FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SWINOMISH INDIAN TRIBAL No. 18-35704
COMMUNITY, a federally
recognized Indian Tribe, D.C. No.
Plaintiff-Appellee, 2:15-cv-00543-RSL
v.
OPINION
BNSF RAILWAY COMPANY, a
Delaware corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted May 14, 2019
Seattle, Washington
Filed March 4, 2020
Before: Michael Daly Hawkins, William A. Fletcher,
and Mark J. Bennett, Circuit Judges.
Opinion by Judge W. Fletcher
2 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
SUMMARY*
Indian Law
The panel affirmed the district court’s interlocutory orders
denying defendant BNSF Railway Co.’s motion for summary
judgment on Swinomish Indian Tribal Community’s claim
that BNSF violated a right-of-way and easement agreement
limiting train traffic across the Tribe’s reservation.
The district court held that BNSF violated the terms of the
easement agreement, issued pursuant to the Indian Right of
Way Act, and the Tribe was entitled to injunctive relief.
The panel held that the Interstate Commerce Commission
Termination Act did not repeal the Indian Right of Way Act
and did not defeat the Tribe’s right to enforce conditions in
the easement agreement. The panel further held that the
ICCTA did not abrogate the Treaty of Point Elliott and the
Tribe’s treaty-based federal common law right to exclude and
condition a third party’s presence on, and use of, reservation
lands. Finally, the panel held that the Tribe had the right to
pursue injunctive relief to enforce the terms of the easement
agreement. The panel remanded the case to the district court.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 3
COUNSEL
Benjamin J. Horwich (argued) and Teresa A. Reed Dippo,
Munger Tolles & Olson LLP, San Francisco California; Sarah
G. Boyce, Munger Tolles & Olson LLP, Washington, D.C.;
Stellman Keehnel, Andrew R. Escobar, and Jeffrey B.
DeGroot, DLA Piper LLP (US), Seattle, Washington; for
Defendant-Appellant.
Christopher I. Brain (argued) and Chase Alvord, Tousley
Brain Stephens PLLC, Seattle, Washington; Stephen T.
LeCuyer, Office of the Tribal Attorney, La Conner,
Washington; for Plaintiff-Appellee.
Thomas H. Dupree Jr. and David A. Schnitzer, Gibson Dunn
& Crutcher LLP, Washington, D.C.; Kathryn D. Kirmayer
and Timothy J. Strafford, Association of American Railroads,
Washington, D.C.; for Amicus Curiae Association of
American Railroads.
Philip J. Bezanson, Bracewell LLP, Seattle, Washington, for
Amicus Curiae Tesoro Refining & Marketing Company LLC.
Jeffrey M. Harris, Consovoy McCarthy Park PLLC,
Arlington, Virginia; Allison Starmann, Deputy General
Counsel, American Chemistry Council, Washington, D.C.;
Richard Moskowitz, General Counsel, American Fuel &
Petrochemical Manufacturers, Washington, D.C.; Andrew S.
Miles, Senior Counsel, American Petroleum Institute,
Washington, D.C.; Daryl L. Joseffer and Michael B. Schon,
U.S. Chamber Litigation Center, Washington, D.C.; Peter C.
Tolsdorf and Leland P. Frost, National Association of
Manufacturers, Washington, D.C.; Katie Sweeney, National
Mining Association, Washington, D.C.; for Amici Curiae
4 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
American Chemistry Council, American Fuel &
Petrochemical Manufacturers, American Petroleum Institute,
Chamber of Commerce of the United States of America,
National Association of Manufacturers, and National Mining
Association.
Robert W. Ferguson, Attorney General; Julian H. Beattie,
Assistant Attorney General; Laura Watson, Senior Assistant
Attorney General; Office of the Attorney General, Olympia,
Washington; Letitia James, Attorney General, Albany, New
York; Ellen F. Rosenblum, Attorney General, Salem, Oregon;
for Amici Curiae Washington State, New York, and Oregon.
Jan E. Hasselman and Ashley N. Bennett, Earthjustice,
Seattle, Washington, for Amici Curiae Suquamish Tribe,
Tulalip Tribes, and Quinault Indian Nation.
OPINION
W. FLETCHER, Circuit Judge:
Over one hundred years ago, the predecessor to BNSF
Railway Co. (“BNSF”) built a railroad line across the
Reservation of the Swinomish Indian Tribal Community
(“Tribe”) without the Tribe’s permission. In the 1970s, the
Tribe and the United States brought suit against the railroad
for trespass. That litigation eventually resulted in a
Settlement Agreement and an Easement Agreement. As a
result of those Agreements, BNSF applied for and obtained
a right-of-way across the Reservation, issued by the
Department of the Interior under the Indian Right of Way Act
of 1948. The right-of-way incorporates the terms of the
Easement Agreement. BNSF agreed to a daily maximum of
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 5
one train in each direction, with a maximum number of rail
cars, unless the Tribe agreed in writing to an increase in that
number. BNSF also agreed to submit to the Tribe annual
reports of the cargo carried by the trains.
In 2011, the Tribe learned that BNSF was violating the
parallel terms of the right-of-way and the Easement
Agreement by running more trains and cars across the
Reservation than permitted by its terms. BNSF had also
failed for many years to submit to the Tribe the required
annual cargo reports. The Tribe requested that BNSF comply
with the terms of the Agreement. BNSF refused. The Tribe
then sued BNSF in federal district court.
BNSF argued in the district court that the Interstate
Commerce Commission Termination Act (“ICCTA”)
preempts the Easement Agreement. The district court
disagreed, holding in several orders that the ICCTA does not
defeat the Tribe’s right to an injunction to enforce the
Agreement. The district court reserved for later decision the
terms of any injunction, as well as the Tribe’s right to recover
damages.
We granted interlocutory review of the district court’s
orders under 28 U.S.C. § 1292(b). We affirm.
I. Factual and Procedural Background
The Swinomish Indian Tribal Community is a federally
recognized Indian Tribe organized under the Indian
Reorganization Act of 1934, 25 U.S.C. § 5123. The Tribe is
a successor to signatories of the Treaty of Point Elliott of
1855, 12 Stat. 927 (“Treaty”). The Treaty established the
Swinomish Reservation on Fidalgo Island in Washington
6 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
State, roughly halfway between the towns of Burlington and
Anacortes. The Tribe’s reservation land is held in trust for
the Tribe by the United States.
In about 1889, the Seattle and Northern Railway
Company—a predecessor to BNSF—began constructing a
railroad line across the northern part of the Reservation. The
Tribe objected. W.H. Talbott, the U.S. Indian Agent of the
Tulalip Agency, Washington Territory, investigated. Based
on Talbott’s findings, the U.S. Attorney for Washington
Territory was “directed to institute proceedings to prevent the
building of the railroad across the said Indian reservation.”
