Davilla v. Enable Midstream Partners, L.P.

• Citation: 247 F.Supp.3d 1233
• Decision Date: 28 March 2017
• Docket Number: Case No. CIV–15–1262–M
• Parties: Marcia W. DAVILLA, et al., Plaintiffs, v. ENABLE MIDSTREAM PARTNERS, L.P., et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

247 F.Supp.3d 1233

Marcia W. DAVILLA, et al., Plaintiffs,

v.ENABLE MIDSTREAM PARTNERS, L.P., et al., Defendants.

Case No. CIV–15–1262–M

United States District Court, W.D. Oklahoma.

Signed March 28, 2017

Clay Steven Hager, Colline W. Keely, Oklahoma Indian Legal Services Inc., Oklahoma City, OK, David C. Smith, Kilpatrick

Townsend & Stockton LLP, Washingon, DC, Dustin T. Greene, Kilpatrick Townsend & Stockton LLP, Winston–Salem, NC, for Plaintiffs.

Clinton D. Russell, Kassie N. McCoy, Mark H. Ramsey, R. Stratton Taylor, Toney D. Foster, Taylor Burrage Foster Mallett Downs Ramsey & Russell, Claremore, OK, John A. Kenney, Michael K. Avery, Michael D. McClintock, McAfee & Taft, Oklahoma City, OK, for Defendants.

ORDER

VICKI MILES–LaGRANGE, UNITED STATES DISTRICT JUDGE

Before the Court is plaintiffs' Motion for Partial Summary Judgment on Liability for Their Trespass Claim and for a Permanent Injunction, filed April 1, 2016. On May 3, 2016, defendants filed their response, and on May 10, 2016, plaintiffs filed their reply. Based upon the parties' submissions, the Court makes its determination.

I. Background

Defendants are the owner and operator of a network of natural gas transmission pipelines across Oklahoma. Defendants' transmission pipeline crosses an approximate 137 acre tract of land in Caddo County, Oklahoma, which had originally been an Indian allotment to Millie Oheltoint (Emaugobah), held in trust by the United States Department of the Interior, Bureau of Indian Affairs ("BIA"). Thirty-eight (38) Indians and the Kiowa Indian Tribe of Oklahoma ("Kiowa Tribe") own undivided interests in the tract, varying from 28.6% down to less than 9/10ths of a percent. The Kiowa Tribe obtained its approximately 1.1% undivided interest sometime after 2008, on the death of certain Indian owners and by operation of the American Indian Probate Reform Act.

On November 19, 1980, the BIA approved the grant of a .73 acre easement across the southern part of the tract in exchange for consideration of $1,925.00 for a twenty (20) year term right-of-way for defendants' predecessor in interest, Producer's Gas Company, to install, construct, operate, and maintain a natural gas transmission pipeline. The natural gas transmission pipeline has been in continuous operation since its installation in the early 1980's. The original right of way expired on November 20, 2000.

On or about June 14, 2002, defendants' predecessor-in-interest, Enogex, Inc. ("Enogex"), submitted a right-of-way offer to the BIA and made an offer to plaintiffs for a new twenty year easement, which was rejected by a majority of the landowners.¹ Prior to submitting its application for renewal of the easement, Enogex obtained the written consent of tenant-in-common landowners Thomas Blackstar, Benjamin Blackstar, Ernie Clay Keahbone, Edmond Carter, and Rene Ware, and these written consents were submitted to the BIA with the Enogex application.² Further, on September 13, 2006, Enogex paid the BIA $1,098.35, inclusive of interest and assessments, for use of the .73 acre easement from the date of the expiration of the previous easement, November 18, 2000, until the date Enogex submitted its renewal application on June 14, 2002.

Despite the rejection by a majority of the landowners, on June 23, 2008, the Interim Superintendent of the BIA's Anadarko Agency approved Enogex's application for the renewal of the right-of-way easement for twenty years. Plaintiffs appealed the Interim Superintendent's decision, and on March 23, 2010, the BIA vacated the interim superintendent's decision.³ The BIA determined that it did not have authority to approve the right-of-way without the consent of plaintiffs or their predecessors in interest and that the price offered by defendants was unreasonable. The BIA remanded the case for further negotiation and instructed that if approval of a right-of-way was not timely secured that Enogex should be directed to move the pipeline. A new right-of-way has not been granted, and defendants have continued to operate the natural gas pipeline. On November 16, 2015, plaintiffs filed the instant action for continuing trespass in violation of federal common law and for preliminary and permanent injunctive relief against defendants.

