Southern Ute Indian Tribe v. Amoco Production Co.
| Decision Date | 22 June 1910 |
| Citation | 2 F.3d 1023 |
| Parties | 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 Centr |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
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.
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 and class certification, among numerous other case management issues. App., vol. I, at 110 (joint motion). The joint motion proposed class certification of two issues only: (1) ownership of the coalbed methane; and (2)
a determination of whether there exist defenses generally applicable to the defendant class, consisting of statutes of limitation, and estoppel, promissory estoppel, waiver, contractual limitations, consent, acquiescence, ratification, laches and good faith to the extent that these defenses, other than statutes of limitation, are based on the acts or omissions of the Tribe or its agents, employees, or representatives.
Id. at 113. The trial court certified a defendant class pursuant to Rule 23(b)(2) solely to determine the two described issues. Id., vol. II, at 224 (Case Management Order).
After the joint motion was filed, only three defendant oil companies objected to the proposed class certification. Id. at 211 (Amoco's Response to Objections to Proposed Case Management Order). A number of defendants specifically joined the class certification proposal. In responding to the objections, Amoco asserted that "the procedural device of a defendant class is useful and appropriate here, and lends itself well to the protection of the interests of all parties and class members and to the efficient conduct of the litigation." Id. at 216.
In its objection, Meridian Oil argued that a class of defendants should not be certified without first providing notice to the unnamed members of the class and offering them an opportunity to object. In its response to Meridian, the Tribe contended that certification of a defendant class was appropriate under either Rule 23(b)(1) or (b)(2). Notice is required to be given to the class only if it is certified under Rule 23(b)(3). See Fed.R.Civ.P. 23(c)(2). The Tribe recognized, however, that due process...
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