Montana Water Court PO Box 1389 Bozeman, MT 59771-1389 1-800-624-3270 (406) 586-4364 [email protected]

IN THE WATER COURT OF THE STATE OF MONTANA UPPER MISSOURI DIVISION CUT BANK CREEK BASIN 41L

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CLAIMANTS: Columbia Grain Inc.; BNSF Railway Co. 41L-0023-P-2018 41L 124440-00 OBJECTORS: Blackfeet Tribe; United States of America (Bureau of Indian Affairs)

CLAIMANT: BNSF Railway Company 41L-0079-P-2017 41L 142616-00 OBJECTOR: Blackfeet Tribe

ORDER DENYING OBJECTIONS TO MASTER’S REPORT BNSF Railway Company (“BNSF”) objects to master’s reports in two cases recommending dismissal of two state-based water right claims. The cases and objections involve similar issues so they are considered together in this order. For the reasons set forth, the Court denies BNSF’s objections and adopts the master’s reports’ recommendations to dismiss water right claims 41L 124440-00 and 41L 142616-00. BACKGROUND A. Procedural Background. The Water Court included water right claims 41L 124440-00 and 41L 142616-00 in the Preliminary Decree for the Cut Bank Creek Basin (Basin 41L). The preliminary decree identifies Columbia Grain Inc. (“Columbia Grain”) as the owner of claim 41L 124440-00 and BNSF Railway Co. (“BNSF”) as the owner of claim 41L 142616-00.

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Claim 41L 142616-00 is included in the preliminary decree as a claimed right to use groundwater for industrial use with a March 20, 1942 priority date. The preliminary decree identifies claim 41L 124440-00 as a claimed right to use groundwater for commercial use for a grain elevator with an August 31, 1959 priority date. The parties later updated ownership records to identify BNSF as co-owner of claim 41L 124440-00. The points of diversion and places of use for the two claims are located within the boundaries of the Blackfeet Indian Reservation. During claim examination, the Department of Natural Resources and Conservation (“DNRC”) added issue remarks to each claim stating it was not clear whether the claim was a state-based water right or part of the tribal water right defied in the Blackfeet Tribe—Montana—United States Compact (“Compact”). The issue remarks were included on the preliminary decree abstracts. The United States of America, on behalf of the Bureau of Indian Affairs (“United States”), and the Blackfeet Tribe objected to claim 41L 12440-00. The Blackfeet Tribe also objected to claim 41L 142616-00. The water master assigned to Basin 41L consolidated claim 41L 124440-00 into case 41L-0023-P-2018 and claim 41L 142616-00 into case 41L-0079-P-2017. Since consolidation, the cases have proceeded on parallel tracks with consolidated orders and briefing. The parties filed cross-motions for summary judgment. The motions addressed whether the claims should be dismissed or recognized as valid state-based water rights. The United States and the Blackfeet Tribe contend the claims should be dismissed because BNSF’s water use is part of the tribal water right defined in the Compact. The Compact defines the “Tribal Water Right” in Basin 41L as including “all Natural Flow and Ground Water within the Cut Bank Creek Drainage, with the exception of those waters subject to the Water Rights Arising Under State Law in that drainage.” Compact, Art. III, § E.1.a.1 BNSF and Columbia Grain argue the two claims fall within the definition of “Water Rights Arising Under State Law,” which the Compact generally

