Davilla et al v. Enable Midstream Partners LP

Filing 56

ORDER granting 32 plaintiffs' Motion for Partial Summary Judgment on Liability for Their Trespass Claim and for a Permanent Injunction (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 3/28/2017. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCIA W. DAVILLA, et al.,
Plaintiffs,
vs.
ENABLE MIDSTREAM PARTNERS,
L.P., et al.,
Defendants.

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Case No. CIV-15-1262-M

ORDER
Before the Court is plaintiffs’ Motion for Partial Summary Judgment on Liability for Their
Trespass Claim and for a Permanent Injunction, filed April 1, 2016. On May 3, 2016, defendants
filed their response, and on May 10, 2016, plaintiffs filed their reply. Based upon the parties’
submissions, the Court makes its determination.
I.

Background
Defendants are the owner and operator of a network of natural gas transmission pipelines

across Oklahoma. Defendants’ transmission pipeline crosses 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 the 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, varying from 28.6% down to less than
9/10ths of a percent. 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 defendants’ 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 on November 20, 2000.
On or about June 14, 2002, defendants’ predecessor-in-interest, Enogex, Inc. (“Enogex”),
submitted a right-of-way offer to the BIA and made an offer to plaintiffs for a new twenty year
easement, which was rejected by a majority of the landowners.1 Prior to submitting its application
for renewal of the easement, Enogex obtained the written consent of tenant-in-common
landowners Thomas Blackstar, Benjamin Blackstar, Ernie Clay Keahbone, Edmond Carter, and
Rene Ware, and these written consents were submitted to the BIA with the Enogex application.2
Further, on September 13, 2006, Enogex paid the BIA $1,098.35, inclusive of interest and
assessments, for use of the .73 acre easement from the date of the expiration of the previous
easement, November 18, 2000, until the date Enogex submitted its renewal application on June
14, 2002.
Despite the rejection by a majority of the landowners, on June 23, 2008, the Interim
Superintendent of the BIA’s Anadarko Agency approved Enogex’s application for the renewal of
the right-of-way easement for twenty years. Plaintiffs appealed the Interim Superintendent’s

1

Enogex offered to pay $3,080 for the easement.

2

These tenant-in-common landowners collectively own less than a 10% interest in the tract.
2

decision, and on March 23, 2010, the BIA vacated the interim superintendent’s decision.3 The
BIA determined that it did not have authority to approve the right-of-way without the consent of
plaintiffs or their predecessors in interest and that the price offered by defendants was
unreasonable. The BIA 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 defendants have continued to operate the natural gas
pipeline. On November 16, 2015, plaintiffs filed the instant action for continuing trespass in
violation of federal common law and for preliminary and permanent injunctive relief against
defendants.
II.

Discussion
Plaintiffs move this Court to enter summary judgment in their favor on their trespass claim

and to find defendants liable for trespass. Plaintiffs further move this Court to enter a permanent
injunction requiring defendants to remove the pipeline across plaintiffs’ property.

3

In the March 23, 2010 letter, the BIA states:
The trespass has been resolved based on the certified letter to
Enogex, dated August 24, 2006. In fact, Enogex paid four extra
years of trespass fees when considering Enogex’s application tolled
the ROW grant from June 14, 2002. This effectively makes the
trespass rental value at about $120 per rod.
March 23, 2010 Letter from Dan Deerinwater, Regional Director of the BIA, attached as Exhibit
C to plaintiffs’ Motion for Partial Summary Judgment on Liability for Their Trespass Claim and
for a Permanent Injunction with Brief in Support at 4.
3

A.

Trespass claim
1.

Summary judgment standard

“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72
(10th Cir. 1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a
burden of doing more than simply showing there is some metaphysical doubt as to the material
facts. Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations
and quotations omitted).
2.

