United States District Court, D. New Mexico
WESTERN REFINING SOUTHWEST, INC. and WESTERN REFINING PIPELINE, LLC, Plaintiffs,
U.S. DEPARTMENT OF THE INTERIOR, and SALLY JEWELL, in her official capacity as Secretary of the Interior, Defendants.
MEMORANDUM OPINION AND ORDER
matter is before the Court on the Motion to Dismiss for
Want of Subject Matter Jurisdiction [Doc. 29] filed by
intervenors Patrick Adakai and Frank Adakai (“the
Adakais”). The Court has considered the motion, along
with the responses [Docs. 30 and 31] filed by the Defendant
and the Plaintiffs, respectively. The Adakais chose not to
file a reply brief. After consideration of the arguments
advanced by the parties and the relevant legal authorities,
the Court concludes that the motion should be denied.
AND PROCEDURAL BACKGROUND
case centers on the right-of-way for a buried oil pipeline in
northwestern New Mexico. Plaintiffs (collectively,
“Western”) operate a buried crude oil pipeline
that runs 75 miles from the San Juan Basin to an oil refinery
near Gallup, New Mexico. The pipeline at issue here traverses
tribal, federal, state, and privately owned land, and Western
holds easements for rights-of-way across 74.48 miles of the
pipeline. However, this case arises from a dispute over the
easement for a .52 mile segment of pipeline that crosses
Navajo Indian Allotment No. 2073, land that is held in trust
by the United States and allotted to individual citizens of
the Navajo Nation.
22, 2009, Western filed an application to renew its existing
right-of-way across 43 Navajo allotments, including the .52
mile portion of pipeline over Allotment No. 2073 that is at
issue in this case. At the time, one of the applicable BIA
regulations stated: “The Secretary may … grant
rights-of-way over and across individually owned lands
without the consent of the individual Indian owners when . .
. (2) The land is owned by more than one person, and the
owners or owner of a majority of the interests therein
consent to the grant.” 25 C.F.R. § 169.3(c)(2)
(Apr. 1, 2015). On August 2, 2010, the Bureau of Indian
Affairs (“BIA”) granted the request and issued a
twenty-year renewal of the right of way over Allotment No.
2073. This renewal was based on consent from the owners of
what BIA calculated to be 60.26% of the individual Indians
who held interests in Allotment No. 2073. Among these
individuals were Tom Morgan (42.5% interest) and Mary B. Tom
(14.16% interest). In return for their consent, the interest
owners accepted compensation from Western.
December 6, 2012, the Navajo Nation first acquired an
interest in Allotment No. 2073 through a probate proceeding
for Ms. Anita Adakai. In 2016, the Navajo Nation acquired
additional interests in the Allotment through conveyances
made under the BIA's land buyback program.
Adakai, who owns a .0038461% interest in Allotment No. 2073,
appealed the BIA's decision to the Interior Board of
Indian Appeals (“IBIA”). Adakai argued that the
consents obtained from other landowners were flawed and that
the amount of compensation was inadequate. On January 8,
2013, the IBIA vacated the renewal of the easement on an
issue it raised sua sponte: that because Morgan and
Tom had only a life estate in the property and had bequeathed
future remainder interests to others (referred to as
“remaindermen”) through “gift deeds,
” their consent was legally insufficient without
additional consents from these “remaindermen.”
See Doc. 1-2 at 5, 56 IBIA at 108; Doc. 1 at ¶
13. The decision rested in the theory that as holders of life
estates only, Morgan and Tom lacked authority to encumber the
Allotment beyond their lifetimes. The IBIA remanded the
matter to the BIA.
result of this decision, Western attempted to obtain consent
from Morgan and Tom's remaindermen, and was successful in
doing so with Tom's. However, Western was able to obtain
consent from only four of Morgan's eight remaindermen.
April 8, 2014, the BIA relied upon the 2013 IBIA decision and
the denial of consent by half of Morgan's remaindermen to
deny Western's easement renewal on Allotment No. 2073.
