# Amicus Curiae Brief — El Paso Natural Gas Co. v. Neztsosie > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0204%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 473 ## Text No. 98-6 DEC 8 06 IN THE ames Supreme Court of the United States OCTOBER TERM, 1998 Ext Paso NATURAL GAs COMPANY, Cyprus Foote MINERAL COMPANY, AND CypRuUS AMAX MINERALS COMPANY, 7. Petitioners, LAURA NEZTSOSIE; ARLINDA NEZTSOSIE; AND ZONNIE MARIE DANDY RICHARDS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HAROLD J. RICHARDS, SR., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF AMICUS CURIAE OF THE s ASSOCIATION OF AMERICAN RAILROADS IN SUPPORT OF PETITIONERS Of Counsel: BETTY JO CHRISTIAN Louis WARCHOT Counsel of Record DANIEL SAPHIRE CHARLES G. COLE ASSOCIATION OF AMERICAN Sara E. HAUPTFUEHRER RAILROADS STEPTOE & JOHNSON LLP 50 F Street, N.W. 1330 Connecticut Avenue, N.W. Washington, D.C. 20001 Washington, D.C. 20036 (202) 639-2500 (202) 429-8113 Counsel for Amicus Curiae Association of American Railroads WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 r ; INTEREST OF AMICUS CURIAE SUMMARY OF ARGUMENT Into Interests... A. Exhaustion Analysis Properly Takes Account Countervailing Federal B. The Ninth Circuit’s Strict View of the Ex- haustion Doctrine Is Not Supported by This I. EXHAUSTION OF TRIBAL REMEDIES IS NOT AN UNYIELDING REQUIREMENT... ii TABLE OF AUTHORITIES CASES Page Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1289 (9th Cir. 1991) -....................----- 4,8 Burlington Northern R.R. v. Minnesota, 882 F.2d SR fe S) | 22 Burlington Northern R.R. v. Montana, 880 F.2d Rt Ce | 22 Burlington Northern R.R. v. Oklahoma Taz Comm’n, 481 U.S. 454 (1987) ....--.....-....-----c0000-++ 2 Burlington Northern R.R. v. Red Wolf, 106 F.3d 868 (9th Cir. 1996), cert. granted & decision vacated, 118 S. Ct. 37 (1997) 22.22.22... neneeeee 3 California Fed. Savs. & Loan Ass’n v. Guerra, 479 if Be, Se ee 18 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 COTA ) ccnenccnicrrnminitstistitinetenaiitiniisiaieeaa 9 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) —...-200...--.-- 5, 8-10 + County of Allegheny v. Frank Mashuda Co., 360 8 SF) a ee eS 9 Department of Revenue of Oregon v. ACF Indus- tries, Inc., 510 U.S. 382 (1994) ..................-........ 3-4 Hines v. Davidowitz, 312 U.S. 52 (1941) .............. 22 In re TMI Litigation Cases Consolidated II, 940 F.2d 882 (3d Cir. 1991) ~.. 2 lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 + CREO a passim Kerr-McGee Corp. v. Farley, 115 F.8d 1498 (10th Cir. 1997), cert. denied, 118 S. Ct. 880 (1998)... 8 Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 184 (1985) 17 McCarthy v. Madigan, 503 U.S. 140 (1992) ._....... 1l Missouri Pac. R.R. v. Railroad Comm’n of Tezas, 850 F.2d 264 (5th Cir. 1988) 22 Montana v. United States, 450 U.S. 544 (1981) ..6, 14-15, 16-17 Moses H. Cone Memorial Hosp. Co. v. Mercury Constr. Co., 460 U.S. 1 (1983) 9 fii TARLE OF AUTHORITIES—Continued P National Farmers Union Ins. Cos. v. Crow Tribe, a a ca i passim Nieman v. NLO, Inc., 108 F.8d 1546 (6th Cir. EE ARS PTT UPS et ee 2 O'Conner v. Commonwealth Edison Co., 18 F.3d I > 11 10 10 IN THE Supreme Court of the United States OcToBER TERM, 1998 No. 98-6 Ex Paso NaTURAL Gas COMPANY, Cyprus Foote MINERAL COMPANY, AND Cyprus AMAX MINERALS COMPANY, . Petitioners, LAURA NEZTSOSIE; ARLINDA NEZTSOSIE; AND ZONNIE Marig DANDY RICHARDS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HAaAROoLp J. RICHARDS, SR.., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF AMICUS CURIAE OF THE ASSOCIATION OF AMERICAN RAILROADS IN SUPPORT OF PETITIONERS INTEREST OF AMICUS CURIAE 1 I | | : : 2 percent of the line haulage, employ 91 percent of the workers, and produce approximately 93 percent of the freight revenues of all railroads in the United States. AAR represents its member railroads before courts, agencies, and the Congress in matters of common concern. It has previously filed amicus curiae briefs in cases before this Court that present issues of substantial importance to its members.* In the 1997 Term, AAR urged this Court to accept for review a petition presenting one of the issues presented by this case.* The Petitioners here, successors to operators of uranium mines located on the Navajo Reservation, were sued in tribal court by members of the Navajo Nation alleging injury caused by exposure to radioactive wastes. The Atomic Energy Act, as amended, broadly regulates the field of nuclear power.* The Act also creates a federal cause of action and gives defendants the absolute right to have such claims adjudicated in federal court by man- dating removal from state court at the defendant’s request. 42 U.S.C. §2210(n)(2). Despite these features of the statutory scheme, the Ninth Circuit ordered Petitioners to exhaust tribal remedies before challenging tribal jurisdic- tion in federal court on the ground of federal preemption. 