 2011, the Tribe learned from Skagit County government documents that Tesoro Refining & Marketing Company, LLC, an oil company with a refinery on March Point, adjacent to Anacortes, intended to ship crude oil in 100-car “unit trains” across the Reservation every other day using BNSF trains. On October 18, 2011, the Tribe sent a letter to BNSF, Burlington Northern‘s successor, reminding BNSF of its obligation to obtain written approval from the Tribe for any increases in rail traffic above the maximum level specified in the Easement Agreement. BNSF did not respond to the letter.
In September 2012, the Tribe learned from a local news article that BNSF had begun to run 100-car trains across the
BNSF responded to the Tribe almost five months later. BNSF confirmed in its answering letter that throughout 2012, it had run “locals” averaging between 27.8 and 28.5 cars six times per week between Burlington and the March Point refinery. BNSF wrote further that beginning in September 2012, it had run sixty-two additional unit trains (about one every other day) of “approximately 102 cars in each direction.” Finally, BNSF wrote that it “anticipate[d] that in the near term, unit trains may increase from four to six times weekly to as much as ten times weekly.” BNSF had not previously asked, and did not now ask, the Tribe‘s permission to run its new 100-car unit trains across the Reservation.
In a letter to BNSF dated November 25, 2014, the Tribe complained that BNSF had violated the Easement Agreement not only by exceeding the number of trains and rail cars, but also by failing to report to the Tribe the particularly dangerous nature of the crude oil, from North Dakota‘s Bakken formation, that was carried by the unit trains:
The Tribe, like the public generally, has learned that Bakken crude oil being transported by rail—which the Tribe informally understands is being transported by rail to the Tesoro refinery on March Point—poses a potentially far greater risk to human life, health and communities than some other crude oils because of its propensity to catastrophically combust. . . . [T]he BNSF easement across the Reservation is in close physical proximity to central elements of the Tribe‘s economic development infrastructure, including the Casino, Lodge, Chevron and RV park.
In the fifteen-page, single-spaced letter, the Tribe described numerous recent catastrophic spills and fires in the United States and Canada resulting from derailment of trains carrying Bakken crude oil.
The Tribe quoted from a report prepared by the U.S. Department of Transportation, addressing the unusual hazards of rail transportation of Bakken crude oil. According to the report:
The number and type of petroleum crude oil railroad accidents described below that have occurred during the last year is startling, and the quantity of petroleum crude oil spilled as a result of those accidents is voluminous in comparison to past precedents. Due to the volume of crude oil currently being shipped by railroads, the demonstrated recent propensity for rail accidents involving trains transporting crude oil to occur, and the subsequent releases of large quantities of crude oil into the environment and the imminent hazard those releases present, this Order requires that railroads take the action described above . . . . Releases of petroleum crude oil, subsequent fires, and environmental damage resulting from such releases represent an imminent hazard . . . presenting a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur.
U.S. Dep‘t of Transp., Emergency Restriction/Prohibition Order, Docket No. DOT-OST-2014-0067, at 4 (May 7, 2014).
The letter recounted two recent derailments of BNSF unit trains carrying Bakken crude. One derailment was in North Dakota. It resulted in a spill of “approximately 400,000 gallons” of crude oil and “a
In communications with BNSF, the Tribe repeatedly requested that BNSF abide by the Easement Agreement. BNSF consistently refused to do so. BNSF also repeatedly failed to provide annual cargo reports to the Tribe.
B. Federal District Court Proceedings
On April 7, 2015, the Tribe filed suit in district court against BNSF seeking a declaratory judgment that BNSF had breached, and was continuing to breach, the Easement Agreement; injunctive relief limiting train traffic in accordance with the Agreement; and damages for trespass and breach of contract. BNSF‘s answer contended that the Tribe‘s claims were preempted by the Interstate Commerce Commission Termination Act of 1995 (“ICCTA“),
In a series of orders dated January 13, 2017, June 8, 2017, and March 15, 2018, the district court ruled against BNSF. It held that BNSF had “breached the terms of the Easement Agreement by failing to make annual disclosures regarding the cargo it was carrying across the reservation and by increasing the number of trains and cars traversing the reservation without first seeking to obtain the Tribe‘s written assent.” The court held that the Tribe has a treaty-based interest in its Reservation land under BNSF‘s tracks, and that the ICCTA does not “preempt” the Easement Agreement or remedies for its breach. The district court did not rule on the specifics of injunctive relief. It held only that injunctive relief was available. The district court reserved for later decision the Tribe‘s request for damages.
