afternoon your honour's may please the court i'm ben which on behalf of the appellant and defendant b n s f railway company this is a case about existing common carrier rail service and whether it can be restricted through the remedy of a court injunction in a century of exclusive federal regulation of railroads there is no appellate precedent for such an order and in fact it has been repeatedly rejected and so that specific principle is what controls the issue before the court on this on an interlocutory appeal i want to be clear for the court though that that principle is is circumscribed in at least three very significant ways the st is there has to be common carrier service this is a set of rules about interstate commerce by common carriers under the jurisdiction formally of the interstate commerce commission now the surface transportation pork and so this doesn't apply to private lines so for example what we saw in the settlement of the prior southern pacific litigation that we described in our reply brief and that came to this court on twenty two dollars trips in the seventy's and eighty's they took that line out of common carrier service converted it to a private line and it has a different status council is your position and that the same principle which made the somin agreement and enforceable here by the tribe that that would also mean that you couldn't settle this case along the same lines that basically that would be on enforceable as well so i want to answer the question although i do want to note that we don't agree with the premise that this settlement is actually unenforceable we what we're saying is that st of all the best reading of the settlement is that we can respond to shipper needs that the fact shipper needs is referred to twice in that paragraph of the settlement and we're not suggesting that it's not enforceable in court through the remedy of rand and then of course if the if the tribe wants to pursue the the remedies provided before the administrative agency to move the line out of common carrier status and control it contractually they could but to answer your question they want to limit you to what you promised you would do without their permission and you're saying that that is preempted by the interstate commerce commission terminations act and my question is if you came to the exact settlement here in this case we'll settle this case except you give us two trains a day of twenty five dollars cars or less would that similarly be unenforceable in court if we had to if we were to agree to that sort of very hard cap and so i'll set aside our disagreement about how to read the  the settlement terms here we know we cannot enter into a and enforceable settlement that trades away the rights of shippers and the public when we speak about shippers we're speaking about everyone in this courtroom who uses gasoline made at the refineries in the public interest in the continued flow of commerce is such that the railroad and someone who controls land that the railroad passes over those two parties are in no position to trade away the rights of the public to service that's the choice the congress mistake since you made a promise that you're saying they can't enforce through equitable action could they get that whole thing set aside and then just go back and reinstate the seventy's litigation to you as a trespasser so i think that would get let me actually get so that in three parts st i think it would be procedurally complicated because of course the the the easement is entered into under the indian right of way act and that requires the approval of the secretary of the interior and so just as the secretary has to approve the establishment of the rights away the secretary would have to approve their disestablishment so somehow the secretary would have to be involved but i don't think this can be a claim for recision in court the nd thing is that the supreme told us in in text max and in smith vs hoboken railway that in the situation where you have a when you have a dispute about the nature of the underlying land contract and there is a it's an agreement thanks for the reason facility two different railroads about who can operate on the tracks right so it was it was tracks and facilities so that was the ability to use the facilities of the other rail carriers so in that respect yes it doesn't it doesn't refer to losing the word land as the word land appear in the text next i'm not sure if it does i agree with your honor that it it is about trackage rights it's about the use of the tracks but but for example then you would look at the city of des moines case from the th circuit where that unquestionably was about the land where the city wanted to oust the railway from using the land down there down main street or or whatever whatever street it was in in the city and so in that case explain that there's not a just there's not a distinction between there's not a distinction to be drawn about the particular underlying right when the question ultimately is are you going to be affecting the common carrier service but i'd like to return to my my my  answer if i can remember to judge bennett's question about unwinding the settlement here we would be if we were to on wind this easement if there were no easement agreement if we were to rewind thirty or forty years to the prior litigation we would be making fundamentally the same arguments about the exclusive jurisdiction of the federal regulator in fact that's exactly what the i c c did the i c c in one thousand nine hundred and eighty in the prior litigation move to intervene and dismiss that litigation because it was aimed at regulating rail transportation which is something the i c c said in that motion intervene is exclusively within our jurisdiction and so you go to the regulator st of course the  unquestioned principle is that out the federal government has the right to regulate rail transportation and preempt anything under state and local law that doesn't