1 The Compact is codified at § 85-20-1501, MCA. 2

defines as a water right arising under Montana law, not federal law, existing as of the date of Compact ratification. Compact, Art. II § (41) & (52). Under the Compact structure, if BNSF’s claims are recognized under state law, they are excluded from the tribal water right. Conversely, if the claims are not recognized under state law, they are part of the tribal water right and should be dismissed. The water master issued parallel master’s reports accepting the United States’ and the Blackfeet Tribe’s arguments, rejecting those of BNSF and Columbia Grant, and recommending dismissal of both claims. BNSF Ry. Co. v. Blackfeet Tribe, 2020 Mont. Water LEXIS 741; Columbia Grain Inc. v. BNSF Ry. Co., 2020 Mont. Water LEXIS 751. BNSF objected to both master’s reports. Columbia Grain did not object. B. Factual Background. The Blackfeet Reservation is a remnant of what once was a much larger area the United States agreed to set aside when it entered into a treaty with the Blackfeet Tribe in 1855. Treaty with Blackfeet Indians, 11 Stat. 657 (Oct. 17, 1855) (“1855 Treaty”). Originally, the reserved area extended across much of what now is northern Montana, east of the Continental Divide. 1855 Treaty, art. 4. Over time, the United States passed legislation, ratified agreements, and issued orders progressively reducing the size of the Blackfeet Reservation. See generally, Blackfeet et al. Nations v. United States, 81 Ct. Cl. 101 (1935) (describing various cessions). In addition to actions by the United States that changed the boundaries of the Blackfeet Reservation, the United States also granted rights of way across the reservation. First, in 1887, Congress passed a statute granting BNSF’s predecessor a right of way across portions of reservations that had been set aside for several tribes, including the Blackfeet Tribe, as the reservations existed at that time.2 24 Stat. 402 (Feb. 15, 1887)

2 As to the Blackfeet Tribe, the 1887 Act refers to the “act of Congress approved April fifteenth, eighteen hundred and seventy-four, and commonly known as the Blackfeet Indian Reservation.” 1887 Act, § 1. The 1874 act was one of the statutes passed by Congress that modified and reduced reservation boundaries. 18 Stat. 28; see Blackfeet Nations, 81 Ct. Cl. at 112. 3

(“1887 Act”). The 1887 Act generally described a right of way extending from Minot, North Dakota, to Great Falls, Montana. Next, on May 1, 1888, Congress ratified an agreement with the Blackfeet Tribe and other tribes that established separate reservations, and by which the tribes ceded lands to the United States. Pub. L. No. 50-213, 25 Stat. 113 (“1888 Act”).3 The 1888 Act described the boundaries of the revised reservations, including the Blackfeet Reservation. 1888 Act, 25 Stat. 129. In 1890, the Secretary of Interior issued a report stating that the President had given consent to occupy a strip of land across the Blackfeet Reservation. The report referenced the right of way section of the 1888 Act as authority. In 1893, the Secretary reported that a map of the right of way had been reported and filed.4 BNSF now owns the railroad right of way crossing the Blackfeet Reservation. The parties do not dispute that the points of diversion and places of use for both water right claims are within the right of way. The parties also do not dispute that the United States holds fee ownership of the land described in both claims within the right of way in trust for the use and benefit of the Blackfeet Tribe. See BNSF’s Brief in Support of Mot. for Summary Judgment at 3 (“BNSF does not dispute that the right-of-way at issue runs through lands held in trust for the Blackfeet Tribe”).5 In its response and cross-motion, BNSF argued its rights within the right of way are sufficiently broad to allow it to claim a state-based water right, subject to adjudication by the Water Court. The water master rejected BNSF’s position and issued two reports that largely parallel each other. The master’s reports recommend accepting the position of

3 The agreement ratified in the 1888 Act was signed by the United States on December 28, 1886, and by the Blackfeet Tribe on February 11, 1887. The agreement says it was not binding on either party until ratified by Congress, which occurred on May 1, 1888. 1888 Act, art. IX. 4 The 1887 Act also called for a process of surveying and filing with and approval by the Secretary of Interior. 1887 Act, § 4. Unlike the 1888 Act, the record does not reflect whether BNFS’s predecessors ever did this. 5 BNSF also states in this paragraph of its summary judgment brief that the “effect of the congressionally granted BNSF right-of-way over lands reserved to the tribe is a contested legal issue, not an uncontested fact.” However, BNSF does not take the position that the interest its predecessors obtained from the United States extinguished the trust status of the land burdened by the right-of-way. Thus, there is no disputed fact as to the trust status of the land. 4

