ELR Citation: ELR 21286
No(s). 92-35206 (9th Cir. Jul 27, 1994)

The court holds that §1811(c) of the Hazardous Materials Transportation Act (HMTA) expressly waives Native American tribes' sovereign immunity from a utility's suit in federal court claiming that the HMTA preempts a tribal resolution banning the shipment of spent nuclear fuel across the Fort Hall Indian Reservation in Idaho. The court first holds that although the tribes amended the resolution during pendency of the appeal to allow certain, tribal-regulated shipments across the reservation, the suit is not moot. There is a continuing, concrete dispute between the parties as to whether federal law preempts the measures the tribes are currently taking to regulate hazardous materials transportation across the reservation. Moreover, the appeal raises an issue that if mooted by the amendment, would be capable of repetition yet evading review. Turning to the merits, the court holds that the district court erred in dismissing the suit on grounds of tribal immunity, because §1811(c) expressly waives the tribes' sovereign immunity from preemption-based challenges in federal court. On its face, §1811 plainly contemplates that tribes that enact regulations alleged to be preempted by the HMTA may be sued in court. Section 1811(c)(2) provides that affected parties may seek preemption determinations in "any court of competent jurisdiction." This necessarily includes federal courts as well as tribal and state courts, because federal courts have jurisdiction over federal law. Moreover, §1811(e) permits federal district court review of administrative preemption determinations under the Act. By providing that tribal regulations may be challenged in preemption suits that may be heard in federal court, Congress effectively abrogated tribal immunity from such suits.

Counsel for Plaintiff
Salie B. O'Malley
O'Malley & Associates
950 S. Cherry St., Ste. 250, Denver CO 80222
(303) 759-2205

Counsel for Defendants
Jeanette Wolfley
Shoshone-Bannock Tribes
P.O. Box 306, Fort Hall ID 83203
(208) 238-3700

Before Goodwin and Pregerson, JJ.