Pub. Serv. Co. of N.M. v. Approximately 15.49 Acres of Land in McKinley Cnty.
| Citation | 167 F.Supp.3d 1248 |
| Decision Date | 02 March 2016 |
| Docket Number | No. 15 CV 501 JAP/CG,15 CV 501 JAP/CG |
| Parties | Public Service Company of New Mexico, Plaintiff, v. Approximately 15.49 Acres of Land in McKinley County, New Mexico; Navajo Nation; Navajo Tribal Utility Authority; Continental Divide Electric Cooperative, Inc.; Transwestern Pipeline Company, LLC; Citicorp North America, Inc.; Chevron USA Inc., as successor in interest to Gulf Oil Corp.; Harry House, Deceased; Lorraine Barboan, also known as, Larene H. Barboan; Pauline H. Brooks; Benjamin House, also known as, Bennie House ; Annie H. Sorrell, also known as, Anna H. Sorrell; Mary Rose House, also known as, Mary R. House; Dorothy House, also known as, Dorothy W. House; Laura H. Lawrence, also known as, Laura H. Chaco; Leo House, Jr.; Jones Dehiya; Nancy Deheva Eskeets; Jimmy A. Charley, also known as, Jim A. Charley; Mary Gray Charley, also known as, Mary B. Charley; Bob Gray, Deceased, also known as, Bob Grey ; Christine Gray Begay, also known as, Christine G. Begay; Thomas Thompson Gray, also known as, Thomas Grey ; Jimmie Grey, also known as, Jimmie Gray; Lorraine Spencer; Melvin L. Charles, also known as, Melvin L. Charley; Marla L. Charley, also known as, Marla Charley; Kalvin A. Charley; Laura A. Charley; Marilyn Ramone; Wynema Giberson; Irene Willie, also known as, Irene James Willie; Eddie McCray, also known as, Eddie R. McCrae; Ethel Davis, also known as, Ethel B. Davis; Charley Joe Johnson, also known as, Charley J. Johnson; Wesley E. Craig; Hyson Craig; Noreen A. Kelly; Elouise J. Smith; Elouise Ann James, also known as, Elouise James Wood, also known as, Eloise Ann James, also known as, Elouise Woods; Leonard Willie; Alta James Davis, also known as, Alta James; Alice Davis, also known as, Alice D. Chuyate; Phoebe Craig, also known as, Phoebe C. Cowboy; Nancy James, also known as, Nancy Johnson; Betty James, Deceased; Linda C. Williams, also known as, Linda Craig–Williams; Genevieve V. King; Lester Craig; Shawn Stevens ; Fabian James; Daisy Yazzie Charles, also known as, Daisy Yazzie, also known as, Daisy J. Charles; Rosie Yazzie, Deceased; Kathleen Yazzie James, also known as, Catherine R. James; Verna M. Craig; Juanita Smith, also known as, Juanita R. Elote; Alethea Craig, Sarah Nelson, Larry Davis, Jr.; Berdina Davis; Michelle Davis; Steven McCray; Velma Yazzie; Geraldine Davis; Larrison Davis, also known as, Larrison P. Davis; Adam McCray; Michelle McCray; Eugenio Ty James; Larson Davis; Cornelia A. Davis; Celena Davis, also known as, Celena Bratcher; Frankie Davis ; Glen Charles Charleston, also known as, Glen C. Charleston; Verna Lee Bergen Charleston, also known as, Verna L. Charleston; Vern Charleston; Glenda Benally, also known as, Glenda G. Charleston; Kelly Ann Charleston, also known as, Kelly A. Charleston; Sheryl Lynn Charleston, also known as, Sheryl L. Charleston; Spencer Kimball Charleston, Jr., Deceased; Edwin Allen Charleston, also known as, Edwin A. Charleston; Charles Baker Charleston, also known as, Charles B. Charleston; Sam Mariano; Harry House, Jr.; Matilda James; Darlene Yazzie; Unknown owners, Claimants and Heirs of the Property Involved, Unknown Heirs of Harry House, Deceased; Unknown Heirs of Bob Gray (Bob Grey), Deceased; Unknown Heirs of Betty James, Deceased; Unknown Heirs of Rosie C. Yazzie, Deceased; Unknown Heirs of Spencer Kimball Charleston, Jr. (Spencer K. Charleston), Deceased; Unknown Heirs of Helen M. Charley, Deceased; Estate of Rosie C. Yazzie, Deceased; Estate of Spencer K. Charleston, Deceased; United States of America; United States Department of Health and Human Services; and United States Department of the Interior; Defendants. |
| Court | U.S. District Court — District of New Mexico |
Kirk R. Allen, Stephen Bentley Waller, Miller Stratvert P.A., Albuquerque, NM, for Plaintiff.
Linda C. Williams, Church Rock, NM, pro se.
Jonas Nahoum, Virtue & Najjar, PC, Santa Fe, NM, Daniel A. Najjar, Wiggins, Williams & Wiggins, Deana M Bennett, Lynn H. Slade, Modrall, Sperling, Roehl, Harris & Sisk, PA, Zackeree S. Kelin, Kelin Law Firm, P.C., Manuel Lucero, US Attorney's Office, Albuquerque, NM, Michael M. Mulder, Law Offices of Michael M. Mulder, Thomas Meites, Law Office of Thomas R. Meites, Chicago, IL, for Defendants.