It is unclear whether the U.S. Attorney ever instituted
proceedings.
In response, on December 21, 1889, the Seattle and
Northern Railway Company petitioned the U.S. Department
of the Interior (“DOI”) for permission and a right-of-way to
build the railroad line across the Reservation. On April 26,
1890, the Acting Commissioner for the Office of Indian
Affairs in DOI sent a letter denying the petition. The letter
advised the Company that “in all cases where right of way for
railroads through Indian reservations is not provided for by
treaties or agreements by the United States with the Indians,
congressional action is necessary to ratify agreements by
railway companies with the Indians for such right of way
&c.” There is no indication that the Seattle and Northern
Railway Company ever obtained permission or approval from
the Tribe, the Department of the Interior, or Congress to build
a railroad line across the Reservation. The Seattle and
Northern Railway Company built the line nonetheless. The
Company and its successors have continued to use the line
ever since.
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 7
In about 1970, the Tribe contacted Burlington Northern
Railroad Company (“Burlington Northern”)—a successor to
the Seattle and Northern Railway Company and the
immediate predecessor of BNSF—concerning Burlington
Northern’s continuing use of the Tribe’s land for its railroad
line. The Tribe was unsuccessful in attempts to negotiate a
settlement with Burlington Northern. In August 1977, the
Tribe asked the United States, in its role as trustee, to bring
suit against Burlington Northern seeking damages and
removal of the line.
Under threat of litigation, on September 27, 1977,
Burlington Northern filed an application with the Western
Washington Agency of the Bureau of Indian Affairs (“BIA”),
seeking a railroad right-of-way across the Reservation. The
Indian Right of Way Act of 1948, 62 Stat. 17, 25 U.S.C.
§§ 323–28, “empower[s]” the Secretary of the Interior to
“grant rights-of-way for all purposes, subject to such
conditions as he may prescribe, over and across any lands
now or hereafter held in trust by the United States for
individual Indians or Indian tribes, communities, bands, or
nations.” 25 U.S.C. § 323. Under the Act, “[n]o grant of a
right-of-way over and across” a tribe’s land “shall be made
without the consent of the proper tribal officials.” 25 U.S.C.
§ 324. Such consent “may impose restrictions or conditions”
on the grant of a right-of-way. 25 C.F.R. § 169.107 (2016).
“[A]ny restrictions or conditions automatically become
conditions and restrictions in the grant.” Id.; see also
25 C.F.R. § 169.125 (2016) (“The grant [of a right-of-way]
will incorporate the conditions or restrictions set out in the
Indian landowners’ consents.”); 25 C.F.R. § 161.15 (1968).
The Indian Right of Way Act explicitly applies to railroad
rights-of-ways. See, e.g., 25 C.F.R. § 169.5(a)(1) (2016)
(“This part covers rights-of-way over and across Indian or
8 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
BIA land, for uses including but not limited to . . .
(1) Railroads.”); 25 C.F.R. § 161.23 (1968).
Without conceding that its line ran across Reservation
land, Burlington Northern acknowledged that the Tribe had
not consented to a right-of-way as required under the Indian
Right of Way Act of 1948. Burlington Northern stated in its
application that it was instead applying under the “Act of
March 2, 1899,” 25 U.S.C. § 312 (“1899 Act”). The 1899
Act provided for grants of rights-of-way for railroads through
Indian reservations. It did not require permission of a tribe,
but it did require compliance with its various provisions,
including payment of compensation to the tribe. Burlington
Northern had not previously applied for a right-of-way under
the 1899 Act and had never compensated the Tribe.
The Western Washington Agency of the BIA forwarded
Burlington Northern’s application to the Portland Area
Director of the BIA. The Agency’s cover memorandum
stated, inter alia, that “local review finds this case to be
lacking under current CFR regulations in that . . . [t]he
landowners have not concurred. In fact the [T]ribe . . . has
gone on record . . . requesting removal of said railroad.” On
October 17, 1978, the Agency denied Burlington Northern’s
application due to lack of tribal consent.
Burlington Northern appealed to the Portland Area
Director, arguing that tribal consent was not required. On
May 4, 1979, the Area Director affirmed the decision of the
Western Washington Agency, concluding that for tribes
organized under the Indian Reorganization Act of 1934, tribal
consent was required before the United States could alienate
their interests in trust lands, regardless of whether application
was made under the Indian Right of Way Act or the 1899
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 9
Act. Burlington Northern appealed the Area Director’s
decision to the Assistant Secretary for Indian Affairs. The
Assistant Secretary affirmed the decision of the Area
Director.
On October 12, 1979, Burlington Northern filed a
complaint in federal district court seeking to compel the
Secretary of the Interior to grant a right-of-way across the
Reservation. See Burlington N., Inc. v. Andrus et al., No.
C79-1199V (W.D. Wash., filed Oct. 15, 1979). The Tribe
intervened, and the parties filed cross-motions for summary
judgment. The district court deferred consideration of the
motions until our court issued a ruling in a factually similar
case, Southern Pacific Transportation Co. v. Watt, 700 F.2d
550 (9th Cir. 1983). We held there that tribal consent is a
condition precedent to a grant of a railroad right-of-way
across tribal lands. After our decision, the district court
entered judgment against Burlington Northern. Burlington
Northern had appealed to our court but dismissed its appeal
after the Supreme Court denied certiorari in Southern Pacific.
Meanwhile, on July 18, 1978, the Tribe filed a trespass
action against Burlington Northern in district court seeking
damages and an injunction requiring removal of the railroad
line from the Reservation. See Swinomish Tribal Cmty. v.
Burlington N., Inc., Case No. C78-429V (W.D. Wash., filed
July 18, 1978) (“Trespass Litigation”). The United States
intervened on the side of the Tribe in 1983. The Interstate
Commerce Commission (“ICC”), the predecessor to the
Surface Transportation Board, had also sought leave to
intervene. The ICC argued that it had “exclusive jurisdiction
to determine whether the abandonment” of the railroad—that
is, the Tribe’s request that Burlington Northern remove the
railroad entirely—was “in the national interest.” The district
10 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
court denied the ICC’s motion as premature, noting that the
motion could be renewed if and when the question of remedy
arose.
In 1989, after over a decade of litigation, the Tribe, the
United States, and Burlington Northern reached a settlement.
The parties’ agreement was formalized in a Settlement
Agreement and an Easement Agreement. In 1991, the BIA
approved the Settlement Agreement and granted a right-of-
way under the Indian Right of Way Act, consistent with the
terms specified in the Easement Agreement.
Under the settlement, Burlington Northern agreed to
apply to the BIA for a right-of-way consistent with the terms
and conditions specified in the Easement Agreement.