2 See Burlington Northern R.R. v. Blackfeet Tribe of the Black- feet Indian Reservation, No. 91-545 (filed Nov. 1, 1991); Southern Pacific Transportation Co. v. Jose Hernandez, No. 91-293 (filed Sept. 18, 1991); Transportes Aeros Mercantiles Pan Americanos, S.A. v. International Association of Machinists & Aerospace Work- ers, No. 91-02 (filed Aug. 30, 1991); Norfolk & Western Ry. v. Olen Roberson, No. 90-1271 (filed Apr. 19, 1991); Burlington Northern R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454 (1987). 3 See Brief Amicus Curiae of the Association of American Rail- roads in Support of the Petition, Kerr-McGee Corp. v. Farley, No. 97-705 (filed Dec. 22, 1997). 4 See, e.g., Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir. 1997) ; O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099 (7th Cir. 1994); In re TMI Litigation Cases Consolidated I], 940 F.2d 832, 854 (3d Cir. 1991). 3 AAR has a strong interest ,in case because -the Ninth Circuit's decision, ee ae dispute in- implications for “the volving nuclear power, has serious pat i s rajlroads. That decision applies the doctrine of us tion of tribal remedies inflexibly, ,requiting resort to tribal courts even when the controlling issue is whether burdensome and needless litigation in the tribal courts. Fe SS ee ae Se ee the possibility. ‘indeed in many cases the likelihood, that be the entire proceeding may ultimately found void by a federal court. And it runs the risk of a huge verdict at the ‘hands of a jury composed solely of tribal members. See, e.g., Burlington Northern Railroad v. Red Wolf, 106 arising from grade crossing accident), cert. granted & Piers Rapin a 118 S. Ct. 37 (1997). It is little con- solation to those who |have suffered these costs that the tribal court judgment may ultimately be set aside as void 5 As this Court noted in Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 386 (1994), railroads “ ‘are 4 Pursuant to federal rights of way, one or more railroads cross the lands of at least 55 reservations in 16 states. This century-old configuration is not likely to change, since a large number of rights of way carry main rail lines that cannot be abandoned. AAR members have already seen a number of attempts by tribes to engage in improper regulation of their opera- tions on reservation lands. For example, Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1239 (9th Cir. 1991), dealt with a Crow Tribal Common Car- rier Ordinance adopted in 1982 which estabilshed “general duties” of “railroad lines” operating on the tribe’s reser- vation. It authorized tribal regulation of health and safety, service and facilities, and abandonment, all of which are addressed by federal regulatory law.® Id. at 1241. In 1996, the Bad River Band of the Lake Superior Tribe of Chippewa Indians enacted a “Railroad Safety Ordinance.” This ordinance purported to regulate, among other things, the track to be used on reservation lands and the “qualifications” of railroad personnel on trains crossing the reservation, notwithstanding that the Federal Railway Safety Act (“FRSA”) and regulations promul- gated thereunder regulate track safety and operation’ and the “licensing or certification” of locomotive en- gineers.® easy prey for State and local tax assessors’ in that they are ‘non- voting, often nonresident, targets for local taxation,’ who cannot easily remove themselves from the locality.” (Quoting Western Air Lines, Inc. v. Board of Equalization of South Dakota, 480 U.S. 123, 131 (1987).). 6 See 49 U.S.C. § 20142 (safety); § 10501(b)(1) (service and facilities) ; § 10903 (abandonment). 7 See 49 U.S.C. § 20142; 49 C.F.R. §§ 213.31-.37 (track roadbeds), 213.51-.63 (track geometry), 213.101-.143 (track structure). 8 See 49 C.F.R. §§ 240.1-.411 (1997). 5 These examples of tribal efforts to te railroads se sca a degra lag tommy Mer the railroad industry. Tribal regulation—like state and gee Msgr consequent limitations on tribal jurisdiction. SUMMARY OF ARGUMENT The Ninth Circuit held that a federal court presented with a challenge to tribal court jurisdiction may consider in the first instance claims of federal preemption only where a federal statute expressly forbids tribal court juris- diction. In reaching that result, the court failed to accord any weight to countervailing interests favoring the im- mediate exercise of jurisdiction by the federal courts with respect to issues of federal preemption. This mechanical approach ignores the underpinnings of the tribal exhaustion doctrine. Exhaustion, this Court explained in Jowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987), is based on comity, and is “analogous to prin- ciples of abstention articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).” 480 U.S. at 16 n.8. Flexibility is a defining characteristic of Colorado River abstention and comity analysis. These doctrines permit courts to weigh the interest in having a federal court render a prompt decision on an issue of federal law, such as preemption by a comprehensive regu- latory scheme. They also permit courts to consider the interest in avoiding piecemeal litigation, so that the parties are not forced to shuttle from court to court in order to get a definitive answer. This Court’s prior decisions do not preclude a federal court from initially addressing pre- emption by a federal regulatory statute. 