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North Dakota argues for ‘seat at the table’ in reservation riverbed dispute

The state is asking the D.C. Circuit to overturn a decision removing it from a case filed by a trio of tribes against the federal government.

WASHINGTON (CN) — An attorney for North Dakota told a federal appeals court Wednesday the state simply wants a "seat at the table" in a lawsuit between three tribes and the U.S. Department of the Interior over ownership of a prosperous riverbed within the Fort Berthold Indian Reservation.

In 2020, Daniel Jorjani, solicitor of the Interior Department in the administration of former President Donald Trump, issued an opinion finding that the state owned the mineral-rich submerged land beneath the Missouri River in the reservation.

The Mandan, Hidatsa and Arikara Nation, also known as the Three Affiliated Tribes, sued the department, alleging Jorjani's opinion violated the Administrative Procedure Act. North Dakota joined the case as an intervening defendant to protect the state's interest in the riverbed.

In February 2022, Robert T. Anderson, the new Interior Department solicitor under President Joe Biden, issued his own opinion finding that the riverbed, its minerals and the revenue generated from them are to be held in trust for the benefit of the MHA Nation. 

The new opinion resolved two counts in the tribes' lawsuit but they are still pursuing two other counts seeking to solidify their ownership of the riverbed mineral rights.

A federal judge in Washington removed North Dakota as an intervening defendant, finding the state has no further interest in the case. North Dakota appealed that ruling to the D.C. Circuit, which heard arguments Wednesday.

"The surviving MHA Nation counts implicate the very same state interests by raising alternate theories to arrogate riverbed mineral revenues to the exclusion of the state," North Dakota's brief to the appeals court states. "The district court thus should have reached the same conclusion to grant intervention as to the remaining counts." 

One of the remaining counts seeks an accounting of the trust property the DOI holds and manages for the benefit of MHA Nation. In the other, the three tribes seek a declaration that MHA Nation is the only beneficial owner of the Missouri River riverbed and underlying mineral estate within the reservation.

"We're aware of no other instance where interventions been denied to a state involving disposition of property located within that state where no other person has proven ownership," attorney James Michael Auslander of Beveridge & Diamond PC, representing the state, told the three-judge panel. 

Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee, pressed Auslander on whether the litigation could be resolved without North Dakota's involvement. 

"You don't dispute the notion that the litigation could go forward and come to a conclusion without a resolution of the issue that you're intending to assert," Srinivasan said. 

Auslander disagreed and said establishing ownership of the riverbed should involve the state, which is seeking a "seat at the table."

"I think we would dispute that," he said. "The remaining counts present squarely the issue of ownership of the riverbed and the associated revenue."

U.S. Circuit Judge Cornelia T.L. Pillard, another Obama appointee, said ownership was no longer in question following the new administration's opinion that said MHA Nation, not the state, owns the riverbed. 

"In terms of what is the subject of the pending litigation, I don't understand it to be anymore any question about ownership title," Pillard said. 

Auslander disputed that ownership was not at the heart of all four MHA nation's original counts, including the two remaining ones. 

"Each of the four claims are variance on seeking the same relief, which is ultimately to walk away with money," the attorney said. 

Pillard said she worries about the implications for federally recognized tribes if North Dakota is allowed to reenter the case. 

"The implications of saying anytime the Department of the Interior is interacting with a federally recognized tribe and there is some executive determination of title, are we going to invite everybody who ever thought that was their land to gum up the works?" the judge said. 

Auslander said he didn't believe it was a floodgate issue because North Dakota did not initiative any litigation claiming the land as its own, but rather joined the litigation to defend its ownership status.

Justice Department attorney Mary Gabrielle Sprague argued on behalf of the DOI, which says that while property management litigation is common, it is rare for a lawsuit to be based on the ownership of the property's title. 

"Actions are brought against the United States all the time alleging that there has been some mismanagement with respect to real property or other property held by the United States," Gabrielle Sprague told the panel. "The question of litigating title is a big deal."

Attorney Timothy Purdon of Robins Kaplan LLP, representing the MHA Nation, argued that the state is barred from challenging the United States' title to real property through the Quiet Title Act's Indian lands exception and is trying to use this case as an end-run around that law.

"It makes no difference here that North Dakota seeks to intervene as a defendant and assert this claim as a defense," Purdon said. "North Dakota still seeks to use this APA suit as a vehicle to dispute the United States' title to the riverbed. This it cannot do." 

The tribes are asking the panel to reject North Dakota's appeal for lack of jurisdiction.

"Both the district court and this Court lack subject matter jurisdiction over the claims asserted by the State," the MHA Nation's brief to the D.C. Circuit states. 

The DOI agrees with the MHA Nation that the court cannot do what the state seeks, pointing to the Quiet Title Act.

"That statute does not waive the United States’ sovereign immunity to adjudicate title where, as here, the United States claims to hold title in trust for an Indian tribe," the department's brief states. 

U.S. Circuit Judge A. Raymond Randolph, a George H.W. Bush appointee, completed the panel. The judges did not indicate when they would issue a ruling.

Purdon said in a phone interview after Wednesday morning's hearing that he thought it went well for his side. 

"The MHA Nation feels confident in its arguments it briefed and presented today," the tribes' attorney said.

Attorneys for the DOI and North Dakota did not respond to requests for comment.

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