apply in the same way when the issue is not is a conflict with other federal law or with indian treaty law do you agree with that so i agree that the analysis is different but the relevant question here is whether is whether the tribe is in the correct forum and seeking the correct remedy and so if you stack that question and so why is it not in the correct form it has a settlement agreement that produced an easement pursuant to a suit that was brought to enforce a treaty obligation by the united states and you say that's not a forcible in court so the the rule in the i c c germination act is that when you're seeking to regulate rail transportation the exclusive remedies theory you know that that's not correct and i'm quite familiar with that case i was counsel for the railroad in in that case and i think actually judge pleasure your analysis in the california department texan fee administration case is exactly on point to how you should analyze the question here the st step in the analysis in that case where we're forced we're challenging as a state laws preempt and so it's a different posture because procedurally we can write you wouldn't go to the surface translation may or may not have been depending on another federal carve out correct and let me and if i might i'd like to explain why this case following that analysis of harmonization comes out differently so in that case you're honor and a judge a question in that case was well there's another statute which authorizes fees and i know you're honor and that the dissent disagreed on how to construe that statute but the the significant factor to your honor and i think you specifically criticized the dissent for reading that other the dissent would be reading that other statute that specifically authorized these into oblivion i think were your were your words if you were not to give effect to that other very specific statute that you read to authorize this category of fees although as you point out the particular feeded and meet the criteria if you apply that analysis here that nd step you ask what is that other statute that very specifically provides for a remedy in federal court not she doesn't i'm not sure i want to limit it to statute what is that other federal obligation sure there's a treaty yes i'm sorry i shouldn't say there's a treaty yet there is a statute with regard to right away act and then there is a settlement intern into pursuant to the suv to settle the suit was brought to enforce the treaty that strikes me as federal law and it strikes me as it is not something that can be preempted it is not federal law state law it is not local law right and so if i could finish the analysis you would look at those statutes and you would ask the question before the court is is an injunction from this forum available and the treaty says nothing about remedies it says nothing about forums says nothing about remedies or forums and in fact the secretary of the interior has been completely agnostic on remedies and forms by saying you just pursue whatever remedies are applicable right and so in the face of that unlike in the california case where you would have left the hazardous materials up into oblivion there's nothing about zero or the treaty that winds up in oblivion because it's that the trump the treaty of no no with respect your honor i think it's very important to recognize the tribe can go the congress has said you go to the s t b it has provided a remedy before the s t b which is an abandonment proceeding and the tribe can assert its sovereign status it can assert treaty rights it has it can assert it can raise those in the administrative form subject to go back to something you said a few minutes ago that if we unwound this agreement there still would be no remedy in federal court so is it your position that if for example a railroad as the tribe alleges simply builds a rail line without any permission at all totally as a trespasser across tribal you know and that the tribe can't go into federal court to get rid of them that the tribe that the railroad does a totally without permission is it your view that the only remedy the tribe has that is equitable is before the surface transportation board notwithstanding the fact that building the road was  permission from the i c c or are now under act as the s t b you have to get permission to operate and one of the things that the agency will look at is do you have the underlying authority so today someone who wants to start a railroad can build it in the dark of night and start operating i mean your hypothetical would have to posit incredible lack of attention from the regulators and the regulated entities to just complete lawlessness that that issue was wrecked i'm not ready to concede that because that was the subject of the well if you're not ready to concede then where would you point to so we could see that the tribe give so they one of let me give you an example of one of the questions in the prior litigation if i could is one of the contested issues in the prior litigation is whether the line was moved it was originally engineered in one location and wasn't re engineered to be moved to a different location when the when concerns were raised in the eight hundred and ninety s and that that issue did not get litigated to conclusion in the prior case right and that is to avoid that you in terms of the actual business was a what was that served for a generation that was correct for a generation and we put in the provisional you started running cars more frequently that's correct but the nature of the cut well but with account so it wasn't an estimate it's burlington or agrees and there was a procedure where you could try to get it increased but it wasn't burlington or their estimates it was burlington north or agrees so your honor if i could could point you to two things st of all i agree with you there's a procedure in there to negotiate with the tribe over increases and we didn't follow that and we screwed up