9 49 U.S.C. § 20106. 6 Issues of preemption—whether express or implied— may have a direct impact on the scope of tribal court jurisdiction. In Strate v. A-] Contractors, 520 US. 438 (1997), this Court reiterated that, as a “general proposi- tion,” the inherent sovereignty of the Indian tribes does not “extend to the activities of nonmembers of the tribe.” 520 US. at 445-46; accord Montana v. United States, 450 U.S. 544, 565 (1981). Rather, such powers lie only to the extent they have bcen affirmatively granted by Con- gress.1° Since tribal adjudicatory jurisdiction reaches no further than its regulatory jurisdiction, Strate, 520 U.S. at 453, tribal court jurisdiction does not extend to matters over which the tribe Jacks regulatory power as .a result of federal preemption. ‘Federal preemption may be implied as well as express. In either case, there are sound reasons to permit a federal court to consider such claims. For example, in Strate, this Court unanimously directed federal courts to con- sider claims that tribal courts lacked jurisdiction with re- spect to incidents occurring on rights of way granted by federal statute. In that instance, there is no express pro- hibition on tribal court jurisdiction, but the relevant ques- tions of statutory interpretation can be readily addressed by the federal courts. Thus, the Court concluded that “the otherwise applicable exhaustion requirement .. . must give way, for it would serve no purpose other than delay.” 520 U.S. at 459 .n.14. The policies on which this Court’s exhaustion prece- dents rest—the benefits of permitting tribal courts to 10 See Strate, 520 U.S. at 4465 (“LA)bsent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances.”); Montana, 450 U:S. at 564 (tribal jurisdiction over nonmembers “cannot sur- vive without express congressional delegation”); South Dakota v. Bourland, 508 U.S. 679, 695 n.15 (1993) (argument that ‘tribes may exercise jurisdiction over nonmembers “shuts both eyes to the reality that after Montana, tribal sovereignty over nonmembers ‘cannot survive without express congressional delegation’ ”). interpretation of tribal law. Yet litigants required to try and appeal such cases in the tribal court system will be forced to incur unnecessary regulatory and litigation costs, as well as delay, before obtaining an authoritative reso- lution in federal court. ; The interpretation of this Court’s precedents adopted by the Ninth Circuit and other courts over the last decade is misguided. It has resulted in an overt refusal to con- sider, let alone properly balance, the substantial counter- vailing federal interests inherent in federal regulation of specific industries. This Court should hold that the federal courts must address issues of federal preetmption without requiring that tribal remedies first be exhausted. ARGUMENT IL EXHAUSTION OF TRIBAL REMEDIES IS NOT AN UNYIELDING REQUIREMENT In the decision below, the Ninth Circuit insisted that exhaustion was required in the absence of an express jurisdictional prohibition in a federal statute or treaty. “Price-Anderson,” the court found, “contains no such express prohibition of tribal court jurisdiction.” Pet. App. at 13a. The court of appeals then ordered exhaustion of tribal remedies without even considering the countervail- ing federal interests in bringing order and uniformity to the area of nuclear torts. See Pet. App. at 17a-19a. In another recent case involving the same regulatory scheme, the Tenth Circuit, having similarly failed to find an ex- press prohibition of tribal jurisdiction, refused to take such federal interests into account. The Tenth Circuit stated affirmatively that the “National Farmers framework does not accord countervailing federal concerns a place in the comity analysis.” Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1508 (10th Cir. 1997), cert. denied, 118 S. Ct. 880 (1998)." This mechanistic approach to exhaustion analysis lacks support in either the genesis of the exhaustion doctrine or this Court’s precedents. A. Exhaustion Analysis Properly Takes Into Account Countervailing Federal Interests The doctrine of exhaustion of tribal remedies, as articu- lated by this Court in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985), and lowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987), owes its origins to preexisting prudential concerns that have traditionally guided the federal courts in exercising their jurisdiction. As the Court explained in Jowa Mutual, “Exhaustion is required as a matter of comity, not as a jurisdictional prerequisite. In this respect, the rule is analogous to principles of abstention articulated in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).” 