Enable Oklahoma Intrastate Transmission LLC v. 25 Foot Wide Easement et al
Filing
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ORDER granting 32 the Individual Defendants' Motion to Dismiss and 47 defendant United States' Motion to Dismiss for Lack of Jurisdiction (Rule 12(b)(1)) and Failure to Join a Necessary Party (Rule 12(b)(7) and Rule 19) and dismissing this action (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 8/18/2016. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ENABLE OKLAHOMA INTRASTATE
TRANSMISSION, LLC,
Plaintiff,
vs.
A 25 FOOT WIDE EASEMENT and
right-of-way for underground natural
gas pipeline lying and situated in the
Southwest Quarter of the Southeast
Quarter of the Southeast Quarter in
Section 28, Township 7 North, Range 11
West of the I.B.&M., in Caddo County,
State of Oklahoma, et al.,
Defendants.
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Case No. CIV-15-1250-M
ORDER
Before the Court is defendants Matthew Martin Ware, Betty Lou Ware, Benjamin Blackstar,
Corey Ware, Patricia Ware, Jean Ann Carter Ware, Edmond L. Carter, Carri Gwen DuPont, Patricia
Ann Carter, Marcia W. Davilla, Mayredean Mammedaty Palmer, Janice C. Mammedaty, Katina
Dherie Smith Lipton, William Kendrix Ware, Wesley Ware, III, Angela Rae Ware Silverhorn,
Samuel Martin Ware, Rena A. Ware (Killsfirst), and Thomas Blackstar, III’s (“Individual
Defendants”) Motion to Dismiss, filed January 15, 2016. On March 7, 2016, plaintiff filed its
response, and on March 14, 2016, Individual Defendants filed their reply. Also before the Court is
defendant United States’ Motion to Dismiss for Lack of Jurisdiction (Rule 12(b)(1)) and Failure to
Join a Necessary Party (Rule 12(b)(7) and Rule 19), filed March 7, 2016. On March 28, 2016,
plaintiff filed its response, and on April 4, 2016, defendant United States filed its reply. Based upon
the parties’ submissions, the Court makes its determination.
I.
Background
This is a condemnation action to condemn a twenty-five (25) foot wide natural gas pipeline
easement through an approximate 137 acre tract of land in Caddo County, Oklahoma, which had
originally been an Indian allotment to Millie Oheltoint (Emaugobah), held in trust by the United
States Department of Interior, Bureau of Indian Affairs (“BIA”). Thirty-eight (38) Indians and the
Kiowa Indian Tribe of Oklahoma (“Kiowa Tribe”) own undivided interests in the tract. The Kiowa
Tribe obtained its approximately 1.1% undivided interest sometime after 2008, on the death of
certain Indian owners and by operation of the American Indian Probate Reform Act.
On November 19, 1980, the BIA approved the grant of a .73 acre easement across the
southern part of the tract in exchange for consideration of $1,925.00 for a twenty (20) year term
right-of-way for plaintiff’s predecessor in interest, Producer’s Gas Company, to install, construct,
operate, and maintain a natural gas transmission pipeline. The natural gas transmission pipeline has
been in continuous operation since its installation in the early 1980’s. The original right of way
expired in November 2000.
On or about June 14, 2002, plaintiff’s predecessor-in-interest, Enogex, Inc. (“Enogex”),
submitted to the BIA a new application for a new 20-year term regarding the existing natural gas
pipeline right-of-way. Defendant Marcia Davilla, among others, rejected Enogex’s offer on or about
August 8, 2004. Despite the landowners’ rejection of Enogex’s offer, on June 23, 2008, the Acting
Superintendent of the BIA’s Anadarko Agency approved Enogex’s application for the easement.
On July 22, 2008, thirteen owners of the tract again rejected Enogex’s offer for an easement by
consent. Twelve of those landowners separately wrote to the acting superintendent requesting that
she withdraw her decision approving Enogex’s renewal request.