Merits

Plaintiffs assert they are entitled to summary judgment on the issue of liability on their
trespass claim against defendants. Specifically, plaintiffs contend that defendants’ trespass on
their property is undisputed; defendants have admitted that they are operating a natural gas pipeline
across plaintiffs’ property without an easement. Plaintiffs further assert defendants’ affirmative
defenses do not prevent entry of summary judgment.
4

Defendants, however, contend that whether they are liable for trespass remains a disputed
issue. Specifically, defendants contend that the five written consents to renewal of the easement
that they received from the tenant-in-common landowners preclude the entry of summary
judgment. Additionally, defendants contend Oklahoma’s two-year statute of limitations applies
in this case and that since plaintiffs have not proven when, or if, their trespass claim accrued,
summary judgment should be denied.
On November 28, 2016, the Court entered an order in this case setting forth certain rules
for decision in this case. Specifically, the Court found “that federal common law governs
plaintiffs’ claim for continuing trespass but that Oklahoma trespass law may provide the rule of
decision for certain aspects of plaintiffs’ claim, as long as the application of Oklahoma law would
not be inconsistent with federal law or underlying federal policies.” November 28, 2016 Order
[docket no. 51] at 3. The Court further found “that the two-year statute of limitations under
Oklahoma law should not be borrowed and applied to plaintiffs’ trespass claim” and “that
plaintiffs’ federal common law claim for trespass is not subject to any statute of limitations.” Id.
at 4.
While defendants do not dispute that they are operating a natural gas pipeline across
plaintiffs’ property without an easement, defendants assert that there is no trespass in this case
because under Oklahoma law consent forms a complete defense to trespass and they obtained five
written consents to the renewal of the easement. While consent does form a complete defense
under Oklahoma law, see Nahno-Lopez v. Houser, 625 F.3d 1279, 1284 (10th Cir. 2010), as set
forth above, before applying this law, this Court must determine whether the application of this
Oklahoma law would be inconsistent with federal law or underlying federal policies. As set forth
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below, the Court finds that application of this Oklahoma law would be inconsistent with federal
statutes and, thus, the Oklahoma law providing that consent is a complete defense to trespass is
not applicable in this case.
The United States Congress has promulgated specific statutes regarding easements across
Indian trust lands. Specifically, 25 U.S.C. § 323 provides:
The Secretary of the Interior be, and he is hereby, empowered to
grant rights-of-way for all purposes, subject to such conditions as he
may prescribe, over and across any lands now or hereafter held in
trust by the United States for individual Indians or Indian tribes,
communities, bands, or nations, or any lands now or hereafter
owned, subject to restrictions against alienation, by individual
Indians or Indian tribes, communities, bands, or nations, including
the lands belonging to the Pueblo Indians in New Mexico, and any
other lands heretofore or hereafter acquired, or set aside for the use
and benefit of the Indians.
25 U.S.C. § 323. Additionally, 25 U.S.C. § 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. Rights-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.

6

In the case at bar, it is undisputed that the tenant-in-common landowners who gave
defendants written consent to the renewal of the easement collectively own less than a 10% interest
in the tract and, thus, do not own a majority of the interests in the tract. Because the owners of a
majority of the interests in the tract did not consent to the renewal of the easement, the Court finds
that the requirements of § 324 have not been met4 and any easement based upon those consents
would not be valid under § 324. The Court, therefore, finds that relying on those consents as a
complete defense to plaintiffs’ trespass claim in this case would be completely counter to federal
law and would be improper. The Court, thus, finds that the Oklahoma law providing that consent
is a complete defense to trespass is not applicable in this case.5
Defendants further assert that Oklahoma’s two-year statute of limitations applies in this
case. As set forth above, this Court has previously found that plaintiffs’ federal common law
claim for trespass is not subject to any statute of limitations. Accordingly, the Court finds that
Oklahoma’s two-year statute of limitations does not preclude summary judgment on plaintiffs’
trespass claim. The Court further finds when plaintiffs’ trespass claim accrued is not relevant for
purposes of determining defendants’ liability but is only relevant for purposes of determining
plaintiffs’ damages.6

4 The Court would also note that § 324’s requirement for tribal approval was also not met in this

case.
5 Defendants also rely upon 25 U.S.C. § 2213(a) to support their argument that these consents are
valid and preclude the entry of summary judgment. Section 2213(a), however, only relates to an
Indian tribe receiving a fractional interest under 25 U.S.C. § 2212 and does not address individual
Indian owners.
6 The Court would note that based upon the evidence submitted, the latest that plaintiffs’ trespass
claim accrued was on or about March 24, 2010.
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The Court, therefore, finds that plaintiffs are entitled to summary judgment as to the issue
of liability on their trespass claim against defendants.
B.