480 US. at 16 n.8. Colorado River abstention is a flexible concept requir- ing a balancing of interests. It allocates responsibility for initial adjudication on the basis of both the expertise and role of a particular court system and an overall interest in efficiency. In Colorado River, the Court began with the premise that “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado 11 Other courts have also required exhaustion of tribal remedies even when a federal regulatory scheme strongly implies that fed- eral jurisdiction is exclusive. See, e.g., Reservation Tel. Coop. v. Three Affiliated Tribes of the Fort Berthold Reservation, 76 F.3d 181, 185-86 (8th Cir. 1996) (exhaustion mandatory because federal statute apparently preempting tribal tax on telephone lines on res- ervation did not expressly divest tribal court of jurisdiction) ; Burlington Northern R.R. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991) (“exhaustion of tribal remedies is not dis- cretionary ; it is mandatory”). 9 River, 424 U.S. at 813. In light of the “virtually unflag- ging obligation of the federal courts to exercise the juris- diction given them,” id. at 817, “[a]bdication of the obli- gation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.” Jd. at 813 (quot- ing County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)); see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1921) (“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.”). The Court then identified some of the specific circum- stances in which abstention had been viewed as appro- priate, such as where “a federal constitutional issue might be mooted or presented in a different posture by a state court determination of pertinent state law,” or where a case presented “difficult questions of state law bearing on policy problems of substantial public import.” 424 US. at 814. The Court recognized that abstention might also be appropriate when justified by “consideration of ‘[w]ise judicial administration giving regard to conservation of judicial resources and comprehensive disposition of litiga- tion.”” Jd. at 817 (citation omitted). This kind of ab- stention comes into play only when duplicative actions, involving the same parties and the same issues, are pend- ing in the federal and state systems. A number of factors guide application of Colorado River abstention, including the importance of avoiding piecemeal litigation, whether the merits of the dispute turn on the resolution of a federal question, and the adequacy of the fora to protect the parties’ rights. Id. at 818; Moses H. Cone Memorial Hosp. Co. v. Mercury Constr. Co., 460 U.S. 1, 23 (1983). Colorado River abstention does not require federal courts to ignore the federal interest in having federal courts decide questions 10 of federal law. Nor does it require them to ignore the burdens that may be imposed upon litigants by shuffling them between courts. Rather, Colorado River requires an intelligent weighing of the interests present in a par- ticular procedural situation. The analogy to Colorado River is icularly signifi- cant in the contéxt of a case involving federal preemption issues. Wheré Congress has énacted legislation that is preeinptive of state or local law, it has recognized a federal interest sufficiently important to override state and local autonomy. That federal interest must be taken into account in balancing the need for federal court action. Comity, the other concept to which the Court has re- ferred as a basis for tribal court exhaustion, is similarly flexible. The very definition of comity implies discretion: “{a] willingness to grant a privilege, not as a matter of right, but out of deference and good will.”** As between sovereign nations, comity is “the recognition which one nation allows within its territory to the legislative, execu- tive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own Citizens or of other persons who are under the protection of its laws.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 101 (1987). Moreover, the forum court must consider its own interests as well as those of the othér state in determining whether to exercise jurisdiction. /d, § 403(3). Thus, under a traditional comity analysis, the federal in- terest in having a federal court decide the preemptive scope of federal law is a legitimate factor which should be considered. Finally, to the extent that the tribal exhaustion doctrine has roots in the concept of exhaustion of administrative 12 Black’s Law Dictionary 266 (5th ed. 1998). ii remedies, that doctrine, too, permits a flexible approach. Exhaustion of administrative remedies “protects ~ autonomy by allowing the agency the opportunity in first instance to apply its expertise and correct its Sve errors”; “aids judicial review by allowing the parties and the agency to develop the facts of the case in the agency proceeding”, and “promotes judicial economy by avoid- ing needless repetition of administrative Sand radical udicial fact- finding, perhaps avoiding the necessity of any judicial ifivolvement.” Bernard Schwartz, ADMINISTRATIVE Law 542 (3d ed. 1991). These purposes are echoed in Na- tional Farmers’ explanation of the purposes of requiring tribal exhaustion. See 471 U.S. at 856-57. But, again, exhaustioti of administrative remedies is not reqiiired as 4 matter of coiitse. Rather, in the dd- ministrative law context as well, the