Crow Tribe of Indians et al v. Peters
Filing
48
ORDER GRANTING IN PART and denying in part 34 Plaintiffs' Motion for Partial Summary Judgment; and DENYING 37 Defendant's Motion for Partial Summary Judgment. IT IS FURTHER ORDERED that the parties shall participate in a Status Conference on 1/10/2012 at 10:00 a.m. at the James F. Battin Federal Courthouse in Billings, MT. Signed by Magistrate Carolyn S Ostby on 12/19/2011. (POC, ) Modified on 12/19/2011 to indicate written opinion. (NOB).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CROW TRIBE OF INDIANS,
WESTMORELAND RESOURCES
INC., and ABSALOKA COAL
LLC.,
CV 10-95-BLG-CSO
ORDER GRANTING IN PART
PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY
JUDGMENT
and
SETTING STATUS
CONFERENCE
Plaintiffs,
vs.
DANIEL PETERS, as Personal
Representative of the Estate of
Pauline Peters,
Defendant.
Plaintiffs Crow Tribe of Indians, Westmoreland Resources Inc.,
and Absaloka Coal LLC [collectively Westmoreland] initiated this
action against Daniel Peters, as the personal representative of the
estate of Pauline Peters [Peters], alleging illegal interference with
1
Westmoreland’s rights, as mineral lessee, to use the surface of Peters’
land. Upon the parties’ consent, the case was assigned to the
undersigned for all purposes. Court Doc. 8. This Court has jurisdiction
under 28 U.S.C. §§ 1331 and 1362.
Currently pending are the parties’ cross motions for partial
summary judgment. Based on the following analysis, Peters’ motion
will be denied and Westmoreland’s motion will be granted in part.
I. BACKGROUND
Peters is the current owner of the surface estate in lands
specifically described as follows: Township 1 South, Range 38 East,
M.P.M. Big Horn County, Montana: Section 17 - S½S½N½,
S½N½S½N½, S½N½N½S½N½, N½N½S½, and N½S½N½S½,
comprising 260 acres, more or less [“Property”]. Court Doc. 36-3. The
Property is located within the territory described in the Fort Laramie
Treaty of May 7, 1868, 15 Stat. 650, and is within the exterior
boundaries of the Crow Indian Reservation. Court Docs. 36 at 2-3, ¶ 2;
45 at 2, ¶ 2;
In 1925, the United States issued a fee simple patent to Peters’
predecessor in interest, Lois Bompart. Court Doc. 36-1. The patent
2
contained the following reservation: “Also reserving to the United
States for the benefit of the Crow Tribe, in accordance with the
provisions of the Act of Congress of June 4, 1920 (41 Stat., 751), all the
coal, oil, gas, or other mineral deposits in the lands above described.”
The Act provided that allotments “may be made of lands classified as
chiefly valuable for coal and other minerals which may be patented as
herein provided with a reservation, set forth in the patent, of the coal,
oil, gas, or other mineral deposits for the benefit of the Crow Tribe....”
41 Stat. 753. More generally, the Act provided that any and all
minerals “on any of the lands to be allotted hereunder are reserved for
the benefit of the members of the tribe in common and may be leased
for mining purposes upon the request of the tribal council under such
rules, regulations, and conditions as the Secretary of the Interior may
prescribe....” Id. See also Act of Congress of May 17, 1968, 82 Stat. 123,
Pub.L. 90-308.
Pursuant to the terms of the Indian Mineral Development Act of
1982, 25 U.S.C. § 2101 et seq., the Crow Tribe leased to Westmoreland
Resources, Inc., the coal, and the right to mine and remove the coal,
from lands including the Property. See Court Doc. 36-4 at 9. The lease
3
expressly granted to Westmoreland “the use of the surface and the
subsurface overlying ... the Leased Premises.” Id. Westmoreland
subleased to Absaloka Coal LLC the right to mine and remove the coal
in and under the Property. See Court Doc. 36-4, ¶ 4. The lease and
sublease were approved by the United States Department of the
Interior. Court Doc. 36-4 at 20-21. The lease was also approved by the
Crow Tribe. Court Doc. 36 at 4, ¶ 9. According to the affidavit of the
Chairman of the Crow Nation Executive Branch, Crow Tribe of
Montana, “the Absaloka Mine is critical to the Crow Nation’s financial
independence now, over the past 37 years, and well into the future.”