the United States and the Blackfeet Tribe. Specifically, the master’s reports conclude the rights the United States granted BNSF’s predecessor as part of the right of way did not extinguish the Blackfeet Tribe’s reserved water rights, so BNSF is precluded from claiming a state-based existing water right. BNSF objects to the recommendations in the master’s reports. ISSUE Did the master’s reports correctly recommend that the Court grant the United States’ and the Blackfeet Tribe’s motions and dismiss claims 41L 124440-00 and 41L 142616-00? DISCUSSION A. Legal Standard. The Water Court reviews a water master’s findings of fact for clear error and the water master's conclusions of law for correctness. Klamert v. Iverson, 2019 MT 110, ¶ 11, 395 Mont. 420, 443 P.3d 379. There are no facts in dispute in this case, so the sole question is whether the master’s reports’ recommendation to dismiss BNSF’s two claims is correct as a matter of law. In connection with interpreting reserved water rights, the Water Court is obligated to follow federal law. Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 571 (1983) (“State courts, as much as federal courts, have a solemn obligation to follow federal law”); State ex rel. Greely v. Confederated Salish & Kootenai Tribes, 219 Mont. 76, 99, 712 P.2d 754 (1985). B. Reserved Water Rights on Land Held in Trust. When the United States created the Blackfeet Reservation in the 1855 Treaty, it reserved water rights for the Blackfeet Tribe to fulfill the purposes of the reservation. Winters v. United States, 207 U.S. 564 (1908); In re Blackfeet Tribe Compact, 2020 Mont. Water LEXIS 770. Reserved water rights “are federal water rights that preempt conflicting state law.” Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262, 1272 (9th Cir. 2017).

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The United States holds the reserved water rights for the use and benefit of the Blackfeet Tribe. See Greely, 219 Mont. at 97; Blackfeet Water Rights Settlement Act, Pub. L. 114-322, Title III, Subtitle G, § 3715(c)(1). The Ninth Circuit recently described the United States’ obligation when holding tribal water rights as “an irreversible and dramatically important trust duty.” Navajo Nation v. United States DOI, No. 19-17088, 2021 U.S. App. LEXIS 12630, at *19 (9th Cir. Apr. 28, 2021). In limited circumstances private parties may acquire non-federal, state law-based water rights within reservations. This primarily occurs when Congress takes some action declaring lands within a reservation to be part of the “public domain, opened to homesteading, and subsequently conveyed into private ownership.” United States v. Anderson, 736 F.2d 1358, 1363 (9th Cir. 1984). If lands within Indian reservations became part of the public domain, a private party could obtain water rights through the prior appropriation system administered by states. Id;6 see Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935). But unless Congress provides otherwise, acquisition of water rights based on state law is not possible on trust lands on Indian reservations. United States v. McIntire, 101 F.2d 650, 654 (9th Cir. 1939) (“Montana statutes regarding water rights are not applicable, because Congress at no time has made such statutes controlling in the reservation”); United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 340 (9th Cir. 1956); Lewis v. Hanson, 124 Mont. 492, 496, 227 P.2d 70, 72 (1951) (upon “creation of the reservation, title to the waters was vested in the United States as trustee for the Indians”); 1 Cohen’s Handbook of Federal Indian Law § 19.03 (2019) (“Although Congress may grant non-Indians federal rights to water on Indian lands, its intent to do so must be clear”).

6 A party acquiring fee title to land to land within a reservation from an allottee also potentially can obtain state-based water rights separate from reserved rights by complying with, and to the extent allowed by, state law. E.g. Scott Ranch, LLC., 2017 MT 230, 388 Mont. 509, 402 P.3d 1207. BNSF does not contend, nor is there any evidence in the record, that BNSF obtained from an allotee any property rights related to the claims at issue. 6

BNSF does not dispute these basic principles of federal law. Instead, it makes two lines of argument that Congress authorized the state-based water rights BNSF claims on the right of way within the Blackfeet Reservation even though the claimed locations remain trust land. First, BNSF argues the master’s reports erroneously failed to recognize that Congress authorized state-based water rights in the right of way conveyances.7 Second, BNSF argues that even if the authorization was not express or implied, the right of way conveyances effectively conveyed fee title and extinguished the Blackfeet Tribe’s reserved rights. Neither line of argument is consistent with federal law. C. Did Congress grant BNSF’s predecessors the right to seek state-based water rights?