Burlington Northern also agreed to a one-time payment of
$125,000 “for all rent, damages and compensation of any
sort, due for past occupancy of the right-of-way from date of
construction in 1889 until January 1, 1989.” It agreed to pay
thereafter an annual rental fee of at least $10,000, subject to
periodic increases based on the Consumer Price Index and
changes in property values. In turn, the Tribe agreed to
consent to the right-of-way subject to the specified terms.
The Easement Agreement and corresponding right-of-way
grant Burlington Northern the right to run a specified
maximum number of trains, with a maximum number of cars,
across the Reservation, unless the Tribe agrees in writing to
an increase. The relevant language provides:
Burlington Northern agrees that, unless
otherwise agreed in writing, only one eastern
bound train, and one western bound train, (of
twenty-five (25) cars or less) shall cross the
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 11
Reservation each day. The number of trains
and cars shall not be increased unless required
by shipper needs. The Tribe agrees not to
arbitrarily withhold permission to increase the
number of trains or cars when necessary to
meet shipper needs. It is understood and
agreed that if the number of crossings or the
number of cars is increased, the annual rental
will be subject to adjustment . . . .
During negotiations leading up to the agreements, Burlington
Northern had written in a June 22, 1989, letter that it
“doubt[ed]” that it would operate more trains than the agreed-
upon amount, but that it might need to “[o]n occasion.”
The Easement Agreement also requires Burlington
Northern to submit annual cargo reports to the Tribe:
Burlington Northern will keep the Tribe
informed as to the nature and identity of all
cargo transported by Burlington Northern
across the Reservation. Initially, Burlington
Northern shall prepare a summary of all such
commodities expected to cross the
Reservation and the quantities of such
commodities. Thereafter, the disclosure shall
be updated periodically as different products,
or commodities, are added or deleted. Such
updates shall occur at least annually. The
disclosure updates shall identify any
previously shipped cargo that is different in
nature, identity or quantity from the cargo
described in previous disclosures. Burlington
Northern will comply strictly with all Federal
12 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
and State Regulations regarding classifying,
packaging and handling of rail cars so as to
provide the least risk and danger to persons,
property and the natural environment of the
Reservation.
The right-of-way and Easement Agreement have an initial
term of forty years, with two twenty-year extensions at
Burlington Northern’s option. The right-of-way and
Easement Agreement therefore terminate no later than 2071.
The railroad line and underlying right-of-way run across
the northern part of the Reservation and next to the Tribe’s
primary economic development enterprises, including a
casino, a lodge, a Chevron service station and convenience
store, and an RV park. According to the Tribe, “[h]undreds
of guests and employees are present at the economic
development facilities at all times, 24 hours a day, 7 days a
week.” “This economic development infrastructure serves as
the primary financial source for funding of the Tribe’s
essential governmental functions and programs.”
The railroad line crosses a swing bridge over the
Swinomish Channel and a trestle bridge across Padilla Bay,
both of which are within the Reservation. Both bodies of
water connect directly to the Puget Sound (the Salish Sea),
where the Tribe has treaty rights to fish at its usual and
accustomed fishing grounds and stations. See United States
v. Washington, 459 F. Supp. 1020, 1049 (W.D. Wash. 1978).
A. Events Giving Rise to Present Action
In October 2011, the Tribe learned from Skagit County
government documents that Tesoro Refining & Marketing
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 13
Company, LLC, an oil company with a refinery on March
Point, adjacent to Anacortes, intended to ship crude oil in
100-car “unit trains” across the Reservation every other day
using BNSF trains. On October 18, 2011, the Tribe sent a
letter to BNSF, Burlington Northern’s successor, reminding
BNSF of its obligation to obtain written approval from the
Tribe for any increases in rail traffic above the maximum
level specified in the Easement Agreement. BNSF did not
respond to the letter.
In September 2012, the Tribe learned from a local news
article that BNSF had begun to run 100-car trains across the
Reservation. BNSF later admitted to running six 100-car unit
trains in each direction across the Reservation every week.
On September 27, 2012, the Tribe sent a letter to BNSF
notifying BNSF that the increased rail traffic violated the
Easement Agreement and requesting information from BNSF.
BNSF responded to the Tribe almost five months later.
BNSF confirmed in its answering letter that throughout 2012,
it had run “locals” averaging between 27.8 and 28.5 cars six
times per week between Burlington and the March Point
refinery. BNSF wrote further that beginning in September
2012, it had run sixty-two additional unit trains (about one
every other day) of “approximately 102 cars in each
direction.” Finally, BNSF wrote that it “anticipate[d] that in
the near term, unit trains may increase from four to six times
weekly to as much as ten times weekly.” BNSF had not
previously asked, and did not now ask, the Tribe’s permission
to run its new 100-car unit trains across the Reservation.
In a letter to BNSF dated November 25, 2014, the Tribe
complained that BNSF had violated the Easement Agreement
not only by exceeding the number of trains and rail cars, but
14 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
also by failing to report to the Tribe the particularly
dangerous nature of the crude oil, from North Dakota’s
Bakken formation, that was carried by the unit trains:
The Tribe, like the public generally, has
learned that Bakken crude oil being
transported by rail—which the Tribe
informally understands is being transported by
rail to the Tesoro refinery on March
Point—poses a potentially far greater risk to
human life, health and communities than
some other crude oils because of its
propensity to catastrophically combust. . . .
[T]he BNSF easement across the Reservation
is in close physical proximity to central
elements of the Tribe’s economic
development infrastructure, including the
Casino, Lodge, Chevron and RV park.
In the fifteen-page, single-spaced letter, the Tribe described
numerous recent catastrophic spills and fires in the United
States and Canada resulting from derailment of trains
carrying Bakken crude oil.
The Tribe quoted from a report prepared by the U.S.
Department of Transportation, addressing the unusual hazards
of rail transportation of Bakken crude oil. According to the
report:
The number and type of petroleum crude oil
railroad accidents described below that have
occurred during the last year is startling, and
the quantity of petroleum crude oil spilled as
a result of those accidents is voluminous in
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 15
comparison to past precedents. Due to the
volume of crude oil currently being shipped
by railroads, the demonstrated recent
propensity for rail accidents involving trains
transporting crude oil to occur, and the
subsequent releases of large quantities of
crude oil into the environment and the
imminent hazard those releases present, this
Order requires that railroads take the action
described above . . . . Releases of petroleum
crude oil, subsequent fires, and environmental
damage resulting from such releases represent
an imminent hazard . . . presenting a
substantial likelihood that death, serious
illness, severe personal injury, or a substantial
endangerment to health, property, or the
environment may occur.
U.S. Dep’t of Transp., Emergency Restriction/Prohibition
Order, Docket No. DOT-OST-2014-0067, at 4 (May 7, 2014).
