United States v. Osage Wind, LLC, Case No. 14-CV-704-GKF-JFJ
| Decision Date | 11 January 2021 |
| Docket Number | Case No. 14-CV-704-GKF-JFJ |
| Parties | UNITED STATES OF AMERICA, Plaintiff, and OSAGE MINERALS COUNCIL, Intervenor-Plaintiff, v. OSAGE WIND, LLC, ENEL KANSAS, LLC, and ENEL GREEN POWER NORTH AMERICA, INC., Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
This matter comes before the court on the Motion for Judgment on the Pleadings [Doc. 204] of intervenor-plaintiff Osage Minerals Council (OMC). For the reasons set forth below, the motion is granted.
This case, filed in 2014, presented the question of whether a large-scale excavation project undertaken by Osage Wind1 during the installation of eighty-four (84) wind turbines in Osage County, Oklahoma constituted "mining" under regulations governing development of minerals inthe Osage Mineral Estate and therefore required a lease approved by the Secretary of Interior. [Doc. 2; Doc. 20]. United States District Judge James H. Payne said "no," and, on September 30, 2015, entered Judgment in favor of Osage Wind. [Doc. 44; Doc. 45]. The United States, as trustee of the Osage Mineral Estate, did not appeal the district court's Judgment, but the OMC, acting on behalf of the Osage Nation, appealed.
In a September 18, 2017 Decision, the Tenth Circuit reversed the district court, and held that, pursuant to 25 C.F.R. § 214, defendants' "extraction, sorting, crushing, and use of minerals as part of its excavation work constituted 'mineral development,' thereby requiring a federally approved lease which Osage Wind failed to obtain." [Doc. 78, p. 3; United States v. Osage Wind, LLC, 871 F.3d 1078, 1081-82 (10th Cir. 2017)]. The Circuit remanded the case to the district court for further proceedings consistent with the Decision. [Doc. 78, pp. 26-27]. On October 24, 2019, the Court Clerk randomly reassigned the case to the undersigned. [Doc. 89]. The court then permitted OMC to intervene in the remanded proceedings. [Doc. 140].
On July 1, 2020, this court issued an Opinion and Order limiting the United States and OMC to the relief requested in the Amended Complaint filed by the United States on December 12, 2014. [Doc. 161]. Thereafter, OMC filed the Amended Complaint in Intervention. [Doc. 164]. In the Answer to OMC's Amended Complaint in Intervention, Osage Wind asserted seventeen (17) separate affirmative defenses. [Doc. 174].
OMC now seeks judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) relative to five of Osage Wind's affirmative defenses: (1) estoppel, (2) laches, (3) waiver, (4) unclean hands, and (5) in pari delicto. [Doc. 204]. Osage Wind responded in opposition [Doc. 205], and OMC filed a reply [Doc. 206]. Thus, the motion is ripe for the court's determination.
Pursuant to Fed. R. Civ. P. 12(c), "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." "A motion for judgment on the pleadings 'should not be granted unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'" Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (quoting Park Univ. Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). The Tenth Circuit treats a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000).
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief can be granted. In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief can be granted. A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of the conduct necessary to make out the claim. Id. at 556. The court must "accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same." Colony Ins. Co., 698 F.3d at 1228.
As previously stated, OMC seeks judgment on the pleadings as to Osage Wind's affirmative defenses of estoppel, laches, waiver, unclean hands, and in pari delicto. The court first considers laches.