BNSF moved to certify the district court‘s summary judgment and related orders for interlocutory appeal. The district court certified its orders for appeal, and BNSF petitioned our court for permission. BNSF‘s petition and appeal pose one question: Whether the ICCTA precludes the use of injunctive relief to enforce the terms of the Easement Agreement. We granted permission to appeal under
II. Standard of Review
We review the district court‘s summary judgment decision de novo. See, e.g., Tulalip Tribes v. Suquamish Indian Tribe, 794 F.3d 1129, 1133 (9th Cir. 2015).
III. Analysis
The district court held that BNSF violated the terms of the Easement Agreement. BNSF contends the district court erred because the ICCTA preempts the Agreement, the underlying federal common law, the Treaty of Point Elliott, and Indian Right of Way Act. We agree with the district court.
A. The Easement Agreement
The Easement Agreement specifies a maximum number of trains and rail cars, which can be increased only with the written permission of the Tribe. For the convenience of the reader, we again provide the relevant text:
Burlington Northern agrees that, unless otherwise agreed in writing, only one eastern bound train, and one western bound train, (of twenty-five (25) cars
or less) shall cross the Reservation each day. The number of trains and cars shall not be increased unless required by shipper needs. The Tribe agrees not to arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs. It is understood and agreed that if the number of crossings or the number of cars is increased, the annual rental will be subject to adjustment . . . .
The Agreement also required Burlington Northern to inform the Tribe “as to the nature and identity of all cargo transported by Burlington Northern across the Reservation. . . . [T]he disclosure shall be updated periodically as different products, or commodities, are added or deleted. Such updates shall occur at least annually.”
BNSF does not now contest that it has violated, and is continuing to violate, the terms of the Agreement. Rather, BNSF contends that the Tribe‘s right to enforce the Agreement and seek injunctive relief is preempted by the ICCTA.
B. Preemption by the ICCTA
The Interstate Commerce Commission Termination Act of 1995 “abolished the [Interstate Commerce Commission], revised the Interstate Commerce Act, and transferred regulatory functions under that Act to the [Surface Transportation Board].” DHX, Inc. v. Surface Transp. Bd., 501 F.3d 1080, 1082 (9th Cir. 2007). The ICCTA contains a broad preemption provision:
(b) The jurisdiction of the Board over—
- transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
- the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
This provision of the ICCTA expressly preempts “a wide range of state and local regulation of rail activity.” Ass‘n of Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1096–97 (9th Cir. 2010) (emphasis added). “It is difficult to imagine a broader statement of Congress‘s intent to preempt state regulatory authority over railroad operations.” City of Auburn v. United States, 154 F.3d 1025, 1030 (9th Cir. 1998) (citation omitted) (emphasis added).
The Supremacy Clause provides that the Constitution, the laws of the United States, and all treaties “shall be the supreme Law of the Land.”
The preemption provision of the ICCTA also grants the Surface Transportation Board (“STB“) exclusive authority over federal regulatory authority. See DHX, Inc., 501 F.3d at 1082. However, if there is a conflict between the ICCTA and
Under the usual terminology, “federal statutes do not preempt other federal statutes.” Ray v. Spirit Airlines, Inc., 767 F.3d 1220, 1224 (11th Cir. 2014); see also Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir. 2004). When a “case involves the interplay between two statutory schemes created by Congress for different reasons and at different times,” we typically ask whether the later statute repeals the prior one. Ray, 767 F.3d at 1224; see also, e.g., Morton v. Mancari,
417 U.S. 535, 549 (1974) (analyzing whether the
Similarly, under the terminology usually employed, federal laws do not “preempt” treaties. The usual term is “abrogation.” When a later-enacted federal statute conflicts with a treaty, we typically examine whether the statute explicitly or implicitly abrogates the treaty. See, e.g., Menominee Tribe of Indians v. United States, 391 U.S. 404, 412–13 (1968); United States v. Smiskin, 487 F.3d 1260, 1264 (9th Cir. 2007).