The letter recounted two recent derailments of BNSF unit
trains carrying Bakken crude. One derailment was in North
Dakota. It resulted in a spill of “approximately 400,000
gallons” of crude oil and “a significant fire.” The other
derailment was in Seattle. The train had been on its way to
the March Point refinery and would have crossed the
Swinomish Reservation. The letter acknowledged that BNSF
trains travel slowly when crossing the Reservation, but noted
that the train derailed in Seattle while traveling at a speed of
less than five miles per hour. The Easement Agreement
limits the speed of BNSF’s trains when crossing the
Reservation to less than ten miles per hour.
16 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
In communications with BNSF, the Tribe repeatedly
requested that BNSF abide by the Easement Agreement.
BNSF consistently refused to do so. BNSF also repeatedly
failed to provide annual cargo reports to the Tribe.
B. Federal District Court Proceedings
On April 7, 2015, the Tribe filed suit in district court
against BNSF seeking a declaratory judgment that BNSF had
breached, and was continuing to breach, the Easement
Agreement; injunctive relief limiting train traffic in
accordance with the Agreement; and damages for trespass
and breach of contract. BNSF’s answer contended that the
Tribe’s claims were preempted by the Interstate Commerce
Commission Termination Act of 1995 (“ICCTA”), 49 U.S.C.
§ 10501 et seq. The parties filed cross-motions for summary
judgment.
In a series of orders dated January 13, 2017, June 8, 2017,
and March 15, 2018, the district court ruled against BNSF.
It held that BNSF had “breached the terms of the Easement
Agreement by failing to make annual disclosures regarding
the cargo it was carrying across the reservation and by
increasing the number of trains and cars traversing the
reservation without first seeking to obtain the Tribe’s written
assent.” The court held that the Tribe has a treaty-based
interest in its Reservation land under BNSF’s tracks, and that
the ICCTA does not “preempt” the Easement Agreement or
remedies for its breach. The district court did not rule on the
specifics of injunctive relief. It held only that injunctive
relief was available. The district court reserved for later
decision the Tribe’s request for damages.
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 17
BNSF moved to certify the district court’s summary
judgment and related orders for interlocutory appeal. The
district court certified its orders for appeal, and BNSF
petitioned our court for permission. BNSF’s petition and
appeal pose one question: Whether the ICCTA precludes the
use of injunctive relief to enforce the terms of the Easement
Agreement. We granted permission to appeal under
28 U.S.C. § 1292(b).
II. Standard of Review
We review the district court’s summary judgment
decision de novo. See, e.g., Tulalip Tribes v. Suquamish
Indian Tribe, 794 F.3d 1129, 1133 (9th Cir. 2015).
III. Analysis
The district court held that BNSF violated the terms of the
Easement Agreement. BNSF contends the district court erred
because the ICCTA preempts the Agreement, the underlying
federal common law, the Treaty of Point Elliott, and Indian
Right of Way Act. We agree with the district court.
A. The Easement Agreement
The Easement Agreement specifies a maximum number
of trains and rail cars, which can be increased only with the
written permission of the Tribe. For the convenience of the
reader, we again provide the relevant text:
Burlington Northern agrees that, unless
otherwise agreed in writing, only one eastern
bound train, and one western bound train, (of
twenty-five (25) cars or less) shall cross the
18 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
Reservation each day. The number of trains
and cars shall not be increased unless required
by shipper needs. The Tribe agrees not to
arbitrarily withhold permission to increase the
number of trains or cars when necessary to
meet shipper needs. It is understood and
agreed that if the number of crossings or the
number of cars is increased, the annual rental
will be subject to adjustment . . . .
The Agreement also required Burlington Northern to inform
the Tribe “as to the nature and identity of all cargo
transported by Burlington Northern across the Reservation.
. . . [T]he disclosure shall be updated periodically as different
products, or commodities, are added or deleted. Such updates
shall occur at least annually.”
BNSF does not now contest that it has violated, and is
continuing to violate, the terms of the Agreement. Rather,
BNSF contends that the Tribe’s right to enforce the
Agreement and seek injunctive relief is preempted by the
ICCTA.
B. Preemption by the ICCTA
The Interstate Commerce Commission Termination Act
of 1995 “abolished the [Interstate Commerce Commission],
revised the Interstate Commerce Act, and transferred
regulatory functions under that Act to the [Surface
Transportation Board].” DHX, Inc. v. Surface Transp. Bd.,
501 F.3d 1080, 1082 (9th Cir. 2007). The ICCTA contains a
broad preemption provision:
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 19
(b) The jurisdiction of the Board over—
(1) transportation by rail carriers, and the
remedies provided in this part with respect
to rates, classifications, rules (including
car service, interchange, and other
operating rules), practices, routes,
services, and facilities of such carriers;
and
(2) the construction, acquisition,
operation, abandonment, or
discontinuance of spur, industrial, team,
switching, or side tracks, or facilities,
even if the tracks are located, or intended
to be located entirely in one State,
is exclusive. Except as otherwise provided in
this part, the remedies provided under this
part with respect to regulation of rail
transportation are exclusive and preempt the
remedies provided under Federal or State law.
49 U.S.C. § 10501(b).
This provision of the ICCTA expressly preempts “a wide
range of state and local regulation of rail activity.” Ass’n of
Am. R.R.s v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094,
1096–97 (9th Cir. 2010) (emphasis added). “It is difficult to
imagine a broader statement of Congress’s intent to preempt
state regulatory authority over railroad operations.” City of
Auburn v. United States, 154 F.3d 1025, 1030 (9th Cir. 1998)
(citation omitted) (emphasis added).
20 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
The Supremacy Clause provides that the Constitution, the
laws of the United States, and all treaties “shall be the
supreme Law of the Land.” U.S. CONST., art. VI, cl. 2.
Pursuant to the Supremacy Clause, “federal law may pre-
empt state law.” Wis. Pub. Intervenor v. Mortier, 501 U.S.
597, 604 (1991). Under this doctrine, “state laws that
‘interfere with, or are contrary to the laws of [C]ongress,
made in pursuance of the constitution’ are invalid.” Id.
(quoting Gibbons v. Ogden, 22 U.S. 1 (1824)). When a
federal law conflicts with a state or local law, the state or
local law simply must give way.
The preemption provision of the ICCTA also grants the
Surface Transportation Board (“STB”) exclusive authority
over federal regulatory authority. See DHX, Inc., 501 F.3d at
1082. However, if there is a conflict between the ICCTA and
another federal law, we do not use the analytic framework
applicable to federal preemption of state and local regulation.
Indeed, the term “preempt,” when applied to a conflict
between federal laws, is a bit of a misnomer. The usual terms
employed in analyzing a conflict between federal laws are
repeal and abrogation. Cf. County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 240 (1985) (“[W]e hold that the
Oneidas’ right of action under federal common law was not
pre-empted by the passage of the Nonintercourse Acts.”)
