Red Lake Nation Fisheries, Inc.

Plain-English summary

Red Lake Nation Fisheries was a commercial fishing and fish-processing enterprise owned and operated by the Red Lake Band of Chippewa Indians on its Minnesota reservation. After two employees drowned while harvesting fish, OSHA cited the enterprise for not requiring personal flotation devices and for not timely reporting the deaths. The judge treated the employer's dismissal motion as a motion for summary judgment. Applying Eighth Circuit law, he concluded that the OSH Act did not authorize the Secretary to regulate this tribal enterprise's reservation workplace or enter the reservation to inspect it. Applying the Act would impermissibly interfere with the tribe's rights of self-government and exclusion of nonmembers. Both citations and their proposed penalties were vacated, and the complaint was dismissed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a); 29 C.F.R. § 1904.39(a)(1)
• Outcome: The personal-protective-equipment and fatality-reporting citations were vacated, and the Secretary's complaint was dismissed.
• Key point: Under the controlling circuit law applied here, the OSH Act did not authorize federal workplace regulation and inspection of this tribally owned enterprise operating solely on its reservation.

Full text (OSHRC public release)


Red Lake Nation Fisheries, Inc 18-0934 09/06/2019

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20 th
Street, N.W., Ninth Floor

Washington, D.C.

20036-3457

SECRETARY OF LABOR,

Complainant,

v.

D ocket
N o .
18-0934

RED LAKE NATION FISHERIES, INC. ,

Respondent.

APPEARANCES:   

For the Complainant:

Brooke E. Worden , Esq.

Office of the Solicitor

U.S. Department of Labor

C hicago, Illinois

For the Respondent:

Joseph Plumer , Esq.

Plumer Law Office

Bemidji ,
Minnesota

BEFORE:    William S. Coleman

Administrative Law Judge

DECISION AND ORDER OF DISMISSAL

The Respondent , Red Lake Nation Fisheries, Inc.,
is a
commercial
enterprise owned and operated by a federally recognized Indian tribe
known as the Red Lake Band of Chippewa Indians. The Respondent is
in the b usiness
of
harvest ing
wild-caught
fish
from waters on the tribe’s reservation,
and
then processing the fish and
selling
fish products to the general public . The Respondent
operates within the boundaries of
th e
tribe’s
r eservation and employs only members of th e
tribe .

Following the drowning deaths of two of the Respondent’s employees
in Lower Red Lake
in
northern Minnesota in
November 2017,
the Occupational Safety and Health Administration (OSHA)
cited the Respondent
for
two
alleged violations of rules that
had been
promulgated pursuant to the Occupational Safety and Health Act of 1970 (the
OSH
Act , or
Williams-Steiger Act ).

The Respondent
timely
contested the citations and
has
now
filed a motion to
have the citations
dismiss ed . The undersigned has treated this motion as a
motion
for
summary judgment .

For the reasons
described below,
the motion is
grant ed
on the ground s
th at th e
OSH
Act
does not g ive
the Secretary
of Labor
the
authority
(1)
to
regulate
the conditions of
workplace health and safety
at the Respondent’s workplace ,
or
(2)
to
enter the tribe’s reservation to
inspect the Respondent’s workplace .

I f
this order becomes a final order pursuant to section 12(j) of the OSH Act, the United States Court of Appeals for the Eighth Circuit is the court to which the Secretary may file a petition for review pursuant to section 11(b) of the Act.

29 U.S.C. §§
661(j) &
660(b). As discussed below, the
outcome
here is the outcome that the
Eighth Circuit would
most likely
reach
if it were to adjudicate
the issues presented.

Background

Based on the
record
develop ed
on
the Respondent’s motion, there is no
genuine dispute of fact respecting the following
matters .

T he
Respondent
is a
business
enterprise named
Red Lake Nation Fisheries , Inc . The Respondent is
a
subsidiary
company
of Red Lake, Inc. Red Lake, Inc.
is
wholly owned and operated by
a federally recognized Indian tribe
that is
known as
the Red Lake Band of Chippewa Indians (Red Lake Band) .

See
I ndian Entities Recognized and
Eligible
t o Receive Services from the United States Bureau of Indian Affairs ,
83 Fed. Reg.
34 863,
34865 (July 23, 2018).

Both the Respondent and
Red Lake, Inc.
are
corporation s
that w ere
formed and
organized under Red Lake Band tribal law.
( Declaration of
S .
Strong).

Red Lake, Inc. is a governmental instrumentality of the Red Lake Band. All shares of Red Lake, Inc. are owned by the Red Lake Tribal Council for the benefit of the Red Lake Band and its recognized members. The officers and employees of Red Lake, Inc. are charged with carrying out economic advancement functions of the Red Lake Band and its members. The board of directors for Red Lake, Inc. manages its businesses and affairs, which includes the business of the Respondent. The members of the board are appointed by the Red Lake Band’s Tribal Council, and all are enrolled members of the Red Lake Band. ( Declaration of
S .
Strong ) .

The Respondent ’s
business address
is
19050 Minnesota Highway 1 East, Redby, Minnesota 56670, which is located on the Red Lake Indian Reservation. The Respondent was established to provide employment opportunities for members of the Red Lake Band and to promote the social, economic, and educational goals of the Red Lake Band Tribal Council. The Respondent
engages in the commercial practice of
harvest ing
wild-caught fish
from
waters on the reservation
and process ing
the fish into fish products that it sells to the general public throughout the United States .
The Respondent’s operations of fish harvesting and processing fish products for commercial sale occur exclusively within the boundaries of the Red Lake Indian Reservation. The Respondent employs only enrolled members of the Red Lake Band. ( Declaration of
S.
Strong).