1. Federal Law Underlying the Easement Agreement
There are three sources of federal law underlying the Easement Agreement: federal common law, the Treaty of Point Elliott, and the
Under federal common law, Indian tribes have the right to exclude non-Indians and non-tribal members from their lands, and the commensurate right to grant admission to, or use of, their lands on such terms as the tribes see fit to impose. “[A] hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands . . . .” Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982); Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 899 (9th Cir. 2017), as amended (Aug. 3, 2017) (“The Supreme Court has long recognized that Indian tribes have sovereign powers, including the power to exclude non-tribal members from tribal land.“), cert. denied, 138 S. Ct. 648 (2018). Tribes possess inherent sovereign authority “[t]o determine who may enter the reservation; to define the conditions upon which they may enter; to prescribe rules of conduct; [and] to expel those who enter the reservation without proper authority.” Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976); see also Merrion, 455 U.S. at 144 (“When a tribe grants a non-Indian the right to be on Indian land, the tribe agrees not to exercise its ultimate power to oust the non-Indian as long as the non-Indian complies with the initial conditions of entry.“). Tribes have a federal common law right to sue to protect their possessory interests in their lands. See County of Oneida, 470 U.S. at 235–36 (“In keeping with these well-established principles, we hold that the Oneidas can maintain this
The Treaty of Point Elliott was one of many treaties signed by the federal government in 1854 and 1855 with the tribes surrounding Puget Sound, under which tribes were guaranteed reservation lands for their exclusive use. See Washington v. Wash. State Commercial Passenger Fishing Vessel Ass‘n, 443 U.S. 658, 662 (1979) (”Fishing Vessel“) (“[C]ertain relatively small parcels of land were reserved for their exclusive use.“). The Treaty specifically provides that the Tribe has a right to exclude non-Indians from the Reservation. See Treaty of Point Elliott,
The
2. Preemption, Repeal, and Abrogation
BNSF argues that the ICCTA “preempts” the treaty-based federal common law that allows tribes to exclude non-Indians from Indian land.
In support of its argument, BNSF wrote in its brief:
Consistent with the statutory text, “[e]very court that has examined [Section 10501(b)] has concluded that [its] preemptive effect . . . is broad and sweeping,” forbidding “impinge[ment] on the [STB]‘s jurisdiction or a railroad‘s ability to conduct its rail operations.” CSX Transp., Inc., FD 34662, 2005 WL 584026, at *6 (STB Mar. 14, 2005) . . . .
BNSF Brief at 28 (emphasis added; alterations in original). BNSF misrepresented what the STB wrote in CSX Transportation.
Every court that has examined the statutory language has concluded that the preemptive effect of section 10501(b) is broad and sweeping, and that it blocks actions by states or localities that would impinge on the Board‘s jurisdiction or a railroad‘s ability to conduct its rail operations[.]
CSX Transp., 2005 WL 584026, at *6 (emphasis added). BNSF would have the reader understand that the STB had written that the preemptive force of the ICCTA is the same, whether it conflicts with federal law or with state or local law. By replacing the words “blocks actions by states or localities” with the word “forbidding,” BNSF removed the qualification STB included in the actual text.
One paragraph later, BNSF wrote:
This Court, too, has held that ICCTA squarely preempts remedies that “may reasonably be said to have the effect of managing or governing rail transportation.” Ass‘n of Am. Railroads v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010)[.]
