Pub. Serv. Co. of N.M. v. Approximately 15.49 Acres of Land in McKinley Cnty., No. 15 CV 501 JAP/CG

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE
Citation155 F.Supp.3d 1151
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; Helen M. 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; Jorge Adrian Ortega-Gallegos; Unknown owners, Claimants and Heirs of the Property Involved, Jorge Adrian Ortega-Gallegos, Unknown Heirs of Harry House, Deceased, Jorge Adrian Ortega-Gallegos, 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, Estate of Rosie C. Yazzie, Deceased, Estate of Spencer K. Charleston, Deceased, United States of America, United States Department of Health and Human Services, United States Department of the Interior, Defendants.
Docket NumberNo. 15 CV 501 JAP/CG
Decision Date01 December 2015

155 F.Supp.3d 1151

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; Helen M. 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; Jorge Adrian Ortega-Gallegos; Unknown owners, Claimants and Heirs of the Property Involved, Jorge Adrian Ortega-Gallegos, Unknown Heirs of Harry House, Deceased, Jorge Adrian Ortega-Gallegos, 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, Estate of Rosie C. Yazzie, Deceased, Estate of Spencer K. Charleston, Deceased, United States of America, United States Department of Health and Human Services, United States Department of the Interior, Defendants.

No. 15 CV 501 JAP/CG

United States District Court, D. New Mexico.

Signed December 1, 2015


155 F.Supp.3d 1155

Kirk R. Allen, Stephen Bentley Waller, Miller Stratvert PA, Albuquerque, NM, for Plaintiff.

Paul Spruhan, Navajo Nation Department of Justice, Window Rock, AZ, Jonas Nahoum, Virtue & Najjar, PC, Santa Fe, NM, Daniel A. Najjar, Wiggins, Williams & Wiggins, Zackeree S. Kelin, Kelin Law Firm, P.C., Deana M. Bennett, Lynn H. Slade, Modrall, Sperling, Roehl, Harris & Sisk, PA, 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.

Linda C. Williams, Church Rock, NM, pro se.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS THE NAVAJO NATION AND ALLOTMENT NUMBERS 1160 AND 1392

JAMES A. PARKER, SENIOR UNITED STATES DISTRICT JUDGE

On June 13, 2015, Public Service Company of New Mexico (PNM) filed a COMPLAINT FOR CONDEMNATION (Doc. No. 1) seeking a perpetual easement for electrical transmission lines. (See Complaint Exs. 2–6; ¶ 37.) PNM brought this action to condemn a perpetual easement over five parcels of land owned by members of the Navajo Nation (Nation): (1) Allotment 1160, (2) Allotment 1204, (3) Allotment 1340, (4) Allotment 1392, and (5) Allotment 1877 (together, the Five Allotments). (Id. ) The Nation owns an undivided 13.6 % interest in Allotment 1160 and an undivided .14 % interest in Allotment 1392 (together, the Two Allotments). (Id. )

In the MOTION TO DISMISS THE NAVAJO NATION AND ALLOTMENT NUMBERS 1160 AND 1392 (Doc. No. 32) (the Motion), the Nation argues that this Court lacks subject matter jurisdiction and asks the Court to dismiss it as a defendant because, as a sovereign nation, it is immune from suit. In addition, the Nation asks the Court to dismiss the Two Allotments because under Fed.R.Civ.P. 19, the Nation is an indispensable party that cannot be joined. Defendants Lorraine J. Barboan, Laura H. Chaco, Benjamin A. House, Mary R. House, Annie H. Sorrell, Dorothy W. House,1 Jones Dehiya,2 Kalvin Charley, Mary B. Charley, Melvin L. Charley, Marla L. Charley, Christine G. Begay, Jimmie Gray, Thompson Grey, Bob

155 F.Supp.3d 1156

Grey,3 Leonard Willie, Irene Willie, Charley Johnson, Eloise J. Smith, Shawn Stevens,4 Glen C. Charleston, and Glenda G. Charleston5 (together, the 22 Defendants) have joined the Motion.6 See NOTICE OF DEFENDANTS' JOINDER IN NAVAJO NATION'S MOTION TO DISMISS (Doc. No. 33) (Notice of Joinder). The United States also agrees that the Nation and the Two Allotments should be dismissed from this action. See ANSWER OF THE UNITED STATES (Doc. No. 25); and RESPONSE TO THE NAVAJO NATIONS [SIC] MOTION TO DISMISS (Doc. No. 44).

PNM opposes the Motion. See PLAINTIFF PUBLIC SERVICE COMPANY OF NEW MEXICO'S RESPONSE IN OPPOSITION TO DEFENDANT NAVAJO NATION AND 22 DEFENDANTS' MOTION TO DISMISS THE NAVAJO NATION AND ALLOTMENT NUMBERS 1160 AND 1392 (Doc. No. 39) (the Response), and the Nation has filed a Reply brief. See REPLY IN RESPONSE IN OPPOSITION TO MOTION TO DISMISS (Doc. No. 45) (the Reply).

After the Motion was fully briefed, PNM filed its FIRST AMENDED COMPLAINT FOR CONDEMNATION (Doc. No. 49) (FAC) adding the United States Department of Health and Human Services (HHS) and the United States Department of the Interior (DOI) as defendants because “records of the United States of America, Department of the Interior, Bureau of Indian Affairs (“BIA”) relating to the Property indicate that the United States, HHS, and DOI, including, but not limited to, their respective constituent agencies the United States Public Health Service and the BIA, may have other interests in or encumbrances affecting the Property.”7 (FAC ¶ 23.)8 Even though the Motion was filed prior to the FAC, the Court will rule on the Motion as though it applies to the FAC. On October 27, 2015, the 22 Defendants filed their ANSWER TO FIRST AMENDED COMPLAINT FOR CONDEMNATION (Doc. No. 95) asserting a counterclaim against PNM for trespass.9

I. BACKGROUND

A. ORIGINAL EASEMENT

On April 8, 1960, the BIA granted to PNM a fifty-year right of way easement

155 F.Supp.3d 1157

(the Original Easement) authorizing PNM to construct, maintain, and operate an electric transmission line in northwestern New Mexico. (FAC ¶¶ 27–28.) During the 1960's, PNM constructed a 115–Kilovolt electric transmission line that connected PNM's Ambrosia substation, located north of Grants, New Mexico, to PNM's Ya–Ta–Hey substation, located west of Gallup, New Mexico. The transmission line, known as the “AY Line,” is a crucial component of PNM's system for the transmission of electricity to this area of New Mexico. (FAC ¶ 30.) The Navajo Nation and its members benefit from the support that the AY Line provides to PNM's electricity distribution system. (Id .)

In 2009, in anticipation of the April 2010 expiration of the Original Easement, PNM sought the consent of the Allotment owners to a renewal of the Original Easement. (FAC ¶ 31.) On November 3, 2009, PNM, having obtained written consent from the requisite percentage of Allotment owners, submitted its renewal application to the BIA. (FAC ¶¶ 32–33.) In June 2014, however, counsel for some of the owners notified the BIA and PNM that the owners had revoked their earlier written consents. (FAC ¶ 34.) In January 2015, the BIA notified PNM that the revocations of consent precluded the BIA from approving the application. (FAC ¶ 35.) During the ensuing months, PNM attempted in good faith, though unsuccessfully, to obtain the necessary consents to renew the Original Easement.10 (FAC ¶ 36.)

B. HISTORY OF ALLOTTED LANDS

In the late...

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