United States of America v. Osage Wind, LLC et al
Filing
207
OPINION AND ORDER by Judge Gregory K Frizzell ; granting 204 Motion for Judgment on the Pleadings (lah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
and
OSAGE MINERALS COUNCIL,
Intervenor-Plaintiff,
v.
OSAGE WIND, LLC,
ENEL KANSAS, LLC, and
ENEL GREEN POWER
NORTH AMERICA, INC.,
Defendants.
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Case No. 14-CV-704-GKF-JFJ
OPINION AND ORDER
This matter comes before the court on the Motion for Judgment on the Pleadings [Doc.
204] of intervenor-plaintiff Osage Minerals Council (OMC). For the reasons set forth below, the
motion is granted.
Background and Procedural History
This case, filed in 2014, presented the question of whether a large-scale excavation project
undertaken by Osage Wind 1 during the installation of eighty-four (84) wind turbines in Osage
County, Oklahoma constituted “mining” under regulations governing development of minerals in
1
For ease of reference, the court refers to defendants Osage Wind, LLC; Enel Kansas, LLC; and
Enel Green Power North America, Inc., collectively, as “Osage Wind.”
the Osage Mineral Estate and therefore required a lease approved by the Secretary of Interior.
[Doc. 2; Doc. 20]. United States District Judge James H. Payne said “no,” and, on September 30,
2015, entered Judgment in favor of Osage Wind. [Doc. 44; Doc. 45]. The United States, as trustee
of the Osage Mineral Estate, did not appeal the district court’s Judgment, but the OMC, acting on
behalf of the Osage Nation, appealed.
In a September 18, 2017 Decision, the Tenth Circuit reversed the district court, and held
that, pursuant to 25 C.F.R. § 214, defendants’ “extraction, sorting, crushing, and use of minerals
as part of its excavation work constituted ‘mineral development,’ thereby requiring a federally
approved lease which Osage Wind failed to obtain.” [Doc. 78, p. 3; United States v. Osage Wind,
LLC, 871 F.3d 1078, 1081-82 (10th Cir. 2017)]. The Circuit remanded the case to the district court
for further proceedings consistent with the Decision. [Doc. 78, pp. 26-27]. On October 24, 2019,
the Court Clerk randomly reassigned the case to the undersigned. [Doc. 89]. The court then
permitted OMC to intervene in the remanded proceedings. [Doc. 140].
On July 1, 2020, this court issued an Opinion and Order limiting the United States and
OMC to the relief requested in the Amended Complaint filed by the United States on December
12, 2014. [Doc. 161]. Thereafter, OMC filed the Amended Complaint in Intervention. [Doc.
164]. In the Answer to OMC’s Amended Complaint in Intervention, Osage Wind asserted
seventeen (17) separate affirmative defenses. [Doc. 174].
OMC now seeks judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) relative to
five of Osage Wind’s affirmative defenses: (1) estoppel, (2) laches, (3) waiver, (4) unclean hands,
and (5) in pari delicto. [Doc. 204]. Osage Wind responded in opposition [Doc. 205], and OMC
filed a reply [Doc. 206]. Thus, the motion is ripe for the court’s determination.
2
Motion for Judgment on the Pleadings Standard
Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the pleadings.” “A motion for judgment on the
pleadings ‘should not be granted unless the moving party has clearly established that no material
issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.’”
Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (quoting Park Univ. Enters. v. Am.
Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). The Tenth Circuit treats a motion for judgment
on the pleadings under Fed. R. Civ. P. 12(c) as a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000).
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the plaintiff has stated a claim upon which relief can be granted. In considering a motion
to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine whether the plaintiff has stated
a claim upon which relief can be granted. A complaint must contain “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
plausibility requirement “does not impose a probability requirement at the pleading stage; it simply
calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of the
conduct necessary to make out the claim. Id. at 556. The court must “accept all facts pleaded by
the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the
same.” Colony Ins. Co., 698 F.3d at 1228.
Analysis
As previously stated, OMC seeks judgment on the pleadings as to Osage Wind’s
affirmative defenses of estoppel, laches, waiver, unclean hands, and in pari delicto. The court first
considers laches.
3
A.