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On March 23, 2010, the BIA vacated the acting superintendent’s decision and remanded the
case for further negotiation and instructed that if approval of a right-of-way was not timely secured
that Enogex should be directed to move the pipeline. A new right of way has not been granted, and
plaintiff has continued to operate the natural gas pipeline.1 On November 11, 2015, plaintiff filed
the instant action to condemn the easement pursuant to 25 U.S.C. § 357.
II.
Discussion
Defendant United States contends that the tract at issue is tribal land and, as a result, the
Court has no subject matter jurisdiction to condemn the easement. Additionally, all defendants
contend that the Kiowa Tribe is a required party to this action, that the Kiowa Tribe cannot be joined
in this action because it has sovereign immunity from suit, and under the factors set forth in Federal
Rule of Civil Procedure 19(b), equity and good conscience mandate that this action be dismissed.
A.
Subject matter jurisdiction
Plaintiff asserts that this Court has subject matter jurisdiction over this condemnation action
pursuant to 25 U.S.C. § 357. Section 357 provides:
Lands allotted in severalty to Indians may be condemned for any
public purpose under the laws of the State or Territory where located
in the same manner as land owned in fee may be condemned, and the
money awarded as damages shall be paid to the allottee.
25 U.S.C. § 357. Clearly, the Court would have subject matter jurisdiction over a condemnation
action regarding lands that are allotted in severalty to Indians and, thus, would have jurisdiction in
this case if the tract at issue was owned solely by Indians to whom the tract had been allotted in
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Individual Defendants have initiated a separate action for trespass against plaintiff for the
period from November 2000 to the present.
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severalty. However, in the case at bar, the Kiowa Tribe undisputedly has a 1.1% undivided interest
in the tract.
Congressional legislation and Department of Interior regulations treat tribal land and allotted
land differently. Regarding rights-of-ways, consent of the tribe has been required for tribal land, but
consent of the individual Indians is not always required. For example, United States Code, Title 25,
§ 324 provides:
No grant of a right-of-way over and across any lands belonging to a
tribe . . . shall be made without the consent of the proper tribal
officials. Right-of-way over and across lands of individual Indians
may be granted without the consent of the individual Indian owners
if (1) the land is owned by more than one person, and the owners or
owner of a majority of the interests therein consent to the grant; (2)
the whereabouts of the owner of the land or an interest therein are
unknown, and the owners or owner of any interests therein whose
whereabouts are known, or a majority thereof, consent to the grant;
(3) the heirs or devisees of a deceased owner of the land or an interest
therein have not been determined, and the Secretary of the Interior
finds that the grant will cause no substantial injury to the land or any
owner thereof; or (4) the owners of interests in the land are so
numerous that the Secretary finds it would be impracticable to obtain
their consent, and also finds that the grant will cause no substantial
injury to the land or any owner thereof.
25 U.S.C. § 324. Further, 25 C.F.R. § 169.107 provides, in pertinent part:
(a) For a right-of-way across tribal land, the applicant must obtain
tribal consent, in the form of a tribal authorization and a written
agreement with the tribe, if the tribe so requires, to a grant of rightof-way across tribal land. The consent document may impose
restrictions or conditions; any restrictions or conditions automatically
become conditions and restrictions in the grant.
(b) For a right-of-way across individually owned Indian land, the
applicant must notify all individual Indian landowners and, except as
provided in paragraph (b)(1) of this section, must obtain written
consent from the owners of the majority interest in each tract affected
by the grant of right-of-way.
(1) We may issue the grant of right-of-way without the
consent of any of the individual Indian owners if all of the
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following conditions are met: . . . .
25 C.F.R. § 169.107(a),(b). Additionally, “tribal land and allotted land have been treated differently
by the courts.” Neb. Pub. Power Dist. v. 100.95 Acres of Land in Cty. of Thurston, Hiram Grant,
719 F.2d 956, 961 (8th Cir. 1983). In Nebraska Public Power, the Eighth Circuit held that tribal
land, as opposed to allotted land, cannot be condemned pursuant to 25 U.S.C. § 357 and consent of
the Secretary of the Interior and the proper tribal officials must be obtained pursuant to 25 U.S.C.