The Respondent sells fish products directly to the general public through a public
website
and by telephone . A ccording to
the Respondent’s
public website , the Respondent
ship s its
fish
products for next day delivery
to locations “all over the United States”
via a
well-known
commercial
delivery service .

The Respondent
also
sells fish products directly to the general public from a location on the reservation situated on Minnesota Highway 1 . The
Respondent
also
distributes
its fish products to
some
retail outlets in the State of Minnesota
for
subsequent
re- sale to the general public .

( See
Exhibits to Sec’y Response
to Motion ).

The Respondent
maintains a
public website
from which it
market s
its
fish
products
to the general public . That website
contains the following promotional
and informational
representations:

· “ Our mission is to sustainably manage, harvest, and prepare superior quality wild fish products, inspired by our Native American culture, and deliver them directly to your doorstep. ”

· “We only sell what tribal fisherman catch on Red Lake.”

· “We still fish in the traditional ways, using the wisdom of our elders that was handed down from generation to generation. Our fish are wild-caught by tribal fishermen, employing local knowledge and ancestral practices to deliver high quality fish products in the most natural way.”

· “ It is our goal to bring you the quality fish products that you would expect from a world class fishery. Red Lake Industries have been featured in quality restaurants and grocery stores throughout the nation. Although we are not as well known as some larger established fisheries, our product remains the freshest and most delicious that can be found on the market.

Our fish is hand-harvested, hand-processed and fresh shipped every day …. Our world class products stand in the forefront of the aquatic food industry.”

· “ W e are FDA approved and under regulations we are not allowed to take back fish that has been out of our control.”

(Exhibits to Sec’y Response
to Motion ).

On November 6, 2017,
a boat
operated by
the Respondent’s
employees
capsized
while on
Lower Red Lake
on
the Red Lake
Indian
Reservation,
result ing
in the
drowning
deaths of
two employees
who
had been working
on board . Their
deaths were not
confirmed until
their bodies were recovered in
March
2018.

On March 23, 2018,
an
official from
the
OSHA area office
located in Eau Claire, Wisconsin,
conduct ed
OSHA inspection number
1303745
at the Respondent’s location
in Redby, Minnesota,
on the Red Lake Indian Reservation .   1

As a result of th at
in spection , o n April 26, 2018,
the
OSHA
area office
issued
to the Respondent
a one-item serious
citation
and a
one-item
“ other
than serious ”
citation, with
propos ed
monetary
penalties for each
alleged violation .

The serious c itation
alleged that
on or about November 6, 2017
the
Respondent
had violated
a safety standard regarding
personal protective equipment
that is
codified
at
29 C.F.R. §
1910.132(a)
when the Respondent did not require
employees to wear , and employees did not wear,
personal flotation devices “while performing tasks associated with gillnetting from a boat, such as but not limited to a 20 ft. Hewescraft Open Fisherman . ”

The citation directed the Respondent to abate the violation by a specified date.

The
“ other than serious ”
citation
alleged that the
Respondent had
failed to timely report the deaths of employees in a work-related incident in
violat ion of
the reporting
regulation
codified
at
29 C.F.R. § 1904.39(a)(1).

The citation states that this violation
was
corrected during the inspection
on March 23, 2018.

Discussion

The Respondent timely contested the citations and proposed penalties, thereby invoking the jurisdiction of the
independent
Occupational Safety and Health Review Commission (Commission) pursuant to section 10(c) of the OSH Act. 29 U.S.C.
§   65 9(c). The Secretary then filed a
formal
complaint
pursuant to the Commission’s rules of procedure ,
wherein the Secretary
re-assert ed
the violations and proposed penalties that had been alleged in the original citations. The Respondent then filed
its
answer
to the complaint , wherein it denied the alleged violations .

The Respondent
also filed a motion to dismiss the citations on the ground that the Secretary “lacks authority under the [OSH Act] to assert jurisdiction over the [Respondent], which is a government enterprise wholly owned and operated by the Red Lake Band of Chippewa Indians,” which “is a federally recognized Indian tribe.”

The
Respondent’s
memorandum in support of the motion presents three independent arguments
for granting the motion , the first two of which
are meritorious. The first argument is grounded in the Red Lake Band’s
right
of self-governance with respect to
regulat ion of the
conditions of workplace health and safety, and the second argument is grounded in the Red Lake Band’s inherent right to exclude non-members from
its
reservation.   2

Standard of Review

The Respondent ’s motion to dismiss
identifies
rule 12(b)(1),
Fed. R. Civ. P. ,
as providing grounds for dismissal
because of
“lack of subject-matter jurisdiction . ”   3

But
t he motion does not
actually
present an issue of “subject-matter jurisdiction”
as that term is used
in Rule 12(b)(1). Subject matter jurisdiction pertains to a tribunal’s “statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t ,
523 U.S. 83, 89 (1998) ;
see also
Carlisle v. United States , 517 U.S. 416, 434–35 (1996)
(Ginsburg, J. concurring)
(defining “subject matter jurisdiction” as the “authority [of the court] to adjudicate the type of controversy involved in the action , ”
quoting
Restatement (Second) of Judgments § 11 (1982)  ).

