Northern Natural Gas Company v. 80 Acres of Land in Thurston County, Nebraska et al

Filing 49

MEMORANDUM AND ORDER granting 35 Motion for Partial Summary Judgment. Northern's motion for partial summary judgment 35 is granted. Northern's condemnation action may proceed over Nolan Solomon's objection. Ordered by Judge John M. Gerrard. (DCD) Modified on 7/26/2018 to correct document description (DCD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NORTHERN NATURAL GAS
COMPANY,
8:17-CV-328
Plaintiff,
vs.

MEMORANDUM AND ORDER

80 ACRES OF LAND IN THURSTON
COUNTY, NEBRASKA; et al.,
Defendants.
This dispute involves the renewal of a right-of-way across tribal and
allotted lands located within reservation boundaries of the Omaha Tribe of
Nebraska. The plaintiff, Northern Natural Gas, filed this suit seeking to
condemn individually owned interests in two parcels of allotted land:
Allotment No. 742-2 and Allotment No. 742-4. Filing 30 at 2. The defendants
in this case each have an individual interest in Allotment No. 742-2, Allotment
No. 742-4, or both.
Northern filed a partial motion for summary judgment (filing 35) asking
the Court to confirm its right to condemn the individual interests in those
Allotments. At least one defendant, Nolan J. Solomon, disputes Northern's
power to condemn the property.1 For the reasons discussed below, the Court
will grant Northern's motion for summary judgment.

1

Defendant, United States of America, does not oppose Northern's motion for summary

judgment. See filing 31 at 1-5. The remaining defendants have not responded.

BACKGROUND
Northern Natural Gas owns and operates a pipeline system spanning
much of the Midwest. Filing 30 at 2. In 1931, Northern obtained a right-of-way
allowing three of its pipelines to cross the Omaha Tribe's Reservation located
in Thurston County, Nebraska. Filing 30 at 2-3. That right-of-way was
renewed in 1992 for a thirty-year term set to expire on February 7, 2018 ("the
original ROW"). Filing 37-2.
In anticipation of the original ROW's expiration, Northern initiated a
renewal process with the Bureau of Indian Affairs ("BIA"). Filing 30 at 3-4.
This process, at least originally, went smoothly: Northern and the Omaha
Tribe entered into an agreement to renew the rights-of-way across tribal trust
lands ("the New ROW"), see filing 37-3 at 1-7, a majority of the individual
interest holders in Allotment No. 742-2 and Allotment No. 742-4 consented to
that grant, see 25 U.S.C. § 324, and the BIA approved the New ROW and
granted Northern the right-of-way, see filing 37-5. But at some point, one of
the individual interest holders in Allotment No. 742-2 and Allotment No. 7424 withdrew his consent. Filing 30 at 3. That meant Northern would need to
acquire its right-of-way across Allotment No. 742-2 and Allotment No. 742-4
by virtue of condemnation rather than agreement. Compare 25 U.S.C. § 324
with 25 U.S.C. § 357.
So, Northern filed the underlying complaint seeking condemnation of the
Allotments. See filing 30 at 1-7. A few weeks after this condemnation action
was initiated, one of the individual interest holders in Allotment No. 742-2 and
Allotment No. 742-4, Nolan J. Solomon, deeded a fractional interest to the
United States in trust for the Omaha Tribe. Filing 37-6; filing 37-7. Now,
Solomon contends that because of the Tribe's interest in those parcels of land,
Northern cannot condemn the Allotments. See filing 42 at 4. As a result,
2