§ 324. Id.
The Court, thus, must determine whether the Kiowa Tribe’s 1.1% undivided interest in the
tract constitutes tribal land. Tribal land is defined in 25 C.F.R. § 169.2 as follows:
Tribal land means any tract in which the surface estate, or an
undivided interest in the surface estate, is owned by one or more
tribes in trust or restricted status. The term also includes the surface
estate of lands held in trust for a tribe but reserved for BIA
administrative purposes and includes the surface estate of lands held
in trust for an Indian corporation chartered under section 17 of the
Indian Reorganization Act of 1934 (25 U.S.C. 477).
25 C.F.R. § 169.2. Because the Kiowa Tribe owns an undivided 1.1% interest in the tract that is
held in trust, the Court finds that the tract is tribal land and cannot be condemned pursuant to 25
U.S.C. § 357. The Court, therefore, finds that it does not have subject matter jurisdiction over this
action.
B.
Required party
Alternatively, defendants assert that the Kiowa Tribe is a required party under Federal Rules
of Civil Procedure 19(a) and 71.12, that the Kiowa Tribe cannot be joined in this action, and that
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Rule 71.1 addresses condemning real or personal property.
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this action should be dismissed pursuant to Rule 19(b).3 Rule 19(a)(1) provides:
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that disposing
of the action in the person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because
of the interest.
Fed. R. Civ. P. 19(a)(1). Further, Rule 71.1(c)(3) provides:
When the action commences, the plaintiff need join as defendants
only those persons who have or claim an interest in the property and
whose names are then known. But before any hearing on
compensation, the plaintiff must add as defendants all those persons
who have or claim an interest and whose names have become known
or can be found by a reasonably diligent search of the records,
considering both the property’s character and value and the interests
to be acquired. All others may be made defendants under the
designation “Unknown Owners.”
Fed. R. Civ. P. 71.1(c)(3).
Having reviewed the parties’ submissions, the Court finds that the Kiowa Tribe is a required
party to this case. Specifically, the Court finds that because the Kiowa Tribe owns a 1.1% undivided
interest in the tract at issue, Rule 71.1(c)(3) requires that the Kiowa Tribe be joined as a defendant
in this case. Further, the Court finds that in the Kiowa Tribe’s absence, this Court cannot accord
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Although the Court has found that it lacks subject matter jurisdiction, the Court will address
defendants’ alternative argument.
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complete relief among the existing parties – plaintiff cannot access the tract without a right-of-way
easement that is binding on all of the owners. Additionally, the Court finds that because the Kiowa
Tribe owns a 1.1% undivided interest in the tract at issue, the Kiowa Tribe clearly claims an interest
relating to the subject of this action and that disposing of this action in the Kiowa Tribe’s absence
would leave plaintiff subject to a substantial risk of incurring inconsistent obligations because of the
Kiowa Tribe’s interest – the Individual Defendants’ interests in the tract would be condemned but
the Kiowa Tribe would retain its interest in the tract and could exclude plaintiff from the tract and
could pursue claims for trespass.
While the Kiowa Tribe is a required party, the Court finds that the Kiowa Tribe cannot be
joined as a party in this action. “Indian tribes have long been recognized as possessing the commonlaw immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58 (1978) (internal quotations omitted). The Kiowa Tribe is a federally
recognized tribe and has sovereign immunity from suit. See Kiowa Tribe of Okla. v. Mfg. Tech.,
Inc., 523 U.S. 751 (1998). Further, “[i]t is settled that a waiver of sovereign immunity cannot be
implied but must be unequivocally expressed.” Santa Clara, 436 U.S. at 58 (internal quotations and
citations omitted). Plaintiff does not assert, and the Court does not find, that the Kiowa Tribe has
expressly waived its sovereign immunity. Accordingly, the Court finds that the Kiowa Tribe cannot
be joined under Rule 19(a) or Rule 71.1 as a defendant in this case due to its sovereign immunity.