Under the usual terminology, “federal statutes do not
preempt other federal statutes.” Ray v. Spirit Airlines, Inc.,
767 F.3d 1220, 1224 (11th Cir. 2014); see also Baker v. IBP,
Inc., 357 F.3d 685, 688 (7th Cir. 2004). When a “case
involves the interplay between two statutory schemes created
by Congress for different reasons and at different times,” we
typically ask whether the later statute repeals the prior one.
Ray, 767 F.3d at 1224; see also, e.g., Morton v. Mancari,
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 21
417 U.S. 535, 549 (1974) (analyzing whether the Equal
Employment Opportunities Act of 1972 implicitly repealed
Section 12 of the Indian Reorganization Act of 1934).
Similarly, under the terminology usually employed,
federal laws do not “preempt” treaties. The usual term is
“abrogation.” When a later-enacted federal statute conflicts
with a treaty, we typically examine whether the statute
explicitly or implicitly abrogates the treaty. See, e.g.,
Menominee Tribe of Indians v. United States, 391 U.S. 404,
412–13 (1968); United States v. Smiskin, 487 F.3d 1260, 1264
(9th Cir. 2007).
1. Federal Law Underlying the Easement Agreement
There are three sources of federal law underlying the
Easement Agreement: federal common law, the Treaty of
Point Elliott, and the Indian Right of Way Act.
Under federal common law, Indian tribes have the right
to exclude non-Indians and non-tribal members from their
lands, and the commensurate right to grant admission to, or
use of, their lands on such terms as the tribes see fit to
impose. “[A] hallmark of Indian sovereignty is the power to
exclude non-Indians from Indian lands . . . .” Merrion v.
Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982); Window
Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 899 (9th Cir.
2017), as amended (Aug. 3, 2017) (“The Supreme Court has
long recognized that Indian tribes have sovereign powers,
including the power to exclude non-tribal members from
tribal land.”), cert. denied, 138 S. Ct. 648 (2018). Tribes
possess inherent sovereign authority “[t]o determine who may
enter the reservation; to define the conditions upon which
they may enter; to prescribe rules of conduct; [and] to expel
22 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
those who enter the reservation without proper authority.”
Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th
Cir. 1976); see also Merrion, 455 U.S. at 144 (“When a tribe
grants a non-Indian the right to be on Indian land, the tribe
agrees not to exercise its ultimate power to oust the non-
Indian as long as the non-Indian complies with the initial
conditions of entry.”). Tribes have a federal common law
right to sue to protect their possessory interests in their lands.
See County of Oneida, 470 U.S. at 235–36 (“In keeping with
these well-established principles, we hold that the Oneidas
can maintain this action for violation of their possessory
rights based on federal common law.”).
The Treaty of Point Elliott was one of many treaties
signed by the federal government in 1854 and 1855 with the
tribes surrounding Puget Sound, under which tribes were
guaranteed reservation lands for their exclusive use. See
Washington v. Wash. State Commercial Passenger Fishing
Vessel Ass’n, 443 U.S. 658, 662 (1979) (“Fishing Vessel”)
(“[C]ertain relatively small parcels of land were reserved for
their exclusive use.”). The Treaty specifically provides that
the Tribe has a right to exclude non-Indians from the
Reservation. See Treaty of Point Elliott, 12 Stat. 927, at Art.
II (1859). The Treaty is “self-enforcing.” See Fishing Vessel,
443 U.S at 693 n.33 (“The State has . . . argued that absent
congressional legislation the treaties involved here are not
enforceable. This argument flies directly in the face of Art.
XIII of the treaties . . . .”); see also Skokomish Indian Tribe
v. United States, 410 F.3d 506, 513 (9th Cir. 2005) (en banc)
(“The Supreme Court has held that the Treaty of Point No
Point and similar treaties are ‘self-enforcing’ and thus do not
require implementing legislation to form the basis of a
lawsuit.”). Under long-established principles of federal
Indian law, treaties are enforceable in equity against third
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 23
parties. See, e.g., United States v. Winans, 198 U.S. 371, 377
(1905); United States v. Washington, 853 F.3d 946, 961 (9th
Cir. 2017); Skokomish Indian Tribe, 410 F.3d at 513; United
States v. Washington, 157 F.3d 630, 657 (9th Cir. 1998).
The Indian Right of Way Act provides that the “Secretary
of the Interior . . . is empowered to grant rights-of-way for all
purposes, subject to such conditions as he may prescribe, over
and across any lands . . . held in trust by the United States for
. . . Indian tribes . . . .” 25 U.S.C. § 323. “No grant of a right-
of-way over and across any lands belonging to a tribe
organized under the Act of June 18, 1934 [the Indian
Reorganization Act] . . . shall be made without the consent of
proper tribal officials.” Id. at § 324. It is undisputed that the
Swinomish Indian Tribal Community was organized under
the Indian Reorganization Act. Regulations under the Indian
Right of Way Act provide that any unauthorized use of an
existing right-of-way constitutes trespass for which a Tribe
may “pursue any available remedies under applicable law,
including applicable tribal law.” 25 C.F.R. § 169.413; see
also 25 C.F.R. § 169.401 (“Any . . . violation of the right-of-
way grant or right-of-way document, including but not
limited to encroachments beyond the defined boundaries,
accidental, willful, and/or incidental trespass, unauthorized
new construction, changes in use not permitted in the grant,
and late or insufficient payment may result in enforcement
actions including, but not limited to, cancellation of the
grant.”).
2. Preemption, Repeal, and Abrogation
BNSF argues that the ICCTA “preempts” the treaty-based
federal common law that allows tribes to exclude non-Indians
from Indian land.
24 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
In support of its argument, BNSF wrote in its brief:
Consistent with the statutory text, “[e]very
court that has examined [Section 10501(b)]
has concluded that [its] preemptive effect . . .
is broad and sweeping,” forbidding
“impinge[ment] on the [STB]’s jurisdiction or
a railroad’s ability to conduct its rail
operations.” CSX Transp., Inc., FD 34662,
2005 WL 584026, at *6 (STB Mar. 14, 2005)
....
BNSF Brief at 28 (emphasis added; alterations in original).
BNSF misrepresented what the STB wrote in CSX
Transportation. The actual text of CSX Transportation reads
as follows:
Every court that has examined the statutory
language has concluded that the preemptive
effect of section 10501(b) is broad and
sweeping, and that it blocks actions by states
or localities that would impinge on the
Board’s jurisdiction or a railroad’s ability to
conduct its rail operations[.]
CSX Transp., 2005 WL 584026, at *6 (emphasis added).
BNSF would have the reader understand that the STB had
written that the preemptive force of the ICCTA is the same,
whether it conflicts with federal law or with state or local law.
By replacing the words “blocks actions by states or localities”
with the word “forbidding,” BNSF removed the qualification
STB included in the actual text.
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 25
One paragraph later, BNSF wrote:
This Court, too, has held that ICCTA squarely
preempts remedies that “may reasonably be
said to have the effect of managing or
governing rail transportation.” Ass’n of Am.
