District of North Dakota – Page 6

After a careful review of the entire record, and a careful consideration of all of the Dataphase factors, the Court finds that Western Energy has not met the burden of establishing the necessity of a preliminary injunction. The Dataphase factors, when viewed in their totality, weigh against the issuance of a preliminary injunction. The Court notes that both parties presented very well-reasoned legal arguments in support of their respective positions. Suffice it to say the need for this new Final Rule is unclear at best, particularly when the long-established process for obtaining BIA grants of rights-of-way across tribal lands seems to have worked relatively well for more than 60 years. The undersigned is very familiar with the process for obtaining grants of rights-of-way on reservation lands in North Dakota, as a direct result of significantly increased oil field activity in western North Dakota. Although the current regulations may arguably have been in need of some updates and “modernization,” the Final Rule will likely create far more confusion, chaos, and litigation than what the Department of the Interior ever contemplated. However, the Court finds the Dataphase factors, and the equities, weigh against the granting of the extraordinary remedy of a preliminary injunction. Accordingly, Western Energy’s motion for a preliminary injunction (Docket No. 9) is DENIED. Western Energy’s emergency motion for a stay (Docket No. 31) is DENIED as moot.

Complaint (and the main thrust of the injunction motion) here.

Parties seek intervention in Right-of-Way Regulation Lawsuit

April 18, 2016bryannewland1 Comment

The Three Affiliated Tribes of Ft. Berthold and the New Mexico Oil and Gas Association have sought to intervene in Western Energy Alliance v. Jewell.

The materials for the Three Affiliated Tribes are here:

Motion to Intervene: TAT Mot to Int

Brief in Support: TAT Br in Supp of Mot to Int

Special Appearance and Answer to Complaint:Special Appearance & Ans TAT

The materials for the New Mexico Oil and Gas Association are here:

Brief in Support of Intervention: New Mex Oil & Gas Assoc Br for Interv

Exhibit A for Brief: Exh A to NM Oil & Gas Assoc Br

Lawsuit Challenges BIA Right of Way Regulations

April 11, 2016April 11, 2016bryannewland5 Comments

Greenberg Traurig has filed a lawsuit against the Department of the Interior on behalf of the Western Energy Alliance, challenging the Department’s proposed Right of Way Regulations. The case was filed in the U.S. District Court for North Dakota, and is captioned as Western Energy Alliance v. United States Department of the Interior.

The complaint is here: Western Energy Alliance v. DOI Complaint

Western Energy Alliance’s brief in support of motion for a TRO and Preliminary Injunction is here: Western Energy Alliance Brief in Support of TRO.

Department of the Interior’s Response Brief is here: Defendants’ Opposition to Motion for Preliminary Injunction

The Western Energy Alliance alleges:

The proposed rule violates Strate v. A-1 Contractors, because it attempts to allow Indian tribes to exercise jurisdiction over non-Indians within rights-of-way
The proposed rule improperly allows Indian tribes to unilaterally terminate rights-of-way
The proposed rule violates traditional rules regarding tribal jurisdiction
The proposed rule authorizes Indian tribes to tax activities within rights-of-way in violation of the scope of tribal jurisdiction
The Department has failed to explain the basis for its departure from longstanding federal policy regarding rights of way.
The Department failed to comply with NEPA

Interestingly, the Western Energy Alliance also asserts that the Department of the Interior has no authority to impose sanctions or otherwise take enforcement action against trespassers within rights-of-way:

Congress has not otherwise granted BIA the ability to deal with trespass on Indian lands that would serve as the basis for the Rule’s sweeping assumption of trespass authority. As such, BIA is without authority to enforce alleged trespass actions within Indian land rights-of-way, or over Indian lands generally.

The District Court is holding a hearing on Western Energy Alliance’s motion this morning in Bismarck, ND. Commentary to follow.