The Respondent
ha s not argue d
that the
Commission
lacks subject matter jurisdiction to adjudicate th is
case, which
necessarily involves adjudicating
whether the OSH Act applies to the Respondent .
T he Commission itself appears to have concluded that
the OSH Act gives it the
authority to
adjudicate
a contested citation that the Secretary has issued to a
tribal employer . The Commission has
vacat ed
citations
issued to tribal enterprises
when it has concluded that the OSH Act d id
not apply, and
it has
adjudicated the
merits of
such
citations when it has concluded that the OSH Act d id
apply .
See ,
Navajo Forest Prod. Indus. , 8
BNA OSHC
2094 ( No. 76-5013 , 1980)
(OSH Act not applicable) ,
aff’d
692 F.2d 709 (10th Cir. 1982);
Coeur
d ' A lene Tribal Farm , 11
BNA OSHC
1705 ( No. 78-6081 , 1983)
(consol idated )
(OSH Act not applicable) ,
rev’d ,
751 F.2d 1113
(9th Cir. 1985);
Mt. Adams Furniture Co. ,
No. 88-2239,
1991 WL 232785 , at *1
( OSHRC ,
Nov. 6,
1991)
(OSH Act applicable);
Mashantucket Sand & Gravel , 17
BNA OSHC
1391 ( No. 93-1985 , 1995)
(OSH Act not applicable) ,
rev’d , 95 F.3d 174 (2d Cir. 1996);
Akwesasne Mohawk Casino , 20
BNA OSHC
2091 ( No. 01-1424 , 2005)
(OSH Act applicable) ;
Turning Stone Casino Resort , 21
BNA OSHC
1059 ( No. 04-1000 , 2005)
(OSH Act applicable) .

Rather than
presenting
a n issue of the Commission’s
subject matter jurisdiction, the
motion to dismiss presents the
issue whether the
OSH
Act
applies to the
cited
activities of
a
tribal
commercial
e nterprise
operating
on
the tribe’s
reservation . See
Mashantucket Sand & Gravel , 17 BNA OSHC at
1391
(defining the issue
in
terms of whether the OSH Act applies to the tribal enterprise
at worksites within
a
reservation ).

Thus, although
the
Respondent’s
motion is
nominally asserted pursuant to
federal rule
12(b)(1), the motion
is more properly regarded
as
seek ing
dismissal
under
federal rule
12(b)(6)
for
“failure to state a claim upon which relief can be granted . ” Rule 12(b)(6)
provides
the mo re
appropriate ground for
seeking
dismissal because i f the
OSH
Act
doe s not appl y
to the Respondent ,
the citations
that OSHA
issued to the Respondent
under the OSH Act
would be
a nullity ,
and the allegations of the complaint would
fail to
state
claims upon which relief could be granted .

Because matters outside the pleadings have been presented and considered in connection with the
deemed
R ule
12(b)(6)
motion to dism i ss ,
Rule 12(d)
of the federal
rules
requires that the motion
be treated as a
motion for summary judgment
under
federal rule
56 .

The Commission’s rules of procedure expressly provide that
motions for summary judgment in matters before the Commission
are governed by
Federal Rule of Civil Procedure

56. Commission Rule
    40(j) ,
    codified at
    29 C.F.R. § 2200. 40(j) .   4
    Rule 56(a) provides that a
    party is entitled to summary judgment upon a showing “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) .
    Th e Commission summarized the oft-described standard for evaluating a motion for summary judgment
    as follows in
    Ford Motor Co. , 23 BNA OSHC 1593, 1593-94 (No. 10-1483, 2011):

In reviewing a motion for summary judgment, a judge is not to decide factual disputes. Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1224 (2d Cir. 1994). Rather, the role of the judge is to determine whether any such disputes exist. Id. When determining if there is a genuine factual dispute, the fact finder must resolve all ambiguities and draw all reasonable inferences in favor of
the non-moving party. United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962);
Tufariello v. Long Island R.R. Co. , 458 F.3d 80, 83 (2d Cir. 2006). Thus, not only must there be no genuine dispute as to the evidentiary facts, but there must also be no controversy as to the inferences to be drawn from them. Schwabenbauer v. Bd. of Educ. of City Sch. Dist. of City of Olean , 667 F.2d 305, 313 (2d Cir. 1991). [internal footnotes omitted.]

W hether the
OSH
Act
applies to
the workplace of a tribal employer
presents
“ a question of law
reviewed de novo . ”

Dep't of Labor
v. OSHRC
( Warm Springs Forest Prods. Indus .) ,
935 F.2d 182, 183 (9th Cir.
1991) ;
San Manuel Indian Bingo & Casino v.
NLRB , 475 F.3d 130 6 , 1312
(D.C. Cir. 2007)
( considering de novo whether the National Labor Relations Act
[NLRA]
applies to a tribal enterprise,
and
noting that be cause the
NLRB’s “ expertise and delegated authority does not relate to federal Indian law, we need not defer to the
Board’s” interpretation of the
NLRA );
Soaring Eagle Casino & Resort v. N LRB , 791 F.3d 648, 655 (6th Cir. 2015)
(analyzing
de novo
whether a tribe’s
inherent sovereignty rights prevent application of the N LRA
to
a tribal commer cial enterprise) ;
N LRB
v. Little River Band of Ottawa Indians Tribal Gov't
( Little River Band ) , 788 F.3d 537, 543 (6th Cir. 2015)
(ruling that “ federal Indian law and policy are areas over which the
[agency]
has no particular expertise, and so we need not defer to the
[agency’s]
conclusions with respect to them ”) .

The Commission
likewise
considers this
question
of law de novo, without any deference to the Secretary of Labor’s interpretation of the OSH Act.   5
Martin v. OSHRC
( CF & I Steel Corp. ), 499 U.S. 144, 154 (1991) (concluding “that Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically exercised by a
court
in the agency-review context”) .