Railroads v. S. Coast Air Quality Mgmt. Dist.,
622 F.3d 1094, 1097 (9th Cir. 2010)[.]
BNSF Brief at 28–29 (emphasis added). BNSF again
misrepresented what was written. The actual text of
Association of American Railroads reads as follows:
As stated by our sister circuits, ICCTA
“preempts all ‘state laws that may reasonably
be said to have the effect of managing or
governing rail transportation, while permitting
the continued application of laws having a
more remote or incidental effect on rail
transportation.’”
Ass’n of Am. R.R.s, 622 F.3d at 1097 (emphasis added).
Again, BNSF would have the reader understand that our court
had written that the preemptive force of the ICCTA is the
same, whether it conflicts with federal law or with state law.
By replacing the words “all state laws” with the word
“remedies,” BNSF removed the qualification we included in
our actual text and at the same time introduced a concept
(“remedies”) not included in the text.
These misrepresentations would lead the unwary reader
to understand that the STB and our court have both read the
ICCTA to preempt broadly, without distinction between state
and local law, on the one hand, and federal law, on the other.
26 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
Such an understanding would, of course, benefit BNSF in this
litigation. However, such an understanding is not supported
by the decisions whose language is quoted in part by BNSF.
After oral argument in this case, our panel ordered
BNSF’s attorneys to explain the manner in which they quoted
these cases in their brief. In their letter in response, after
defending their selective quotations from CSX Transportation
and Association of American Railroads, BNSF’s attorneys
wrote, “Responding to the Court’s inquiry has led Counsel to
appreciate, however, that we could have made explicit when
first citing CSX and AAR that, even though these cases arose
in a distinct context involving state and local law, BNSF
contends they nonetheless supply the appropriate principles
of law in this case. We regret not taking that approach.” We,
in turn, regret that BNSF’s attorneys wrote only that they
“could have made explicit,” and that they “regret not taking
that approach,” instead of acknowledging straightforwardly
that they misrepresented in their brief what the STB and our
court had written in those cases. We expect better from the
attorneys who appear before us.
The “preemption” question under the ICCTA, with
respect to federal law, is really two questions. First, to the
degree that there may be a conflict between the two statutes,
did the ICCTA repeal the Indian Right of Way Act? Second,
did the ICCTA abrogate treaty-based federal common law
and the Treaty of Point Elliott, which allow tribes to exclude
non-Indians from their reservations? We take those questions
in turn.
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 27
A. Repeal
When a later-enacted statute does not expressly repeal
existing federal law, we ask whether the later-enacted statute
implicitly repeals earlier law. “[R]epeals by implication are
not favored.” Posadas v. Nat’l City Bank, 296 U.S. 497, 503
(1936). “The intention of the legislature to repeal ‘must be
clear and manifest.’” United States v. Borden Co., 308 U.S.
188, 198 (1939) (citation omitted); Firebaugh Canal Co. v.
United States, 203 F.3d 568, 575 (9th Cir. 2000). “In the
absence of some affirmative showing of an intention to
repeal, the only permissible justification for a repeal by
implication is when the earlier and later statutes are
irreconcilable.” Mancari, 417 U.S. at 550; see Branch v.
Smith, 538 U.S. 254, 273 (2003) (“An implied repeal will
only be found where provisions in two statutes are in
irreconcilable conflict, or where the latter Act covers the
whole subject of the earlier one and is clearly intended as a
substitute.” (citations and internal quotation marks omitted));
Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381
(1996) (“The rarity with which we have discovered implied
repeals is due to the relatively stringent standard for such
findings, namely, that there be an irreconcilable conflict
between the two federal statutes at issue.” (citations and
internal quotation marks omitted)). “The courts are not at
liberty to pick and choose among congressional enactments,
and when two statutes are capable of co-existence, it is the
duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.”
Mancari, 417 U.S. at 551.
To the extent two federal laws appear to conflict, we
attempt to harmonize them. Both our court and the STB have
done so when the ICCTA has appeared to conflict with
28 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
another federal law. See, e.g., BNSF Ry. Co. v. Cal. Dep’t of
Tax & Fee Admin., 904 F.3d 755, 761 (9th Cir. 2018); Ass’n
of Am. R.R.s, 622 F.3d at 1097 (“If an apparent conflict exists
between ICCTA and a federal law, then the courts must strive
to harmonize the two laws, giving effect to both laws if
possible.”); Bos. & Me. Corp. & Town of Ayer, Mass., No.
33971, 2001 WL 458685, at *6 n.28 (S.T.B. Apr. 30, 2001)
(“[I]f two Federal statutes are ‘capable of coexistence,’ the
statutes should be harmonized and each should be regarded
as effective unless there is a ‘positive repugnancy’ or an
‘irreconcilable conflict’ between the laws.” (quoting
Matsushita Elec. Indus. Co., 516 U.S. at 381)); see also U.S.
Envtl. Prot. Agency, FD 35803, 2014 WL 7392860, at *7
(S.T.B. Dec. 29, 2014) (“[A]ctions taken and regulations
enacted under . . . federal statutes may directly conflict with
the purposes and regulatory scheme under the Interstate
Commerce Act. When such a conflict occurs, the Board or a
court must determine whether the two federal statutes and
their applicable regulatory schemes can be harmonized.”).
In the context of a statute that touches on federal Indian
law, such as the Indian Right of Way Act, there is an
additional canon of construction: “[S]tatutes 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) (citations
omitted); Confederated Tribes of Chehalis Indian Reservation
v. Washington, 96 F.3d 334, 340 (9th Cir. 1996) (“Courts
have uniformly held that treaties, statutes and executive
orders must be liberally construed in favor of establishing
Indian rights. Any ambiguities in construction must be
resolved in favor of the Indians. These rules of construction
are rooted in the unique trust relationship between the United
States and the Indians.” (citations and internal quotation
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 29
marks omitted)). The ICCTA was enacted in 1995. The Act
served Congress’s purpose of “substantially deregulat[ing]
the railroad industry,” with an eye toward promoting
competition, by preempting “a wide range of state and local
regulation” that directly managed rail activity. Ass’n of Am.
R.R.s, 622 F.3d at 1096–97; DHX, Inc., 501 F.3d at 1082–83
(discussing the Act).
Despite the broad “preemption” language of § 10501(b)
of the ICCTA, and consistent with the jurisprudence on
“implicit repeals,” courts and the STB have routinely held
that the ICCTA does not repeal particular federal statutes and
the remedies provided thereunder. They have harmonized the
ICCTA with these other federal statutes, giving effect to both.