Laches
As this court has previously recognized, “issues determined by the Tenth Circuit are lawof-the-case.” [Doc. 135; Doc. 171]. Although Judge Payne did not reach Osage Wind’s laches
affirmative defense in the September 30, 2015 Order, in the briefing to the Tenth Circuit, Osage
Wind noted that the Circuit “has long held that it may affirm a district court’s judgment on any
basis supported by the record, even if it requires ruling on arguments not reached by the district
court.” Thus, defendants argued “[t]he record would permit [the Circuit] to affirm on the basis of
laches as well, as the OMC delayed in bringing this challenge for years after it had all the
knowledge it needed to file suit.” Brief of the Appellees, United States v. Osage Wind, LLC, No.
16-5022 (10th Cir. June 16, 2016), Doc. No. 01019639458. In the Decision, the Tenth Circuit
stated as follows:
Osage Wind also invites us to affirm on the ground that OMC’s instant claim is
barred by the laches doctrine—which gives courts discretion to reject stale claims
brought after unreasonable delay. See Jicarilla Apache Tribe v. Andrus, 687 F.2d
1324, 1337 (10th Cir. 1982) (explaining that the laches doctrine is “vigorously
enforced in cases involving mineral properties”). We decline to dispose of the case
on the equitable doctrine of laches. The United States commenced this action
within three months after turbine excavation work began, which is not an
unreasonable amount of time to wait before filing suit.
United States v. Osage Wind, LLC, 871 F.3d 1078, 1087 n.6 (10th Cir. 2017).
“The law of the case ‘doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.’”
McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States
v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). Here, the Tenth Circuit has decided the issue
of laches. Specifically, the Tenth Circuit concluded that the United States commenced this action
within a reasonable time and therefore declined to dispose of this action based on laches. Pursuant
4
to the law of the case doctrine, this decision governs in subsequent stages of this litigation. Thus,
on this basis, OMC is entitled to judgment on the pleadings as to laches.
B.
State Law Defenses
As for the remainder of Osage Wind’s affirmative defenses, courts have consistently
recognized that tribes, as well as the United States while acting as a trustee on behalf of Indian
tribes, are not subject to “state delay-based defenses.” Oneida Indian Nation of N.Y. v. New York,
691 F.2d 1070, 1084 (2d Cir. 1982). These defenses include laches, estoppel, and waiver. Oneida
Indian Nation of N.Y., 691 F.2d at 1084 (laches); Grondal v. Mill Bay Members Ass’n, Inc., 471
F. Supp. 3d 1095, 1128-29 (E.D. Wash. 2020), appeal filed, Grondal v. United States, No. 2034694 (9th Cir. Aug. 7, 2020); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New
York, 278 F. Supp. 2d 313, 338-40 (N.D.N.Y. 2003) (estoppel); Cayuga Indian Nation of New
York v. Cuomo, 565 F. Supp. 1297, 1301 (N.D.N.Y. 1983) (laches and estoppel); Schafer, Trustee
of Wayne Penn Schafer Separate Prop. Tr. Established Oct. 5, 1982 v. Centerpoint Energy Okla.
Gas, No. 17-CV-365-GKF-FHM, 2018 WL 10140171, at *8 (N.D. Okla. May 21, 2018) (laches,
estoppel, waiver); Seneca Nation of Indians v. New York, No. 93-CV-688A, 1994 WL 688262, at
*2 (W.D.N.Y. Oct. 28, 1994); see also State of New Mexico v. Aamodt, 537 F.2d 1102, 1110 (10th
Cir. 1976) (“Estoppel does not run against the United States when it acts as trustee for an Indian
tribe.”); United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 334 (9th Cir. 1956) (“No defense
of laches or estoppel is available to the defendants here for the Government as trustee for the Indian
Tribe, is not subject to those defenses.”); But see City of Sherrill v. Oneida Indian Nation, 544
U.S. 197 (2005) (invoking laches).
5
Nor are Indian land claims subject to state-law affirmative defenses based on the tribe’s
own conduct, including waiver, unclean hands, or in pari delicto. 2 See Canadian St. Regis Band
of Mohawk Indians ex rel. Francis, 278 F. Supp. 2d at 342-43 (unclean hands and waiver); Seneca
Nation of Indians, 1994 WL 688262, at *1; Schafer, 2018 WL 10140171, at *8. In this regard,
courts “rely[] on the strong policy in favor of vindication of . . . Indian claims.” Canadian St.