Applicable
Circuit Court
of Appeals
Precedent

In adjudicating
whether the
OSH
Act applies to a
tribal enterprise , the Commission applies
the precedent
of the court of appeals
for the circuit
in
which
it is highly probable that a petition for review would be filed . Mt. Adams Furniture Co. ,
No. 88-2239,
1991 WL 232785 , at *1
( OSHRC ,
Nov. 6,
1991)
(applying
dispositive
Ninth
Circuit
precedent
on
issue of
whether
the OSH Act
applie d
to a
tribal enterprise ,
while
noting
extant
Commission and judicial
precedent
that was
contrary to th at
dispositive
Ninth Circuit precedent );
see also
D a n a
Cont a iner, Inc. , 25 BNA OSHC 1776, 1792 n.10 (No. 09-1184, 2015),
a ff’d , 847 F.3d 495 (7th Cir. 2017) ( noting that
the
Commission generally applies the precedent of the circuit court of appeals to which it is “highly probable” that the matter will be appealed,
even though
that precedent
may differ from the Commission's precedent ) ;
Hensel Phelps Constr. Co. , 26 BNA OSHC 1773, 17 78
(No. 15-1638, 2017) (ALJ) ( vacating a citation upon
applying
controlling
Fifth Circuit
precedent
that was
contrary to Commission precedent),
rev’d , 909
F.3d 723 (5th Cir. 2018) (determining that the
37-year-old
controlling
Fifth C ircuit
precedent on which the ALJ
had
relied
in vacating
the
citation
was in
conflict with subsequent
c ase law ,
resulting in
the
court
disregard ing
that
precedent
and revers ing
and
remand ing the
matter
to the Commission),
on remand ,
2019 WL 1500063 (O.S.H.R.C.A.L.J. , Feb. 20, 2019 )
( affirming
the
citation that the ALJ had originally vacated ).

Section 11(b) of the OSH Act permits the Secretary
to
“obtain review … of any final order of the Commission … in the court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office . ” 29 U.S.C.
§  660(b). The
alleged violations occurred in the state of Minnesota, and the
Respondent ’s
office is in Minnesota . Minnesota is
in the
geographic
region
of the
United States Court of Appeals for the Eighth Circuit , so under
s ection 11(b)
the
Secretary
may
file a petition for review
of a final order of the Commission in this matter
only in th at court . The role of the Commission is
thus
to
adjudicate the issues here
in a manner consistent with controlling precedent of the
Eight h
Circuit. Mt. Adams Furniture Co. ,
1991 WL 232785 .

Impermissible
Infringement on

Right of
Tribal Self-Governance

The
Eighth Circuit’s
decision
in
EEOC v. Fond du Lac Heavy Equip ment
& Const r uction
Co.
( Fond du Lac ) , 986 F.2d 246 (8th Cir. 1993),
is dispositive on
the issue
whether the
application of the OSH Act to the Respondent would impermissibly infringe on the
Red Lake Band’s right of self-governance . The court in
Fond du Lac
held that the Age Discrimination in Employment Act (ADEA) impermissibly affected a tribe’s right to self-governance with respect to a tribe member who was alleging that
a
trib e-owned
equipment and construction company
that was
located on the reservation and
that
occasionally did work off the reservation
had denied him employment because of his age.

Applying
the
principles of
Fond du Lac
leads to
the conclusion s
here
that
(1)
the Red Lake Band
has
inherent authority to
regulat e
workplace health and safety
for a tribal
commercial
enterprise that operates on the tribe’s reservation ,
(2)
for a
statute of general application
such as the OSH Act
to
affect
th at
right of
tribal
self-government
requires evidence of
a
clear and plain
congressional
intent
to do so , and (3) b ecause
there is no
affirmative
evidence of any such clear and plain congressional intent ,
t he Eighth Circuit would likely hold that the OSH Act does not apply to the Respondent’s
workplace .

The
court
in
Fond du Lac
commenced its analysis with the
general
observ ations
that
Indian tribes “possess inherent powers of a limited sovereignty , ”
id.
at 248 ( quoting
United States v. Wheeler , 435 U.S. 313, 322 (1978)  ),
and remain a
“ separate people, with the power of regulating their internal and social relations , ”
i d.
( quoting
Santa Clara Pueblo v. Martinez , 436 U.S. 49, 55 (1978)  ) , but that
“ Congress has plenary authority to
limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.”

Id.
( quoting
Santa Clara Pueblo , 436 U.S at 56). The court then described
the
principles
it would apply f or determining whether Congress has exercised
its plenary
authority
to affect
a tribe’s
inherent
power s
of
local
self-government . Th e court’s
description included
recognition
of the
general rule stated by the
Supreme Court
in
Tuscarora :

The Supreme Court has stated that “general acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary.”

Federal Power Commission v. Tuscarora Indian Nation , 362 U.S. 99, 120 (1960).

This general rule in
Tuscarora , however, does not apply when the interest sought to be affected is a specific right reserved to the Indians.

United States v. Winnebago Tribe of Nebraska , 542 F.2d 1002, 1005 (8th Cir.1976).

Specific Indian rights will not be deemed to have been abrogated or limited absent a “clear and plain” congressional intent.

United States v. Dion , 476 U.S. 734, 738 (1986) (citations omitted);
Winnebago Tribe , 542 F.2d at 1005 (citations omitted).

A clear and plain intent may be demonstrated by an “express declaration” in the statute, by the “legislative history,” and by “surrounding circumstances.”