BNSF was somewhat ambivalent in the summary judgment briefing as to whether the right of way at issue arose under the 1887 Act, the 1888 Act, or both. See BNSF’s Cons. Reply Br. at 3 (“Congress granted the railroad right-of-way across the Blackfeet Reservation to BNSF’s predecessor by means of two congressional acts that occurred in 1887 and 1888”). However, as part of its objection, BNSF now contends “it was in error for the Water Master to assess only the language of the 1888 Act to determine the scope of Congress’s grant of a right of way to BNSF’s predecessor.” BNSF Obj. at 5. Presumably BNSF focuses its objection to the master’s reports on the 1887 Act rather than the 1888 Act because only the 1887 Act contains any reference to water. The 1887 Act included a provision stating: [S]aid company shall also have the right to take from said lands adjacent to said road material, stone, earth, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station- buildings, depots, machine-shops, sidetracks, turnouts, and water-stations, not to exceed in amount three hundred feet in width and three thousand feet in length for each station, to the extent of one station for each ten miles of its road.

7 BNSF does not argue the right-of-way conveyance included part of the Blackfeet Tribe’s reserved water rights. BNSF also abandoned any argument that the right of way included a grant of a federally-based water right. Instead, BNSF argues only that the conveyance included the right to establish new state-based water rights pursuant to Montana’s appropriation laws. 7

1887 Act, § 3 (emphasis added). In contrast, the 1888 Act contains no water reference and simply says: It is further agreed that, whenever in the opinion of the President the public interests require the construction of railroads, or other highways, or telegraph lines through any portion of either of the separate reservations established and set apart under the provisions of this agreement, right of way shall be, and is hereby, granted for such purposes, under such rules, regulations, limitations, and restrictions as the Secretary of the Interior may prescribe; the compensation to be fixed by said Secretary and by him expended for the benefit of the Indians concerned.

1888 Act, art. VIII. BNSF’s argument raises two issues: (1) whether the 1887 Act applies to the portion of the Blackfeet Reservation at issue; (2) if the 1887 Act does apply, whether the reference to “water-stations” is enough to authorize a state-based water right within the right of way. 1. Did the 1887 Act apply to this portion of the Blackfeet Reservation? BNSF argues the Ninth Circuit “expressly addressed” the issue of whether the 1887 Act or the 1888 Act is the source of the right of way over the Blackfeet Reservation in Burlington N. R. Co. v. Blackfeet Tribe of Blackfeet Indian Reservation, 924 F.2d 899 (9th Cir. 1991). Burlington involved BNSF’s challenge to whether the Blackfeet Tribe and other tribes possess sovereign authority to tax on-reservation rights of way. The court held tribes could impose an ad valorem tax on property located on a congressionally- granted right of way. The 1887 Act granted a right of way to a specific strip of land that extended from Minot, North Dakota, to Great Falls, Montana. As to the Montana segment, the geographic description in the 1887 Act states the right of way extended across said Fort Berthold Reservation …; thence along the Missouri River by the most convenient and practicable route to the valley of the Milk River; thence along the valley of the Milk River to Fort Assinniboine; thence southwesterly to the Great Falls of the Missouri River.