II. Discussion

Plaintiffs move this Court to enter summary judgment in their favor on their trespass claim and to find defendants liable for trespass. Plaintiffs further move this Court to enter a permanent injunction requiring defendants to remove the pipeline across plaintiffs' property.

A. Trespass claim

1. Summary judgment standard

"Summary judgment is appropriate if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party is entitled to summary judgment where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. When applying this standard, [the Court] examines the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving party." 19 Solid Waste Dep't Mechs. v. City of Albuquerque , 156 F.3d 1068, 1071–72 (10th Cir. 1998) (internal citations and quotations omitted).

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden of doing more than simply showing there is some metaphysical doubt as to the material facts. Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Neustrom v. Union Pac. R.R. Co. , 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and quotations omitted).

2. Merits

Plaintiffs assert they are entitled to summary judgment on the issue of liability on their trespass claim against defendants. Specifically, plaintiffs contend that defendants' trespass on their property is undisputed; defendants have admitted that they are operating a natural gas pipeline across plaintiffs' property without an easement. Plaintiffs further assert defendants' affirmative defenses do not prevent entry of summary judgment.

Defendants, however, contend that whether they are liable for trespass remains a disputed issue. Specifically, defendants contend that the five written consents to renewal of the easement that they received from the tenant-in-common landowners preclude the entry of summary judgment. Additionally, defendants contend Oklahoma's two-year statute of limitations applies in this case and that since plaintiffs have not proven when, or if, their trespass claim accrued, summary judgment should be denied.

On November 28, 2016, the Court entered an order in this case setting forth certain rules for decision in this case. Specifically, the Court found "that federal common law governs plaintiffs' claim for continuing trespass but that Oklahoma trespass law may provide the rule of decision for certain aspects of plaintiffs' claim, as long as the application of Oklahoma law would not be inconsistent with federal law or underlying federal policies." November 28, 2016 Order [docket no. 51] at 3. The Court further found "that the two-year statute of limitations under Oklahoma law should not be borrowed and applied to plaintiffs' trespass claim" and "that plaintiffs' federal common law claim for trespass is not subject to any statute of limitations." Id. at 4.

While defendants do not dispute that they are operating a natural gas pipeline across plaintiffs' property without an easement, defendants assert that there is no trespass in this case because under Oklahoma law consent forms a complete defense to trespass and they obtained five written consents to the renewal of the easement. While consent does form a complete defense under Oklahoma law, see Nahno-Lopez v. Houser , 625 F.3d 1279, 1284 (10th Cir. 2010), as set forth above, before applying this law, this Court must determine whether the application of this Oklahoma law would be inconsistent with federal law or underlying federal policies. As set forth below, the Court finds that application of this Oklahoma law would be inconsistent with federal statutes and, thus, the Oklahoma law providing that consent is a complete defense to trespass is not applicable in this case.

The United States Congress has promulgated specific statutes regarding easements across Indian trust lands. Specifically, 25 U.S.C. § 323 provides:

The Secretary of the Interior be, and he is hereby, empowered to grant rights-of-way for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands, or nations, or any lands now or hereafter owned, subject to restrictions against alienation, by individual Indians or Indian tribes, communities, bands, or nations, including the lands belonging to the Pueblo Indians in New Mexico, and any other lands heretofore or hereafter acquired, or set aside for the use and benefit of the Indians.

25 U.S.C. § 323. Additionally, 25 U.S.C. § 324 provides:

No grant of a right-of-way over and across any lands belonging to a tribe ... shall be made without the consent of the proper tribal officials. Rights-of-way over and across lands of individual Indians may be granted without the consent of the individual Indian owners if (1) the land is owned by more than one person, and the owners or owner of a majority of the interests therein consent to the grant; (2) the whereabouts of the owner of the land or an interest therein are unknown, and the owners or owner of any interests therein whose whereabouts are known, or a majority thereof, consent to the grant; (3) the heirs or devisees of a deceased owner of the land or an interest therein have not been determined, and the Secretary of the Interior finds that the grant

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