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.