intetests favorin exhaustion aré td be Weighed against Countetvailing interests: {Tyhis Cotirt has declined to requite exhaustion in some circimstances even where administrative and judicial intetests would counsel otherwise, In deter- mining whether exhaustion is required, federal courts must balance the interest of the individual in obtain- ing prompt access to a federal judicial forum against countervailing institutional interests favoring exhaus- tion. McCarthy v. Madigan, 503 U.S. 140, 146 (1992). It is thus plain that flexibility is an essential characteris- tic of the various doctrines behind the concept of tribal court exhaustion. These doctrines recognizé the obliga- tion of a federal court to accept jurisdiction, declare the boundaries of federal law, save litigants the expense of unnecessary litigation. 12 B. The Ninth Circuit’s Strict View of the Exhaustion Doctrine Is Not Supported by This Court’s Prece- dents In fashioning the concept of trial court exhaustion from these pre-existing doctrines, this Court did not adopt an inflexible rule. “{E]xhaustion is not an unyielding re- quirement.” Strate, 420 U.S. at 449 n.7. Rather it is a “prudential” doctrine, adopted “in deference to the ca- pacity of tribal courts ‘to explain to the parties the precise basis for accepting [or rejecting] jurisdiction.’” Jd. at 450 (quoting National Farmers Union, 471 U.S. at 857). While the Court in its early cases required exhaustion for a determination of the reach of the tribal court under tribal law and applicable federal treaties, none of its precedents have held that a question of federal preemp- tion must be presented first in tribal court. On the con- trary, there are substantial indications in this Court's precedents that such issues of federal law are appropriately considered by the federal courts without exhaustion. The exhaustion doctrine originated in National Farmers Union, a personal injury case arising from a motorcycle accident in a school parking lot. The jurisdictional ques- tion was whether the tribal court had authority over the school district. Federal preemption was not at issue, as there was no claim that a specific or comprehensive fed- eral regulatory scheme precluded adjudication of the tort case in tribal court. This Court concluded that “con- siderations of comity” required exhaustion. See lowa Mutual, 480 U.S. at 15 (explaining National Farmers Union). These considerations included “tribal self-govern- ment and self-determination” and fostering “the orderly administration of justice in the federal court” based on the development of a full record in the tribal court. National Farmers Union, 471 U.S. at 856-57. The Court explained that exhaustion would “encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of 13 further judicial review.” dd, at 857. Thus, the “should be cond Ske In lowa Mutual, this Court followed much the same tion to the Petitioners’ argument that tribal court roe statute. This Court resolved that question of federal law on its merits, holding that “[{iJn the absence of any indi- cation that Congress intended the diversity statute to limit the jurisdiction of the tribal courts,” the Court would not Most recently, in Strate this Court reviewed its exhaus- tion cases in considerable detail. It reiterated that the analysis is a “ ‘prudential rule’ . . . based on comity.” 520 U.S. at 448, 453, 449 n.7. It noted that tribal court jurisdiction over non-Indians in criminal cases is “cate- gorically restricted” and hence not subject to exhaustion, but that exhaustion is appropriate in civil matters where “‘the existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial deci- sions.” Id. at 449 (quoting 471 U.S. at 855-56). In Strate itself, the Court found that where a non- member of the tribe was proceeding through the reserva- tion on a right-of-way granted by a federal statute, 25 14 U.S.C, keeping 6h” 3 (1994), the tribe had lost its “ ght,” 520 U.S. at 455, so that the rights of the nonmember would be governed by the rule of Montana v. United States, 450 U.S. 544, er to controlling pro- visions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally ‘does not extend to the activities of nonmembers of the tribe." 520 U.S. at 453 (quoting Montana, 450 U.S. at 565). The Court examined each of those excep- tions and found that neither was satisfied by a tort case against a nonmember arising from an accident on the right-of-way. Although Strate arose after full litigation in the tribal courts, the Court's unanimous opinion dealt in a categori- cal fashion with the issue of exhaustion in future cases. Where, as in Strate, the case arose on a federal right-of- way and it was “plain that no federal grant provides for tribal governance of nonmembers’ conduct,” then it would be “equally evident that tribal courts lack authority over disputes arising from such conduct.” 520 U.S. at 459 n.14. In this situation, “the otherwise appli- cable exhaustion requirement . . . must give way, for it would serve no purpose other than delay.” Jd. at 459-60 n.14, Strate thus indicates that when the issue of tribal court jurisdiction turns purely on questions of federal statutory law—the existence of a federal right-of-way and the ab- sence of an express grant of power to the tribe—exhaus- tion of tribal remedies is not required.