BNSF Brief at 28–29 (emphasis added). BNSF again misrepresented what was written. The actual text of Association of American Railroads reads as follows:
As stated by our sister circuits, ICCTA “preempts all ‘state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.‘”
Ass‘n of Am. R.R.s, 622 F.3d at 1097 (emphasis added). Again, BNSF would have the reader understand that our court had written that the preemptive force of the ICCTA is the same, whether it conflicts with federal law or with state law. By replacing the words “all state laws” with the word “remedies,” BNSF removed the qualification we included in our actual text and at the same time introduced a concept (“remedies“) not included in the text.
These misrepresentations would lead the unwary reader to understand that the STB and our court have both read the ICCTA to preempt broadly, without distinction between state and local law, on the one hand, and federal law, on the other. Such an understanding would, of course, benefit BNSF in this litigation. However, such an understanding is not supported by the decisions whose language is quoted in part by BNSF.
After oral argument in this case, our panel ordered BNSF‘s attorneys to explain the manner in which they quoted these cases in their brief. In their letter in response, after defending their selective quotations from CSX Transportation and Association of American Railroads, BNSF‘s attorneys wrote, “Responding to the Court‘s inquiry has led Counsel to appreciate, however, that we could have made explicit when first citing CSX and AAR that, even though these cases arose in a distinct context involving state and local law, BNSF contends they nonetheless supply the appropriate principles of law in this case. We regret not taking that approach.” We, in turn, regret that BNSF‘s attorneys wrote only that they “could have made explicit,” and that they “regret not taking that approach,” instead of acknowledging straightforwardly that they misrepresented in their brief what the STB and our court had written in those cases. We expect better from the attorneys who appear before us.
The “preemption” question under the ICCTA, with respect to federal law, is really two questions. First, to the degree that there may be a conflict between the two statutes, did the ICCTA repeal the
A. Repeal
When a later-enacted statute does not expressly repeal existing federal law, we ask whether the later-enacted statute implicitly repeals earlier law. “[R]epeals by implication are not favored.” Posadas v. Nat‘l City Bank, 296 U.S. 497, 503 (1936). “The intention of the legislature to repeal ‘must be clear and manifest.‘” United States v. Borden Co., 308 U.S. 188, 198 (1939) (citation omitted); Firebaugh Canal Co. v. United States, 203 F.3d 568, 575 (9th Cir. 2000). “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Mancari, 417 U.S. at 550; see Branch v. Smith, 538 U.S. 254, 273 (2003) (“An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.” (citations and internal quotation marks omitted)); Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996) (“The rarity with which we have discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue.” (citations and internal quotation marks omitted)). “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Mancari, 417 U.S. at 551.
To the extent two federal laws appear to conflict, we attempt to harmonize them. Both our court and the STB have done so when the ICCTA has appeared to conflict with another federal law. See, e.g., BNSF Ry. Co. v. Cal. Dep‘t of Tax & Fee Admin., 904 F.3d 755, 761 (9th Cir. 2018); Ass‘n of Am. R.R.s, 622 F.3d at 1097 (“If an apparent conflict exists between ICCTA and a federal law, then the courts must strive to harmonize the two laws, giving effect to both laws if possible.“); Bos. & Me. Corp. & Town of Ayer, Mass., No. 33971, 2001 WL 458685, at *6 n.28 (S.T.B. Apr. 30, 2001) (“[I]f two Federal statutes are ‘capable of coexistence,’ the statutes should be harmonized and each should be regarded as effective unless there is a ‘positive repugnancy’ or an ‘irreconcilable conflict’ between the laws.” (quoting Matsushita Elec. Indus. Co., 516 U.S. at 381)); see also U.S. Envtl. Prot. Agency, FD 35803, 2014 WL 7392860, at *7 (S.T.B. Dec. 29, 2014) (“[A]ctions taken and regulations enacted under . . . federal statutes may directly conflict with the purposes and regulatory scheme under the Interstate Commerce Act. When such a conflict occurs, the Board or a court must determine whether the two federal statutes and their applicable regulatory schemes can be harmonized.“).
In the context of a statute that touches on federal Indian law, such as the
Despite the broad “preemption” language of
The specific question before us is whether
First, the ICCTA‘s preemption applies to “regulation” of railroads.