deliberate failure to abide by that with st with respect your honor i i mean i'm not i mean i'm not going to try to excuse our handling of it but it's not a mistake it was well there were so many letters sent by the tribe to be innocent objecting the letters were not responded to one letter you can miss that's a mistake there i believe there's there's this there are series of two or three we did we did then engage with the tribe and with respect your honor it cannot be that our mistakes of that nature are going to be mistakes may i also i would also if i see my time is up i think there's one piece of record evidence that bears very heavily on judge bennett's question which is that you are nine  is the correspondence that that was exchanged when we were negotiating that prior settlement and what b n f have told the tribe said we can't agree to a hard cap and says and i'm reading from from one hundred and twenty one here the middle of the st paragraph as a common carrier railroad burlington northern is obliged to handle such cars properly classified packaged and loaded to all destinations and i'm down to the next pair if we cannot agree to a single train limitation or the limitation the number of cars and times depending on business at the refineries we must have flexibility with regard to the number of cars which may exceed twenty five or thirty so the party must set up with the agreements you agree most otherwise agreed in writing you said that it could be griese if we're quired by shipper needs and they agree not to arbitrarily withhold permission which meant that if you don't get there are agreements you have to follow or procedure to increase there's nothing in this agreement that says you can just unilaterally go do it so i so i that reading may be correct although i don't think it resolves the prospect of question because as the as things stand now the tribes position is that under no circumstances will it permit that increase and that's the definition of an arbitrary use of whether the permission to be unreasonably withheld that's the next question it does not now in front of us i'm not sure that that's correct your honor the summary judgment motion below that issue was in fact the st issue addressed in the summary judgment motions was whether this would be an arbitrary refusal to increase and and in our view something it says we've recognized ship or needs were a common carrier railroad we don't have a choice but to fulfill this obligation at for the tribe to then say well there is no what there are no conditions in the world that would allow us to under which we would permit you to do that see that question in front of us with respect your honor i would point i would i would point in the summ y judgment motions which lead to the orders that are the subject of the appeal i would i would wait for the short apple please excerpts of record which has the tape happens to have the table of contents of our summary certified the issue of preemption in the circumstances presented here so of course this court has under yamaha guinn's calhoun jurisdiction over everything in the orders so the issue that certified is the issue the controlling question of law that makes it worth the court's while to take up the case but of course the that what it what are actually certified are the orders themselves and of course then the arguments the parties made that resulted in those orders so that issue is is before the court right now and i also don't think it i also don't think it makes sense for the court to try to separate the preemption issue from the proper interpretation of the easement because b s f in that letter that i just read of burlington northern at the time was was explaining well we have to come up with something that will allow us to fulfill our obligations to shippers and so what the parties settled on and that of course is the same federal obligation that would make a contr agreement unenforceable and so what the party settled on was a provision under which which is extraordinary i would say a provision under which is sort of a reopen or in the year almost four minutes and i am why don't we interrupt and leave you a chance to respond thank pubes the court chris breen representing the swimmers indian tribal community in that counsel table with me stephen the tribes the rector before i get into detail i want to make three quick basic points number one if you take a step back and look at it would be honest if it's actually in the court to do is condone defective condemnation of the tribes land but tribal trust land can't be condemned public trust land can only be used with the tribes consent and as this court in the supreme court held under conditions which the tribe imposes for the right to use that land the truth is that the railroad took the leaned  and nine it used that land for over eighty years and it entered into a voluntary agreement it asked the department of interior to issue a right  and today it is trying to take that land again because it believes it has a trump card in the i c c number two the trial court has not made a decision on whether there was a material breach of the easement agreement or whether or not the tribes refusal to grant permission was arbitrary the request in the summary judgment pleading the council has addressed was that it was a legal just because we are causing them to violate a federal law that that would be arbitrary but the actual decision of the tribe has never been decided at the lower level at this but this court excuse me what the tribe is asking this court is to affirm the trial court's ruling that injunctive relief is available for the ongoing breach and that the tribes rights were not implicitly repealed or abrogate we are not asking to stop railroad traffic consistent with the terms of the easement and we are not asking to control the community shipped number three it is our position that the two statu schemes can be harmonized and you can give effect to both you can do so by