“ There was no 13 The Ninth Cirevit panel responsible for the El Paso decision had great difficulty in assimilating the Strate decision. Initially, it rigidly concluded that there were only three “exceptions” to the exhaustion doctrine. Pet. App. at 26a. On rehearing, it amended its opinion to add a fourth exception. Jd. What the panel failed to. recognize ia that the rule announced in Strate was simply another practieal application of the flexible doctrine announced in this Court’s earlier cases. F ay Under a flexible exhaustion analysis, the scope of initial federal court review cannot be limited to situations in jurisdiction will turn on the scope of a federal statute 16 that has nothing to do with Indian affairs. Thus, whether the preemption is explicit or implicit, the policies favoring o poomes Seine Caves Se Gs ee See ee tion will be equally strong, and will be compelling in relation to any reasons for exhaustion of tribal court remedies. A. Federal Regulatory Preemption May Deprive Tri- bal Courts of Jurisdiction In insisting on an express jurisdictional limitation, the court below failed to appreciate the impact of federal preemption on the scope of tribal court jurisdiction. Where a federal statutory scheme—whether through its express provisions or its implied effect—preempts tribal regulation, it also deprives the tribal courts of the power to adjudicate the rights of nonmembers. Thus, tribal court jurisdiction will often turn on a precise analysis of the scope of a federal scheme. A starting point for any determination of the scope of tribal court jurisdiction over a nonmember is the presump- tion declared in Montana and reaffirmed in Strate: “In the main, . . . ‘the inherent sovereign powers of an Indian tribe’ . . . ‘do not extend to the activities of nonmembers of the tribe.” Strate, 520 U.S. at 445-46 (citations omitted); Montana, 450 U.S. at 565. This limitation “‘rest[s] on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily in- consistent with their freedom independently to determine their external relations.” Montana, 450 U.S. at 564 (quoting United States v. Wheeler, 435 U.S. 313, 326 (1978) (alteration in original)). The “exercise of tribal power beyond what is necessary to protect tribal self- government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” I/d. Thus, Indian tribes have been implicitly divested of their 17 sovereignty in areas “involving the relations between an Indian tribe and nonmembers of the tribe.” Id. (citation omitted; emphasis in original ). This presumption may be overcome in limited circum- stances. When a tribe owns the land and has retained a landowner’s “gatekeeping right” to control entry onto the land, that tribe “retain{[s] considerable control over non- member conduct.” Strate, 520 U.S. at 454. But if the tribe no longer owns the land or, as in Strate, has other- wise given up a landowner’s power to exclude nonmem- bers from the land, the tribe ordinarily will have no basis for regulating the conduct of a nonmember. Strate, 520 U.S. at 453; Bourland, 508 U.S. at 689, 691 n.11. Where the tribe has no power to regulate the conduct of a nonmember, it also lacks authority to bring that non- member before a tribal court to adjudicate claims against him. This is a central holding of Strate. “As to non- members, we hold, a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction.” 520 U.S. at 453. The Court emphasized, “Absent congressional direction enlarging tribal-ccurt jurisdiction, we adhere to that under- standing.” Jd. Thus, in that case, because the Tribes had surrendered their power to regulate conduct on the fed- erally granted right-of-way, they had also lost the power to adjudicate claims against nonmembers arising from their conduct on the right-of-way. This removal of the Tribes’ regulatory power occurred, not by express jurisdictional prohibition, but by implic?- tion from a federal statute depriving the Tribes of their power to regulate. And a tribe may also lose its power to regulate, for example, as a result of a federal regula- tory scheme that provides an exclusive remedy,"* occupies 14 See, e.g., Pilot Life Ins. Co. v. Dedeauz, 481 U.S. 41, 43-47 (1987) (complexity of statutory scheme confirms that Congress intended remedies provided in Employee Retirement Income Secur- ity Act of 1974 to be exclusive); Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985) (same). 18 the field,"® or creates a practical conflict with local tribal ] aw.}® In fact, this Court has held that tribal jurisdiction may be removed by implication. