Lawsuit Challenges BIA Right of Way Regulations

Written by: Bryan Newland

Primary Source : Turtle Talk, April 11, 2016.

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:

  1. 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
  2. The proposed rule improperly allows Indian tribes to unilaterally terminate rights-of-way
  3. The proposed rule violates traditional rules regarding tribal jurisdiction
  4. The proposed rule authorizes Indian tribes to tax activities within rights-of-way in violation of the scope of tribal jurisdiction
  5. The Department has failed to explain the basis for its departure from longstanding federal policy regarding rights of way.
  6. 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.

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Bryan Newland
Bryan Newland is a citizen of the Bay Mills Indian Community (Ojibwe) in northern Michigan. He is a partner in the law firm of Fletcher Law, PLLC where he represents tribal clients on issues including the regulation of gaming facilities, negotiation of tribal-state gaming compacts, the fee-to-trust process, and leasing of Indian lands. Bryan also serves as the Chief Judge of the Bay Mills Indian Community Tribal Court and as a member of the Board of Trustees for the Michigan State University College of Law. In 2008, Bryan served as the Michigan Native Vote Coordinator for Barack Obama’s Presidential Campaign, and was a member of the Obama-Biden Presidential Transition Team. From 2009 to 2012, he served as Counselor and then Senior Policy Advisor to the Assistant Secretary of the Interior – Indian Affairs. In that capacity, he helped develop the Obama Administration’s policies on Indian gaming and Indian lands, reforming the Department of the Interior’s policy on reviewing tribal-state gaming compacts. He also led a team that reformed the BIA’s Indian leasing regulations and worked with key officials to help enact the HEARTH Act of 2012.