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Mandan v. The United States Department of Interior

United States District Court, District of Columbia

February 5, 2019

THE UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior, Defendants, SLAWSON EXPLORATION COMPANY, INC., Intervenor-Defendant.


          CHRISTOPHER R. COOPER United States District Judge.

         This case concerns the Bureau of Land Management's (“BLM”) approval of permits for Slawson Exploration Company, Inc. (“Slawson”), to drill horizontal oil and gas wells underneath Lake Sakakawea in North Dakota. The well pad is located 600 feet from the lake on privately-owned “fee” land within the Fort Berthold Indian Reservation, which is where Plaintiff Mandan, Hidatsa and Arikara Nation (“MHA Nation” or “Tribe”) resides. The Tribe brought this lawsuit against the U.S. Department of the Interior and its now-former Secretary Ryan Zinke (“federal defendants”) to challenge the issuance of the drilling permits. It says the BLM's decision to approve the permits violated a tribal law requiring that all well sites be at least 1, 000 feet from the lake. Slawson, as it did in the administrative proceedings, intervened as a defendant.

         Slawson, joined by the federal defendants, has moved to transfer the case to the District of North Dakota-where the land in question and the relevant BLM decisionmakers are located-arguing that the case presents an entirely local dispute with no meaningful connection to the District of Columbia. The Tribe opposes the motion. For the reasons that follow, the Court will grant the motion and transfer the case to the District of North Dakota.

         I. Background

         In 1953, the federal government completed construction of the Garrison Dam along the Missouri River in central North Dakota. Compl., ECF No. 1, ¶ 19. The erection of the dam created Lake Sakakawea, a 180-mile long reservoir that runs through the Fort Berthold Indian Reservation. Id. The reservation is home to the Mandan, Hidatsa and Arikara Nation, a federally-recognized tribe. Id. ¶¶ 11, 14.

         BLM, an agency of the Department of the Interior, administers federal oil and gas leases. In 2011, Slawson applied to the BLM's North Dakota Field Office for permits to drill multiple horizontal wells underneath Lake Sakakawea. Id. ¶ 41. The wells share a common well pad on privately-owned, non-Indian “fee” land approximately 600 feet from the shore. Id. ¶¶ 42-43. (Fee land is property that is individually owned rather than held by the federal government in trust for Indian tribes.) According to Slawson, the well bores will penetrate mineral beds held either by the federal government, the State of North Dakota, or private entities. They will not reach minerals held by, or in trust for, the Tribe. See Slawson's Motion to Transfer (“MTT”), Exhibit A (Environmental Assessment), ECF No. 18-2, at 1; MTT, Exhibit B (Decl. of Eric Sundberg), ECF No. 18-3, ¶ 4. The BLM's North Dakota Field Office analyzed the potential impact of Slawson's proposed project as required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and, in March 2017, published an Environmental Assessment, a Finding of No. Significant Impact, and a Decision Record. Compl. ¶ 49. The office approved the project and granted the permits. Id.

         The MHA Nation sought administrative review of this decision with BLM's Montana-Dakotas State Director. Id. ¶ 50. It argued that the location of the well pad violated a tribal resolution passed in February 2017 that imposed a 1, 000-foot setback requirement on all wells near the lake regardless of whether the land was held in fee or owned by, or in trust for, the Tribe or its members. Id. The Tribe also argued that the location of the well pad conflicted with the BLM's own resource management plan, which applies to the development of federal minerals in North Dakota, id. ¶ 28, the Army Corps of Engineers' management plan for Lake Sakakawea, id. ¶ 33, and the Bureau of Indian Affairs' programmatic biological assessment and evaluation for oil and gas development in the Fort Berthold Reservation, id. ¶ 37. See id. ¶ 50. In April 2017, the State Director affirmed the Field Office's decision to issue the permits. Id. ¶ 51. The affirmance was grounded on a finding that the BLM was not bound by the Tribe's setback law because the permits in question were for use on privately-owned fee land, not land owned by the Tribe or its members, and that the Tribe thus lacked civil jurisdiction over Slawson under the Supreme Court's decision in Montana v. United States, 450 U.S. 544 (1981). See MTT, Exhibit F (BLM State Director Decision), ECF No. 18-7, at 4-5.

         The Tribe then filed a Notice of Appeal and Petition for Stay with the Interior Board of Land Appeals (“IBLA”). Compl. ¶ 52. As it did here, Slawson intervened. Id. In August 2017, an administrative judge from the IBLA issued an order staying the effectiveness of Slawson's permits pending review of the merits of the Tribe's appeal. Id. ¶ 53.

         In response, Slawson turned to the District of North Dakota for an injunction preventing the IBLA from enforcing the stay. Id. ¶¶ 54-55. The district court entered a temporary restraining order (“TRO”) against the stay in August 2017, which allowed Slawson to continue drilling, id. ¶ 56, and in November 2017, it extended the TRO into a preliminary injunction and denied the Tribe's motion to dismiss, id. ¶ 60.

         In the meantime, the BLM and Slawson asked the Director of the Department of the Interior's Office of Hearings and Appeals (the “Director”) to take jurisdiction over the Tribe's appeal, which was still pending before the IBLA administrative judge. Id. ¶ 62. The Director agreed to do so in October 2017, id. ¶ 63, and, after the District of North Dakota issued its final order, determined in March 2018 that the IBLA should not have issued the stay order, id. ¶ 66. The Director then proceeded to the merits of the Tribe's appeal and, relying substantially on the District of North Dakota's TRO decision, concluded that the BLM had properly approved Slawson's permit applications. Id. ¶ 68.

         The Tribe asks this Court to review the decision affirming the BLM's approval of the permits. See Compl. (filed June 20, 2018). It argues that the “BLM was required to apply the MHA Nation's setback law to [Slawson's proposed] Project, and under that law, it was required to deny” the permits. Id. ¶ 72. The Tribe contends that the agency was required to apply the setback law for three main reasons: (1) the law was enacted pursuant to the Tribe's federally-approved constitution; (2) the law was enacted pursuant to the Tribe's inherent sovereign authority to protect the health and welfare of the Tribe; and (3) “the United States has a trust duty and a treaty duty to apply and enforce the Tribe's laws.” Id.

         Both Slawson and the federal defendants have moved to transfer this case to the District of North Dakota. The Tribe opposes the motion.

         II. Legal Standard

         District courts have discretion to transfer a case to another venue “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Courts assess motions to transfer according to an “individualized, case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citation omitted). The moving party bears the initial burden of establishing that transfer is proper. City of W. Palm Beach v. U.S. Army Corps of Eng'rs, 317 F.Supp.3d 150, 153 (D.D.C. 2018) (citation omitted).

         First, the moving party must establish that the plaintiff could have brought its suit in the transferee forum, here North Dakota. 28 U.S.C. § 1404(a). The Tribe does not dispute that it could have brought this suit in the District of North Dakota because “a substantial part of property that is the subject of ...

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