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), this Court deter- mined that tribal courts lack jurisdiction to try non-Indians for criminal offenses, despite the absence of an express prohibition: While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions. 435 US. at 204; see also National Farmers Union, 471 U.S. at 854-55 (Oliphant held that “federal legislation conferring jurisdiction on the federal courts to try non- Indians for offenses committed in Indian Country had implicitly pre-empted tribal jurisdiction”) (emphasis added ). Whether federal law removes tribal regulatory power through explicit or implicit preemption, the effect on tribal court jurisdiction should be the same. The absence of reg- ulatory jurisdiction over a nonmember necessarily must result in the absence of adjudicatory power. Thus, in a case where federal preemption is asserted, the pivotal question is not the scope of the tribe’s jurisdiction under 15 See, e.g., California Fed. Savs. & Loan Ass'n v. Guerra, 479 U.S. 272, 280-81 (1987) (“[Clongressional intent to pre-empt state law in a particular area may be inferred where the scheme of fed- eral regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.”) (citation omitted); Pennsylvania RR. v. Public Serv- ice Comm'n, 250 U.S. 566, 568 (1919). 16 See, e.g., Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190, 203-04 (1983) ; Rice v. Santa Fe Elevator Corp., 831 US. 218, 230 (1947). 19 its constitution, laws and treaties, but rather the interpreta- tion of federal law. B. Federal Courts Should Determine Implied Preemp- tion Issues Without Requiring Exhaustion of Tribal Court Remedies As footnote 14 of the Strate opinion illustrates, federal courts need not limit their role in determining tribal court jurisdiction to cases of express prohibition. Where there is a viable claim that a federal statute preempts tribal regulatory power, the policies favoring an immediate deci- sion outweigh the interests in tribal court exhaustion. In fact, the same factors that support tribal court exhaustion in the context of a personal injury or contract case, like National Farmers Union or lowa Mutual, argue for a prompt and definitive federal court decision in the context of a challenge based on federal regulatory preemption. In that circumstance, it is not the tribe’s asserted basis for jurisdiction that is in issue, but rather the scope of the federal scheme—the intent of Congress—that is disposi- tive. The provisions of these federal regulatory schemes are routinely addressed by federal courts, whereas tribal courts encounter them infrequently, if at all. Moreover, as the case before the Court demonstrates, analysis of a claim of implied preemption of tribal court jurisdiction calls for an analysis of a federal statute and Congress's intent, rather than tribal law, and rarely requires an ex- tensive factual record. If the federal scheme fully occupies the field or specifies an exclusive remedy, “the precise basis” for tribal court jurisdiction will be largely irrelevant. Thus, the federal policies that underlay this Court's prior decisions are not served by requiring exhaustion where preemption is asserted. Nor is referral of such matters to tribal courts consistent with the orderly administration of justice. It makes no sense that, while the federal courts may assume jurisdic- 20 tion immediately to hear claims of express prohibition of tribal jurisdiction, they should withhold their expertise re- solving claims of implied preemption until after full ad- judication on the merits in tribal court. Moreover, re- quiring exhaustion in these circumstances forces litigants to shuffle between tribal and federal courts: first to federal court to determine whether there is an express prohibi- tion, then (if the court rules there is not) to tribal court to consider whether there is an implied prohibition, then back to federal court for a definitive ruling. Such a scheme is hugely wasteful of the resources of both court systems, as well as the time and assets of the litigants. The approach of the court below to preemption is dis- orderly—a formula for unending, multi-court litigation. Even the policies supporting tribal autonomy are impli- cated to a lesser degree when the decisive questions are the scope and intent of a federal regulatory scheme rather than identification of the limits of tribal sovereignty. Those questions are issues on which federal courts will obviously have the last word. A dry run of these issues in tribal court seems pointless and ultimately corrosive of true tribal court autonomy.”’ pe If the pertinent federal policies are candidly assessed, it is difficult to see why issues of express prohibition of tribal court jurisdiction should be heard immediately by federal courts, while questions of implied preemption should be deferred until after tribal adjudication on the 17 As one commentator explained : [A]llowing the tribal court to take “first crack” at issues that involve no question of tribal law serves no policy of the ex- haustion doctrine . . .. Though interpretation of state and federal law is certainly within the purview of tribal court jurisdiction, the tribal court can claim no particular or unique expertise in these areas. Laurie Reynolds, Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty While Expanding Federal Jurisdiction, 73 N.C. L. Rev. 1089, 1189 (1995). 