See, e.g., BNSF Ry. Co., 904 F.3d at 761–62 (harmonizing the
Hazardous Materials Transportation Act and holding that fees
permitted in that Act are not preempted by the ICCTA); Ass’n
of Am. R.R.s, 622 F.3d at 1098 (“[T]o the extent that state and
local agencies promulgate EPA-approved statewide plans
under federal environmental laws (such as ‘statewide
implementation plans’ under the Clean Air Act), ICCTA
generally does not preempt those regulations because it is
possible to harmonize the ICCTA with those federally
recognized regulations.”); Tyrrell v. Norfolk S. Ry. Co.,
248 F.3d 517, 522–23 (6th Cir. 2001) (holding Congress did
not intend for the ICCTA to repeal the Federal Railway
Administration’s authority under the Federal Railway Safety
Act to regulate rail safety); BNSF Ry. Co. v. Albany & E. R.R.
Co., 741 F. Supp. 2d 1184, 1196–98 (D. Or. 2010) (holding
that the ICCTA does not displace the Sherman Act); Ass’n of
Am. R.R.s v. S. Coast Air Qual. Mgmt. Dist., 2007 WL
2439499, at *5 (C.D. Cal. Apr. 30, 2007) (“The District is
correct that the ICCTA does not preempt the [Clean Air Act,
42 U.S.C. §§ 7401, et seq.].”); Holland v. Delray Connecting
30 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
R.R. Co., 311 F. Supp. 2d 744, 747–52 (N.D. Ind. 2004)
(holding that the ICCTA does not repeal the Coal Industry
Health Benefits Act); Bos. & Me. Corp. & Town of Ayer,
Mass., 2001 WL 458685, at *6 n.28 (“[N]othing in section
10501(b) is intended to interfere with the role of state and
local agencies in implementing Federal environmental
statutes, such as the Clean Air Act [and the federal clean
water statutes].”); Auburn & Kent, WA, 2 S.T.B. 330, 337,
1997 WL 362017 (July 2, 1997) (same), aff’d sub nom. City
of Auburn v. United States, 154 F.3d 1025 (9th Cir. 1998).
The specific question before us is whether § 10501(b) of
the ICCTA repeals the Indian Right of Way Act. For several
reasons, we conclude that it does not.
First, the ICCTA’s preemption applies to “regulation” of
railroads. 49 U.S.C. § 10501(b) (“[T]he remedies provided
under this part with respect to regulation of rail transportation
are exclusive and preempt the remedies provided under
Federal or State law.” (emphasis added)). “The STB’s
interpretation of this provision . . . likewise focuses on the
regulatory nature of the remedies preempted.” PCS
Phosphate Co, Inc. v. Norfolk S. Corp., 559 F.3d 212, 218
(4th Cir. 2009) (internal citation omitted). Pursuant to the
Indian Right of Way Act, if a tribe consents, the Secretary of
the Interior may issue a right-of-way easement granting rights
of entry to the tribe’s trust land. Without a valid right-of-way
easement agreement, any railroad crossing a tribe’s land is
doing so illegally and is trespassing. See, e.g., United States
v. S. Pac. Transp. Co., 543 F.2d 676, 699 (9th Cir. 1976)
(“Southern Pacific”). Right-of-way easements under the
Indian Right of Way Act are voluntary agreements between
a tribe and a railroad, approved by the United States in its role
as trustee, that grant the railroad access to a tribe’s land
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 31
subject to certain conditions. While it is conceivable that a
right-of-way issued under the Indian Right of Way Act could
operate as a “regulation” within the meaning of the ICCTA,
the Easement Agreement in this case has not resulted in such
a right-of-way; nor have the parties pointed to a right-of-way
issued under the Indian Right of Way Act that could operate
in such a way.
Consistent with this conclusion, both courts and the STB
have held in the state-law context—where true preemption,
not repeal, applies—that voluntary agreements between
private parties “are not presumptively regulatory acts” subject
to the ICCTA’s preemption provision. PCS Phosphate,
559 F.3d at 218. As the Fourth Circuit has written,
“Voluntary agreements between private parties, however, are
not presumptively regulatory acts, and we are doubtful that
most private contracts constitute the sort of ‘regulation’
expressly preempted by the statute.” Id. at 218. The Fourth
Circuit concluded that “[t]he history and purpose of the
ICCTA support the view that Congress did not intend to
preempt all voluntary agreements concerning rail
transportation.” Id. at 219. The court went on to hold that a
right-of-way easement agreement between a mine owner and
a railroad in which the railroad promised to pay to relocate its
railroad line in the future, if necessary to accommodate the
landowner’s operations, was enforceable and was not
preempted by the ICCTA.
Nor does enforcement of the Easement Agreement
constitute an “unreasonable interference” with rail
transportation such that it is impliedly preempted by the
ICCTA. See id. at 220–21. In holding that the ICCTA did
not preempt the right-of-way easement agreement between
the mine owner and railroad, the Fourth Circuit explained that
32 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
“the determination of whether the action constitutes ‘an
unreasonable interference’ requires a factual assessment of
the effect of providing the claimed remedy.” Id. at 221.
Here, the conditions imposed by the Agreement—specifying
the maximum number of trains and cars—do not
unreasonably interfere with rail transportation. The parties
reached the Agreement after extensive negotiation, during
which BNSF represented that it “doubted” it would exceed
the agreed-upon maximum. See id. (finding relevant that the
“relocation agreements were freely negotiated between
sophisticated business parties” and the “agreements
envisioned this exact circumstance”). Further, the terms
expressly provide that the “Tribe agrees not to arbitrarily
withhold permission to increase the number of trains or cars
when necessary to meet shipper needs.” Thus, we decline to
hold that injunctive relief pursuant to the Easement
Agreement is categorically an unreasonable interference with
rail transportation.
Second, nothing in the text of the ICCTA or its legislative
history indicates that Congress intended that the ICCTA
repeal the Indian Right of Way Act or remedies thereunder.
See Mancari, 417 U.S. at 550 (“There is nothing in the
legislative history . . . that indicates affirmatively any
congressional intent to repeal the 1934 preference.”). The
text of the ICCTA does not mention tribes or the Indian Right
of Way Act in the context of rail transportation. See ICC
Termination Act of 1995, Pub. L. No. 104–88, 109 Stat. 803.
It mentions tribes only once, and in an entirely different
context. See 49 U.S.C. § 13902(b)(1) and (b)(8) (providing
for registration of Indian tribes as “motor carriers” under the
ICCTA). Further, the ICCTA included “conforming
amendments” to dozens of other statutes, but none to the
Indian Right of Way Act. See ICC Termination Act of 1995,
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 33
Pub. L. No. 104–88, §§ 311–408, 109 Stat. 803, 943–55. Nor
does the ICCTA’s legislative history include any discussion
of tribes or the Indian Right of Way Act. See, e.g., H.R.
Conf. Rep. 104–422 (Dec. 18, 1995); S. Rep. 104–176 (Nov.
21, 1995); H.R. Rep. 104–311 (Nov. 6, 1995); see also PCS
Phosphate, 559 F.3d at 219 (discussing the legislative
history).