Regis Band of Mohawk Indians ex rel. Francis, 278 F. Supp. 2d at 342 (quoting Schaghticoke
Tribe of Indians v. Kent Sch. Corp., 423 F. Supp. 780, 783-85 (D. Conn. 1976)); see also Seneca
Nation of Indians, 1994 WL 688262, at *2 (“[T]he application of the state law-based defense[] of
. . . unclean hands would contravene established policy pertaining to Indians’ ability to enforce
their property rights.”).
Nevertheless, Osage Wind argues that Oklahoma law is presumptively incorporated and
application of same would not frustrate specific federal interests. This argument fails.
The U.S. Supreme Court “ha[s] indicated that federal courts should ‘incorporat[e] [state
law] as the federal rule of decision,’ unless ‘application of [the particular] state law [in question]
would frustrate specific objectives of the federal programs.’” Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 98 (1991) (alternations in original) (quoting United States v. Kimbell Foods, Inc., 440
U.S. 715, 728 (1979)); see also Davilla v. Enable Midstream Partners L.P., 913 F.3d 959, 969
2
Although neither party directs the court to any case specifically discussing the in pari delicto
affirmative defense, the U.S. Supreme Court has recognized: “The equitable defense of in pari
delicto, which literally means, ‘in equal fault,’ is rooted in the common-law notion that a plaintiff’s
recovery may be barred by his own wrongful conduct. Traditionally, the defense was limited to
situations where the plaintiff bore at least substantially equal responsibility for his injury, and
where the parties’ culpability arose out of the same illegal act. Contemporary courts have
expanded the defense’s application to situations more closely analogous to those encompassed by
the ‘unclean hands’ doctrine, where the plaintiff has participated in some of the same sort of
wrongdoing as the defendant.” Pinter v. Dahl, 486 U.S. 622, 632 (1988) (internal quotations and
citations omitted). Thus, because the defense is analogous to the unclean hands doctrine, the same
analysis applies.
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(10th Cir. 2019) (“[W]e incorporate Oklahoma law into this federal claim so long as it does not
frustrate federal policy.”). 3
It is well-established that “the tribes are subject to plenary control by Congress.” Michigan
v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) (citing United States v. Lara, 541 U.S.
193, 200 (2004)). Specifically, “Indian land claims [are] exclusively a matter of federal law.”
Oneida Cnty. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 241 (1985) (citing Oneida Indian
Nation v. Cnty. of Oneida, 414 U.S. 661 (1974)). To that end, Congress has reserved the “oil, gas,
coal, or other minerals” in the Osage Mineral Estate for the Osage Nation, and leases for such
minerals shall be approved by the Secretary of Interior. Pub. L. No. 62-125, 34 Stat. 539, 543
(1906). The Secretary of Interior, in turn, has promulgated regulations to govern leases of the
Osage land and Mineral Estate, including 25 C.F.R. § 214.7 which states that “[n]o mining or work
of any nature will be permitted upon any tract of land until a lease covering such tract shall have
been approved by the Secretary of the Interior and delivered to the lessee.” Congress has dictated
that such leases be “for the best interest of the Osage Tribe of Indians.” Pub. L. No. 70-919, 45
Stat. 1478, 1479 (1929).
Davilla is instructive. As in that case, “Congress has dictated the prerequisites of a right
to enter [for mining work] by statute.” Davilla, 913 F.3d at 967. As recognized by the Tenth
Circuit, Osage Wind’s excavation work required it “to secure a federally approved lease from
OMC under § 214.7.” Osage Wind, LLC, 871 F.3d at 1092. Permitting third-parties to avoid these
3
Insofar as Osage Wind contends that the court must apply the presumption of incorporation of
state law unless it is established both (1) application of state law would frustrate specific federal
interests, and (2) the need for a nationally uniform body of law, it is clear that one consideration
may be dispositive. See Kimbell Foods, Inc., 440 U.S. at 728 (emphasis added) (“Apart from
considerations of uniformity, we must also determine whether application of state law would
frustrate specific objectives of the federal programs.”); Davilla, 913 F.3d at 972 (relying solely on
the need for nationwide legal standards)
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stringent leasing requirements by pointing to the Nation’s own conduct would frustrate federal
Indian land policy. Davilla, 913 F.3d at 967-68; see also Grondal, 471 F. Supp. 3d at 1129
(quoting Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, § 15.08[4], at 1049 (Nell
Jessup Newton et al. eds. 2012)) (“Because Indian land claims are ‘exclusively a matter of federal
law,’ state property laws are preempted.”); Schafer, 2018 WL 10140171, at *8. Thus, the court
declines to incorporate Oklahoma state law defenses. 4
C.