Dion , 476 U.S. at 739.

Id.

The court in
Fond du Lac
stated that “ consideration of a tribe member’s age by a tribal employer should be allowed to be restricted (or not restricted) by the tribe in accordance with its culture and traditions ,” and that
“[f] ederal regulation of the tribal employer’s consideration of age in determining whether to hire the member of the tribe to work at the business located on the reservation interferes with an intramural matter that has traditionally been left to the tribe’s self-government . ”
Fond du Lac , 986 F.2d at 249. The Eighth Circuit concluded that
“the tribe’s
specific right of self-government
would be affected , ”
by
“ [s] ubjecting an employment relationship between the tribal member and his tribe to federal control and supervision , ”
so that the
Tuscarora
presumption
of general applicability did not apply.

Id.

Since the
Tuscarora
presumption
did not apply, the Eighth Circuit searched for “clear and plain” congressional intent
to apply
the ADEA to the Indian tribes. Finding no such
intent
in either the text of the ADEA or
in
its legislative history, the court concluded that
Congress did not intend
the ADEA
to
apply to the tribal employer.

The OSH Act, like the ADEA at issue in
Fond du Lac , is a statute of general applicability
that is silent
on
its
applicability to Indian tribes , and thus is subject to the
Tuscarora
presumption of applicability
unless an exception
to
the application of that
presumption
applies . Donovan v. Coeur d’Alene Tribal Farm
( Coeur d’Alene ) , 751 F.2d 1113, 111 5
(9th Cir.
1985) .

The Ninth Circuit’s
application
of the
Tuscarora
rule in
Coeur d’Alene
is in contradistinction
to the Eighth Circuit’s
application of
Tuscarora
in
Fond du Lac . Although
the Ninth Circuit in
Coeur d’Alene
ultimately
conclud ed
that the OSH Act applied to
the
tribal commercial
farm
involved there , the
court
acknowledged
at the outset t hat
an Indian tribe
“ has the inherent sovereign right to regulate the health and safety of workers in tribal enterprises. ” Id. Nevertheless, the
Ninth Circuit
held tha t
the
tribe’s
“ operation of a farm that sells produce on the open market and in interstate commerce is not an aspect of tribal self-government ,” so that the application of the OSH Act to the tribal farm did not touch on a tribe’s “exclusive rights of self-governance in purely intramural matters,” and thus the OSH Act was not excepted from the
Tuscarora
rule. Id.
at 1116.

The Ninth Circuit in
Coeur d’Alene
applied circuit precedent that described three exceptions to the
Tuscarora
rule, the first of which the court
branded
as
“ a spects of
t ribal
s elf-government”
e xception . In the Ninth Circuit, th e self-government
exception to
Tuscarora
applies to a
statute
that “ touches
‘ exclusive rights of self-governance in purely intramural matters .’  ”
Id.
(quoting
United States v. Farris , 624 F.2d 890 , 893
(9th Cir.
1980)  ). The Ninth Circuit stated that this exception was “ designed to except purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations .” In holding that the OSH Act applied to the tribal commercial farm, the Ninth Circuit stated that the operation of the farm “ free of federal health and safety regulations is
‘ neither profoundly intramural ... nor essential to self-government. ’  ”
Id. , quoting
Farris
at 893.

The Eighth Circuit would
likely agree with the Ninth Circuit
that
Indian tribes have
“ the inherent sovereign right to regulate the health and safety of workers in tribal enterprises ,”
Coeur d’Alene ,
751 F.2d at 1115,
but would likely disagree with the Ninth Circuit’s conclusion that
application of the
OSH Act
to a commercial tribal enterprise
that operates on a reservation and employs only members of the tribe
does not touch upon a tribe’s “exclusive rights of self-government in purely intramural matters.” Id.
at 1116.
Indeed, the Eighth Circuit in
Fond du Lac
cited
Coeur d’Alene
as being “contra”
to its
conclusion that the
Tuscarora
presumption
did
not
operate to make the ADEA applicable to the tribal enterprise there
“[b]ecause
the tribe’s specific right of self-government would be
affected ”
thereby . Fond du Lac , 986 F.2d at 249
(emphasis added) .

The self-gover nment
exception to the
Tuscarora
rule employed by the Ninth
Circuit in
Coeur d’Alene
is narrower than the Eighth Circuit’s corresponding “sovereignty” or “self-government” exception applied in
Fond du Lac , and therein lies a critical di fference in how
the Eighth and Ninth circuits
apply the
Tuscarora
presumption with respect to the self-government exception . The analytical framework that the Eighth Circuit employed in
Fond du Lac
requires simply that a tribe’s right of self-government be “affected” by federal regulation .

Fond du Lac , 986 F.2d at 249.

In contrast,
the Ninth Circuit’s “tribal self-government ”
exception applied in
Coeur d’Alene
excepts only
“ purely intramural matters such as conditions of tribal membership, inheritance rules, and domestic relations from the general rule ”
of
Tuscarora .
Coeur d’Alene , 751 F.2d at 1116;
accord,
Smart v. State Farm Ins. Co.,
868 F.2d 929, 935 (7th Cir. 1989)
(stating that “[a]
statute of general application will not be applied to an Indian Tribe when the statute threatens the Tribe's ability to govern its intramural affairs,
but not simply whenever it merely affects self-governance as broadly conceived   ”);
Reich v. Mashantucket Sand & Gravel , 95 F.3d 174, 178 (2d Cir. 1996)
(stating that the “ tribes' retained sovereignty reaches only that power
‘ needed to control ... internal relations[,] ... preserve their own unique customs and social order[, and] .... prescribe and enforce rules of conduct for [their] own members ,’  ”
quoting
Duro v. Reina , 495 U.S. 676, 685–86 (1990)  ) ;
cf.
San Manuel Indian Bingo & Casino v. N.L.R.B. , 475 F.3d 130 6, 1311-15
(D.C. Cir. 2007)
(applying an analytical framework
that differs from the frameworks employed in either
Coeur d’Alene
or in
Fond du Lac
for determining whether the
Tuscarora
presumption
applies) .

