2 F.3d 1023 (10th Cir. 1993), 92-1201, Southern Ute Indian Tribe v. Amoco Production Co.

Docket Nº:92-1201.
Citation:2 F.3d 1023
Party Name:SOUTHERN UTE INDIAN TRIBE, Plaintiff-Appellant, v. AMOCO PRODUCTION COMPANY; Shirley K. Adams; Henry Ashworth; Carla M. Aspaas; Eric K. Aspaas; Helen Ruth Aspaas; Laura Belle Aspaas; Leta M. Adkins; Rita M. Adkins; Maxwell C. Anderson; Earl A. Barker; Maurice C. Breen, named as: the Heirs of Maurice C. Breen, deceased; Horace F. Buchanan, named as:
Case Date:August 10, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1023

2 F.3d 1023 (10th Cir. 1993)

SOUTHERN UTE INDIAN TRIBE, Plaintiff-Appellant,

v.

AMOCO PRODUCTION COMPANY; Shirley K. Adams; Henry

Ashworth; Carla M. Aspaas; Eric K. Aspaas; Helen Ruth

Aspaas; Laura Belle Aspaas; Leta M. Adkins; Rita M.

Adkins; Maxwell C. Anderson; Earl A. Barker; Maurice C.

Breen, named as: the Heirs of Maurice C. Breen, deceased;

Horace F. Buchanan, named as: the Heirs of Horace Buchanan,

deceased; George A. Bugg; Carbone Investment Company;

Jack Carmack; Rowland Carmack; Joseph C. Ciancio; William

Kemp Clark; Colorado National Bank, George Veto Trust;

Colorado National Bank of Longmont, conservator Gladys N.

Frazzini; Dorothy A. Corgin; Kelly Cox, named as: the

Heirs of Kelly Cox, deceased; A.B. Crosby; Barbara Crosby;

David Crosby; John Crow, Jr.; Margaret Crow; Manuel

Cruz; Louis M. Cummins; Frederick E. Dickerson; J.M.

Eakes; Robert McFerran Eakes; Margaret Ellison; Sally M.

Etterbeck; Minnie Flaks; Tillie Flaks; Cassio Frazzini;

Adele Frost; Robert Galbasin; Abel S. Gallegos; Montey

Garnand; Ruby Gibbs Goggans; Christine Hamilton; Hardin

Simmons University; H.A. Harmon, named as: the Heirs of

H.A. Harmon, deceased; Catherine Frances McElvain Harvey;

Hondo Oil & Gas Company, named as: the shareholders of

Hondo Oil & Gas Company (dissolved); Hyde Oil and Gas

Corporation; Charles Kettering; Fidel Lucero; Richard C.

Malcomb; Suzanne Heath Manges; Catherine B. McElvain;

Mabel McElvain; Thornton H. McElvain, Jr.; Dorothy N.

McKelvey; Edwin L. McKelvey; R. Franklin McKelvey; W.R.

McMahon; McMurry Oil Company; W. Clay Meredith Charitable

Trust; W.A. Moncrief, named as: the Heirs of W.A.

Moncrief, deceased; Roy E. Montgomery, personal

representative for the Estate of W. Clay Meredith, deceased;

Forrest D. Miller, named as: the Heirs of Forrest D.

Miller, deceased; Helen L. Miller, named as: the Heirs of

Helen L. Miller, deceased; Thomas S. Morrissey; Thomas J.

Morrissey; Emil Mosbacher; Emil Mosbacher, III; John

David Mosbacher; R. Bruce Mosbacher; Myra Theresa Moulds;

North Central Oil Corporation; H.L. Oliver; Clara Onofrio;

Margaret C. Pargin; Harold F. Payne, Jr.; Neville G.

Penrose; Ben M. Peterson, Jr.; Frederick Petrocco;

Phillips Petroleum Company; James M. Raymond; W.E. Rennie,

named as: the Heirs of W.E. Rennie, deceased; Thomas C.

Romolo; Benton E. Smullyen; Clinton I. Smullyen; William

Stirling; J.L. Tatum, named as: the Heirs of J.L. Tatum,

deceased; Anna Carleo Tomeo; Ernest Tomeo; Turner

Securities; Richard W. Turner, Sr.; George C. Vance, named

as: the Heirs of George C. Vance, deceased; Anthony H.

Veto; Joseph F. Ware, Jr.; Albert E. Zarlengo; Anthony F.

