913 F.3d 959 (10th Cir. 2019), 17-6088, Davilla v. Enable Midstream Partners L.P.

Docket Nº:17-6088
Citation:913 F.3d 959
Opinion Judge:TYMKOVICH, Chief Judge.
Party Name:Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; ...
Attorney:Andrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas, with him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for Appellants. Dustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP, Washington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stoc...
Judge Panel:Before TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges. HARTZ, Circuit Judge, concurrence and partial dissent:
Case Date:January 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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913 F.3d 959 (10th Cir. 2019)

Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; Edbert E. Keahbone, Jr.; Rena A. Killsfirst; Katina S. Lipton; Janice C. Mammedaty; Amanda M. McCarthy; Michael R. McCarthy; Mayredena M. Palmer; Rachel M. Palmer; Megan L. Palmer; Lauren Silverbird; Angela R. Silverhorn; Harvey E. Tucker; William K. Ware; Samuel M. Ware; Matthew M. Ware; Betty L. Ware; Corey Ware; Patricia Ware; Jean Ware; Wesley Ware, III; Melva J. Wermy, Plaintiffs-Appellees,

v.

ENABLE MIDSTREAM PARTNERS L.P.; Enable G.P., LLC; Enable Oklahoma Intrastate Transmission LLC, Formerly Known as Enogex, LLC, Defendants-Appellants.

No. 17-6088

United States Court of Appeals, Tenth Circuit

January 10, 2019

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:15-CV-01262-M)

Andrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas, with him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for Appellants.

Dustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP, Washington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stockton LLP, Atlanta, Georgia, with him on the brief), Kilpatrick Townsend & Stockton LLP, Winston-Salem, North Carolina, for Appellees.

Before TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.

OPINION

TYMKOVICH, Chief Judge.

Enable Intrastate Transmission, LLC owns and operates a natural gas pipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year easement for the pipeline expired in 2000. Enable failed to renew the easement but also failed to remove the pipeline. In response, roughly three-dozen individual Native American Allottees— who hold equitable title in the allotted land— filed this lawsuit.

The district court granted summary judgment to the Allottees, ruling on the basis of stipulated facts that Enable was liable for trespass. The court then enjoined the trespass, ordering Enable to remove the pipeline. Enable appeals both rulings, claiming several legal errors.1

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We affirm in part, reverse in part, and remand for further proceedings. The district court properly granted summary judgment to the Allottees but erred in issuing the permanent injunction. The availability of equitable relief in this case depends on the relative weight of interests not yet considered below. We leave those considerations for the district court to determine in the first instance.

I. Background

"After the formation of the United States, the [Indian] tribes became ‘domestic dependent nations,’ subject to plenary control by Congress." Puerto Rico v. Sanchez Valle, __ U.S. __, 136 S.Ct. 1863, 1872, 195 L.Ed.2d 179 (2016) (quoting United States v. Lara, 541 U.S. 193, 204, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) ); see also Cty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985) ("With the adoption of the Constitution, Indian relations became the exclusive province of federal law."). This "plenary authority" includes "full power to legislate concerning ... tribal property." Winton v. Amos, 255 U.S. 373, 391, 41 S.Ct. 342, 65 L.Ed. 684 (1921); see also

Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue, 458 U.S. 832, 837, 102 S.Ct. 3394, 73 L.Ed.2d 1174 (1982) (linking Congress’s "broad [regulatory] power ... [over] tribal affairs" to "the Indian Commerce Clause" and "the semi-autonomous status of Indian tribes" (first citing U.S. Const. art. I, § 8, cl. 3; then citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) ) ). See generally White Mountain, 448 U.S. at 141-45, 100 S.Ct. 2578 (explaining the relationship between federal, state, and tribal regulatory authority).

Congress exercised that power during the "Allotment Era" of the late-nineteenth and early-twentieth centuries by "carv[ing] [Indian] reservations into allotments and assign[ing] the land parcels to tribal members." Pub. Serv. Co. v. Barboan, 857 F.3d 1101, 1104 (10th Cir. 2017). See generally id. at 1104-06 (detailing the history of the Allotment Era). This project aimed to promote Indian assimilation by encouraging private property ownership and agricultural pursuits. E.g., Upper Skagit Indian Tribe v. Lundgren, __ U.S. __, 138 S.Ct. 1649, 1652, 200 L.Ed.2d 931 (2018).

But all did not go according to plan. "[M]any of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud." Cty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 254, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). In response, Congress "restricted immediate alienation or encumbrance" in favor of a trust-based model. Id. Through the Dawes Act, ch. 119, 24 Stat. 388 (1887), repealed by Indian Land Consolidation Act Amendments of 2000, Pub. L. No. 106-462, § § 101-103, 114 Stat. 1991, 1991-2006 (codified at 25 U.S.C. § § 2201-2219), Congress empowered the President to allot reservation land in trust rather than granting immediate, fee simple ownership, County of Yakima, 502 U.S. at 254, 112 S.Ct. 683. Under these trust arrangements, the United States retained legal title of allotted parcels while Indian allottees received equitable title. See id. An allottee could secure a fee simple land patent only upon dissolution of the trust, which the government would allow after a

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term of years or by special determination. Id. at 254-55, 112 S.Ct. 683.

It was through this program that, in August of 1901, President William McKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman named Emaugobah. But Congress’s allotment project "came to an abrupt end ... with passage of the Indian Reorganization Act" in 1934. Id. at 255, 112 S.Ct. 683. Under that legislation, "Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands." Id. As a result, Emaugobah never received a fee simple patent. And well over a century later, the federal government still holds roughly 136 acres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some individual Allottees.

Meanwhile, Congress’s vacillation on Indian land policy left "a checkerboard of tribal, individual Indian, and individual non-Indian land interests" across Indian country. Barboan, 857 F.3d at 1105. This, in turn, created its own set of problems. As Congress hemmed and hawed over Indian affairs, the American people headed west and industrialized. The Great Plains— once passable only by foot, hoof, and wagon— slowly but surely sprouted a network of train tracks, telegraph wires, and other conduits of modern commerce. "[T]o help ensure that [such modern] necessities ... could" span the continent "without encumbrance," Congress soon enacted a series of "right-of-way statutes." Id.

As relevant here, these laws empowered the Secretary of the Interior to approve easements "for all purposes ... over and across any lands ... held in trust by the United States for individual Indians or Indian tribes." 25 U.S.C. § 323. But the Secretary could not do so unilaterally. Instead, the Secretary needed "the consent of the proper tribal officials" or, where applicable, "individual Indian owners." Id. § 324. In the case of allotments shared among multiple Indians, the law required consent of a "majority of the [equitable] interests" to approve a right-of-way. Id.

In 1980, acting under these provisions, the Secretary allowed conveyance of a twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment. By its terms, the easement would allow Producer’s Gas Company to "install ... and thereafter use, operate, inspect, repair, maintain, ... and remove a single buried [twenty-inch] natural gas pipeline" within a twenty-year period. App. 40. Producer’s Gas later conveyed both the easement and the pipeline to Enable.

When the easement expired in November 2000, however, Enable’s pipeline remained buried in the ground. Enable eventually sought a new twenty-year easement by approaching the Allottees and applying for approval from the Bureau of Indian Affairs. But the company failed to secure approval for the new easement from a majority of the equitable interests. Accordingly, the Bureau cancelled Enable’s right-of-way application. Apparently undeterred, Enable continued to operate the pipeline.

The Allottees eventually sued. Their complaint claimed Enable was committing a...

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