So,
since
the Eighth Circuit would likely
agree with the Ninth Circuit
that Indian tribes have “ the inherent sovereign right to regulate the health and safety of workers in
tribal enterprises ,”
Coeur d’Alene ,
751 F.2d at 1115,
the Eighth Circuit would
apply its broad self-government exception to the
Tuscarora
presumption ,
and consequently likely conclude
that
the
Tuscarora
presumption does not apply because
application of the
OSH Act
to the Respondent , like the application of the ADEA in
Fond du Lac ,
would
“ dilute ”
th at aspect of the Red Lake Band ’s
sovereignty
and
would
“ affect ”
th at
“ specific right of self-government . ”

Fond du Lac , 986 F.2d at 249.

Upon
conclud ing
that
Tuscarora ’s
general rule of
applicability
does not apply ,
the Eighth Circuit would conclude that the OSH Act appl ied
only
upon finding
“ a clear and plain congressional intent ” t o make the
OSH Act appl y
to the Indian tribes .

Id.

T h at inquiry
requires
“ some affirmative evidence of congressional intent, either in the language of the statute or its legislative history .” Id.
986 F.2d
at 250,
ci ting
United States v. Dion , 476 U.S. 734, 739–40 (1986) . Absent such affirmative evidence of congressional intent, the
Eighth Circuit would determine that the
OSH Act
does not apply to the
Respondent.

There is no such congressional intent
expressed
in text of the OSH Act,
and
no
part of
the OSH Act’s legislative history
has been identified that
reflect s
a congressional intent
that
the OSH Act apply to the Indian tribes. The absence of
affirmative evidence of a
clear and plain congressional intent that the OSH Act apply to the Indian tribes would
likely cause the
Eighth Circuit
to
conclud e that
the Act
does not apply to the
Respondent’s work place . The refore, in this case the
Eighth Circuit would
likely
vacate
the citations
upon concluding, based on the principles employed in
Fond du Lac ,
that the
OSH
Act does not apply to the
cited work operations of the
Respondent .

It is not necessary to develop a
full er
evidentiary
regarding the extent to which
the
federal regulation of the conditions of health and safety at the Respondent’s workplace
would
affect the Red Lake Band’s right of self-government .
C f.
Anderson v. Liberty Lobby, Inc. , 477 U.S.
2 42 ,
255
(1986)
( noting that a
court should act with caution in granting summary judgment and may deny summary judgment “where there is reason to believe that the better course would be to proceed to a full trial”).
Although t he
Eight h
Circuit’s decision in
Fond du Lac
appear s to be
grounded in part on
tribal culture and traditions respecting age,
the
dissenting judge noted
th at there was no evidentiary record before the court on the impact of the ADEA on tribal culture or traditions.
Id.
at 25 1
(Wollman, J., dissenting)
(noting “there is
no
evidence that Indian tribes have any long-standing cultural practices that favor the employment of younger rather than older members of the tribe ” ).
The
decision in
Fond du Lac
thus
strongly suggests that
the
Eighth Circuit
w ould
not
undertake to
assess
the extent to which federal regulation
of the conditions of workplace health and safety of a tribal employer
would
affect
a tribe ’ s right to self-government,
but
would
rather
conclude
that
any federal regulation
that
“affect s ” that
area of tribal
sovereignty
would
require
a ffirmative evidence
that Congress had a
“clear and plain” intent to
limit, modify, or eliminate
the tribe’s
inherent sovereign right to regulate the health and safety of workers in tribal enterprises . While the f actual
record developed on the present motion
is s cant , it nonetheless
compels the conclusion that the Respondent is entitled to judgment as a matter of law
on the ground that the OSH Act is not applicable to the Respondent because
the Act
“affects”
the Red Lake Band’s right of self-governance
with respect to
conditions of
workplace health and safety . On th e
record
established on the Respondent’s motion , therefore, there is no genuine dispute as to any material fact
(or
as to
the inferences to be drawn therefrom),
and the Respondent is
entitled to judgment as a matter of law.   6

Impermissible
Infringement on

Right to Exclude Non-Members from
the
Reservation

The Respondent ’s
second independent argument in support of its motion is that
application of the
OSH Act
to its workplace would impermissibly
abrogate the
Red Lake Band’s inherent right to exclude non-members from the Red Lake Indian Reservation .
(Resp’t Mem. at 20-27).

The Red Lake Indian Reservation was established by a treaty
with
the United States made in 1863. The 1863 treaty contains a description of the lands that the tribe ceded to the United States.

