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Enable Oklahoma Intrastate Transmission, LLC v. 25 Foot Wide Easement

United States Court of Appeals, Tenth Circuit

November 15, 2018

25 FOOT WIDE EASEMENT, and right of way for underground natural gas pipeline lying and situated in the SW Quarter of the SE Quarter and the West Half of the SE Quarter of the SE Quarter in Section 28 Township 7 North Range 11 West of the 1.B. & M. in Caddo County, State of Oklahoma; UNITED STATES OF AMERICA, The Trustee as a matter of affecting title to certain lands previously allotted to Native Americans but held in trust with certain restraints on alienation and presently held in trust for: The Respective Heirs and Successors in Interest of EMAUGOBAH, Caddo Allotment #84, deceased, known heirs believed to be: MATTHEW MARTIN WARE, and spouse if any; BETTY LOU WARE, and spouse if any; BENJAMIN BLACKSTAR, and spouse if any; COREY WARE, and spouse if any; PATRICIA WARE, and spouse if any; JEAN ANN CARTER WARE, and spouse if any; EDMOND L. CARTER, and spouse if any; CARRI GWEN DUPONT, and spouse if any; PATRICIA ANN CARTER, and spouse if any; MARCIA W. DAVILLA, and spouse if any; MAYREDEAN MAMMEDATY PALMER, and spouse if any; JANICE C.MAMMEDATY, and spouse if any; KATINA DHERIE SMITH LIPTON, and spouse if any; RENA A. WARE, and spouse if any; WILLIAM KENDRIX WARE, and spouse if any; WESLEY WARE, III, and spouse if any; ANGELA RAE WARE SILVERHORN, and spouse if any; SAMUEL MARTIN WARE, and spouse if any; THOMAS BLACKSTAR, III, and spouse, if any all if living, and if any deceased, their respective heirs, executors, administrators, devisees, trustees, successors and assigns, immediate and remote, both known and unknown, Defendants - Appellees.

          Appeal from the United States District Court No. 5:15-CV-01250-M for the Western District of Oklahoma

         Submitted on the briefs: [*]

          Barry L. Pickens, of Spencer Fane LLP, Overland Park, Kansas; and Andrew W. Lester, of Spencer Fane LLP, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

          Robert J. Troester, Acting United States Attorney; Tom D. Majors, Assistant United States Attorney; Conor Cleary and Alan Woodcock, Department of the Interior; Jeffrey H. Wood, Acting Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; and William B. Lazarus, Jeffrey S. Beelaert, and Mary Gabrielle Sprague, Attorneys, United States Department of Justice, Washington, D.C., for Defendant-Appellee United States of America.

          Dustin T. Greene, of Kilpatrick Townsend & Stockton LLP, Winston-Salem, North Carolina; and Thurston H. Webb, of Kilpatrick Townsend & Stockton LLP, Atlanta, Georgia, for Defendants-Appellees 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; Rena A. Ware (Killsfirst); William Kendrix Ware; Wesley Ware, III; Angela Rae Ware Silverhorn; Samuel Martin Ware; and Thomas Blackstar, III.

          Before LUCERO, McKAY, and MATHESON, Circuit Judges.


         Plaintiff Enable Oklahoma Intrastate Transmission, LLC, appeals the district court's dismissal of its case for lack of subject matter jurisdiction and for failure to join an indispensable party. Enable also challenges the amount of attorney fees the court awarded to the landowner defendants. Because our decision in Public Service Company of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017), is dispositive of the subject matter jurisdiction issue, we affirm the district court's order dismissing the action. We likewise affirm the attorney fees award as consistent with Oklahoma law.


         As discussed in Barboan, during the late nineteenth century, Congress began carving Indian reservations into allotments assigned to individual tribal members. 857 F.3d at 1104. With the passage of the 1887 General Allotment Act, or Dawes Act, the federal government began holding the allotments in trust for a period of twenty-five years, after which the allottee or his heirs would receive a fee patent to the land. Id. "As allotments began to create a checkerboard of tribal, individual Indian, and individual non-Indian land interests, Congress passed several right-of-way statutes to help ensure that necessities such as telegraph lines and roads could continue without encumbrance." Id. at 1105. The 1934 Indian Reorganization Act ended the Allotment Era, indefinitely extending the twenty-five year trust period. Id. at 1105-06. Subsequent acts of Congress entitled Indian tribes to purchase interests in previously allotted lands, 25 U.S.C. § 2212, and to inherit small fractional interests in land through intestate descent, 25 U.S.C. § 2206(a)(2)(D). Barboan, 857 F.3d at 1106.

         This case concerns a 136.25-acre tract of land located in Caddo County, Oklahoma, and referred to by the parties as Kiowa Allotment #84. The tract was originally allotted to Emaugobah, but as of April 2013, the land was held in trust by the United States for several individuals and the Kiowa Tribe of Oklahoma, which had an approximately 1.1% undivided ownership interest. In November 1980, the United States Department of the Interior Bureau of Indian Affairs granted a twenty-five-foot-wide easement, containing approximately 0.73 acres of land, to Producer's Gas Company for $1, 925.00 to install and maintain a twenty-foot natural gas pipeline for a term of twenty years. In June 2002, Enogex Inc. wrote to the BIA seeking to acquire a new twenty-year easement for $3, 080.00 over the same property to continue the operation and maintenance of the pipeline.

         Some landowners withheld their consent to Enogex's right-of-way application, and in 2006 Enogex was required to pay a $1, 098.35 trespass assessment for its continued operation of the pipeline without the easement. In June 2008, the local BIA Superintendent notified the landowners that the Bureau had decided "to approve the new easement for Enogex for the reasons that it has been impracticable to obtain a majority of the ownership consent, the granting of the easement will not cause any injury to the land or the ownership, and to prevent a condemnation action in United States Federal Court." (Appellant's App. at 66-67.) The following month, several landowners appealed that decision to the BIA Regional Director and informed him they were rejecting Enogex's offer for the easement. One owner also wrote to the Superintendent asking her to withdraw her decision because it had been made "without informing the landowners or seeking their consent" and the majority of the known landowners had rejected Enogex's "offer and the seven and [a] half year old appraisal of the expired leases." (Id. at 69.)

         In March 2010, the Regional Director issued his decision ruling on the landowners' appeal. The Director noted that, as of January 2010, Enogex had yet to make any payments for the right of way the Superintendent had granted. He also determined that the amount Enogex had offered and the Superintendent had approved for the easement "appear[ed] to be inadequate" and concluded that the Superintendent "lacked the authority to approve" the easement application without the landowners' consent. (Id. at 73.) Accordingly, the Director vacated the Superintendent's decision and stated, "If valid ...

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