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Kodiak Oil & Gas (USA) Inc. v. Burr

United States Court of Appeals, Eighth Circuit

August 5, 2019

Kodiak Oil & Gas (USA) Inc., now known as Whiting Resources Corporation;HRC Operating, LLC Plaintiffs - Appellees
v.
Jolene Burr; Ted Lone Fight; Georgianna Danks; Edward S. Danks; Mary Seaworth, in her capacity as the Acting Chief Judge of the Fort Berthold District Court Defendants - Appellants EOG Resources, Inc. Plaintiff- Appellee Jolene Burr; Ted Lone Fight; Georgianna Danks; Edward S. Danks; Mary Seaworth, in her capacity as the Acting Chief Judge of the Three Affiliated Tribes District Court of the Fort Berthold Indian Reservation; Charlene Knight, in her capacity as the Court Clerk/Consultant of the Three Affiliated Tribes District Court of the Fort Berthold Indian Reservation; Defendants - Appellants

          Submitted: March 14, 2019

          Appeals from United States District Court for the District of North Dakota

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE.

         A dispute over the practice of flaring natural gas from oil wells fuels the legal controversy in this case: the scope of Native American tribal court authority over non-members. Several members of the MHA Nation sued numerous non-tribal oil and gas companies in MHA tribal court. Those companies operate oil wells on lands within the Fort Berthold Indian Reservation that have been allotted to individual tribe members but are held in trust by the federal government. The tribe members alleged the companies owed royalties from wastefully-flared gas. Some of these companies unsuccessfully contested the tribal court's jurisdiction over them in tribal court. Then they initiated this action in federal court to enjoin the tribal court plaintiffs and tribal court judicial officials. The district court[1] issued a preliminary injunction, and the tribal court plaintiffs and officials separately appealed. We affirm the injunction because we conclude suits over oil and gas leases on allotted trust lands are governed by federal law, not tribal law, and the tribal court lacks jurisdiction over the non-member oil and gas companies.

         I. Background

         In February 2014, four individual members (the "tribal court plaintiffs") of the MHA (Mandan, Hidatsa, and Arikara) Nation (otherwise known as the Three Affiliated Tribes, residing on the Fort Berthold Indian Reservation) sued numerous oil and gas companies in the Fort Berthold District Court of the MHA Nation. The tribal court plaintiffs, on behalf of a proposed class of similarly situated plaintiffs, alleged they owned mineral rights within the reservation and had entered into oil and gas leases with the defendants. They alleged the defendants were operating wells on the reservation that flared, or burned off, natural gas. Such flaring was improper, they alleged, in part because "[t]echnology and services have been readily available to capture, convert and market the natural gas without pipelines or electricity." The tribal court plaintiffs sought to recover royalties for the flared natural gas.

         The form lease executed by the tribal court plaintiffs and the companies was issued by the U.S. Department of the Interior, Bureau of Indian Affairs ("BIA"), and required approval by the BIA. The tribal court plaintiffs relied on a provision of the lease in which the lessee agreed: "To exercise reasonable diligence in drilling and operating wells for oil and gas . . . having due regard for the prevention of waste of oil or gas developed on the land . . . ."

         The tribal court defendants moved to dismiss, arguing, among other things, that the court lacked jurisdiction over them. Fort Berthold Special District Court Judge Terry L. Pechota denied the motion. Judge Pechota concluded the tribe could exercise jurisdiction over the defendants because they voluntarily entered into contractual relationships with tribe members. The defendants appealed to the MHA Nation Supreme Court, which asserted that "[f]rom time immemorial, the governing bodies of the MHA Nation exercised inherent sovereignty over all persons who entered the Nation's territory." The court commented that Montana v. United States, 450 U.S. 544 (1981), was "[t]he most infamous modern manifestation of the" U.S. Supreme Court's "long legacy of limiting various aspects of tribal sovereignty." The MHA Nation Supreme Court then concluded Montana - which generally prohibits the exercise of tribal court jurisdiction over non-members - either did not apply or the case fell under an exception allowing tribal regulation of "the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Montana, 450 U.S. at 565.

         Kodiak Oil & Gas, Inc. and EOG Resources, Inc., two of the tribal court defendants, separately filed suit in federal court against the tribal court plaintiffs and the acting chief judge of the Fort Berthold District Court. EOG Resources also included the court clerk of the Fort Berthold District Court as a defendant. HRC Operating, LLC, later intervened in Kodiak's case. Kodiak, EOG, and HRC (hereinafter "the oil and gas companies") argued the tribal court lacked jurisdiction over them and sought declaratory and injunctive relief. The two cases were eventually consolidated. The district court denied the tribal court judge's motion to dismiss and granted the oil and gas companies' motion for a preliminary injunction. The Forth Berthold chief district judge and clerk of court (collectively "the tribal court officials") and the tribal court plaintiffs separately appealed.