honoring the scope of the tribes consent and there were twenty five dollars cars one train each way per day and you can allow the s t b to have oversight over the r operations within that grant how do you divide up those twenty five cars between the two shippers i want to respond to a couple of issues raised by council st of all he said that the root issue in the case was whether the line had been moved that was an allegation made by a pipeline in one of the consolidated cases we produced to the n s c of all the underlying documents they had none from the history of this case there is not across the tribes tract this is soon to be grandfathered that the occupation was legal it was not the railroad did not obtain a legal right to cross the reservation until   is one way that those statutes could be harmonized with the interstate commerce commission transition act is if you get to the point where the question of injunctive relief is before the court that the court can look at the normal injunction injunction factors including the public interest in the public interest that the tribe has in the public interest in the free flow of interstate commerce by rail in deciding whether a particular remedy is appropriate or not your honor i would agree with you that the trial court would have to make a determination whether a junkie or relief was an appropriate remedy all we're asking this court to do is available is the availability of the remedy in we haven't gotten to the remedy stage because we haven't determined whether there is a material breach or whether the tribe acted arbitrarily those are issues that the trial court has to decide now as to whether or not it's the forepart federal standard for injunctive relief my understanding is the one circuit has not imposed that four part standard and it looks to what the law in the state is but yes there's an analysis that the trial court would have to use as to whether just to leave were the appropriate remedy ok let me go back to the one thousand nine hundred and twenty act because we know that in this court's decision the southern pacific versus what the court held that unless you have a properly issued been overruled it relies on text mixed allied to correcting versus t v in the city of des moines but as to those three cases the use of the track at the time was legal ok there was no allegation of trespass and of course we have the overriding issues here we have a treaty which protects indian rights to exclude non indians we have the our w a which is a complete set of schemes of itself which authorizes access across tribal lands and we have the actual issued easement itself none of those appeared in those cases the council relies upon and certainly they didn't acquire a legal right just because in one hundred and twenty dollars act was passed i would also point out that the term common carrier does not appear in any of the settlement negotiation documents not the correspondence between counsel not in the settlement agreement not in the application that the road made to the deal i and not in the easement itself the only reference was the shipper needs those are not synonymous terms you can have shippers that have needs that are under a private contract or other situations but they are not necessarily common carriers they're not so since anonymous i think the fact that that is missing is very important it would be our position that after and because of the limitations in the easement it is not subject to the i c c ga today is the railroad did not need to go to the i c c in one thousand nine hundred and one for common carrier service because the line it was outside there's no question that the issues that were before that decade long litigation were involved the primary defense however of the railroad and the other defendants in that case was that the tribe didn't own the land ok extensively but we have a situation where the railroad here is stating that it agrees that in the initial grant the consent they could be denied in other words if i'm a railroad and i go to the tribe and i say i want to line across your your reservation the tribe can say no and the river could do nothing about it what we have is a situation however where if those that consent is given and it has conditions the road has a trump card i don't have to comply with those conditions there harmonization is not a harmonization it is in truth  in i'd like to paraphrase justice gorsuch in the recent cooper didn't case i'm not sure if you're aware of that case but this is an old familiar story as he states the rule obtained the right to use tribal land in return made a handful of modest promises now the road is dissatisfied with one of those promises and wants more but just as included in the road must be held to the terms of its deal in this court that the court was entitled to make the jurisdiction to make the decisions in this case there's another point i'd like to make in that is that d s s also asserts that if we are correct that the secretary of interior would be quote from their reply brief a regulatory just thought the likes of which the us code has never seen because it would be determining what what conditions to impose on the applicant and therefore there would be a conflict between the deal why not consented and correspondingly the dealer has no authority to remove conditions to which the tribe has consented the i r w i w a requires that the deal i simply acting as the trustee for the tribe be the issuing entity it is authorized to include only those conditions that are mutually agreed to by the railroad and the tribe the bottom line is that there are no conditions tex mex is that those cases can be easily distinguished in are not relevant to the case we have here well in particular in you are correct you honor that there is no land issue in tax mix that was a trackage agreement between two river roads one railroad owned the land and on the rail line in it authorized another real  in baltimore that was