Court Doc. 36-5 at ¶ 7.
The Property is included in what Westmoreland refers to as the
“South Extension.” Court Doc. 36 at 5 ¶ 16. The South Extension
occupies about 3,300 acres within the Crow Reservation and consists
entirely of Crow-owned coal leased to Westmoreland. Westmoreland,
which has long mined coal owned by the Crow Tribe, is currently
conducting open pit coal mining in the South Extension and expects to
reach the Property within four to five years. Id. at ¶¶ 11, 16.
4
Westmoreland estimates that: (1) the process of overburden
removal, coal removal, recontouring, topsoiling, and planting for the
Property will take five to seven years; (2) that the land will be restored
to prior grazing capacity about eight to ten years after mining
commences; and (3) the land will be released back to the owner after
about fifteen to twenty years, following release of reclamation bonds.
Id. at 6-7, ¶ 18. It estimates that approximately 5.2 million tons of
minable coal underlies the Property, at a value “well in excess of $15
million.” Id. at 7, ¶ 19. If the Property is not mined, this coal will be
isolated and uneconomical to mine, and thus lose its value to the
owners, including the Crow Tribe. Id. at 10, ¶ 25.
Peters does not consent to open pit coal mining at his Property
and contends that Westmoreland may not proceed without his written
consent. Court Docs. 39, 40.
II.
PARTIES’ ARGUMENTS
A. Westmoreland’s Arguments
Westmoreland makes four arguments in support of its summary
judgment motion. First, Westmoreland contends that the mineral
5
estate, owned by the United States in trust for the Crow Tribe, includes
the right to mine the surface estate held by Peters. Id. at 7-12.
Second, Westmoreland asserts that the Surface Mining Control
and Reclamation Act of 1977 [SMCRA], 30 U.S.C. § 1304, is the
applicable federal statute and does not require surface-owner consent
on Indian lands. Id. at 12-15. Specifically, Westmoreland points to 30
U.S.C. § 1304(f), which excepts Indian lands from the statute’s
requirement of surface-owner consent. Id. at 12.
Third, Westmoreland argues that, although federal law should be
deemed conclusive, Montana law also grants Westmoreland the right to
a reasonable use of Peters’ surface estate, as an incident to its mineral
interest. Id. at 15-19. Fourth, Westmoreland asserts that surface
owner consent to post-mining land use is not required. Id. at 19-21.
Although asserting that a mineral owner has no obligation (absent
an express statute or deed provision) to compensate the surface owner,
Westmoreland agrees that it will pay Peters a reasonable amount for
damage and loss of use in an amount to be determined by the Court.
Westmoreland contends that this amount should not exceed the fair
market value of the surface disturbed. Id. at 21-24.
6
B. Peters’ Arguments
First, Peters argues that federal law requires Westmoreland to
obtain surface owner consent before the Office of Surface Mining
Reclamation and Enforcement [OSM] may issue a mining permit. Id. at
4-7. As support for this position, Peters cites SMCRA and 30 C.F.R. §
778.15(b)(1) -(3).
Second, Peters asserts that the Crow Tribe lacks the regulatory
authority to force him to allow the Tribe to mine coal. Id. at 7-9. He
contends that, under Montana v. United States, 450 U.S. 544, 565
(1981), the inherent sovereign powers of an Indian tribe do not extend
to the activities of nonmembers of the Tribe, with exceptions not here
applicable.
Third, Peters claims that the present suit is not yet ripe for
judicial review. Id. at 9-13. Peters suggests that Westmoreland has not
exhausted administrative remedies because it has not obtained his
permission or a conveyance to allow it to surface mine. Peters also
argues that Westmoreland must appeal OSM’s decision to the Interior
Board of Land Appeals (“IBLA”) before seeking judicial review.
7
Fourth, Peters argues that Westmoreland must either meet the
requirements of 30 C.F.R. 778.15(b)(1) or (2) (surface owner consent or
express written grant to surface mine), or Westmoreland must show
that these regulations are illegal or unconstitutional. Id. at 14. Peters
maintains that Westmoreland must either meet the requirements of
that regulation or challenge its legality and constitutionality. Id. at 14.
Peters cites several United States Supreme Court cases, however, to
show that the regulation has been found constitutional. Id. at 15-16.