         II. Analysis

         A. Tribal Sovereign Immunity

         The tribal court officials argue this suit is barred by tribal sovereign immunity. The district court correctly rejected this argument.

         Indian tribes are "quasi-sovereign nations." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978). Tribes "exercise 'inherent sovereign authority'" and "remain 'separate sovereigns pre-existing the Constitution.'" Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014) (first quoting Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991); then quoting Santa Clara Pueblo, 436 U.S. at 56). Yet as "domestic dependent nations," tribes "are subject to plenary control by Congress." Id. (quoting Citizen Band Potawatomi, 498 U.S. at 509). By virtue of their limited sovereignty, tribes possess (subject to congressional limitation or expansion) the "common-law immunity from suit traditionally enjoyed by sovereign powers." Id. (quoting Santa Clara Pueblo, 436 U.S. at 58). This immunity extends to tribal officials who act within the scope of the tribe's lawful authority. Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1471 (8th Cir. 1994).

         In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court recognized sovereign immunity does not bar "certain suits seeking declaratory and injunctive relief against state officers in their individual capacities" based on ongoing violations of federal law. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269 (1997). The Ex parte Young doctrine rests on the premise "that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes." Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011). The Supreme Court has extended the Ex parte Young doctrine from state officials to tribal officials, holding "tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct." Bay Mills, 572 U.S. at 796; see also N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 460 (8th Cir. 1993).

         Here, the oil and gas companies seek only declaratory and injunctive relief, not damages. They also contend the tribal court officials exceeded the scope of their lawful authority. Thus, this case falls squarely within the Ex parte Young doctrine and is not barred by tribal sovereign immunity.

         To avoid this obvious conclusion, the tribal court officials argue the oil and gas companies "never claimed, let alone showed, that [they] did anything regarding the underlying tribal court case." In other words, the oil and gas companies should have named the presiding judge as a defendant, not just the chief judge and clerk of court. This raises the question of whether the tribal court officials' supervisory and administrative authority is a sufficient connection to the improper exercise of jurisdiction to be subjected to suit for declaratory and injunctive relief. In Ex parte Young, the Supreme Court held that when seeking to enjoin the enforcement of an unconstitutional state statute, the state officer defendant "must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party." 209 U.S. at 157; see also Balogh v. Lombardi, 816 F.3d 536, 546 (8th Cir. 2016) (state officials with authority to implement statute "in an administrative or ministerial sense" generally do not have sufficient connection to the statute's enforcement); Church v. Missouri, 913 F.3d 736, 750 (8th Cir. 2019) ("Like in Balogh, appointing members of the [Missouri State Public Defender] Commission is an administrative act. It does not give the governor some connection to the State's Sixth Amendment obligation [to provide indigent defendants with adequate counsel]." (internal citation omitted)). So too, when seeking to enjoin an improper exercise of tribal court jurisdiction, the tribal official "must have some connection with the" exercise of jurisdiction. Ex parte Young, 209 U.S. at 157. But where a tribal official is giving effect to the unlawful exercise of jurisdiction "in a manner that allegedly injures a plaintiff and violates his constitutional rights, an action" for injunctive or declaratory relief is available against the tribal official. McDaniel v. Precythe, 897 F.3d 946, 952 (8th Cir. 2018). Because the chief district court judge and clerk of court have supervisory and administrative duties related to the tribal court case, we conclude they have a sufficient connection to the improper exercise of jurisdiction and are properly subject to suit for declaratory and injunctive relief.

         Next, the tribal court officials argue that no jurisdiction has been exercised thus far in the tribal court litigation over the merits of the controversy. All the tribal court has done is determine whether it has jurisdiction. And every court has the jurisdiction to determine whether it has jurisdiction over a case. See, e.g., In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017) ("[Federal courts] have jurisdiction to determine [thei]r own jurisdiction."); Carlson v. Allianz Versicherungs-Aktiengesellschaft, 287 Neb. 628, 638 (2014) ("It is fundamental that a court has the power to determine whether it has jurisdiction over the matter before it."). While this argument is framed as a sovereign immunity issue, in substance it is an argument about ripeness - an argument that the case is not ripe because the tribal court has not yet exercised jurisdiction over the merits of the controversy. Assuming the tribal court had jurisdiction to determine its own jurisdiction, the oil and gas companies' case is still ripe because the tribal court's exercise of jurisdiction over the merits of the case was ...


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