The geographic area of the
Red Lake Indian R eservation
became
those lands that the Red Lake Band
then
owned and claimed
that
the Red Lake Band
did
not
through that treaty
“cede, sell and convey to the United States all their right, title and interes t . ”

1863
Treaty with the Chippewa—Red Lake and Pembina Bands , art. 2,
13
Stat. 667
(1863) ;
State of Minnesota v. Hitchcock , 185 U.S. 373, 389 (1902)
(noting that article 6 of the 1863 treaty refers to the lands that the tribe
was
not
ced ing
to the United States
in the treaty
as “the reservation,” and that the treaty’s “ effect was to leave the Indians in a distinct tract reserved for their occupation ”) ;
United States v. White , 508
F.2d 453, 456–57 (8th Cir. 1974)
(noting that “[u]pon a
review of the tribal history of the Red Lake Band of Chippewa Indians, it is clear that a tract of land was ‘reserved’ in a treaty for their occupation; that the occupied lands were thereafter regarded by the United States as constituting the Red Lake Reservation;
and
that the Red Lake bands were recognized as the sole owners by right of original Indian occupancy ” [internal citations and footnotes omitted]   ) .

No provisions of the 1 8 63 treaty
( or of an 1864 treaty that
amended
it [13 Stat. 689
(1864)  ]  )
state expressly that the Red Lake Band has the right to exclude non-members from the reservation.   7
Nevertheless,
“ a
hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands . ”

Merrion v. Jicarilla Apache Tribe
( Merrion ) , 455 U.S.
130,
141
(1982) .

This power to exclude non-members
from the reservation
is an “ inherent sovereign right ” that is “ independent ”
of
any
express treaty language
that
stipulates
such
a
power to exclude . Warm Springs Forest Prods. Indus.,
935 F.2d
at
18 6 .

The Ninth Circuit in
Coeur d’Alene
rejected the
tribal employer’s
argument that
the tribe’s
inherent right to exclude non-members
( including OSHA inspectors )
from the “ reservation is a
‘ fundamental aspect ’
of tribal sovereignty that cannot be infringed
without a clear expression of congressional intent .” Id.
at 1117. Th e tribal employer in
Coeur d’Alene
argued that
the Supreme Court’s decision in
Merrion
had
sub silentio
overruled
Tuscarora
“ at least to the extent that
Tuscarora
allows Congress to silently or implicitly infringe sovereign tribal rights to exclude non-Indians from tribal lands. ” Id.

In
reject ing that argument, the Ninth Circuit distinguished
Merrion
on its facts. Id.

In contrast , the Tenth Circuit in
Donovan v. Navajo Forest Prod. Indus.
( Navajo Forest ) , 692 F.2d 709, 712 (10th Cir. 1982) ,
reached
a
contrary conclusion
regarding the
effect
of
Merrion
on
Tuscarora ’s
general rule.
In part II of
the
Navajo Forest
opinion ,
in what appears to be an alternative holding, the court
ruled that
“ Merrion , in our view, limits or, by implication, overrules
Tuscarora
… , at least to the extent of the broad language relied upon by the Secretary contained in
Tuscarora .”

Navajo Forest , 692 F.2d
at
713 . Part II of
opinion
the n concluded that absent some express ion of
congressional intent, a statute of general application
such as the OSH Act
could not be deemed to abrogate an Indian tribe’s inherent right to exclude non-members
from the reservation :

The United States retains legislative plenary power to divest Indian tribes of any attributes of sovereignty.

Lone Wolf v. Hitchcock , 187 U.S. 553 (1903).

Absent some expression of such legislative intent, however, we shall not permit divestiture of the tribal power to manage reservation lands so as to exclude non-Indians from entering thereon merely on the predicate that federal statutes of general application apply to Indians just as they do to all other persons (in this case “employers”) unless Indians are expressly excepted therefrom.

We believe that
Merrion
…
settled that issue in favor of the tribes.

692 F.2d at 714.

The Eighth Circuit in
Fond du Lac
cited
Navajo Forest
with approval, although
that approval appears to have been
related to
part I of th at
opinion
( in which the Tenth Circuit ruled that the OSH Act was not applicable because its application would be in derogation of an express treaty provision limiting the right of entry to the reservation ) . Fond du Lac , 986 F.2d at 249. The Eight h
Circuit in
Fond du Lac
appeared
not
to
comment on part II of the Tenth Circuit’s opinion in
Navajo Forest . However, the
court
in
Fond du Lac
endorsed the proposition
that in determining whether an exception to the
Tuscarora
rule applies,
a tribe’s
inherent sovereign right
should be regarded no differently than if that identical right had been
expressly stipulat ed in a treaty . Fond du Lac , 986 F.2d at 249, n.4. P art II of the
Tenth Circuit ’s opinion
in
Navajo Forest
employs
the same logic.

T he
Eighth Circuit’s jurisprudence on the application of the
Tuscarora
rule
thus appears very
similar
to
the jurisprudence of the Tenth Circuit . That similarity suggests
strong ly
that
the
Eighth Circuit is more likely than not to follow part II of the Tenth Circuit’s
opin ion in
Navajo Forest .
If the Eighth Circuit
were to
do so ,
then
it would
conclude that the OSH
Act
does not apply to the Respondent
on the ground that
the Act impermissibly
infringes on the Red Lake Band’s inherent right to exclude non-members from its reservation.

For these reasons, there is no genuine dispute
as to any
material fact ,
and the Respondent is entitled to judgment as a matter of law
on th e ground that application of the OSH Act to the Respondent would impermissibl y
infringe on the Red Lake Band’s inherent right to exclude non-members from its reservation .

O RDER

For the
reasons stated above, the
citations as re-alleged in the
Secretary’s
complaint fail to state claims upon which relief can be granted , and the Respondent is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

The
citations and proposed penalties
arising out of OSHA inspection number 1303745
are vacated , and the
Secretary’s complaint,
which re-alleges th ose
citations
and proposed penalties ,
is
dismissed .

