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Davilla v. Enable Midstream Partners L.P.

United States District Court, W.D. Oklahoma

March 28, 2017

MARCIA W. DAVILLA, et al., Plaintiffs,
v.
ENABLE MIDSTREAM PARTNERS, L.P., et al., Defendants.

          ORDER

          VICKI, MILES-LaCRANGE, 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.Mer ...


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