Defense as to Damages
Osage Wind next contends that, even if the state-law affirmative defenses are insufficient
as a matter of law to prevent liability, the defenses may apply to bar or limit the available remedies.
However, as recognized by the Tenth Circuit in Davilla:
[O]ur jurisprudence distinguishes between matters of right and matters of remedy.
The Supreme Court has concluded that “State law cannot define the remedies which
a federal court must give” and that “a federal court may afford an equitable remedy
for a substantive right recognized by a State even though a state court cannot give
it.” Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 105, 65 S.Ct. 1464, 89 L.3d.
2079 (1945). Thus, the practice of borrowing state rules of decision does not apply
with equal force to determining appropriate remedies, especially equitable
remedies, as it does to defining actionable rights.
Davilla, 913 F.3d at 972-73. Accordingly, the court does not presume incorporation of state law
as to remedies. Further, for the reasons discussed above, incorporation of state law remedies would
frustrate federal Indian policy.
Osage Wind directs the court to the Northern District of New York’s decision in Cayuga
Indian Nation of N.Y. v. Cuomo, Nos. 80-CV-930, 80-CV-960, 1999 WL 509442 (N.D.N.Y. July
4
Further, the court notes that, to the extent premised on unreasonable delay in bringing litigation,
the four affirmative defenses other than laches are also precluded based on the law of the case
doctrine. Osage Wind, LLC, 871 F.3d at 1087 n.6 (“The United States commenced this action
within three months after turbine excavation work began, which is not an unreasonable amount of
time to wait before filing suit.”).
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1, 1999) (“Cayuga X”) as indicating that the court may consider the affirmative defenses of laches,
unclean hands, and in pari delicto only during the remedies phase of this litigation. See [Doc. 205,
p. 21]. However, in Cayuga X, the court was not considering affirmative defenses. Instead, the
court was considering the equitable factors articulated in the Restatement (Second) of Torts to
determine the appropriateness of an injunction against trespass.
Id. at *19.
The court
acknowledges the similarity of those factors to some of the affirmative defenses at issue, but places
greater significance on the Northern District of New York’s prior grant of judgment as a matter of
law as to the affirmative defense of laches. 5 See Cayuga Indian Nation of New York v. Cuomo,
771 F. Supp. 19, 24 (N.D.N.Y. 1991).
Nor is the court persuaded that City of Sherrill v. Oneida Indian Nation, 544 U.S. 197
(2005) and Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266, 273 (2d Cir. 2005), require
a different result. In City of Sherrill, the U.S. Supreme Court evoked the doctrine of laches,
acquiescence, and impossibility with respect to the Oneida Indian Nation of New York’s land
claims. City of Sherrill, 544 U.S. at 221. However, in that case, the tribe sought to “resist[]
payment of property taxes” to the City of Sherrill relative to property originally within the Oneida’s
reservation, but had last been possessed by the Oneidas as a tribal entity in 1805. Id. at 202. The
Court characterized the Tribe’s claims as seeking “to regain ancient sovereignty over land” long
lost to a non-Indian population, and noted that “[t]he wrongs of which OIN complains in this action
occurred during the early years of the Republic”—over two centuries before. Id. at 215-17.
Similarly, in Pataki, the Second Circuit Court of Appeals considered “land claims of historic
The court further notes that it is not clear at this stage of the litigation that it would be obligated
to apply the Restatement (Second) of Torts factors to determine the propriety of injunctive relief.
See Davilla, 913 F.3d at 969 (emphasis in original) (assuming that Oklahoma follows the
Restatement (Second) of Torts but noting that the Oklahoma Supreme Court has only “‘quoted
[the Second Restatement] with approval,’ rather than adopting it”).
