Energy firm seeks to keep illegal pipeline in place over objections of Indian landowners in Oklahoma

Tuesday, August 15, 2017

Another storm is brewing in Indian Country over a pipeline that has been operating illegally for nearly two decades.

In a widely hailed and widely read decision, a federal judge in March ordered Enable Midstream Partners to remove its natural gas pipeline from an Indian allotment in Oklahoma. The firm was given six months to correct its trespass.

But rather than abide by the directive -- or pay the Indian landowners what they are asking -- the firm is taking the case to the 10th Circuit Court of Appeals. The first brief was filed earlier this month in an attempt to keep the pipeline up and running.

Enable isn't stopping there, however. Since the appeals process can take several months to resolve, or even longer if the dispute goes to the U.S. Supreme Court, the firm is asking Judge Vicki Miles-LaGrange to delay her March decision for an undetermined amount of time.

If the request is granted, that would mean the pipeline remains operational even longer, all while the Indian plaintiffs aren't being compensated for the use of their property. The odd state of affairs drew a fiery response from the high-powered law firm that is representing the landowners, most of whom are citizens of the Kiowa Tribe, the Comanche Tribe and the Apache Tribe.

"After trespassing on plaintiffs’ property for seventeen years, defendants Enable Midstream Partners, undeterred by the court’s injunction order and without demonstrating that any steps have been taken to comply with that order, return like the unrepentant fox, seeking to trespass on plaintiffs’ property indefinitely while pursuing not only the current appeal but any number of unknown future appeals," the Kilpatrick Townsend firm, whose ranks include three high-ranking Indian Affairs officials from the Obama administration officials as well as a former U.S. Ambassador who handled the Cobell trust fund litigation, wrote in a response last week.

Headquarters of Enable Midstream Partners in Oklahoma City, Oklahoma. Photo: Enable Midstream

The trespass isn't the only legal drama that has arisen out of Kiowa Allotment 84 in Caddo County. In a separate lawsuit, Enable asked Miles-LaGrange to condemn a 25 foot-wide easement running through the 137-acre parcel in order keep the pipeline operational.

Under federal law, Indian allotments can be condemned, so long as the owners are compensated for "damages," according to 25 U.S.C. § 357. But Miles-LaGrange noted that the Kiowa Tribe, a sovereign government, acquired an interest in an allotment.

Since tribal land can't be condemned by the Department of the Interior and since the Kiowa Tribe can't be added to the lawsuit without its consent due to sovereign immunity, Miles-LaGrange denied Enable's request.

"Congressional legislation and Department of Interior regulations treat tribal land and allotted land differently," Miles-LaGrange wrote in her August 2016 decision. "Regarding rights-of-ways, consent of the tribe has been required for tribal land, but consent of the individual Indians is not always required."

The ruling proved to be particularly prescient. Nine months later, the 10th Circuit -- whose jurisdiction includes Oklahoma -- gave birth to a major precedent and confirmed that an Indian allotment can't be condemned once a tribe obtains an interest in it. The land, in effect, has become "tribal," the court said.

"Absent explicit authorization, tribal sovereignty prevails," Judge Gregory A. Phillips wrote in the 27-page decision.

Like Enable, the Public Service Company of New Mexico is seeking to condemn a right-of-way in order to keep a 60-mile power line up and running on two Indian allotments. And just like the situation in neighboring Oklahoma, the Navajo Nation acquired interests in those allotments under federal laws and programs that encourage tribes to regain ownership of allotments.

The similarities don't end there -- in both cases, the landowners haven't been paid for the use of their allotments for years. The Navajo landowners were paid once in 1960 but refused to agree to new terms when the right-of-way expired in 2010. PNM kept the "AY Line" up and running anyway.

In Oklahoma, the owners of Kiowa Allotment 84 were paid in 1980. When the easement expired in 2000, they refused to agree to new terms because they said they weren't being offered fair market value. The operator of the pipeline kept it running anyway until it was eventually acquired by Enable.

And in both situations, the allotments at issue have dozens of individual Indian owners, in addition to the tribal owners. Such fractionation is one of the many disastrous outcomes of the allotment era, when tribal lands were taken from their original owners and parceled out to tribal citizens, in some cases, and non-Indians in others.

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The case from New Mexico is Public Service Company of NM v. Barboan. PNM plans to ask the Supreme Court to overturn the 10th Circuit's ruling and has already lured the wealthy backers of the controversial Dakota Access Pipeline into its corner.

The case in Oklahoma is Enable Oklahoma Intrastate Transmission LLC v. 25 Foot Wide Easement, which was initiated by Enable, and Davilla v. Enable Midstream Partners, which was initiated by the Indian landowners. Enable is appealing both to the 10th Circuit, the first being the condemnation proceeding and the second being the trespass proceeding.

Tribal interests are closely watching the New Mexico case, which is notable because the federal government is one of the defendants. That means the Trump administration will be forced to show its hand once a petition is filed with the Supreme Court.

President Donald Trump has been eager to portray himself as business and industry friendly. Since taking office in January, he approved the Dakota Access Pipeline and Keystone XL Pipeline, another controversial crude oil project, despite widespread objection in Indian Country.

On Tuesday, he signed an executive order aimed at speeding up the federal review process for major infrastructure projects. The directive would not apply to the pipeline in Oklahoma or the power line in New Mexico, because they are already operational, but Trump expressed sympathy for utility companies and energy firms that he says are forced to wait too long for decisions.

"This over-regulated permitting process is a massive, self-inflicted wound on our country," Trump said from one of his properties in New York City, where his press conference turned into an angry defense of his handling of racial violence in Virginia.

"Disgraceful," Trump said.

10th Circuit Court of Appeals Decision:
Public Service Company of NM v. Barboan (May 26, 2017)