Finally, although Peters suggests that Montana law may apply, he
does not present any arguments on the substance of Montana law as it
relates to these issues. Id. at 16.
III.
LEGAL STANDARD
The court must grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “[A]
party seeking summary judgment always bears the initial responsibility
of informing the court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes
8
demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those
which may affect the outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable fact-finder to return a
verdict for the nonmoving party. Id.
IV.
DISCUSSION
This case involves a dispute over property rights. It highlights the
tensions between the rights of a surface owner and the rights of a
severed mineral interest owner. The issue arises in the specific context
of severed minerals owned by the United States for the benefit of an
Indian tribe and within the boundaries of its reservation.
The essential facts are not disputed. The parties agree on the
location of the Property, its ownership history, the validity of
Westmoreland’s lease, and the lack of Peters’ consent. Compare Court
Doc. 35 at 2-6 and Court Doc. 38 at 2-3; see also Court Doc. 36; Court
Doc. 39. The issue here is legal: whether surface owner consent is
required prior to open pit mining at the Property. For the following
reasons, the Court concludes that it is not required.
9
A.
Federal Law Applies
The Court first must determine what law applies. This case is
analogous to Wilson v. Omaha Indian Tribe, 442 U.S. 653, 670 (1979),
in which the Court held:
Here, we are not dealing with land titles merely derived
from a federal grant, but with land with respect to which the
United States has never yielded title or terminated its
interest. ... The United States continues to hold the
reservation lands in trust for the Tribe.... In these
circumstances, where the Government has never parted with
title and its interest in the property continues, the Indians’
right to the property depends on federal law.... It is
rudimentary that “Indian title is a matter of federal law....
Id. (citing Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 677
(1974). See also Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363, 377 (1977) (quoting Wilcox v. Jackson, 38 U.S.
498, 517 (1839) (“We hold the true principle to be this, that whenever
the question in any Court, state or federal, is whether a title to land
which had once been the property of the United States has passed, that
question must be resolved by the laws of the United States....”)).
Therefore, because the United States holds title to the minerals for the
benefit of the Crow Tribe, federal law controls.
10
B. Applicable Statutes
Peters’ rights are derived from the patent issued to his predecessors
in interest. Patents are to be given effect according to the laws and
regulations under which they were issued. Swendig v. Washington
Water Power Co., 265 U.S. 322, 332 (1924). Because neither the patent
nor the statute pursuant to which it was issued expressly addresses the
mineral owner’s use of the surface, the Court looks to rules of statutory
construction for guidance.
In construing a statute, a court may with propriety consider the
history of the times when it was passed. Great Northern R. Co. v.
United States, 315 U.S. 262, 273 (1942). Subsequent legislation may be
considered to assist in the interpretation of prior legislation upon the
same subject. Id. at 277.
In addition to these general rules of statutory construction, the
court must be mindful of rules that apply to interpreting statutes
applicable to property interests of the United States and Indian tribes.
A court must interpret any ambiguities in a grant by the United States
in the government’s favor. Watt v. Western Nuclear, Inc., 462 U.S. 36,
59 (1983) (quoting United States v. Union Pac. R.R. Co., 353 U.S. 112,
11
116 (1957) (“It is an ‘established rule that land grants are construed
favorably to the Government, that nothing passes except what is
conveyed in clear language, and that if there are doubts they are
resolved for the government, not against it.’ ”).
A court must also interpret statutes in favor of tribal interests:
The canons of construction applicable in Indian law are rooted in
the unique trust relationship between the United States and the
Indians. ... [T]he Court has held that congressional intent to
extinguish Indian title must be “plain and unambiguous,” and will
not be “lightly implied.” Relying on the strong policy of the United
States “from the beginning to respect the Indian right of
occupancy,” the Court concluded that it “[c]ertainly” would require
“plain and unambiguous action to deprive the [Indians] of the
benefits of that policy.”
Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) (internal
citations omitted). In Lyon v. Gila River Indian Community, 626 F.3d
1059, 1068 (9th Cir. 2010), the Ninth Circuit noted that extinguishment
of Indian property interests “cannot be lightly implied in view of the
avowed solicitude of the Federal Government for the welfare of its
Indian wards.” Id.at 1068 (citing United States v. Gemmill, 535 F.2d
1145, 1147 (9th Cir. 1976). The Court must therefore construe the
patent and the reserved mineral estates in favor of the United States,
the Crow Tribe, and their lessees.