5
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vintage—the wrongs alleged occurred over two hundred years ago.” Pataki, 413 F.3d at 267.
Based on the relevant facts, the Second Circuit stated: “[T]he import of Sherrill is that ‘disruptive,’
forward-looking claims, a category exemplified by possessory land claims, are subject to equitable
defenses, including laches.” Pataki, 413 F.3d at 277.
Here, OMC does not seek to vindicate “land claims of historic vintage.” Rather, OMC has
consistently exercised its sovereignty over the Mineral Estate. Nor are the claims “disruptive” as
contemplated by City of Sherrill. OMC does not seek ejectment of “tens of thousands of
landowners,” Pataki, 413 F.3d at 275, and the claims would not “disrupt[] the governance” of
Osage County, the Northern District, or Oklahoma. City of Sherrill, 544 U.S. at 202. Thus, City
of Sherrill and Pataki are not determinative. 6
D.
Federal Law Defenses
Finally, Osage Wind contends that dismissal is unwarranted because the defenses are viable
under federal law.
Osage Wind primarily relies on the Tenth Circuit’s decision in Jicarilla Apache Tribe v.
Andrus, 687 F.2d 1324 (10th Cir. 1982). However, in the Tenth Circuit’s previous decision in this
case, the panel specifically cited to Andrus and declined to dispose of the case on the equitable
doctrine of laches. Thus, as discussed above, it is law of the case that assertion of laches and any
other affirmative defense premised on unreasonable delay are precluded. See Osage Wind, LLC,
6
For similar reasons, the court declines to adopt the liability versus remedy distinction articulated
by the Northern District of New York in Canadian St. Regis Band of Mohawk Indians as to the
laches and estoppel affirmative defenses. In that case, the court also considered land claims
premised on events that transpired two hundred years ago. As previously stated, it is law of the
case that litigation was initiated within a reasonable time. Further, the court notes that, although
the New York court suggested evidence tied to laches and estoppel may be relevant at the remedy
stage, the court prohibited discovery as to the defenses. 278 F. Supp. 2d at 340.
10
871 F.3d at 1087 n.6 (“The United States commenced this action within three months after turbine
excavation work began, which is not an unreasonable amount of time to wait before filing suit.”).
Further, Andrus does not support assertion of the four remaining affirmative defenses. In
Andrus, the tribe brought claims for violations of the federal regulation imposing notice procedures
the United States must follow when offering oil and gas leases for sale on behalf of Indian tribes
(25 U.S.C. § 171.3), as well as failure to comply with the National Environmental Policy Act
(NEPA). Andrus, 687 F.2d at 1328. With respect to the notice claims, the trial court concluded
that the defendants failed to establish the equitable defenses as a complete bar. However, the
district court held the NEPA claim was not barred by laches and unclean hands. In its decision
affirming the trial court on these issues, the Tenth Circuit noted “the concerns addressed by NEPA
do not relate to rights of Indians per se, and NEPA instead advances substantive goals for the
nation as a whole by ‘essentially procedural’ requirements.” Id. at 1340 n.11.
Finally, Osage Wind’s citation to cases outside of the tribal land claim context that
recognize this court’s general equitable jurisdiction are not persuasive. As discussed above, cases
regarding Indian land rights implicate specific federal concerns not recognized in other cases
invoking the court’s equitable jurisdiction. Although courts have applied the equitable defense of
laches in some limited circumstances, the defense is foreclosed here. See Osage Wind, LLC, 871
F.3d at 1087 n.6. Even if it were not foreclosed, for the reasons discussed above, under these facts,
it would not apply. Cf. City of Sherrill, 544 U.S. 197 (2005); Pataki, 413 F.3d 266.
For the foregoing reasons, Osage Wind is precluded from asserting the equitable defenses
of estoppel, laches, waiver, unclean hands, and in pari delicto, and the OMC’s motion for judgment
on the pleadings is granted.
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Conclusion
WHEREFORE, Intervenor-Plaintiff Osage Minerals Council’s Motion for Judgment on
the Pleadings [Doc. 204] is granted.
IT IS SO ORDERED this 11th day of January, 2021.
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