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Northern Natural Gas Co. v. 80 Acres of Land In Thurston County

United States District Court, D. Nebraska

July 26, 2018

NORTHERN NATURAL GAS COMPANY, Plaintiff,
v.
80 ACRES OF LAND IN THURSTON COUNTY, NEBRASKA; et al., Defendants.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         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.

         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. 742-4 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, 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 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 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 non-Indians)." Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649, 1653 ...


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