12
As stated above, the patent to the Property was issued pursuant
to the Act of June 4, 1920, which authorized the issuance of patents on
the Crow Reservation, reserving the minerals to the United States for
the benefit of the members of the Tribe. Although that Act did not
expressly state that the mineral owner could use the surface for mineral
exploration and production, it did specify that the minerals could be
“leased for mining purposes.” 41 Stat. 753.
In Kinney-Coastal Oil Co. v. Keiffer, 277 U.S. 488 (1928), the
Court reviewed the Mineral Leasing Act of 1920, and earlier legislation
wherein Congress addressed the development of federally owned
minerals. The Court concluded:
The acts of 1914 and 1920 are to be read together-each as the
complement of the other. So read they disclose an intention to
divide oil and gas lands into two estates for the purposes of
disposal-one including the underlying oil and gas deposits and the
other the surface-and to make the latter servient to the former,
which naturally would be suggested by their physical relation and
relative values. The act of 1914, in providing for the disposal of the
surface, directs that there be a reservation of the oil and gas
deposits, ‘together with the right to prospect for, mine, and remove
the same,’ meaning, of course, the right to use so much of the
surface as may be necessary for such operations. And the act of
1920, in providing for the leasing of the oil and gas deposits,
provides (section 29) for a reservation of the surface ‘in so far as
said surface is not necessary for the use of the lessee in extracting
and removing the deposits.’ In effect therefore a servitude is laid on
the surface estate for the benefit of the mineral estate to the end, as
13
the acts otherwise show, that the United States may realize,
through the separate leasing, a proper return from the extraction
and removal of the minerals.
Id. at 504 (emphasis added).
Although the language authorizing the issuance of the patent here
is less clear, the same conclusion must be reached, given both the
general rules of statutory construction and the absence of any authority
supporting a contrary interpretation.
In 1910, the Coal Lands Act had opened withdrawn coal lands to
agricultural entry, reserving all coal to the United States together with
the right to prospect for, mine, and remove the minerals. 36 Stat. 583
(codified at 30 U.S.C. § 83). Members of Congress, while debating the
Coal Lands Act, engaged in the following colloquy:
Mr. Ames: Might not the prospectors or miners going in
necessarily destroy the entire surface of the homestead?
***
Mr. Ferris: ...[I]f the homesteader does not want to enter the
surface for land worth $10 an acre for agriculture that is
worth $400 and $500 for coal, with the coal carefully
reserved, this Government can very well let him stay off it
altogether.
14
40 Cong. Rec. 6046 (1910). From this exchange, a California federal
court more recently concluded:
That great portions of the surface would be used for mining
and related activities was certainly brought to the attention
of Congress. A coal company president and a mining
engineer spelled out in detail the expansive surface areas
needed for mining purposes. A similar notion was
recognized in adopting the 1916 Act when it was noted that
major portions of the surface might be used in mining and
removal and that the patentee could receive no payment
except for damages to crops or improvements. The
subsequent case law has similarly interpreted the
reservation statutes.
Occidental Geothermal, Inc. v. Simmons, 543 F.Supp. 870, 876 (N.D.
Cal. 1982) (holding that act authorizing the leasing of reserved
geothermal resources authorized the use the surface of the property).
Other cases are in accord. See, e.g., Transwestern Pipeline Co. v. KerrMcGee Corp., 492 F.2d 878 (10th Cir. 1972) (holding that the federal
mineral lessee’s rights prevailed over the surface rights of a pipeline
company).1
In debating proposed surface owner right’s legislation, Montana’s Senator
Metcalf stated that the requirement of surface owner consent could be “legal
blackmail.” 20 RMMLF-INST 12, n. 258 (citing 119 Cong. Rec. 18773 (daily
ed. Oct. 8, 1973).
1
15
For all the above reasons, the Court concludes that Westmoreland
is not required to obtain Peters’ consent to exercise the lessee’s rights
given to Westmoreland by the United States and the Crow Tribe.
C. SMCRA Does Not Require Contrary Result
The primary thrust of Peters’ argument is based on SMCRA and
OSM’s implementing regulations. The Court concludes that this
argument fails for the following reasons.