Doc. 1-1 at 1; 63 IBIA 41. Western appealed this decision to
the IBIA. Then, in late 2015, the BIA revised its
regulations, for the first time requiring consent not only
from the holder of a life estate, but also from the holders
of the remainder interest. 25 C.F.R. § 169.109 (2016).
Those revised regulations went into effect in April of 2016.
4, 2016, the IBIA denied Western's appeal in part by
refusing to require the BIA to renew the right-of-way across
Allotment No. 2073 for a fixed and unqualified 20-year term.
Rather, the IBIA concluded that Western was entitled to a
qualified right-of-way for 20 years or the life of
Morgan or Tom, whichever is the shortest period. Doc. 1-1 at
1-2, 13; 63 IBIA 41-42, 53. This was because “the deeds
contain no language that expressly or impliedly reserved, for
the life tenants, the authority to grant an interest beyond
their lifetimes.” Id. at 10, 63 IBIA at 50.
The IBIA also found that “because the owners of a
majority of the future interests in the Allotment did not
consent to the [right-of-way] renewal, the [BIA] did not err
in refusing to issue an unqualified 20-year renewal.”
Id. at 2, 63 IBIA 42.
case now before the court, Western has sued the United States
and asks this Court to set aside the IBIA requirement of
remaindermen consent on the grounds that it is improperly
retroactive and contrary to law, including the General
Right-of-Way Act of 1948, 25 U.S.C. §§ 323-328 and
applicable Department of Interior regulations. Western
contends that the IBIA's 2013 and 2016 decisions
overturning renewal and then denying unqualified 20-year
renewal of the right-of-way on Allotment No. 2073 are final
agency actions reviewable under the Administrative Procedures
Act (APA). Western asks for a declaration that consent of the
majority of current owners, and not their remaindermen, is
all that was required under the General Right-of-Way Act and
then-existing regulations governing its right-of-way renewal
applications, and that the BIA's 2010 renewal of the
easement for a 20-year term is valid. Western also asks the
Court to enjoin the Defendant to approve a renewal of its
20-year unqualified right-of-way over Allotment No. 2073.
13, 2016, Patrick and Frank Adakai (“the
Adakais”), who own a partial interest in the Allotment,
filed their Motion to Intervene, Answer, Motion to
Dismiss, and Counterclaim [Doc. 16]. In a Memorandum
Opinion and Order [Doc. 28] entered November 29, 2016,
the Court denied the motion to intervene but expressly
allowed the Adakais to file a new motion to dismiss
addressing only the issue of subject matter jurisdiction.
That motion is currently before the Court.
is not a jurisdiction-conferring statute; it does not
directly grant subject matter jurisdiction to the federal
courts. See Califano v. Sanders, 430 U.S. 99, 105
(1977); Air Courier Conference v. Am. Postal Workers
Union, 498 U.S. 517, 523 n. 3 (1991). Rather, the
judicial review provisions of the APA provide a limited cause
of action for parties adversely affected by agency action.
See Bennett v. Spear, 520 U.S. 154, 175 (1997);
Japan Whaling Ass'n v. Am. Cetacean Soc'y,
478 U.S. 221, 230 n. 4 (1986). Although the APA does not
directly grant jurisdiction, the federal question statute, 28
U.S.C. § 1331, “confer[s] jurisdiction on federal
courts to review agency action, regardless of whether the APA
of its own force may serve as a jurisdictional
predicate.” Califano, 430 U.S. at 105.
review under the APA is based upon “the whole record or
those parts of it cited by a party.” 5 U.S.C. §
706. The United States Supreme Court has explained,
“the focal point for judicial review [under the APA]
should be the administrative record already in existence, not
some new record made initially in the reviewing court.”
Camp v. Pitts, 411 U.S. 138, 142 (1973) (per
curiam); accord Fla. Power & Light v. Lorion,
470 U.S. 729, 743-44 (1985). Thus, even though judicial
review rests with a district court, the district court does
not act as a fact-finder. Fla. Power & Light,
470 U.S. at 744. Instead, ...