District of North Dakota – Page 7

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.

United States Files Statement of Interest in Brakebill v. Jaeger

April 4, 2016Matthew L.M. Fletcher

Here:

Doc. 25 – Motion for Leave to File Statement of Interest of the United States of America – Filed 4-1-2016

Doc. 25-1 – Statement of Interest of the United States of America – Filed 4-1-2016

Complaint and motion to dismiss here and here.

North Dakota Motion to Dismiss in Brakebill v. Jaeger

February 12, 2016Sarah M Donnelly1 Comment

Download memorandum in support here.

Link to complaint in previous post here.

North Dakota Tribal Member Sue over State’s Voter ID Law

January 21, 2016January 21, 2016Matthew L.M. Fletcher2 Comments

Here is the complaint in Brakebill v. Jaeger (D. N.D.):

1 Complaint

Supreme Court Cert Petition in Two Shields v. Wilkinson

November 23, 2015Matthew L.M. Fletcher

Here:

Two Shields Cert Petition

ILTF Amicus Brief in Support of Petition

Law Profs Amicus Brief in Support of Petition

Questions presented:

In Temple v. Synthes Corp., 498 U.S. 5 (1990) (per curiam), this Court unanimously held that joint tortfeasors are not required parties under Rule 19(a) of the Federal Rules of Civil Procedure because “[i]t has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Id. at 7. Six circuits have recognized the rule that joint wrongdoers are not required parties under Rule 19(a). Three circuits now have followed the opposite rule in holding that, in some circumstances, a joint tortfeasor is a required party, while case law in the Seventh Circuit is conflicted. The Eighth Circuit below followed the minority line of the circuit split to affirm the district court’s dismissal of the action under Rule 19 for failure to join the United States.

The question presented is: Does Rule 19 incorporate the common law rule that joint tortfeasors are not required parties?

Lower court materials here.

Eighth Circuit Affirms Dismissal of Two Shields v. Wilkinson

June 12, 2015Matthew L.M. Fletcher2 Comments

Here is the opinion:

Two Shields Opinion

An excerpt:

Appellants Ramona Two Shields and Mary Louise Defender Wilson are Indians with interests in land allotted to them by the United States under the Dawes Act of 1887. Such land is held in trust by the government, but may be leased by allottees. Two Shields and Defender Wilson leased oil and gas mining rights on their allotments to appellee companies and affiliated individuals who won a sealed bid auction conducted by the Board of Indian Affairs (BIA) in 2007. Subsequent to the auction, appellants agreed to terms with the winning bidders, the BIA approved the leases, and appellees sold them for a large profit. Appellants later filed this putative class action in the District of North Dakota, claiming that the United States had breached its fiduciary duty by approving the leases for the oil and gas mining rights, and that the defendant bidders aided, abetted, and induced the United States to breach that duty. The district court concluded that the United States was a required party which could not be joined, but without which the action could not proceed in equity and good conscience, and dismissed the case. Appellants challenge that dismissal. For the reasons stated below, we affirm.

Briefs here.