First, both SMCRA and its implementing regulations make clear
that nothing in the surface owner protections are to be construed as
increasing or diminishing any property rights. See 30 U.S.C. § 1304(g);
30 C.F.R. § 778.15(c). As earlier noted, these “statutes are to be
construed liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit.” Montana v. Blackfeet Tribe of Indians, 471
U.S. 759, 766 (1985).
Additionally, while surface-owner consent generally is required by
30 U.S.C. § 1304(c), this section does not apply to Indian lands. 30
U.S.C. § 1304(f) (“This section shall not apply to Indian lands”).
16
The definition of “Indian lands” is found in 30 U.S.C.A. § 1291(9):
“Indian lands” means “all lands, including mineral interests, within the
exterior boundaries of any Federal Indian reservation, notwithstanding
the issuance of any patent, ... and all lands including mineral interests
held in trust for or supervised by an Indian tribe.”
It is undisputed that the Property is located within the Crow
Indian Reservation as it was defined by the Second Treaty of Fort
Laramie, May 7, 1868. 15 Stat. 650; Court Doc. 36 at 2-3; Court Doc. 38
at 2. The Property is therefore “within the exterior boundaries of any
Federal Indian reservation.” 30 U.S.C.A. § 1291(9). It is also
undisputed that the minerals are held in trust for the Crow Tribe. See
Court Doc. 36-1 at ¶ 1; Court Doc. 45 at 2, ¶ 1. The Property is
therefore within “Indian lands” as contemplated by §§ 1291(9) and
1304. Because the Property is within Indian lands, § 1304’s protection
and its requirement of surface owner consent do not apply.
Peters mistakenly argues that “at the time of the enactment of
SMCRA, no provision other than 30 U.S.C. § 1300 applied to Indian
Lands” and therefore Congress did not originally intend to except
17
Indian lands from the surface owner protection. Court Doc. 44 at 7
(emphasis in original). Section 714 of SMCRA included the language
that was later codified at 30 U.S.C. § 1304(f). See Pub.L. 95-87, Title
VII, Sec. 714(f). Congress therefore clearly excepted Indian lands from
the surface owner protection provisions in SMCRA.
In 1984, OSM promulgated regulations for surface mining on
Indian lands. 49 Fed. Reg. 38462-01 (September 28, 1984). These
regulations were adopted to provide “for the regulation of surface coal
mining and reclamation operations on Indian lands and constitute[] the
Federal program for Indian lands.” 30 C.F.R. § 750.1. See also 25
C.F.R. § 211.5. The regulations regarding permitting specifically
incorporate parts applicable to other lands, including Part 778. 30
C.F.R. § 750.12. Part 778 governs “Permit Applications” and the
“minimum requirements for legal, financial, compliance and related
information.” 30 C.F.R. § 778 (2011). It is questionable whether this
Part is relevant here, particularly where Westmoreland’s permit has
already been issued. See Court Doc. 43-1 at 2, ¶ 4.
18
Peters nonetheless relies on subsection 778.15(b) for his argument
that surface owner consent is required. That section, however, only
applies where “the private mineral estate to be mined has been severed
from the private surface estate.” 30 C.F.R. § 778.15(b) (emphasis
added). Peters does not explain why that section would apply in this
case in which the United States holds the minerals in trust for the Crow
Tribe.
Even if this regulation did apply here, it would not allow the Court
to grant Peters’ motion for summary judgment. According to § 778.15,
which implements 30 U.S.C. § 1206(b)(6), there are three ways that a
permit applicant with severed mineral rights can show the right to
enter the surface estate: (1) written consent from the surface owner, (2)
a conveyance that “expressly grants or reserves the right to extract coal
by surface mining methods,” or (3) if the conveyance does not expressly
grant the right to extract the coal by surface mining methods,
“documentation that under applicable State law, the applicant has the
legal authority to extract coal by those methods.” 30 C.F.R. §
778.15(b)(1)-(3).
19
If this subsection were held to be applicable, Westmoreland would
have a right of entry under subsection (3) above. Under Montana law,
mineral interest holders have a right to enter and reasonably use the
surface as necessary to exercise their mineral rights. Pinnacle Gas
Resources, Inc. v. Diamond Cross Properties, LLC, 349 Mont. 17, ¶29
(2009)(citing Western Energy Co. v. Genie Land Co., 195 Mont. 202, 208,
635 P.2d 1297, 1301 (1981) (enjoining surface owner from interfering
with activities of mineral owner because strip mining was within the
contemplation of the parties at the time of the mineral reservations)).