As this court has previously recognized, "issues determined by the Tenth Circuit are law-of-the-case." [Doc. 135; Doc. 171]. Although Judge Payne did not reach Osage Wind's laches affirmative defense in the September 30, 2015 Order, in the briefing to the Tenth Circuit, Osage Wind noted that the Circuit "has long held that it may affirm a district court's judgment on any basis supported by the record, even if it requires ruling on arguments not reached by the district court." Thus, defendants argued "[t]he record would permit [the Circuit] to affirm on the basis of laches as well, as the OMC delayed in bringing this challenge for years after it had all the knowledge it needed to file suit." Brief of the Appellees, United States v. Osage Wind, LLC, No. 16-5022 (10th Cir. June 16, 2016), Doc. No. 01019639458. In the Decision, the Tenth Circuit stated as follows:
Osage Wind also invites us to affirm on the ground that OMC's instant claim is barred by the laches doctrine—which gives courts discretion to reject stale claims brought after unreasonable delay. See Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1337 (10th Cir. 1982) (). We decline to dispose of the case on the equitable doctrine of laches. The United States commenced this action within three months after turbine excavation work began, which is not an unreasonable amount of time to wait before filing suit.
United States v. Osage Wind, LLC, 871 F.3d 1078, 1087 n.6 (10th Cir. 2017).
"The law of the case 'doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)). Here, the Tenth Circuit has decided the issue of laches. Specifically, the Tenth Circuit concluded that the United States commenced this action within a reasonable time and therefore declined to dispose of this action based on laches. Pursuantto the law of the case doctrine, this decision governs in subsequent stages of this litigation. Thus, on this basis, OMC is entitled to judgment on the pleadings as to laches.
As for the remainder of Osage Wind's affirmative defenses, courts have consistently recognized that tribes, as well as the United States while acting as a trustee on behalf of Indian tribes, are not subject to "state delay-based defenses." Oneida Indian Nation of N.Y. v. New York, 691 F.2d 1070, 1084 (2d Cir. 1982). These defenses include laches, estoppel, and waiver. Oneida Indian Nation of N.Y., 691 F.2d at 1084 (laches); Grondal v. Mill Bay Members Ass'n, Inc., 471 F. Supp. 3d 1095, 1128-29 (E.D. Wash. 2020), appeal filed, Grondal v. United States, No. 20-34694 (9th Cir. Aug. 7, 2020); Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 338-40 (N.D.N.Y. 2003) (estoppel); Cayuga Indian Nation of New York v. Cuomo, 565 F. Supp. 1297, 1301 (N.D.N.Y. 1983) (laches and estoppel); Schafer, Trustee of Wayne Penn Schafer Separate Prop. Tr. Established Oct. 5, 1982 v. Centerpoint Energy Okla. Gas, No. 17-CV-365-GKF-FHM, 2018 WL 10140171, at *8 (N.D. Okla. May 21, 2018) (laches, estoppel, waiver); Seneca Nation of Indians v. New York, No. 93-CV-688A, 1994 WL 688262, at *2 (W.D.N.Y. Oct. 28, 1994); see also State of New Mexico v. Aamodt, 537 F.2d 1102, 1110 (10th Cir. 1976) (); United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 334 (9th Cir. 1956) (); But see City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (invoking laches).
Nor are Indian land claims subject to state-law affirmative defenses based on the tribe's own conduct, including waiver, unclean hands, or in pari delicto.2 See Canadian St. Regis Band of Mohawk Indians ex rel. Francis, 278 F. Supp. 2d at 342-43 (); Seneca Nation of Indians, 1994 WL 688262, at *1; Schafer, 2018 WL 10140171, at *8. In this regard, courts "rely[] on the strong policy in favor of vindication of . . . Indian claims." Canadian St. Regis Band of Mohawk Indians ex rel. Francis, 278 F. Supp. 2d at 342 (quoting Schaghticoke Tribe of Indians v. Kent Sch. Corp., 423 F. Supp. 780, 783-85 (D. Conn. 1976)); see also Seneca Nation of Indians, 1994 WL 688262, at *2 ().
Nevertheless, Osage Wind argues that Oklahoma law is presumptively incorporated and application of same would not frustrate specific federal interests. This argument fails.
The U.S. Supreme Court "ha[s] indicated that federal courts should 'incorporat[e] [state law] as the federal rule of decision,' unless 'application of [the particular] state law [in question] would frustrate specific objectives of the federal programs.'" Kamen v....
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