1887 Act, § 2. 8

As the Blackfeet Tribe and the United States note in their response to BNSF’s objection, the geographic description in the 1887 Act does not cover the land described in BNSF’s claims. BNSF’s objection does not explain how a right of way grant that veered southwesterly at Fort Assinniboine8 could have crossed the Blackfeet Reservation in its current configuration or included the location of claims 41L 124440-00 and 41L 142616- 00.9 BNSF also did not support its position with a map or survey showing the location of any “water-station” even though the 1887 Act required a filed and approved survey. 1887 Act, § 4. The Blackfeet Tribe and the United States therefore are correct that the land covered by the portion of the right of way described in claims 41L 124440-00 and 41L 142616-00 is not covered by the 1887 Act. This conclusion is not inconsistent with Burlington. The court in Burlington did not analyze the 1887 Act’s geographic description. Although the Burlington court discussed both the 1887 Act and the 1888 Act, the court did not make findings as to which act applied on the Blackfeet Reservation in its current configuration. Instead, the Burlington court concluded that the railroad right of way under either statute was not sufficient to extinguish the tribe’s power to tax transactions on trust lands, a holding that later was reversed in part in Big Horn Cnty. Elec. Coop. v. Adams, 219 F.3d 944 (9th Cir. 2000). The Court therefore does not accept BNSF’s argument that claims 41L 124440-00 and 41L 142616-00 are within the lands conveyed under authority of the 1887 Act.

8 The Court takes judicial notice that Fort Assinniboine is located near Havre, Montana, and is listed on the National Register of Historic Places maintained by the National Park Service. 9 Conceivably, the 1887 Act could have granted a right of way across the Blackfeet Reservation as it existed on February 15, 1887, the date of the Act. But that reservation was larger than what exists today. The 1887 Act references land set apart for the Blackfeet and other tribes in the “act of Congress approved April fifteenth, eighteen hundred and seventy-four, and commonly known as the Blackfeet Indian Reservation.” 1887 Act, § 1. The 1874 Act of Congress as referenced in the 1887 Act set aside for the tribes land extending across what now is northern Montana from the Continental Divide to the North Dakota border. Act of Apr. 15, 1874, § 1, 18 Stat. 28. The 1888 Act significantly reduced the size of the Blackfeet Reservation. Thus, even if it was correct that the 1887 Act granted a right of way across a portion of the “Blackfeet Indian Reservation,” the reservation in 1887 was not the same reservation that existed after the 1888 Act. BNFS’s argument as to the applicability of the 1887 Act fails to recognize this chronology. 9

2. Did the 1887 Act authorize BNSF to claim a state-based water right claims within the right of way?

Even if the 1887 Act applies to the location of claims 41L 124440-00 and 41L 142616-00, at most the text of the statute authorized conveyance of the right of way itself and “ground adjacent to such right of way for …water-stations.” 1887 Act § 3. BNSF seizes on the reference to “water stations” to argue the master’s reports erred by failing to analyze the statute and recognize that the conveyance from the United States “would have been useless without the conveyance including an appurtenant right to appropriate water.” BNSF Obj. at 9. BNSF therefore contends “there is no credible argument that water was not necessary for the operation of a railroad in 1877.” Id.10 The record does not support BNSF’s argument. If the right of way was “useless” without the right to appropriate water, presumably BNSF’s claimed priority dates for the claims at issue would be proximate in time to when BNSF’s predecessors began operating a railroad across the portion of the right of way covered by the claims. However, the claimed priority dates for the claims are decades later than the right of way conveyance, March 20, 1942 for claim 41L 142616-00, and August 31, 1959 for claim 41L 124440-00. Additionally, claim 41L 12440-00 is described as a claim associated with the operation of a grain elevator in the right of way, not the operation of the railroad. BNSF’s own filings show these water right claims were not necessary to supply water to operate the railroad. BNSF’s argument also is not consistent with the 1887 Act. The Act does not contain plain language expressly including water, or the rights to appropriate water, in the right of way conveyance. An example of such language was addressed by the Idaho Supreme Court when it interpreted the following language in an 1888 federal statute that ceded land from the Fort Hall Indian Reservation for the newly formed city of Pocatello: the citizens of the town hereinbefore provided for shall have the free and undisturbed use in common with the said Indians of the waters of any river,

10 Presumably BNSF means 1887, not 1877 because there is no 1877 statute at issue. 10

creek, stream, or spring flowing through the Fort Hall Reservation in the vicinity of said town.

