Begay v. Pub. Serv. Co. of N.M. (pnm)

• Decision Date: 15 April 2010
• Docket Number: No. CIV 09-0137 JB/RLP,CIV 09-0137 JB/RLP
• Citation: 710 F.Supp.2d 1161
• Parties: Ida C. BEGAY, Nita R. Augustine, Kee Augustine, Kee Sandoval, George Harkes, Jr., Alice J. White, Ben C. Yazzier, Louise J. Yazzie, and Shii Shi Keyah Allottees Association on their own behalf and on behalf of all those similarly situated, Plaintiffs v. PUBLIC SERVICE COMPANY OF NEW MEXICO (PNM), El Paso Corporation, Enterprise Products Partners L.P., Kinder Morgan, New Mexico Gas Company, Transwestern Pipeline Co., LLC, Tucson Electric Power Company, Western Refining, Inc., Ken Salazar, Secretary of the Interior, et al., and the United States of America, Defendants.
• Court: U.S. District Court — District of New Mexico

710 F.Supp.2d 1161

Ida C. BEGAY, Nita R. Augustine, Kee Augustine, Kee Sandoval, George Harkes, Jr., Alice J. White, Ben C. Yazzier, Louise J. Yazzie, and Shii Shi Keyah Allottees Association on their own behalf and on behalf of all those similarly situated, Plaintiffs

v.PUBLIC SERVICE COMPANY OF NEW MEXICO (PNM), El Paso Corporation, Enterprise Products Partners L.P., Kinder Morgan, New Mexico Gas Company, Transwestern Pipeline Co., LLC, Tucson Electric Power Company, Western Refining, Inc., Ken Salazar, Secretary of the Interior, et al., and the United States of America, Defendants.

No. CIV 09-0137 JB/RLP.

United States District Court, D. New Mexico.

April 15, 2010.

Catherine Baker Stetson, Stetson Law Offices, P.C., Albuquerque, NM, Thomas R. Meites, Paul W. Mollica, Jamie S. Franklin, Meites, Mulder, Mollica & Glink, Chicago, IL, for Plaintiffs.

Tom Sikora, El Paso Corporation, Houston, TX, Mark F. Sheridan, Kristina M. Martinez, Holland & Hart LLP, Santa Fe, NM, John A. Bryson, Holland & Hart LLP Washington, D.C., Troy A. Eid, Jennifer H. Weddle, Greenberg Traurig LLP, Denver, CO, for Defendants El Paso Corporation and El Paso Natural Gas Company.

Lynn H. Slade, William C. Scott, Walter E. Stern, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Defendants Enterprise Products Partners, L.P., Transwestern Pipeline Co., LLC, Kinder Morgan Energy Partners LP, Kinder Morgan Management LLC, and Knight, Inc.

David F. Cunningham, Thompson, Hickey, Cunningham, Clow & April, P.A., Santa Fe, NM, for Defendants Public Service Company of New Mexico and Tucson Electric Power Company.

John E. DeWulf, Timothy J. Sabo, Darlene M. Wauro, Roskha DeWulf & Patten, PLC, Phoenix, AZ, for Defendant Tucson Electric Power Company.

Clyde F. Worthen, Keleher & McLeod, Albuquerque, NM, for Defendant New Mexico Gas Company.

Andrew G. Schultz, Nicholas Sydow, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendant Western Refining Pipeline Company.

Sara E. Costello, Jody Schwarz, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendant Ken Salazar, Secretary of the Interior, and the United States.

MEMORANDUM OPINION ¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on (i) the Federal Defendants' Motion to Dismiss and Memorandum in Support, filed July 1, 2009 (Doc. 44); (ii) the Federal Defendants' Motion to Strike, filed July 1, 2009 (Doc. 45); (iii) Motion to Strike Special Master Report (Exhibit A) from Plaintiffs' Complaint, filed July 15, 2009 (Doc. 52); (iv) Defendant Transwestern Pipeline Company, LLC's Motion to Dismiss Plaintiffs' Claims for Ejectment or Removal of Pipeline and for Trespass for Lack of Jurisdiction, filed July 15, 2009 (Doc. 53); (v) El Paso's Motion to Dismiss Pursuant to Rule 12(b)(6), filed July 15, 2009 (Doc. 54); (vi) El Paso's Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(7), filed July 15, 2009 (Doc. 55); (vii) Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed July 15, 2009 (Doc. 56); (viii) Joint Motion to Dismiss and Memorandum in Support of Defendants Enterprise Products Partners, L.P., Kinder Morgan, Transwestern Pipeline Company, LLC, Western Refining, Inc., Public Service Company of New Mexico, New Mexico Gas Company, Inc., and Tucson Electric Power Company Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(7), filed July 15, 2009 (Doc. 57); (ix) Joint Motion to Dismiss and Memorandum in Support of Defendants Enterprise Products Partners, L.P., Kinder Morgan, Transwestern Pipeline Company, LLC, Western Refining, Inc., Public Service Company of New Mexico, New Mexico Gas Company, Inc., and Tucson Electric Power Company Pursuant to Fed.R.Civ.P. 12(b)(6), filed July 15, 2009 (Doc. 58); and (x) the Plaintiffs' Motion for Leave to File Sur-Reply to Pages 11-16 of "El Paso's Reply Memorandum in Support of Motion to Dismiss Pursuant to Rule 12(b)(6)," filed December 10, 2009 (Doc. 82). The Court will deny the motions to strike and will grant the Plaintiffs' motion for leave to file sur-reply. Because the claims against the Federal Defendants ² are not ripe for review and because the Plaintiffs lack standing to bring this action individually or as a class, the Court will grant the Federal Defendants' motion to dismiss. Because the Plaintiffs fail to allegea claim upon which relief can be granted under their constructive trust theory, the Court will grant El Paso Corporation's ³ motion to dismiss pursuant to rule 12(b)(6). Because the Federal Energy Regulatory Commission ("FERC") has exclusive jurisdiction over claims involving interstate gas line pipelines, the Court will also grant Transwestern Pipeline Company, LLC's motion to dismiss regarding ejectment, removal of pipeline and trespass. Accordingly, the Court will dismiss Plaintiffs' Complaint without prejudice.

