Enable Midstream’s challenge rejected by Denver Federal Appeals Court

The Denver Federal Appeals Court has ruled against Oklahoma City-based Enable Midstream in a pipeline trespassing fight with several Oklahoma Native American landowners dating back some 18 years.

Enable lost most of its appeal, however the U.S. 10th Circuit Court of Appeals ruled an Oklahoma City federal judge was wrong to grant a permanent injunction  against the energy company.

The case stems from a legal battle that ensued when a 20-year easement for a natural gas pipeline expired in 2000 and Enable failed to renew the easement and remove the pipeline. It also continued operation of the 1,300 feet of pipeline in question, a nearly one-quarter mile stretch of line that was part of a nearly 100-mile line between Canute and Cox City in western Oklahoma.

It led to a lawsuit filed by about three dozen Native American Allottees who won a summary judgment from the federal judge who ruled Enable was liable for trespass. The judge ordered Enable to remove the pipeline, granted a permanent injunction against the company and Enable appealed.

While the appeals court upheld the summary judgment, it had a different view on whether Oklahoma trespass law should be applied in granting a permanent injunction against Enable Midstream.

“The Tenth Circuit concluded that by ordering Enable to remove the pipeline on the basis of liability alone, the district court legally erred and thus abused its discretion. The district court incorporated a simplified injunction rule from Oklahoma law when it should have adhered to basic tenants of federal equity jurisprudence. This matter was remanded for the district court “for a full weighing of the equities.”

However, Appeals Court Judge Harris L. Hartz, in a dissenting opinion argued that Oklahoma trespassing law should have been applied in determining a permanent injunction.

“Where I differ from the panel opinion is that I would apply the state law of Oklahoma, rather than federal law, to determine the remedy for Enable’s trespass,” he wrote.

“Where I depart from the majority is regarding the law governing whether a permanent injunction should issue. In my view, we should continue to apply Oklahoma law on that issue. Because of the interest of the federal government, federal law governs. But there is no applicable federal trespass statute, so we decide this case as a matter of federal common law. As a general rule, federal common law regarding interests in real property adopts the law of the state where the property is located,” argued Judge Hartz.

Those who filed suit against Enable were:

MARCIA W. DAVILLA; BENJAMIN BLACKSTAR; THOMAS
BLACKSTAR, III; VANNETTE M. BRANHAM; EDMOND L. CARTER; PATRICIA CARTER FILES; HAROLD F. DUPOINT; CARRIE G. DUPOINT; RUDOLPH W. FISHER, JR.; CAMERON KEAHBONE; SINDY M. KEAHBONE; GILBERT C. KEAHBONE; MARK B. KEAHBONE; MARI L. KEAHBONE; PERRY K.  KEAHBONE; BLAKE E. KEAHBONE; PATRICK
KEAHBONE, JR.; EDBERT E. KEAHBONE, JR.; RENA A.
KILLSFIRST; KATINA S. LIPTON; JANICE C. MAMMEDATY;
AMANDA M. MCCARTHY; MICHAEL R. MCCARTHY;
MAYREDENA M. PALMER; RACHEL M. PALMER; MEGAN L.
PALMER; LAUREN SILVERBIRD; ANGELA R. SILVERHORN;
HARVEY E. TUCKER; WILLIAM K. WARE; SAMUEL M. WARE;
MATTHEW M. WARE; BETTY L. WARE; COREY WARE; PATRICIA WARE; JEAN WARE; WESLEY WARE, III; MELVA J. WERMY,

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