Permanent injunction

Upon entry of partial summary judgment, plaintiffs contend they are entitled to a
permanent injunction requiring defendants to remove the pipeline from the tract at issue. Courts
that have addressed whether a permanent injunction should be entered in relation to a continuing
trespass do not conduct a separate analysis of the four factors a court typically considers when
determining whether a permanent injunction should be entered. Instead, the courts typically enter
a permanent injunction when there is a continuing trespass. “[W]here a trespasser persists in
trespassing upon (the land) of another, and threatens to continue his wrongful invasion of the
premises, equity will restrain such trespass.” Fairlawn Cemetery Ass’n v. First Presbyterian
Church, U.S.A. of Okla. City, 496 P.2d 1185, 1187 (Okla. 1972) (internal quotations and citation
omitted). Further, “[t]his is so even . . . though the trespasser is able to respond financially in
damages for in such cases the party in possession has no adequate remedy at law.” Angier v.
Mathews Expl. Corp., 905 P.2d 826, 830 (Okla. Civ. App. 1995) (internal quotations and citation
omitted). See also Okaw Drainage Dist. of Champaign and Douglas Cty., Ill. v. Nat’l Distillers
and Chem. Corp., 882 F.2d 1241, 1246 (7th Cir. 1989) (“the owner of property has the exclusive
right to the use of the property and an automatic right to an injunction against a trespasser.”); Miller
v. Cudahy Co., 592 F. Supp. 976, 1007 (D. Kan. 1984) (finding that continuing trespass by
defendants’ pipelines on property should be enjoined and ordering that defendant cease using
pipelines and remove them from land); Belusko v. Phillips Petroleum Co., 198 F. Supp. 140,146
(S.D. Ill. 1961) (finding injunction was appropriate remedy for company’s unauthorized entry onto
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land and laying of pipeline). However, some courts have declined to enter an injunction when the
trespass was unintentional and when the landowner stands by and makes no objection until the
greater part of the work has been completed. See Slocum v. Phillips Petroleum Co., 678 P.2d 716,
720 (Okla. 1983); Kasner v. Reynolds, 268 P.2d 864, 864, 867 (Okla. 1954).
Having carefully reviewed the parties’ submissions, and in light of the facts and
circumstances in this case, the Court finds that a permanent injunction should be entered in this
case. Specifically, it is plaintiffs’ interests in the exclusive possession of their land which has
been invaded by the presence of the pipeline and defendants’ continued use of the pipeline.
Further, defendants have continued to use the pipeline and although they were advised by the BIA
on March 23, 2010, more than five and a half years before the instant action was filed, that “[i]f
valid approval of a right of way for this tract is not timely secured, Enogex should be directed to
move the pipeline off the subject property”, March 23, 2010 Letter from Dan Deerinwater,
Regional Director of the BIA, attached as Exhibit C to plaintiffs’ Motion for Partial Summary
Judgment on Liability for Their Trespass Claim and for a Permanent Injunction with Brief in
Support at 4, defendants have done nothing to move the pipeline off the tract when negotiations
with plaintiffs regarding the renewal of the easement failed.

The Court finds defendants’

continuing trespass on plaintiffs’ property is clearly not unintentional. Additionally, plaintiffs
have objected to the renewal of the easement and defendants’ continued use of the pipeline from
the time defendants first sought the renewal of the easement. Accordingly, the Court finds that in
light of their continuing trespass, defendants should be permanently enjoined from using the
pipeline under the tract at issue and should be required to move the pipeline within six (6) months
of the date of this Order.
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III.

Conclusion
For the reasons set forth above, the Court GRANTS plaintiffs’ Motion for Partial Summary

Judgment on Liability for Their Trespass Claim and for a Permanent Injunction [docket no. 32] as
follows:
(A)

Plaintiffs are granted summary judgment as to the issue of liability on their trespass
claim against defendants, and

(B)

Defendants are hereby permanently enjoined from using the pipeline under the tract
at issue in this case and are hereby required to move said pipeline within six (6)
months of the date of this Order.

IT IS SO ORDERED this 28th day of March, 2017.

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