Congress was well aware of the Indian Right of Way Act
when it enacted the ICCTA. See Frank’s Landing Indian
Cmty. v. Nat’l Indian Gaming Comm’n, 918 F.3d 610, 616
(9th Cir. 2019) (“We assume Congress is knowledgeable
about existing law pertinent to the legislation it enacts, see
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351
(1998) . . . .”). Regulations promulgated under the Indian
Right of Way Act expressly provide that the Act applies to
railroads. See 25 C.F.R. § 169.5(a)(1) (“This part covers
rights-of-way over and across Indian and BIA land, for uses
including but not limited to the following: (1) Railroads;
. . . .”). When the ICCTA was enacted, federal courts, the
Department of the Interior, and the Interstate Commerce
Commission—the predecessor to the STB—had applied the
Indian Right of Way Act to railroads for decades. See, e.g.,
Star Lake R.R. Co.—Rail Constr. & Operation in Mckinley
Cty., N.M., FD 28272, 1987 WL 98276, at *5 (I.C.C. Apr. 10,
1987) (“Our authorization is permissive; applicants will have
to obtain the easement or make some other acceptable
arrangement before they can construct the line.”); Star Lake
R.R. Co. v. Lujan, 737 F. Supp. 103 (D.D.C. 1990)
(upholding DOI’s termination of a railroad’s right-of-way,
despite the fact that the ICC had approved the railroad’s use
of the land); see also Southern Pacific, 543 F.2d at 690–93
(discussing prior Acts); Alaska R.R. Corp., 2010 WL
1266781, at *562 (S.T.B. Mar. 16, 2010) (a 2010 draft
34 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
environmental impact statement by the STB recognizing that
the Indian Right of Way Act applies, and stating that DOI is
“responsible for granting rights-of-way and handling disputes
between [Alaska Native landowners] and [railroad] holders
of rights-of-way” and ensuring “allotees are properly notified
. . . and their lawful rights observed as prescribed in 25 CFR
Part 169.”). Thus, neither the text nor legislative history of
the ICCTA provides any indication that Congress intended to
repeal any part of the Indian Right of Way Act, let alone any
“clear and manifest” indication. Borden Co., 308 U.S. at 198.
Third, Title 49 of the U.S. Code, in which the ICCTA is
codified, explicitly provides, “Nothing in this title shall
absolve the United States from any responsibility to Indians
and Indian tribes, including responsibilities derived from the
trust relationship and any treaty, executive order, or
agreement between the United States and an Indian Tribe.”
49 U.S.C. § 102(f)(2)(B). The Indian Right of Way Act is a
statutory mechanism by which the United States fulfills some
of those responsibilities.
Fourth, the Indian Right of Way Act applies to a “very
specific situation”: the issuance of right-of-way easements
that permit third parties to use a tribe’s trust land, consistent
with the conditions of that agreement. Mancari, 417 U.S. at
550. The ICCTA, on the other hand, applies to railroads
broadly. See also BNSF Ry. Co., 904 F.3d at 766 (“The
preemption provision of the ICCTA is broad and general,
providing without differentiation for preemption of state and
local regulation of railroad ‘rates, classifications, rules . . . ,
practices, routes, services, and facilities.’”). “Where there is
no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 35
priority of enactment.” Mancari, 417 U.S. at 550–51; BNSF
Ry. Co., 904 F. 3d at 766.
Finally, “[i]n the absence of some affirmative showing of
an intention to repeal, the only permissible justification for a
repeal by implication is when the earlier and later statutes are
irreconcilable.” Mancari, 417 U.S. at 550. The ICCTA and
the Indian Right of Way Act are easily reconcilable. On the
one hand, tribes retain sovereign authority to control their
own lands and to enforce the terms of right-of-way easement
agreements issued pursuant to the Indian Right of Way Act.
The Department of the Interior retains authority to issue and
enforce right-of-way agreements, including any agreed-upon
conditions negotiated between a tribe and a railroad. On the
other, the STB retains authority under the ICCTA to regulate
rail operations over Indian lands, such as rates for service, so
long as those regulations are consistent with the terms of a
normal easement granted under the Indian Right of Way Act.
Harmonizing the Indian Right of Way Act and the ICCTA in
this way does not unreasonably interfere with the purposes of
the ICCTA, with the authority of the STB, or with rail
transportation. See 49 U.S.C. § 11101(a).
B. Abrogation
The ICCTA abrogates neither the general treaty-based
federal common law right of tribes to exclude non-Indians
from Indian lands nor the explicit right to exclude contained
in the Treaty of Point Elliott. It is established law that we
will not hold that Congress abrogated Indian treaty rights
absent unambiguous language to that effect. See Trans World
Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252
(1984) (“Legislative silence is not sufficient to abrogate a
treaty.”); Cook v. United States, 288 U.S. 102, 120 (1933)
36 SWINOMISH INDIAN TRIBAL CMTY. V. BNSF
(“A treaty will not be deemed to have been abrogated or
modified by a later statute, unless such purpose on the part of
Congress has been clearly expressed.”); see also Water Wheel
Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 808
(9th Cir. 2011) (“[W]e first acknowledge the long-standing
rule that Indian tribes possess inherent sovereign powers,
including the authority to exclude . . . unless Congress clearly
and unambiguously says otherwise.”). “[T]he intention to
abrogate or modify a treaty is not to be lightly imputed to the
Congress.” Menominee Tribe, 391 U.S. at 412. “What is
essential is clear evidence that Congress actually considered
the conflict between its intended action on the one hand and
Indian treaty rights on the other, and chose to resolve that
conflict by abrogating the treaty.” United States v. Dion,
476 U.S. 734, 739–40 (1986); see also Minnesota v. Mille
Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999).
There is no such abrogating language in the ICCTA. The
ICCTA and its legislative history do not mention Indian
treaties or treaty rights at all, let alone the Treaty of Point
Elliott. We affirm the district court and hold that the Tribe’s
treaty-based right to exclude and condition a third-party’s
presence on the Reservation has not been abrogated by the
ICCTA.
IV. Conclusion
We affirm the district court. We hold that the Interstate
Commerce Commission Termination Act does not repeal the
Indian Right of Way Act and does not defeat the Tribe’s right
to enforce conditions in a right-of-way easement agreement
issued pursuant to the Right of Way Act. We hold further
that the ICCTA does not abrogate the Treaty of Point Elliott
and the Tribe’s treaty-based federal common law right to
SWINOMISH INDIAN TRIBAL CMTY. V. BNSF 37
exclude and condition a third-party’s presence on, and use of,
Reservation lands. Finally, we hold that the Tribe has the
right to pursue injunctive relief to enforce the terms of the
Easement Agreement.
We remand to the district court for further proceedings
consistent with this opinion.
AFFIRMED and REMANDED.