The holders of a mineral estate have the dominant estate under
Montana law. Hunter v. Rosebud County, 240 Mont. 194, 198 (1989)
(“Their assertion that the mineral estate and the remaining estate are
of equal dignity is not correct. The general rule is that the owner of the
mineral estate enjoys the dominant estate and the surface owner of the
remaining estate holds the subservient estate. This theory is based
upon the realities that accompany mineral exploration and
development. Obviously, in order to fully utilize a mineral estate, one
usually must have access to the surface.”). See also Burlington
20
Resources Oil & Gas Co., LP v. Lang and Sons Inc., 361 Mont. 407, 412
(2011).
The letter from OSM to Westmoreland directing that
Westmoreland not disturb the surface of the Property “until a right-ofentry is obtained and submitted to OSM for review and approval”
(Court Doc. 44-1) does not alter the settled law discussed above. The
letter does not state that the required “right-of-entry” must be in the
form of landowner consent. A judgment from a court of competent
jurisdiction also can establish such right-of-entry.
The Court recognizes that this is a harsh result for Peters. But it
also finds that the applicable law has been clear for many years,
including when the Property’s patent was issued. To hold otherwise,
would essentially have the “effect of vesting in the surface owner a coownership right in the mineral resources. ... [T]he surface owner’s right
to royalties or a right to exclude was never contemplated by any of the
agricultural entry laws.” Occidental Geothermal, Inc. v. Simmons, 543
F.Supp at 877.
21
The Court also determines that this matter is ripe and may
properly be addressed at this time. Westmoreland seeks a declaration
relating to the extent of its rights as the lessee of severed mineral
interests. Peters disagrees with Westmoreland’s position that
Westmoreland may proceed without his consent. As the Court earlier
recognized, OSM may not determine property rights. 30 U.S.C. § 1260.
The issue is fit for judicial decision and withholding court consideration
may work a hardship on the parties. See Stolt-Nielsen S.A. v.
AnimalFeeds International Corp., 130 S.Ct. 1758, 1767 n. 2 (2010).2
D.
Damages
In its Motion for Partial Summary Judgment, Westmoreland also
seeks a ruling that it must “reasonably compensate the surface owner
for the loss of use and/or damage to the surface estate up to a maximum
amount equal to the market value of the surface estate.” Court Doc. 34
at 2. In its brief in support of this motion, Westmoreland cites
authorities addressing what a mineral owner may owe to the surface
The Court has considered Peters’ remaining arguments and, based on the
controlling authorities discussed above, find them to be without merit.
2
22
owner. Court Doc. 35 at 21-26. In his responsive brief, Peters did not
address the compensation issue.
Having reviewed the issues that the parties agreed would be
addressed in “Phase I” of this action, the Court finds it inappropriate to
address the damages issue at this juncture. The Court’s order provided:
Phase I will be limited to the following topics: (1) Whether the
Crow Tribe has the right to mine coal by the open pit method
property in which Peters owns an interest if Peters refuses
refuses to consent to the mining; (2) Whether any State of
Montana mining or reclamation laws apply within the boundaries
of the Crow Reservation and, if so, (3) Whether the Crow Tribe is
precluded from mining if Peters refuses to approve the
Reclamation Plan.
Court Doc. 25 at 1-2. The parties did not agree that the issue of
recoverable damages would be addressed at this juncture and therefore
the Order did not so provide. For this reason, the Court will deny this
portion of Westmoreland’s motion, with leave to renew.
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Plaintiffs’
Motion for Partial Summary Judgment (Court Doc. 34) is GRANTED IN
PART, in that the Court has determined that the Crow Tribe, and by
23
extension its Lessee, has the right to mine coal underlying the Peters
Property without the surface owner’s consent. Defendant’s Motion for
Partial Summary Judgment (Court Doc. 37) is DENIED.
IT IS FURTHER ORDERED that the parties shall participate in
a status conference with the Court at the James F. Battin Federal
Courthouse, Billings, Montana, on Tuesday, January 10, 2012, at 10
A.M., for the purpose of identifying the remaining issues and putting in
place a schedule for addressing them.
DATED this 19th day of December, 2011.
/s/ Carolyn S. Ostby
United States Magistrate Judge
24
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