basically a straight a trade that's a situation where there were no restrictions on the original grant of the right to use my line and my land and decades later when the stockyards granted that right learned that the railroad was shifting to competitors it basically said you have to amend that agreement and i'm going to impose an alternative on you eternity it is you either stop shipping to them or you pay me a fee equal to what i would earn if you jump to me those cases can be distinguished and i think here's the points that really hit them st of all those are private contracts which had nothing to do with indian law number two there was no treaty which reserved to the tribes the right to exclude non indian number three there was no federal law such as the ira w a which govern how rights of way are granted across indian land there was no voluntarily agreed also acted in acquitted lee or illegally here the tribe has always acted equitably and legally in conclusion venus of claims that it is required to comply with the conditions of the easement otherwise it will be forced to violate federal law but right now b n asif is violating federal law it's violating the i r w a by its intentional refusal to comply with its terms in truth and its basic argument the rebel claims it does not make any difference how would have tames the tribes consent it can say or do anything to induce the tribe to consent to conditions in an easement grant to obtain tribes consent but once obtained if in the future those conditions become inconvenient and it wants more it can simply ignore those conditions and hide behind its overly aggressive belief that the i c c today primps all rights in remedies there is no case which supports its position and it is unimaginable that congress would have intended to have a great the treaty rights repeal the r w a easement to allow this result or that congress would have done all of this without saying a word the reverend's history and actions are devoid of any equity the road made a contract with the tribe based on the i o w way a deal is a deal it should be held to those terms of it's voluntary commitments in the district court order should be affirmed in this case should be allowed to go forward with the merits and the thank you for the court's patience and indulgence but my friend has made a number of suggestions about what the secretary of the interior thinks about things what the surface transportation board does or doesn't think about things we have things in the record about what the i c c has said i would point out that the reason the i c c has prior motion was denied was the district court they were not up to the remedies phase yet so we don't need to know whether this is a problem so i don't think that actually speaks very much and suggestions about well we could have a system where the secretary has decided things and then within that sort of sandbox the the s t b would regulate it seems like a circumstance where the court could benefit from actually hearing from the agencies and from the united states on what the united states thinks about this settlement about the question of the s d b's jurisdiction in a case like this how it interacts with the secretary of the interior when you have two agencies at issue into your point judge fletcher it's a complicated question when there's different statutory schemes and they're both administered by administrative agencies and on top of that you don't want to the last word we heard from the united states with the secretary approved  so i think that's correct that the secretary approved these men although what the secretary understood it to do as far as prohibiting b n assaf from future fulfillment of common carrier obligations is not clear and similarly the surface transportation board i think has has stayed to the side for the moment because courts are obviously capable of resolving these issues and it would be this court's decision in the final instance but there's a real lot of history here where for example in the southern pacific settlement there was an understanding about how you says we'll agree to this and you are going to an agreement signed in writing would that be in force of absolute absolutely that we will call in federal court with an absolute i want to i want the court to recognize that we don't have any problem we've agreed to providing both access we agree to pay the think and that were settled and it was signed off on and approved if your legal position were correct that exact settlement agreement would be on enforceable no i'm i'm sorry if i misunderstood your hypothetical judge bennett so the the test is a rule of reason it's does the settlement term unreasonably interfere with interstate commerce now limiting the number of cars that can travel when shippers demand more is the paradigm interfere and so this is a pretty easy case on that and by the op at the opposite end for example providing boat access across the line is very unlikely to ever be an interference and therefore that i think in all cases would be enforceable judgement your example i think is one that could depend on the facts for example if it were impossible to respond to the shippers reasonable requests for service with two trains it might be unenforceable but if it were yes we would need figure out a way to catch him up in two trains so it could be enforceable that one would depend on the facts but i don't think the particular restriction here for this particular remedy is one where it depends on the facts because if the clear interference with the shippers request for service that we view as inaccurate and misleading to an unusual degree you will be receiving from us in writing a request for response with respect to certain aspects of the brief and the other side will be noticed but we'll give you a chance to respond that thank you your honor i'm disappointed to hear that and i hope i can satisfy the court well we were disappointed at the brief swinomish indian tribal community