Because the Kiowa Tribe cannot be joined as a defendant in this case, the Court must
determine whether Rule 19(b) requires dismissal of this action. Rule 19(b) provides:
(b) When Joinder Is Not Feasible. If a person who is required to be
joined if feasible cannot be joined, the court must determine whether,
in equity and good conscience, the action should proceed among the
existing parties or should be dismissed. The factors for the court to
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consider include:
(1) the extent to which a judgment rendered in the
person’s absence might prejudice that person or the
existing parties;
(2) the extent to which any prejudice could be
lessened or avoided by:
(A) protective provisions in the
judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s
absence would be adequate; and
(4) whether the plaintiff would have an adequate
remedy if the action were dismissed for non-joinder.
Fed. R. Civ. P. 19(b). Further, when “a necessary party under Rule 19(a) is immune from suit, there
is very little room for balancing of other factors set out in Rule 19(b), because immunity may be
viewed as one of those interests compelling by themselves.” Enter. Mgmt. Consultants, Inc. v.
United States ex rel. Hodel, 883 F.2d 890, 894 (10th Cir. 1989) (internal quotations and citations
omitted).
Having reviewed the parties’ submissions, the Court finds that equity and good conscience
mandate that this action should be dismissed. Specifically, the Court finds that the Kiowa Tribe’s
sovereign immunity is an extremely compelling interest favoring dismissal of this case. Further, the
Court finds that continuing this action without the Kiowa Tribe would irreparably prejudice the
Kiowa Tribe and plaintiff. Granting plaintiff an easement across the tract without the Kiowa Tribe’s
presence in this case would materially prejudice the Kiowa Tribe’s interest in the tract and, perhaps
more importantly, would greatly prejudice the Kiowa Tribe’s sovereign immunity rights. Further,
it would prejudice plaintiff by potentially subjecting it to inconsistent obligations to the various
owners of the tract. The Court also finds that there is no way to lessen the above prejudice.
Providing the Kiowa Tribe compensation from a condemnation award only addresses the Kiowa
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Tribe’s property rights and does not address its sovereignty interests. There is no way to tailor any
condemnation judgment to protect the Kiowa Tribe’s sovereign immunity rights because it is the
prosecution of this action itself that violates those rights.
Additionally, the Court finds that any judgment rendered in the Kiowa Tribe’s absence
would be inadequate because an incomplete condemnation judgment may be unenforceable. See
Jachetta v. United States, 653 F.3d 898, 907 (9th Cir. 2011) (“If the United States is not a party to
the action, any judicial decision condemning the land has no binding effect, so the United States may
sue to cancel the judgment and set aside the conveyance made pursuant thereto.”). Because the
Kiowa Tribe’s interest cannot be condemned in its absence, any judgment rendered in the Kiowa
Tribe’s absence would be meaningless. Finally, the Court finds that plaintiff has an adequate
remedy if this action is dismissed. Plaintiff can acquire a voluntary easement under 25 U.S.C. §§
323-328, the statutory scheme and administrative procedure that acts as an alternative to § 357’s
condemnation of allotted land in federal court.
Accordingly, the Court finds that the Kiowa Tribe is a required party under Rule 19(a) and
Rule 71.1, that in light of its sovereign immunity, the Kiowa Tribe cannot be joined; and that under
Rule 19(b), the Court, in equity and good conscience, must dismiss this action.
III.
Conclusion
For the reasons set forth above, the Court GRANTS the Individual Defendants’ Motion to
Dismiss [docket no. 32] and defendant United States’ Motion to Dismiss for Lack of Jurisdiction
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(Rule 12(b)(1)) and Failure to Join a Necessary Party (Rule 12(b)(7) and Rule 19) [docket no. 47]
and DISMISSES this action.
IT IS SO ORDERED this 18th day of August, 2016.
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