21 merits. In either case, it is the federal court’s assessment of the scope of federal preemption that will be determina- tive of the outcome. If the issues are somewhat more subtle in a case of implied preemption, this is a sound reason to draw on the experience and expertise of the federal court. Moreover, in contrast to statutes that spe- cifically prohibit tribal court jurisdiction, comprehensive federal schemes are not likely to be rooted in the history of federal-tribal relations, but rather in the history of fed- eral regulation of a particular industry or field. Thus, there is no reasonable basis in the policies underlying abstention for holding that federal courts can immediately consider claims of express prohibition, but must defer on claims of implied preemption. An inflexible exhaustion requirement undermines the legitimate interests of nonmembers arising under federal law. Where the dispositive ruling ultimately will come from the federal courts on an issue of federal law, it is burdensome for nonmembers to be forced to litigate the case to finality in the tribal courts before seeking a dis- positive federal ruling. With federally-regulated entities, such as railroads, the impact of a court’s refusal to enter- tain a valid federal question pending resolution in tribal court may be inconsistent with the congressional intent underlying the federal scheme at issue. Congress’s pur- pose in broad, preemptive regulation is usually to promote uniformity and consistency in areas in which perceives an important federal interest.% The inflexible application of exhaustion of tribal remedies, notwithstand- ing a colorable preemption claim, ignores these federal 18 See, e.g., Schneidewind v. ANR Pip. “e Co., 485 U.S. 293, 299-302 (1988) (Natural Gas Act of 1988 reflects Congress’ intent to create a “comprehensive scheme of federal regulation” in natural gas industry); Ray v. Atlantic Richfield Co., 435 U.S. 151, 163 (1978) (under Ports and Waterways Safety Act of 1972 “Congress intended [to establish] uniform national standards for design and 22 interests and undermines the uniformity and consistency those statutes are meant to promote. The nation’s railroads are particularly concerned with the lower courts’ refusal to consider countervailing in- terests in exhaustion analysis. Tribal regulation of the safety of railroad operations raises obvious preemption issues under the Federal Railroad Safety Act (“FRSA”), as amended. 49 U.S.C. §$§ 20101-20153 (1994). Sec- tion 20106 of the FRSA expressly preempts state regula- tion of areas regulated federally, and the federal courts have given a broad interpretation to the scope of such preemption.’® Because of the context in which it was written, however, this statute does not expressly refer to tribal law or jurisdiction. Railroads should not be com- pelled to adjudicate the merits of tribal enforcement of tribal railroad safety ordinances when the controlling question is the preemptive scope of the federal statute. Similarly, the ICC Termination Act of 1995 (“ICCTA”) vests “exclusive jurisdiction” in the Surface Transportation Board over the “services and facilities” of railroads, declares “the remedies provided under” the stat- ute to be “exclusive,” and “preempt[s] the remedies pro- vided under Federal or State law.” 49 U.S.C.A. § 10501 (b)(2) (1997). While this statute does not expressly construction” of tanker vessels); Hines v. Davidowitz, 312 U.S. 52, 61 (1941) (federal interest in foreign affairs and uniform natu- ralization preempted Pennsylvania statute requiring registration of alien residents in the state). 19 See, e.g., Burlington Northern R.R. v. Minnesota, 882 F.2d 1349, 1353 (8th Cir. 1989) (FRSA preempts state caboose law since regulations promulgated under that statute permit “the use of end- of-train telemetry devices as substitutes for visual brakes inspec- tion”) ; Burlington Northern R.R. v. Montana, 880 F.2d 1104, 1106 (9th Cir. 1989) (same); Missouri Pace. R.R. v. Railroad Comm'n of Texas, 850 F.2d 264, 268 (5th Cir. 1988) (“virtually all state regulations affecting the train itself appear preempted by federal law”). : , the sweeping exhaustion theory followed by the below—which accords no weight to the federal interests at all—threatens to elimi- nate any timely opportunity for railroads to seek federal protection from unauthorized and inappropriate tribal regulations. CONCLUSION The Court should reverse the decision of the court of appeals and hold that a federal court must address issues of federal preemption, whether express or implied, without requiring that tribal remedies first be exhausted. Respectfully submitted, Of Counsel: Betty Jo CHRISTIAN Lous WARCHOT Counsel of Record DANIEL SAPHIRE CHARLES G. COLE ASSOCIATION OF AMERICAN Sara E. HAUPTFUEHRER RAILROADS STEPTOE & JOHNSON LLP 50 F Street, N.W. 1330 Connecticut Avenue, N.W. Washington, D.C. 20001 Washington, D.C. 20036 (202) 639-2500 (202) 429-8113 t Counsel for Amicus Curiae Association of American Railroads --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0204%3A15. Public record. Not legal advice.