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Tribes v. Lake County Board of Commissioners

United States District Court, D. Montana, Missoula Division

November 20, 2019



          Dana L. Christensen, Chief District Judge.

         Before the Court are Plaintiffs Confederated Salish and Kootenai Tribes' Motions to Dismiss the Counterclaims of Defendants Lori Lundeen and Lake County Board of Commissioners ("Lake County"). (Docs. 32 & 51.)[1] The Tribes seek dismissal of the Defendants' counterclaims for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). Although it notes that the practical effect of this Order is limited, the Court grants the motions and dismisses the Defendants' counterclaims in full.

         Background [2]

         The Confederated Salish and Kootenai Tribes are a federally recognized confederation of Indian tribes that once occupied what is now western Montana and parts of Idaho, Wyoming, and British Columbia. Today, the Tribes are headquartered in the Flathead Indian Reservation, which encompasses 1.3 million acres of western Montana, extending north of Missoula through the lower half of Flathead Lake. See Hell Gate Treaty of 1855, July 16, 1855, 12 Stat. 975, 1855 WL 10416 ("Commencing at the source of the main branch of the Jocko River; thence along the divide separating the waters flowing into the Bitter Root River from those flowing into the Jocko to a point on Clarke's Fork between the Camash and Horse Prairies; thence northerly to, and along the divide bounding on the west the Flathead River, to a point due west from the point halfway in latitude between the northern and southern extremities of the Flathead Lake; thence on a due east course to the divide whence the Crow, the Prune, the So-ni-el-em and the Jocko Rivers take their rise, and thence southerly along said divide to the place of beginning.").

         Under the Hell Gate Treaty, signed in 1855, the United States agreed that the Reservation would be "set apart... for the exclusive use and benefit" of the Tribes. Hell Gate Treaty art. II. Non-Indian settlers could reside within the Reservation's boundaries only with the Tribes' permission. Id. And the Tribes agreed to relinquish their claim to their historic territories, allowing "all citizens of the United States to enter upon and occupy as settlers any lands not actually occupied and cultivated by said Indians at this time, and not included in the [Reservation]." Id. Particularly relevant in this litigation, the Hell Gate Treaty provides: "That if necessary for the public convenience roads may be run through the said reservation; and, on the other hand, the right of way with free access from the same to the nearest public highway is secured to them, as also the right in common with citizens of the United States to travel upon all public highways." Id. art. III.

         In 1904, Congress passed the Flathead Allotment Act, which forced the allotment of Reservation lands to individual Indians. Act of April 23, 1904, Pub. Law No. 58-159, 33 Stat. 302 (1904). The 1904 Act provided that unallotted agricultural and grazing lands would be distributed to non-Indians by presidential proclamation following a survey of the Reservation. Id. The United States would "act as trustee for ... Indians" in opening up the Reservation for non-Indian settlement and collecting and expending any revenues received from the sale of land. Id. at 305-06. The Act authorized the platting of specific town sites and delegated authority to the Secretary of the Interior to plat other as-yet undetermined town sites within the Reservation. Act of Feb. 27, 1906, Pub. L. No. 59-258 § 17, 34 Stat. 325, 354 (1906).

         President Taft issued the ensuing proclamation on May 22, 1909, opening up parts of the Reservation for settlement by interested non-Indians. Proclamation of May 22, 2009, 36 Stat. 2494. Following the Act and presidential proclamation, in 1910 the U.S. General Lands Office ordered a plat for the Big Arm town site in anticipation of non-Indian settlement. (Doc. 43 at 3.) Approved in 1913, the plat encompasses 206.66 acres of Reservation land bordering the southwest shore of Flathead Lake. (Doc. 43 at 3; 1-1.) Big Arm was never incorporated as a town, and the actual development of the land does not correspond closely to the 1913 plat. (Doc. 43 at 4.) In 1956, in recognition of the lack of interest in non-Indian settlement, the Department of the Interior gave notice that much of Big Arm would be "restored to tribal ownership." Notice: Restoring Lands to Tribal Ownership, 21 Fed. Reg. 6681-82 (Sept. 5, 1956).

         The present dispute relates to a small parcel of land within the Big Arm town site. Defendant Lori Lundeen owns 40 acres of land bordering Big Arm, which she is developing as an RV resort. (Doc. 43 at 2.) Lundeen began developing a road through Big Arm to access her property. She has asserted that no other access route is feasible. At issue is her right to develop and use this road.

         In early 2018, Lundeen applied for a permit for her proposed development to Lake County. (Doc. 43 at 4.) At a Lake County Board of Commissioners meeting held on April 11, 2018, the Tribes' representative to the Board raised concerns about Lundeen's ability to access the property, as no developed road reached Lundeen's acreage. (Doc. 43 at 4.) Her concerns were echoed by a Big Arm resident attending the meeting. (Doc. 1-5.) The Board recognized that there was not a developed road leading to the property and noted that the proposed access road would run through the Big Arm town site in rough alignment with the roads proposed in the 1913 plat. (Doc. 1-5.) According to the minutes of the meeting, "The situation [regarding the road] was discussed further, and people agreed it was messy." (Doc. 1-5 at 7.) Despite the concerns raised at the meeting, the Board voted 7 to 3 in favor of recommending preliminary approval of the subdivision. (Doc. 1-5 at 8.)

         Lundeen quickly began to plan for and advertise the resort. (Doc. 16 at 10.) The Lake County Board of Commissioners issued its conditional approval of Lundeen's Wild Horse RV Resort Subdivision on May 16, 2018. (Doc. 43 at 5.) The final subdivision plat was to be recorded only after: (1) Lundeen and the County's Planning Department investigated legal access; and (2) Lundeen confirmed that the county considered access to be legal. (Doc. 43 at 5; Doc. 1-6.)

         On May 13, 2019, the Tribes placed a gate at the end of the developed road Lundeen had been using to access the emerging road and her property. (Doc. 43 at 5.) The Bureau of Indian Affairs issued a notice of trespass to the construction company hired by Lundeen to make improvements to the property. It reads:

This letter is to notify you that we have determined you are trespassing on Indian trust land. . . .
On April 16, 2019 the Tribal Lands Department inspected and took photos of heavy equipment in the Big Arm Townsite, Blocks 15, 16, 18, 29 & 30, located in Section 33, Township 24 North, Range 21 West, P.M.M., Flathead Reservation, USA.
While inspecting the area on May 13, 2019, the Field Technician additionally observed heavy equipment constructing and improving a new road on tribal trust lands in Blocks 15, 16, 18, 29 & 30 of the Big Arm Townsite, a portion of tribal tract T 6001, without a valid grant ...

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