Consistent with this conclusion, both courts and the STB have held in the state-law context—where true preemption, not repeal, applies—that voluntary agreements between private parties “are not presumptively regulatory acts” subject to the ICCTA‘s preemption provision. PCS Phosphate, 559 F.3d at 218. As the Fourth Circuit has written, “Voluntary agreements between private parties, however, are not presumptively regulatory acts, and we are doubtful that most private contracts constitute the sort of ‘regulation’ expressly preempted by the statute.” Id. at 218. The Fourth Circuit concluded that “[t]he history and purpose of the ICCTA support the view that Congress did not intend to preempt all voluntary agreements concerning rail transportation.” Id. at 219. The court went on to hold that a right-of-way easement agreement between a mine owner and a railroad in which the railroad promised to pay to relocate its railroad line in the future, if necessary to accommodate the landowner‘s operations, was enforceable and was not preempted by the ICCTA.
Nor does enforcement of the Easement Agreement constitute an “unreasonable interference” with rail transportation such that it is impliedly preempted by the ICCTA. See id. at 220–21. In holding that the ICCTA did not preempt the right-of-way easement agreement between the mine owner and railroad, the Fourth Circuit explained that “the determination of whether the action constitutes ‘an unreasonable interference’ requires a factual assessment of the effect of providing the claimed remedy.” Id. at 221. Here, the conditions imposed by the Agreement—specifying the maximum number of trains and cars—do not unreasonably interfere with rail transportation. The parties reached the Agreement after extensive negotiation, during which BNSF represented that it “doubted” it would exceed the agreed-upon maximum. See id. (finding relevant that the “relocation agreements were freely negotiated between sophisticated business parties” and the “agreements envisioned this exact circumstance“). Further, the terms expressly provide that the “Tribe agrees not to arbitrarily withhold permission to increase the number of trains or cars when necessary to meet shipper needs.” Thus, we decline to hold that injunctive relief pursuant to the Easement Agreement is categorically an unreasonable interference with rail transportation.
Second, nothing in the text of the ICCTA or its legislative history indicates that Congress intended that the ICCTA repeal the
Congress was well aware of the
Third, Title 49 of the U.S. Code, in which the ICCTA is codified, explicitly provides, “Nothing in this title shall absolve the United States from any responsibility to Indians and Indian tribes, including responsibilities derived from the trust relationship and any treaty, executive order, or agreement between the United States and an Indian Tribe.”
Fourth, the
Finally, “[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Mancari, 417 U.S. at 550. The ICCTA and the
B. Abrogation
The ICCTA abrogates neither the general treaty-based federal common law right of tribes to exclude non-Indians from Indian lands nor the explicit right to exclude contained in the Treaty of Point Elliott. It is established law that we will not hold that Congress abrogated Indian treaty rights absent unambiguous language to that effect. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (“Legislative silence is not sufficient to abrogate a treaty.“); Cook v. United States, 288 U.S. 102, 120 (1933) (“A treaty will not be deemed to have been abrogated or modified by a later statute, unless such purpose on the part of Congress has been clearly expressed.“); see also Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 808 (9th Cir. 2011) (“[W]e first acknowledge the long-standing rule that Indian tribes possess inherent sovereign powers, including the authority to exclude . . . unless Congress clearly and unambiguously says otherwise.“). “[T]he intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.” Menominee Tribe, 391 U.S. at 412. “What is essential is clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” United States v. Dion, 476 U.S. 734, 739–40 (1986); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999).
There is no such abrogating language in the ICCTA. The ICCTA and its legislative history do not mention Indian treaties or treaty rights at all, let alone the Treaty of Point Elliott. We affirm the district court and hold that the Tribe‘s treaty-based right to exclude and condition a third-party‘s presence on the Reservation has not been abrogated by the ICCTA.
IV. Conclusion
We affirm the district court. We hold that the
We remand to the district court for further proceedings consistent with this opinion.
AFFIRMED and REMANDED.