FACTUAL BACKGROUND

Plaintiffs Ida C. Begay, Nita R. Augustine, Kee Augustine, Kee Sandoval, George Harkes, Jr., Alice J. White, Ben C. Yazzie, and Louise J. Yazzie are members of the Navajo Nation in Arizona, New Mexico, and Utah. See Complaint for Equitable and Legal Relief ¶ 1, at 2, filed February 11, 2009 (Doc. 1)("Complaint"). The Navajo Nation is a federally recognized Indian tribe, and the individual Plaintiffs are residents of New Mexico. See Complaint ¶ 1, at 2. The individual Plaintiffs are also allottees who, pursuant to the General Allotment Act of 1887, 25 U.S.C. §§ 331-357, have an ownership interest in land within the boundaries of the Navajo Nation. See Complaint ¶ 1, at 2. In Indian law, allotment is a term of art which means a parcel of fixed land, taken from a larger, common parcel, granted to an individual. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 142, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972).

Shii Shi Keyah Allottees Association ("Association") is an organization composed of 2,500 to 3,000 individual Indian allottees and landowners in the Four Corners Region.⁴ See Complaint ¶ 10, at 3. The Association represents the interests of Navajo allottees. See Complaint ¶ 10, at 3. The Association is a party only with respect to Count I of the Complaint and represents the interests of the allottee with regard to matters relating to rights-of-way for natural resources and utilities. See Plaintiffs' Response to Motions to Dismiss and Strike at 38-39, filed September 9, 2009 (Doc. 62) ("Plaintiffs' Response").

Defendants are comprised of the following:

(i) Defendant Public Service Company of New Mexico ("PNM"), a wholly-owned subsidiary of PNM Resources, Inc., is organized under the laws of the State of New Mexico and has its principal place of business in Albuquerque, New Mexico. See Complaint ¶ 11, at 3.

(ii) Defendant New Mexico Gas Company ("NMGC") is a subsidiary of Continental Energy Systems LLC, is organized under the laws of the State of New Mexico, and has a principal place of business in Albuquerque, New Mexico. See id. ¶ 12, at 3.

(iii) Defendant El Paso Corporation is a Delaware corporation with its principal place of business in Houston, Texas. See id. ¶ 13, at 4. The Court refers to El Paso Corporation and its subsidiary, El Paso Natural Gas Company, collectively as "El Paso Natural Gas."

(iv) Defendant Enterprise Products Partners L.P. ("Enterprise") is a publicly traded Delaware limited partnership withits principal place of business in Houston, Texas. See id. ¶ 14, at 4.

(v) Defendant Kinder Morgan is a group of entities comprised of Kinder Morgan Energy Partners, L.P., a publicly traded Delaware limited partnership, with its principal place of business in Lakewood, Colorado; Kinder Morgan Management, LLC, a publicly traded Delaware limited liability company with its principal place of business in Houston, Texas; and Knight Inc., a Delaware corporation with its principal place of business in Houston, Texas. See id. ¶ 15, at 4.

(vi) Defendant Transwestern Pipeline Co., LLC ("Transwestern") is a Delaware limited liability company with its principal place of business in Houston, Texas. See id. ¶ 16, at 4.

(vii) Defendant Tucson Electric Power Company ("Tucson Electric") is a wholly owned subsidiary of Unisource Energy Corporation, is organized under the laws of the State of Arizona and has its principal place of business in Tucson, Arizona. See Complaint ¶ 17, at 4-5.

(viii) Defendant Western Refining, Inc ("Western Refining") is a publicly traded Delaware corporation organized under the laws of the State of Delaware, with its principal place of business in El Paso, Texas. See id. ¶ 18, at 5. ⁵

(ix) Defendant Ken Salazar is the Secretary of the Interior. See Complaint ¶ 19, at 4.

PNM, NMGC, El Paso Natural Gas, Enterprise, Kinder Morgan, Tucson Electric, and Western Refining are referred herein as the "Corporate Defendants." Each of the Corporate Defendants owns rights-of-way on allotment lands in which one or more of the individual Plaintiffs own an interest. See id. ¶ 29, at 7. PNM owns several rights-of-way in New Mexico and has transferred some of its ownership interests in some rights-of-way to NMGC. See id. ¶ 11, at 3.

PROCEDURAL BACKGROUND

On February 11, 2009, the Plaintiffs filed their Complaint for Equitable and Legal Relief asserting that the Department of Interior's Bureau of Indian Affairs ("BIA") did not fulfill its statutory obligations under 25 U.S.C. § 325 and 25 C.F.R. §§ 169.1-.28 with regard to granting rights-of-way over the land of the individual Plaintiffs and of the potential class members. See Complaint ¶ 20, at 5. Specifically, the Plaintiffs assert that the BIA is required to review all proposed rights-of-way on allotment land for pipelines, electrical transmission lines, and other uses. See id. ¶ 31, at 8. The Plaintiffs also contend that the BIA is obliged to approved the proposed rights-of-way "only if they are priced at fair market value, and only after obtaining an appraisal value of the land at issue and advising the Navajo allottees...