"There is a Georgian proverb that says 'if you forgive the fox for stealing your chickens, he will take your sheep,'" attorneys from the Oklahoma Indian Legal Services and the Kilpatrick Townsend firm whose ranks include some former high-ranking Obama administration officials as well as the team that won the Cobell trust fund litigation, countered. "After trespassing on plaintiffs’ property for seventeen years, Defendants Enable Midstream Partners, LP, 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," they continued. Though the sparring might test the patience of many a jurist, Miles-LaGrange offered an easy and cool decision on Enable's request for a stay. In a four-page order on March 21, almost a year to the date of her original ruling, she gave the firm the boot, again. Contradicting Enable's stance, Miles-LaGrange said it is the Indian landowners who are being disadvantaged. "During the period of any stay, defendants will continue to trespass on plaintiffs’ property, a trespass that has been ongoing for many years," she noted. "There is a strong public interest in the ability of property owners to preserve and maintain their right to control the use of their lands and in the protection of tribal sovereignty," she added.
Amid the drama, the 10th Circuit issued a landmark ruling that also took tribal sovereignty into account. In a case from neighboring New Mexico, the court last May rebuffed a utility company that wanted to condemn allotments on the Navajo Nation in order to keep operating a power line on the reservation. As with the Kiowa case, neither the Indian landowners nor the Navajo Nation have been paid for the use of their land in nearly a decade. And just like Enable, the Public Service Company of New Mexico continues to fight rather than fork over some money. The dispute is now pending before the U.S. Supreme Court in the form of a petition known as Public Service Company of New Mexico v. Barboan. The energy industry has rushed to the side of the utility firm, submitting a series of amicus briefs in hopes of getting the case on the docket. But the Trump administration is actually supporting tribal interests. Indian allotments cannot be condemned when a tribal government owns a stake and does not consent, attorneys from the Department of Justice wrote in a brief filed on Friday. "To be sure, it is possible that a tribe might refuse to consent to a right-of-way across a mixed-ownership parcel, just as a tribe might refuse with respect to a trust parcel that was never allotted," government attorneys wrote. "But tribal governments must consider the interests of all tribal members, not just those with a beneficial interest in the parcels at issue."
Unlike the Navajo case, the United States is not a party to the Kiowa trespass dispute. But the government is involved in the condemnation case being pursued by Enable, so its position in Barboan in favor of tribal interests is likely to be the same there. The trespass case is Davilla v. Enable Midstream Partners LP. The 10th Circuit is hearing arguments on May 16 in Denver, Colorado. The condemnation case is Enable Oklahoma Intrastate Transmission LLC v. 25 Foot Wide Easement. The Department of Justice has been given until April 9 to file a brief with the 10th Circuit so arguments are likely a few months away. The original owner of Kiowa Allotment 84 was Millie Oheltoint, whose Kiowa name was Emaugobah. Due to fractionation, in which a parcel is owned by a growing number of heirs, at least 38 individual Indians hold interests in the parcel. They are primarily citizens of the Kiowa Tribe, the Comanche Tribe and the Apache Tribe. The Kiowa government, under federal policies that encourage land consolidation and the restoration of allotments to tribal ownership, also holds interests in the parcel. As long as the precedent in Barboan stands, the allotment can't be condemned without the tribe's consent. The Public Service Company of New Mexico will be able to file one more brief before the Supreme Court takes the petition under advisement. The justices will eventually announce whether or not they will hear the case. Enable Midstream Partners is headquartered in Oklahoma City. Its energy network provides service to customers in Oklahoma, Texas, Kansas, Missouri, Arkansas, Louisiana, Mississippi, Alabama Florida, Tennessee and North Dakota, according to the firm. "Our assets include approximately 12,900 miles of gathering pipelines, 14 major processing plants with approximately 2.5 billion cubic feet per day of processing capacity, approximately 7,800 miles of interstate pipelines (including Southeast Supply Header, LLC of which the partnership owns 50 percent), approximately 2,200 miles of intrastate pipelines and eight storage facilities comprising 85.0 billion cubic feet of storage capacity," the firm states in a profile. The pipeline that runs through Kiowa Allotment 84 runs about 100 miles total. It is known as Line 25 and is part of a natural gas pipeline system that runs about 2,500 miles in Oklahoma. 10th Circuit Court of Appeals Decision:
Public Service Company of NM v. Barboan (May 26, 2017) Related Stories:
Tribes see continued challenges as more cases head to highest court (February 21, 2018)
Energy firm seeks to keep illegal pipeline in place over objections of Indian landowners in Oklahoma (August 15, 2017)
Battle brews as utility company takes sovereignty dispute to Supreme Court (August 2, 2017)
Federal court blocks attempt to condemn lands on Navajo Nation (May 26, 2017)
Judge orders removal of gas pipeline on Indian land in Oklahoma (March 28, 2017)