Northern has filed a partial motion for summary judgment asking the Court
to confirm its right to condemn the interests of the remaining individual
owners. Filing 35 at 2.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set
out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to show
that disputed facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.
2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which the
jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
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as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Before proceeding to the merits of the parties' arguments, the Court
must take a brief detour through the history of Federal Indian policy––
specifically through the history of Indian land tenure. That history is marked
by periods of shifting policy goals that are inconsistent and at times
irreconcilable, which have shaped the current landscape of this litigation. See
American Indian Law Deskbook 36-37 (Larry Long et al. eds., 4th. ed., 2008).
To begin, in the early nineteenth century, the government began pushing
Indian tribes west where they were confined onto reservations. See, e.g.,
Williams v. Lee, 358 U.S. 217, 221-23 (1959). The underlying purpose of this
policy was to segregate tribes––both territorially and politically––from the rest
of society. Id.; see also American Indian Law Deskbook at 34. Later in the
nineteenth century, the government shifted its efforts away from segregation
and towards integration. Id. To accomplish this new goal, Congress passed the
General Allotment Act which required portions of Indian reservation land to
be transferred (i.e., allotted) to individual tribal members. Babbitt v. Youpee,
519 U.S. 234, 237 (1997). Land not allotted to individual tribal members was
opened to non-Indians for settlement. Id. at 237. The United States, however,
continued to hold fee title to allotted lands in trust, subjecting the individual
allottees to various restraints on alienation. Id. Those restraints on alienation
meant that on the death of the allottee, the land descended according to the
laws of the State or Territory where the land was located––a policy which
"proved disastrous for the Indians." Hodel v. Irving, 481 U.S. 704, 707 (1987);
see also 24 Stat. 389. Indeed, because the land was held in trust and often could
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not be partitioned, allotted parcels became splintered into multiple undivided
interests with some parcels having hundreds, and many parcels having dozens,
of owners. Id.
In 1934, Congress again changed course, by passing the Indian
Reorganization Act of 1934. That legislation was intended to restore "the
principles of tribal self-determination and self-governance" that prevailed
before the General Allotment Act. County of Yakima v. Confederated Tribes
and Bands of Yakima Nation, 502 U.S. 251, 255 (1992). The Indian
Reorganization Act halted further allotments, began restoring unallotted
surplus land, and indefinitely extended the trust periods for parcels of land
that were not yet fee-patented. Id.; 25 U.S.C. § 5101. But the Indian
Reorganization Act "made no attempt to withdraw lands already conveyed to
private persons through fee patents (and by now sometimes conveyed to nonIndians)." Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1653 (2018).
As a result, reservations today contain two kinds of land: tribal trust land held
by the United States, and individually owned allotted land with dozens of
fractional interest holders. Id.
That mix—tribal land, and individually owned allotments located within
reservation boundaries—produced and informs this litigation. Specifically,
Northern's pipeline crosses the lands of the Omaha Tribe Reservation which,
like many reservations, includes a mix of allotted land and tribal trust land.
The parcels at the center of this dispute were, at least originally, individually
owned allotted land. But, following Solomon's conveyance to the United States
in trust for the Omaha Tribe, see Filing 37-6; filing 37-7, those parcels were no
longer exclusively allotted lands. Instead, Allotment No. 742-2 and Allotment
No. 742-4 now contain both individually owned interests and tribal trust
interests. Filing 37-6; filing 37-7. And the existence of those tribal interests,
5

Solomon claims, necessarily prohibits the renewal of Northern's right-of-way.
See filing 42 at 2.
To support why, in his view, the right-of-way cannot be renewed,
Solomon relies on the Eighth Circuit's decision in Nebraska Public Power
District, 719 F.2d 956, 958 (8th Cir. 1983). In that decision, a public power
district filed a condemnation action seeking to condemn various parcels of land
across the Winnebago Tribe's reservation. But at some point before the
condemnation action was filed, the Winnebago Tribe had been deeded an
undivided future interest in some of the parcels along the proposed route. See
id. at 958. That meant that some of the parcels the power district sought to
condemn were mixed parcels of both tribal trust interests and individually
owned interests. Id. The power district argued it had the power to condemn the
entire parcel of land irrespective of the new tribal interest.
But the Court of Appeals found that when the Tribe owned a fractional
interest in a mixed parcel, the parcel is considered tribal land and as such, is
no longer subject to condemnation. See id. at 961. That conclusion was based,
in large part, on the plain language of 25 U.S.C. § 357, which provides that
"[l]and allotted in severalty to Indians may be condemned for any public
purpose under the laws of the State or Territory," but omits language
authorizing condemnation of tribal trust lands. In other words, where the tribe
owns an undivided interest in previously allotted land, no law authorizes the
condemnation of the tribal interests.
Even so, the Nebraska Public Power District decision does not actually
help Solomon: although the Court of Appeals was clear that no power exists to
condemn tribal interests in tribal land, it did not categorically foreclose
approval of the right-of-way. Instead, the court emphasized that an alternative
method for obtaining a right-of-way exists: the "consent of the Secretary [of the
6

