ENABLE OKLAHOMA INTRASTATE TRANSMISSION, LLC, Plaintiff - Appellant,
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.
from the United States District Court No. 5:15-CV-01250-M for
the Western District of Oklahoma
on the briefs: [*]
L. Pickens, of Spencer Fane LLP, Overland Park, Kansas; and
Andrew W. Lester, of Spencer Fane LLP, Oklahoma City,
Oklahoma, for Plaintiff-Appellant.
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.
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;
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
LUCERO, McKAY, and MATHESON, Circuit Judges.
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.
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.
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.
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.)
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