8th Circuit Sends WPX Energy Smoking Ban Case Back to North Dakota Tribal Court


The U.S. 8th Circuit Court of Appeals recently overturned a preliminary injunction that kept three North Dakota tribes from seeking action in tribal court against an oil and gas exploration company over a smoking ban dispute, ruling the district court’s decision was premature and that all remedies have not been exhausted within the tribal court system.

The appellate court ruling indicated that WPX Energy Williston LLC failed to exhaust its tribal court remedies before seeking a federal court ruling in several tribe members’ suit alleging employee violations of a smoking ban within a right of way for drilling infrastructure. The court further stated that jurisdiction must be fully resolved in the Mandan, Hidatsa and Arikara Nation’s trial and appellate courts, instructing the lower federal court to dismiss the action on remand.

The court held the Bureau of Indian Affairs has authority under 25 U.S.C.A. Section 323  to grant rights of way “for all purposes across any Indian lands” held in trust for tribes or individuals. WPX Energy obtained rights of way across allotments on the Fort Berthold Reservation owned by the Fettig family to operate oil well pads, well bores, roads, pipelines and other infrastructure.

Prior to seeking BIA approval, the company had obtained the landowners’ consent to the access in part by negotiating additional conditions in separate “side letter agreements,” according to the 8th Circuit opinion.

In 2020, the Fettigs sued WPX Energy in the Three Affiliated Tribes District Court, alleging the company breached the side agreement’s smoking ban, which provides for $5,000 fines for each violation by an employee, company representative or vendor.

After the company unsuccessfully moved to dismiss for lack of jurisdiction over non-Native entities, it appealed to the tribal supreme court.

WPX Energy also filed a new action against the Fettigs and the tribal court in the U.S. District Court for the District of North Dakota, seeking a declaratory judgment on jurisdiction. The District Court denied the Fettig family’s motion to dismiss and granted a preliminary injunction in favor of WPX Energy against tribal court proceedings. This decision was appealed separately by both the Fettigs and tribal court authorities.

Writing for the unanimous 8th Circuit panel, Judge Steven M. Colloton said WPX Energy had not exhausted its tribal court remedies because it did not wait for the outcome on appeal.

WPX Energy unsuccessfully argued that exhaustion is not required in this case because the assertion of tribal court authority patently violates limits on jurisdiction over nonmembers previously established in other case law.