(CN) — An Eighth Circuit panel will determine whether an oil pipeline running through Native American land should come down because its easement permit — issued in 1993 — expired years ago.
A federal judge sided with the pipeline’s operator Andeavor and found that the property owners had not yet exhausted all administrative remedies. For its part, Andeavor claims it has been in a “regulatorily permitted holdover status while it seeks renewal of the right-of-way.”
Jeffrey Webb, an attorney for Andeavor, told the Eighth Circuit panel Thursday that the Bureau of Indian Affairs (BIA) decided it would treat that holdover as trespass in an action to assess damages from the expiration of the easement, but also ordered that the pipeline remain in place.
“Under the regulatory scheme, these discretionary agency actions with respect to the enforcement of right-of-way on Indian lands have been delegated by Congress to the BIA,” said Webb. “The BIA, there is no dispute, is the trustee on behalf of all of these beneficiaries.”
The landowners’ attorney Jason Steed offered an opposing argument: Native American landowners should be to sue for trespass without “relying on the government to do it for them.”
“The purpose is to give the Indian landowner as much control over their land as possible,” said Steed.
As for the exhaustion of administrative remedies, Steed argued the Bureau of Indian Affairs had no relief to give in the form of either awarded damages or injunctive relief.
“We’re hopeful that the court will recognize the landowners’ right to protect their own land.” Steed said in an interview.
The easement expired about seven years ago. During that time, tribal property owners have not been properly compensated for the usage of the land, according to the class action.
Nearly 50 members of the Hidatsa, Mandan and Arikara Tribes, more commonly known as the Three Affiliated Tribes or the MHA Nation, brought the initial trespass suit after the easement for the pipeline’s operation expired.
Lead plaintiff Joann Chase filed the class action along with the other Three Affiliated Tribes members who all own a beneficial interest in the allotment where the Andeavor pipeline runs.
The landowners claim congressional approval is required to grant an easement if it crosses Native American trust lands. If those lands are owned by the tribe, the easement also requires the consent and approval of tribal officials.
The Bureau of Indian Affairs initially approved the line in 1953 which ran across multiple properties. The easement was last renewed in 1993.
In their lawsuit, the property owners claim Andeavor knew the pipeline was in trespass on those properties and that it continued to use the line without telling the property owners or making any attempts to obtain consent for a renewed easement. Plaintiffs also claim Andeavor has maintained that pipeline without offering them any compensation.
The plaintiffs originally filed their lawsuit in the Western District of Texas in 2018, since Andeavor is based in San Antonio. The case was moved to North Dakota in 2019, which is why the appeal is being heard in the Eighth Circuit.
Andeavor was acquired by Marathon Petroleum, which was not named as a defendant and did not immediately respond for comment.
The panel did not indicate when or how it would rule.
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