/s/ _________

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: August 6, 2019

"

1
Minnesota has a federally approved “state plan” for the regulation of workplace health and safety, but the state plan excepts “[a] ny establishment owned or operated by an Indian tribe
…
within an Indian reservation .” See
29 C.F.R. § 1952.8 (referring to
www.osha.gov/dcsp/osp/stateprogs/minnesota.html
for “several notable exceptions” to the Minnesota state plan).

2  The Respondent’s third argument in support of dismissal is that Congress intended to exempt tribal governments from coverage under the OSH Act just as Congress had exempted state governments from coverage by defining the term “employer” as used in the Act
not
to “include … any State.” 29 U.S.C § 652(5). Nothing in the text of section 652(5) reflects any congressional intent that tribal governments be exempted from coverage of the OSH Act along with state governments. The third argument asserted in support of the motion to dismiss lacks merit and is denied without further elaboration.

3  The Commission’s Rules of Procedure provide that in
the absence of a different rule in the Commission’s rules, proceedings before the Commission
are conducted “ in accordance with the Federal Rules of Civil Procedure.” 29 C.F.R. §
2200.2(b) ;
29 U.S.C. § 661(g). There
being
no specific Commission rule re garding
the presentation of certain defenses by motion at the pleading stage ,
Rule
12
of the federal rules
provides the
procedure for the
Respondent’s
motion.

4
The Commission’s Rules of Procedure were recently revised with an effective date of June 10, 2019. Rules of Procedure , 84 Fed. Reg. 14554 (April 10, 2019) (to be codified at 29 C.F.R. pt. 2200). Citations
herein
to the
Commission’s rules in the
C.F.R.
are
intended to reflect the ultimate codification of th ose
rules in the 2020 edition of the C.F.R. Until such actual codification, the
current revised
rules
are posted on
the Commission’s website (www.oshrc.gov) and may also
be found
at 84 Fed. Reg. 14554 -579 .

5
In 1972 the Secretary promulgated an interpretive regulation, codified at 29 C.F.R. § 1975.4(b)(3), that declares that tribal employers are subject to the requirements of the OSH Act. As authority for that
declaration , the regulation cites to the Supreme Court’s decision in
Fed eral
Power Comm ission
v. Tuscarora Indian Nation
( Tuscarora ) , 362 U.S. 99, 116 (1960) , where the Court stated “ that a general statute in terms applying to all persons includes Indians and their property interests .” Section 1975.4(b)(3) provides:

(3)
Indians.

The Williams-Steiger Act contains no special provisions with respect to different treatment in the case of Indians. It is well settled that under statutes of general application, such as the Williams-Steiger Act, Indians are treated as any other person, unless Congress expressly provided for special treatment. “FPC v. Tuscarora Indian Nation,” 362 U.S. 99, 115–118 (1960); “Navajo Tribe v. N.L.R.B.,” 288 F.2d 162, 164–165 (D.C. Cir. 1961), cert. den. 366 U.S. 928 (1961). Therefore, provided they otherwise come within the definition of the term ‘employer’ as interpreted in this part, Indians and Indian tribes, whether on or off reservations, and non-Indians on reservations, will be treated as employers subject to the requirements of the Act.

The Commission in
Navajo Forest Prod ucts
Indus tries , 8
BNA OSHC
2094 , 2098
( No. 76-5013 , 1980) ,
aff’d ,
692 F.2d 709
(10th Cir. 1982), considered this interpretive regulation and noted that it “ simply reiterates the
Tuscarora
rule ,” and “ provides no additional guidance in resolving the issues presented in this case. ” This assessment of the regulation’s import is consistent with the Commission’s duty to address the issue de novo. See also
Little River Band , 788 F.3d
at
543
(ruling that a
“ reviewing court does not owe
Chevron
deference to an agency construction if the agency adopts the construction on the basis of a judicial opinion and not on the basis of policy considerations regarding the statute it administers ”).

6
As discussed earlier, t he Secretary may
file a petition for review of the Commission’s final order in this matter only in
the Eighth Circuit . 29 U.S.C. § 660(b). If a court of appeals other than the Eighth Circuit had been the
court in which it were highly probable that a petition for review would be filed, then the development of a fuller evidentiary record regarding the
extent
to which the OSH Act would affect the Red Lake Band’s
right of self-government ,
or
affect
its culture and traditions , may have been deemed necessary. ( S ee
cases from other circuits cited in this part of the Discussion). Given
the limited evidentiary material that has been filed in connection with the Respondent’s motion to dismiss,
review by other courts of appeal might have counseled against granting summary judgment for the Respondent on the “self-government” exception to
Tuscarora
at this early stage of Commission
proceedings.

7
Had there been such an express treaty provision to exclude non-members, there is authority that holds that a statute in derogation of such a treaty right would not be deemed to abrogate the treaty provision absent clear and express congressional intent to do so. Donovan v. Navajo Forest Prod. Indus. , 692 F.2d 709, 712 (10th Cir. 1982) ;
contra
Dep't of Labor
v. OSHRC
( Warm Springs Forest Prods. Indus .) ,
935 F.2d 182, 18 6-87
(9th Cir.
1991)
(concluding that “ the conflict between the Tribe's
[treaty]
right of general exclusion and the limited entry necessary to enforce ” the OSH Act was not sufficient to bar
application of the Act to the
tribal employer, and that “[w]ere we
to construe the Treaty right of exclusion broadly to bar application of the
[OSH]
Act, the enforcement of nearly all generally applicable federal laws
would be nullified”) .