The plaintiffs are 38 enrolled members of the Comanche, Caddo, Apache, Cherokee and Kiowa Tribes of Oklahoma. Additionally, the Kiowa Tribe of Oklahoma has an interest in the land. The interests vary from nearly 30 percent to less than 9/10th of a percent.
“It’s very significant,” said plaintiffs’ lawyer David Smith.
David Klaassen, a spokesman for Enable, said the company doesn’t comment on active legal issues.
The Bureau of Indian Affairs approved an easement across the land in 1980 for Enable’s predecessor, Producer’s Gas Company, to construct and install a natural gas pipeline. The original easement expired in 2000, according to court documents. By 2002, the company had changed to Enogex, Inc., and had submitted a right-of-way offer to the BIA and the plaintiffs for another 20 years. The majority of the landowners rejected the offer.
In 2008, the BIA’s interim superintendent of the Anadarko Agency approved Enogex’s application to renew the easement for 20 years. The plaintiffs appealed the decision in 2010, and the BIA vacated the opinion.
“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,” according to court documents. “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 the natural gas pipeline continued to operate, according to the court documents. The plaintiffs filed a trespassing violation and sought preliminary and permanent injunction in November 2015.
According to the court documents, Enable argues that written consents from five landowner tenants for renewal of the easement shows they are not trespassing. The defendants also argued Oklahoma’s two-year statute of limitations applies.
“While defendants do not dispute that they are operating a natural gas pipeline across plaintiffs’ property without an easement, defendants assert that there is no trespass in the case because under Oklahoma law consent forms a complete defense to trespass and they obtained five written consents to the renewal of the easement,” according to the court documents. But the Court found that the Oklahoma law was inconsistent with federal statutes, meaning the Oklahoma law could not be used as a defense in the case.
The Court noted that the tenants-in-common who gave written consent for the renewal of the easement owned less than a majority of the tract – around less than 10 percent.
Because of this, the Court found that the easement based upon the written consents was not valid.
Smith said the judge agreed with the tribal members that federal law applies and that there can be an accounting for the money made off the land during the period deemed a trespass, which is 17 years.
Smith said there are similar issues all across Indian country.
“And we see them all the time – there are easements to which landowners have never been paid,” Smith said. “There are easements which have simply expired and the BIA simply has no records of them or taken any action to enforce the trespass.”
The decision, Smith said, shows that landowners can take on such cases on their own land and that the remedies can be significant: not only removal of the power line, gas line or oil pipeline, but recovery of profits as well.
Smith, who worked on the $3.4 billion Cobell settlement case, said he anticipates more such lawsuits in the future. He noted that one issue on appeal at the 10th Circuit Court of Appeals is whether a utility can condemn allotted land in which a tribe has an interest. Federal districts courts in Oklahoma and New Mexico ruled they can’t, and the issue is now before the appeals court.