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Kodiak Oil & Gas (USA) Inc. v. Burr

United States Court of Appeals for the Eighth Circuit

March 14, 2019, Submitted; August 5, 2019, Filed

Nos. 18-1824, 18-1856

Opinion

 [*1129]  GRASZ, Circuit Judge.

A dispute over the practice of flaring natural gas from oil wells fuels the legal controversy in this case: the scope of Native American tribal court authority over non-members. Several members of the MHA Nation sued numerous non-tribal oil and gas companies in MHA tribal court. Those companies operate oil wells on lands within the Fort Berthold Indian Reservation that have been allotted to individual tribe members but are held in trust by the federal government. The tribe members alleged the companies owed royalties from wastefully-flared [**2]  gas. Some of these companies unsuccessfully contested the tribal court's jurisdiction over them in tribal court. Then they initiated this action in federal court to enjoin the tribal court plaintiffs and tribal court judicial officials. The district court1 issued a preliminary injunction, and the tribal court plaintiffs and officials separately appealed. We affirm the injunction because we conclude suits over oil and gas leases on allotted  [*1130]  trust lands are governed by federal law, not tribal law, and the tribal court lacks jurisdiction over the non-member oil and gas companies.

I. Background

In February 2014, four individual members (the "tribal court plaintiffs") of the MHA (Mandan, Hidatsa, and Arikara) Nation (otherwise known as the Three Affiliated Tribes, residing on the Fort Berthold Indian Reservation) sued numerous oil and gas companies in the Fort Berthold District Court of the MHA Nation. The tribal court plaintiffs, on behalf of a proposed class of similarly situated plaintiffs, alleged they owned mineral rights within the reservation and had entered into oil and gas leases with the defendants. They alleged the defendants were operating wells on the reservation that flared, [**3]  or burned off, natural gas. Such flaring was improper, they alleged, in part because "[t]echnology and services have been readily available to capture, convert and market the natural gas without pipelines or electricity." The tribal court plaintiffs sought to recover royalties for the flared natural gas.

The form lease executed by the tribal court plaintiffs and the companies was issued by the U.S. Department of the Interior, Bureau of Indian Affairs ("BIA"), and required approval by the BIA. The tribal court plaintiffs relied on a provision of the lease in which the lessee agreed: "To exercise reasonable diligence in drilling and operating wells for oil and gas . . . having due regard for the prevention of waste of oil or gas developed on the land . . . ."

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932 F.3d 1125 *; 2019 U.S. App. LEXIS 23368 **; 2019 WL 3540423

Kodiak Oil & Gas (USA) Inc., now known as Whiting Resources Corporation; HRC Operating, LLC, Plaintiffs - Appellees v. Jolene Burr; Ted Lone Fight; Georgianna Danks; Edward S. Danks; Mary Seaworth, in her capacity as the Acting Chief Judge of the Fort Berthold District Court, Defendants - Appellants;EOG Resources, Inc., Plaintiff - Appellee Jolene Burr; Ted Lone Fight; Georgianna Danks; Edward S. Danks; Mary Seaworth, in her capacity as the Acting Chief Judge of the Three Affiliated Tribes District Court of the Fort Berthold Indian Reservation; Charlene Knight, in her capacity as the Court Clerk/Consultant of the Three Affiliated Tribes District Court of the Fort Berthold Indian Reservation; Defendants - Appellants

Subsequent History: Rehearing denied by, Rehearing denied by, En banc Kodiak Oil & Gas (USA) Inc. v. Burr, 2019 U.S. App. LEXIS 33866 (8th Cir. N.D., Nov. 12, 2019)

Prior History:  [**1] Appeals from United States District Court for the District of North Dakota.

Kodiak Oil & Gas United States, Inc. v. Burr, 303 F. Supp. 3d 964, 2018 U.S. Dist. LEXIS 47222 (D.N.D., Mar. 22, 2018)

CORE TERMS

tribal court, tribe, tribal, oil and gas company, leases, non-members, federal law, tribal law, regulation, lack jurisdiction, royalties, preliminary injunction, district court, oil and gas, self-government, exhaustion, flaring, oil and gas lease, relations, allotted, injunctive relief, declaratory, merits, necessary to protect, sovereign immunity, federal court, reservation, injunction, contracts, sovereign

Governments, Native Americans, Tribal Sovereign Immunity, State & Territorial Governments, Claims By & Against, Employees & Officials, Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Remedies, Injunctions, Preliminary & Temporary Injunctions, De Novo Review, Clearly Erroneous Review, Grounds for Injunctions, Likelihood of Success, Authority & Jurisdiction, Energy & Utilities Law, Federal Oil & Gas Leases, Native American Interests, Indian General Allotment Act, Royalties, Royalty Management