City of Pocatello v. State (In re SRBA), 180 P.3d 1048, 1050 (Idaho 2008). The Idaho court held that, while this language did not convey an actual water right to Pocatello, it did provide the “opportunity” for Pocatello to appropriate a state-based water right on the reservation. Id., 180 P.3d at 1051. The 1887 Act does not contain any similar language offering BNSF’s predecessors the opportunity to appropriate water anywhere on the reservation in common with the Blackfeet Tribe even though Congress passed the 1887 Act during the same time frame as the statute at issue in the Pocatello case. Significantly, despite more than 130 years since Congress authorized the rights of way, BNSF cites no instance where a court has recognized that the conveyance of a right of way over trust land on an Indian reservation includes the right to appropriate water. Nonetheless, BNSF seeks to imply such a right from cases involving other natural resources. BNSF cites extensively to United States v. Denver & R. G. R. Co., 150 U.S. 1(1893). The statute at issue in Denver specifically included the “right to take” certain resources from the public lands adjacent to the railroad, including timber. The case turned on the scope of the grant of the timber right expressly granted, not whether a right to timber was implied in the grant of a right to ground to construct and use various structures. The case does not stand for the proposition that a conveyance of the right to ground for structures incidental to a railroad also includes an implied right to water or other natural resources associated with those structures. In contrast to Denver, the United States Supreme Court has addressed claimed implied rights to resources not specifically mentioned in a right of way conveyance. In Great N. R. Co. v. United States, 315 U.S. 262 (1942) (“Great Northern”) the United States Supreme Court held an 1875 right of way conveyance did not include the right to oil and gas minerals under the right of way. Great Northern involved a right of way through public lands in Glacier County, Montana. After oil was discovered, the railroad sought to drill beneath its right of way. The United States sued to enjoin the railroad from

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doing so, claiming that the railroad had only an easement, so that the United States retained all interests beneath the surface even when the railroad alleged it intended to use the minerals as a machinery lubricant and to fuel the operation of the railroad. BNSF does not attempt to distinguish Great Northern even though it addresses the claimed right to resources within a right of way. Unlike the express grant in Denver, Great Northern demonstrates that if the resources are not specifically mentioned in a right of way grant, federal law does not recognize an implied grant of resources from the federal government that may be useful, or even necessary, to railroad operation.11 BNSF’s implied conveyance theory is also problematic because the 1887 Act states the “construction and operation of such railroad shall be conducted with due regard for the rights of the Indians.” 1887 Act, § 4. In arguing for an implied conveyance of the right to appropriate water arising from the 1887 Act, BNSF provides no analysis about how appropriating water from land held in trust squares with the “due regard” standard Congress expressly included in the statute. D. Did Congress extinguish the Blackfeet Tribe’s reserved rights? BNSF next argues the United States conveyed a “sufficient property interest” to support state-based water rights on the railroad right of way within the Blackfeet Reservation regardless of whether Congress expressly or impliedly granted the right to appropriate state-based rights in the 1887 Act. BNSF asserts this interest exists because, notwithstanding the undisputed trust status, the Blackfeet Tribe “has no substantive property interest in the BNSF right-of-way other than perhaps a right of remitter if BNSF ceases to use the right-of-way for railroad purposes.” BNSF Cons. Reply Br. at 9, incorporated by reference at BNSF Obj. 6-7. BNSF’s alternate theory rests on the notion that its right of way is equivalent to a private fee interest that allows it to claim state-

11 BNSF cites the dissent in the Ninth Circuit’s decision that preceded Great Northern. BNSF Obj. at 10- 11, citing MacDonald v. United States, 119 F.2d 821, 828 (9th Cir. 1941) (Wilbur J., dissenting) aff’d 315 U.S. 262 (1942). In upholding the majority in MacDonald, the United States Supreme Court makes no mention of Judge Wilbur’s dissent, nor is there any indication that any subsequent case has endorsed his comment about wells in railroad rights of way. 12