Zarlengo, John Doe and all other unknown persons claiming an

interest in the mineral estate located within the N/2 of

section 12, T33N, R8W, N.M.P.M., La Plata County, Colorado;

AMAX Oil & Gas, Inc.; Bowen/Edwards Associates, Inc.;

Conoco, Inc.; Fuel Resources Development Company; Markwest

Energy Partners Limited; McKenzie Methane Corporation;

Meridian Oil, Inc.; Mobil Oil Corporation; National

Cooperative Refinery Association; Northwest Pipeline

Corporation; Pablo Operating Company; Palo Petroleum,

Inc.; Palo/Eagle Joint Ventures; Richmond Petroleum, Inc.;

Tiffany Gas Company; Williams Production Company; Union

Texas Petroleum Corporation, John Doe oil company and all

other unknown persons or entities claiming leasehold

working interests or operating rights to explore for,

produce or develop coalbed methane or coal constituents from

coal or coal strata reserved by the United States in patents

issued under The Act of June 22, 1910, for lands located

within the exterior boundaries of the Southern Ute Indian

Reservation, and which entities have not obtained tribal

consent to and federal approval of said exploration,

production of development activities; Manuel Lujan, Jr.,

Secretary of the United States Department of the Interior;

Department of Interior, and its subordinate agencies;

Bureau of Indian Affairs; Bureau of Land Management;

Minerals Management Service; Eddie F. Brown, Assistant

Secretary of the Bureau of Indian Affairs; Delos Cy

Jamison, Director of the Bureau of Land Management; Scott

S. Sewell, Director of the Minerals Management Service;

Class of Defendants situated similarly to those named

non-governmental defendants who claim ownership of an

interest in coalbed methane and other coal constituents or

claim the right to explore for, develop or produce those

substances from coal or coal strata reserved by the United

States in patents issued under the Act of March 3, 1909, or

the Act of June 22, 1910, for lands located within the

exterior boundaries of the Southern Ute Indian Reservation

and which class members have not obtained tribal consent to

and federal approval of said interests of rights; J.M.

Huber Corporation, Oil & Gas Division, Defendants-Appellees.

No. 92-1201.

United States Court of Appeals, Tenth Circuit

August 10, 1993

Page 1024

[Copyrighted Material Omitted]

Page 1025

Scott B. McElroy (Bruce R. Greene and M. Catherine Condon of Greene, Meyer & McElroy, P.C., Boulder, CO, Thomas H. Shipps and Frank E. (Sam) Maynes of Maynes, Bradford, Shipps & Sheftel, Durango, CO, with him on the brief), of Greene, Meyer & McElroy, P.C., Boulder, CO, for plaintiff-appellant.

Anthony J. Shaheen (Thomas S. Nichols and Charles L. Kaiser of Davis, Graham & Stubbs, Denver, CO, David E. Brody of Amoco Production Co., Denver, CO, with him on the brief), of Davis, Graham & Stubbs, Denver, CO, for defendant-appellee.

Before SEYMOUR and MOORE, Circuit Judges, and THEIS, [*] District Judge.

SEYMOUR, Circuit Judge.

Southern Ute Indian Tribe (Tribe) sued Amoco Production Company (Amoco) and other oil companies and individuals, claiming they were extracting from their oil and gas leases coalbed methane reserved by the United States for the benefit of the Tribe. The district court certified a defendant class, 1 and also issued a cost allocation order requiring the Tribe to pay the oil companies 25% of the companies' cost of mineral and land title examinations from which the Tribe desired to obtain names in order to notify the class defendants. Amoco asserts that we lack jurisdiction to hear the appeal. We conclude we have jurisdiction, and we reverse the district court's cost allocation order.

I.

The underlying dispute here concerns ownership of coalbed methane found in coal strata, located on the Southern Ute Indian Reservation in southwest Colorado. Although some lands at issue in this action were patented to non-Indians, the coal underlying the lands was reserved by the United States under the Act of March 3, 1909, ch. 270, 35 Stat. 844 (codified at 30 U.S.C. Sec. 81) or under the Coal Lands Act of 1910, ch. 318, 36 Stat. 583 (codified at 30 U.S.C. Secs. 83-85). In 1938, Congress restored the unpatented land on the reservation to trust status for the benefit of the Tribe. Act of June 28, 1938, ch. 776, 52 Stat. 1209, 1210-11. The coal which had previously been reserved was restored in trust to the Tribe under the Order of Restoration of September 14, 1938, entered pursuant to 25 U.S.C. Sec. 463.

An estimated 20,000 individuals hold interests in the oil and gas estates underlying approximately 200,000 acres of land in which the Tribe owns the coal interests. Amoco owns oil and gas leasehold interests covering approximately 150,000 acres, and is the operator of approximately 160 coalbed methane wells. The other corporate defendants are the lessees and operators of approximately 190 wells. The issue in the lawsuit is who is entitled to develop the coalbed methane, the owner of the coal or the owners of the oil and gas. The Tribe claims that coalbed methane is an integral component of the coal held in trust for the Tribe, and that defendant oil companies are extracting this coalbed gas without the Tribe's consent and without compensation.

The Tribe named over one hundred defendants in its complaint and also sought certification of a defendant class which would include the more than 20,000 persons with various interests in the oil and gas. In a joint motion, the Tribe and Amoco moved to resolve class definition...

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