Interior] and the proper tribal officials." Neb. Pub. Power Dist., 719 F.2d at 961
(citing 25 U.S.C. § 324); see also WBI Energy Transmission, Inc., No. 1:14-cv130, 2017 WL 532281, at *4 (D. Mont. Feb. 8, 2017).
And here, Northern has satisfied this alternative method; it has obtained
the proper tribal and agency consent. Indeed, on December 4, 2017, Northern
and the Omaha Tribe entered into a contractual agreement (i.e., the "New
ROW") renewing the rights-of-way for natural gas pipelines "traversing lands
held in trust by the United States for the benefit of the Tribe within the
boundaries of the Omaha Tribe's reservation . . . ."See filing 37-3 at 1. A few
days later, the Omaha Tribal Council approved that agreement and authorized
the renewal of Northern's pipelines. Filing 37-4 at 1-4. And on December 12,
the BIA approved the "New ROW" and granted Northern a right-of-way to
"operate, inspect, maintain, and terminate natural gas pipelines on tribal and
allotted lands . . . located on the Reservation of the Omaha Tribe of Nebraska."
Filing 37-5 at 1.
The BIA renewal specifically "incorporate[d] by reference the conditions
or restrictions set out in . . .[the] [a]greement between the Omaha Tribe of
Nebraska and the Northern Natural Gas Company." See filing 37-5 at 4. And
the "New ROW" explicitly provides that
if [the Tribe] acquires an interest in an allotment tract during the
term of the Rights-of-Way consented to herein . . . the provisions
of this agreement shall apply to the Tribe's interest or newlyacquired Tribal interest in such allotment tract without further
compensation to the Tribe.
Filing 37-3 at 6.
7

Stated another way, when the BIA renewed Northern's right-of-way
across the Omaha Tribe's trust land, see 25 U.S.C. § 324, it also authorized
that right-of-way to cross newly acquired trust interests deeded to the Tribe
between February 8, 2018 and February 9, 2046. That means Solomon's
February 23, 2018 conveyance is precisely the type of land acquisition the "New
ROW" sought to include and govern. And because Solomon's conveyance is
governed by the "New ROW", contrary to Solomon's contention, the Tribe has
consented to Northern's right-of-way across Allotment No. 742-2 and
Allotment No. 742-4. Filing 37-6.2
To that end, Solomon cannot use the Omaha Tribe's newly acquired
interest in Allotment No. 742-2 and Allotment No. 742-4 to prevent the renewal
of a right-of-way the Tribe has already consented to. Accordingly, Northern
may condemn the remaining individually owned interests in Allotment No.
742-2 and Allotment No. 742-4. See Pub. Serv. Co. of New Mexico v. Barboan.
857 F.3d 1101, 1105 n. 5 (10th Cir. 2017) (implying that allotted interests in
mixed land may be subjected to condemnation if the "tribal interests [are left]
undisturbed"); WBI Energy Transmission, Inc., 2017 WL 532281, at *4
(allowing the condemnation action to proceed against the individual interests
but not the tribal interests in tribal trust land). The Court will grant
Northern's partial motion for summary judgment.

2

The Court notes that there is a colorable argument that that tribal consent, alone, is

sufficient—in other words, that condemnation of the allotted interests in those parcels wasn't
required. See 25 C.F.R. §§ 169.1-.2 (2016); Neb. Pub. Power Dist., 719 F.2d at 958. But because
Northern proceeded with the condemnation action anyway, the Court will consider any such
argument to have been waived.

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IT IS ORDERED:
1.

Northern's motion for partial summary judgment (filing 35)
is granted.

2.

Northern's condemnation action may proceed over Nolan
Solomon's objection.

Dated this 26th day of July, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

9