Plaintiff Public Service Company of New Mexico (PNM) asks the Court to alter or amend its MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS THE NAVAJO NATION AND ALLOTMENT NUMBERS 1160 AND 1392 (Doc. No. 101) (Memorandum Opinion) and set aside its ORDER OF DISMISSAL WITHOUT PREJUDICE (Doc. No. 102) (Order of Dismissal). See PLAINTIFF PUBLIC SERVICE COMPANY OF NEW MEXICO'S MOTION TO ALTER OR AMEND ORDER DISMISSING THE NAVAJO NATION AND ALLOTMENT NUMBERS 1160 AND 1392 OR IN THE ALTERNATIVE MOTION FOR INTERLOCUTORY CERTIFICATION OR SEVERANCE OF CASE (Doc. No. 107) (Motion).1 Because PNM has failed to meet the requirements for granting motions to reconsider, the Court will deny the Motion in part. However, the Court will grant the Motion in part and certify for interlocutory appeal the controlling questions of law presented in this case.
This case involves a utility easement granted to PNM in the 1960s for a fifty-year term (the Original Easement). On the easement PNM constructed and maintains a 115–Kilovolt electric transmission line, known as the “AY Line.” The AY Line is a crucial component of PNM's electricity transmission system in northwestern New Mexico and crosses five allotments owned by members of the Navajo Nation (Nation). The allotments, located in McKinley County, New Mexico, will be referred to as (1) Allotment 1160, (2) Allotment 1204, (3) Allotment 1340, (4) Allotment 1392, and (5) Allotment 1877 (together, the Five Allotments). The United States owns fee title to the Five Allotments in trust for the beneficial interest owners. The Nation owns an undivided 13.6 % beneficial interest in Allotment 1160 and an undivided .14 % beneficial interest in Allotment 1392 (together, the Two Allotments).
In April 2009, prior to the expiration of the Original Easement, PNM acquired written consent from a sufficient number of the individual owners of beneficial interests and submitted a renewal application to the Department of the Interior's Bureau of Indian Affairs (BIA). In June 2014, counsel for the 22 Defendants, who own a majority of the beneficial interests in the Five Allotments, notified the BIA and PNM that they had revoked their consent. In the ensuing months, PNM attempted in good faith, though unsuccessfully, to obtain the necessary consents to renew the Original Easement.2 In January 2015, the BIA notified PNM that the revocations precluded the BIA from approving PNM's renewal application.
On June 13, 2015, PNM initiated this action under 25 U.S.C. § 357 to condemn a perpetual easement on the Five Allotments. Asserting sovereign immunity, the Nation moved to dismiss the condemnation claims against it and against the Two Allotments arguing that the Nation is an indispensable party. The Court granted the Nation's MOTION TO DISMISS THE NAVAJO NATION AND ALLOTMENT NUMBERS 1160 AND 1392 (Motion to Dismiss) and dismissed the condemnation claims against the Nation without prejudice.
In the Motion, PNM asks the Court to set aside the Memorandum Opinion and the Order of Dismissal. In the alternative, PNM asks the Court to apply its ruling prospectively and allow PNM to condemn easements required for PNM's existing infrastructure. If the Court denies both of these requests, PNM asks the Court to (1) certify for interlocutory appeal the controlling questions of law presented in this case or (2) sever PNM's claims against the Two Allotments from this case and enter a final appealable judgment. Because an interlocutory appeal will promote judicial economy and will help determine questions of law vital to PNM's authority to condemn property in Indian Country, the Court will grant PNM's request to certify issues for interlocutory appeal.
PNM's Motion asks the Court to alter or amend the Memorandum Opinion under Rule 59(e). Technically, Rule 59(e) does not apply here because the Memorandum Opinion is not a final order or judgment. Guttman v. New Mexico, 325 Fed.Appx. 687, 690 (10th Cir.2009) (). Properly speaking, PNM's Motion is a motion to revise an interim order under Fed.R.Civ.P. 54(b), which provides, “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” However, the standard for reviewing a Rule 54(b) motion for reconsideration is the same as the standard for reviewing a Rule 59(e) motion to alter or amend a judgment. Ankeney v. Zavaras, 524 Fed.Appx. 454, 458 (10th Cir.2013) (unpublished); see also Pia v. Supernova Media, Inc. , No 2:09–cv–00840, 2014 WL 7261014, *1–2 (D.Utah Dec. 18, 2014) (unpublished). Hence, the Court can grant the Motion if PNM shows: (1) there has been an intervening change in the controlling law; (2) there is new evidence previously unavailable; or (3) the Court needs to correct clear error or prevent manifest injustice.
Servants of Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir.2000). In other words, the Court may grant the Motion if it has “misapprehended the facts, a party's position, or the controlling law.” Id. As with a Rule 59(e) motion, PNM may not ask the court to revisit issues already considered. Id. And PNM may not “rehash previously rejected arguments.” Achey v. Linn County Bank , 174 F.R.D. 489, 490 (D.Kan.1997). In addition, PNM may not present arguments...
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