based water rights on the Blackfeet Reservation despite the United States’ trust interest. The master’s reports reject this theory on the basis that it conflicts with settled case law insulating tribal property interests from extinguishment absent an explicit statement from Congress. BNSF makes two arguments objecting to the master’s reports’ extinguishment conclusions. First, BNSF argues the right of way interest it holds is equivalent to a fee interest in the right of way, which is sufficient to allow it to appropriate a state-based water right regardless of whether Congress expressly extinguished the Blackfeet Tribe’s reserved water rights. Second, BNSF argues that the standard for extinguishment should be relaxed in cases involving grants from Congress that preceded the United States Supreme Court’s 1908 Winters decision. 1. Extinguishment Standard. Under Winters, the Blackfeet Tribe’s reserved water rights held in trust by the United States arise from the 1855 Treaty. Treaty-based reserved water rights are subject to the body of case law protecting them from what variously is termed as “abrogation,” “termination,” “diminishment” or “extinguishment.” Regardless of the terminology, the case law is uniform that treaty rights cannot be lost without an express statement from Congress. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999) (“[i]f Congress seeks to abrogate treaty rights, it must clearly express its intent to do so”); Colville Confederated Tribes v. Walton, 647 F.2d 42, 50 (9th Cir. 1981) (“termination or diminution of Indian rights requires express legislation or a clear inference of Congressional intent gleaned from the surrounding circumstances and legislative history”); McGirt v. Oklahoma, 140 S. Ct. 2452, 2468 (2020); Oneida Indian Nation v. Cnty. of Oneida, 414 U.S. 661, 667, 94 S. Ct. 772, 777 (1974). In the summary judgment briefing, BNSF argued the United States Supreme Court’s decision in Strate v. A-1 Contractors, 520 U.S. 438 (1997) construed rights of way over Indian reservations as equivalent to a fee interest, thereby abrogating all of the Blackfeet Tribe’s property interests in the right of way, including the Tribe’s reserved

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water rights. Strate involved the question of tribal adjudicatory jurisdiction over non- tribal members involved in an accident on a highway right of way crossing on-reservation land held in trust. BNSF contends Strate stands for the proposition that “no Tribal property interest remained in the congressionally granted right-of-way.” BNSF Cons. Reply Br. at 9. BNSF misreads Strate. The Supreme Court actually stated that the “right- of-way North Dakota acquired for the State's highway renders the 6.59-mile stretch equivalent, for nonmember governance purposes, to alienated, non-Indian land.” Strate, 520 U.S. at 454 (emphasis added). As the master’s reports correctly note, Strate did not establish a general rule that all rights of way across on-reservation trust land are the equivalent of fee land. Instead, Strate and its progeny address the issue of the scope of tribal adjudicatory jurisdiction over non-tribal members, which is not something at issue in these cases. The proper analysis for determination of whether the right of way extinguished the Blackfeet Tribe’s reserved rights is the law of abrogation of treaty and other reserved rights. That analysis requires that Congress “clearly express” an intent to abrogate the rights. Mille Lacs Band, 526 U.S. at 202; see also, United States v. Abouselman, 976 F.3d 1146, 1158 (10th Cir. 2020) (“[i]n all cases addressing extinguishment courts have pointed to specific sovereign action that was directed to a right held by an Indian tribe”). If there is any doubt about abrogation of a tribal treaty right, the doubts are resolved in favor of the tribe. Mille Lacs Band 526 U.S. at 200. In light of these principles, the master’s reports correctly analyzed the railroad rights of way grant. Regardless of which statute provided the authority for the right of way, there is no specific statement from Congress abrogating or extinguishing the Blackfeet Tribe’s rights to use water. Absent some clear expression that the railroad was given some right to appropriate water on the reservation, the mere grant of a right of way is not enough to abrogate or extinguish reserved rights and open the door for BNSF to claim a state-based right. The Court is aware of no case recognizing a right of way as

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equivalent to returning on-reservation trust land to the public domain, and BNSF’s objection does not provide a basis to do so here. 2. Is the extinguishment standard different for Congressional actions that pre- date Winters?

BNSF’s final argument is the novel theory that the master’s reports’ recommended dismissal of the claims is incorrect because Congress could not expressly extinguish a reserved right prior to the 1908 date of the Winters decision recognizing reserved rights. Instead, according to BNSF, extinguishment must be evaluated according to the circumstances that existed at the time the right of way was granted. This argument is incorrect. The reserved water rights the Supreme Court recognized in Winters arose from the 1888 Act, the same statute that is at issue in this case. Winters v. United States, 143 F. 740, 743-744, (9th Cir. 1906) (lower court decision). Winters involved a conflict between parties who obtained land patents from the United States under the Desert Lands Act of 1877 and the United States in its capacity as trustee for the Fort Belknap Tribe. In Winters, the Supreme Court referenced the “agreement of May, 1888, resulting in the creation of Fort Belknap Reservation.” Winters, 207 U.S. at 575. Nowhere in the case did the Supreme Court suggest the parties who obtained rights from the United States prior to 1908 were exempt from the application of the doctrine. To accept BNSF’s argument also would ignore decisions recognizing Winters rights as against other parties with claimed rights predating 1908. See, e.g., United States v. Conrad Inv. Co., 156 F. 123, (D. Mont.1907), aff’d 161 F. 829 (9th Cir. 1908); United States v. Walker River Irr. Dist., 104 F.2d 334 (9th Cir. 1939). These cases recognize one of the core principles of the Winters doctrine: the reserved right “vests on the date of the reservation.” Cappaert v. United States, 426 U.S. 128, 138 (1976); Anderson, 736 F.2d at 1362. As to the Blackfeet Tribe, the reserved rights vested as of October 17, 1855, regardless of whether this date predated the Winters decision. Nothing in Winters or any

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subsequent case cited by BNSF suggests a different extinguishment standard for pre-1908 conveyances. Once the Blackfeet Tribe’s reserved rights vested in 1855, no subsequent action by Congress extinguished them as to the portion of the right of way within the Blackfeet Reservation that remains trust land. Accordingly, the master’s reports properly recommended that the claims be dismissed because rights to use water BNSF claims are not valid state-based water rights. ORDER Therefore, it is ORDERED that BNSF’s objections to the master’s reports in cases 41L-0023-P-2018 and 41L-0079-P-2018 are DENIED. The Court adopts the master’s reports and their recommendations. Claims 41L 124440-00 and 41L 142616-00 are DISMISSED.

______Stephen R. Brown Associate Water Judge

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Service list for 41L-0023-P-2018

Service via Electric Mail

Ryan K. Mattick Cusick, Mattick & Refling, P.C. Joann L. Kintz PO Box 1288 Rebecca M. Ross Bozeman, MT 59771-1288 Tyler Eastman (406) 587-5511 US Dept. of Justice (406) 587-9079 FAX Indian Resources Section [email protected] P.O. Box 7611, Ben Franklin Station (atty for Columbia Grain Inc., LLC) Washington, DC 20044 (202) 305-0424 (Kintz) W. John Tietz (202) 616-3148 (Ross) Browning, Kaleczyc, Berry & Hoven, P.C. Fax (202) 305-0275 800 N. Last Chance Gulch, Suite 101 [email protected] Helena, MT 59601 [email protected] (406) 443-6820 [email protected] (406) 443-6883 fax [email protected] [email protected] [email protected] Jeanne S. Whiteing Derek E. Kline Attorney at Law Blackfeet Legal Department 1628 5th St P.O. Box 849 Boulder, CO 80302 Browning, MT 59417 (303) 444-2549 (406) 338-7777 [email protected] [email protected] [email protected]

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Service List 41L-0079-2017

Service via Electronic Mail

W. John Tietz Browning, Kaleczyc, Berry & Hoven, P.C. 800 N. Last Chance Gulch, Suite 101 Helena, MT 59601 (406) 443-6820 (406) 443-6883 fax [email protected] [email protected]

Jeanne S. Whiteing Attorney at Law 1628 5th St Boulder, CO 80302 (303) 444-2549 [email protected]

Derek E. Kline Blackfeet Legal Department P.O. Box 849 Browning, MT 59417 (406) 338-7777 [email protected] [email protected]

\\JUDGALH2OSRV\Datavol\Share\WC-BASIN FOLDERS\41L\Cases\41L-23 AS\OR Deny OMR ag 5-13-2021.docx

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