Council of Energy Resource Tribes/Red Earth formation — Assisting leading tribal energy organization with development of for-profit arm designed to serve as investment vehicle for member tribes to partner with other tribes on renewable energy development. Work includes development of 100mW wind project in Oklahoma, solar technology licensing, and other ventures.
Ute Mountain Ute Tribe v. Padilla — Representing Ute Mountain Ute Tribe in high-profile taxation case in United States Supreme Court proceedings seeking to uphold lower court decision in which New Mexico district court invalidated New Mexico''s efforts to tax oil and gas production from Ute Mountain Ute tribal lands physically located in New Mexico but for which New Mexico provided no state services. Case is critically important to Ute Mountain Ute Tribe members who live in extreme poverty, but who would see $600 more per person per year if those dollars are not taken by the state of New Mexico.
Citation Oil & Gas Corporation/Navajo Nation — In 2006 Citation acquired six federal oil and gas leases on Navajo Nation lands as part of a ~$24 million asset acquisition. Federal and Navajo law provide for the Tribe’s consent to assignment. Citation sought such approval and complied with applicable procedures, but nonetheless, the Nation denied its approval and has demanded Citation surrender the properties to the Navajo Nation. Engaged in negotiations with director of Navajo Nation Minerals Department and Navajo Nation Attorney General to attempt to facilitate mutually-acceptable resolution. Have initiated notice procedures for tribal court suit against Minerals director for ultra vires acts in violation of Navajo law. If negotiated resolution cannot be achieved within tolling agreement timeframe, will represent Citation as the plaintiff in a tribal court suit to compel action in accord with Navajo law.
El Paso/Ruby Pipeline Development — Had lead role in tribal negotations on behalf of El Paso Corporation with respect to its $3 billion Ruby Pipeline, a 680-mile interstate natural gas pipeline proposed to bring Rocky Mountain gas from Opal, WY to Malin, OR. Dealt with cultural resources and environmental issues and representation of project before federal agencies with respect to project. Organized tribal outreach and employment efforts with approximately 40 tribes with traditional territory along the project route. Have traveled to nearly every reservation along the route and conducted extensive meetings with tribal councils and community members.
While this project is ongoing, three tribes have submitted specific letters of support to FERC, an act that prior to this project was unprecedented. Additionally, forged a partnership between El Paso and the Council of Energy Resource Tribes, an association of 53 federally recognized U.S. Indian Tribes and four First Nation Treaty Tribes of Canada, that provides the leading voice on the federal-Indian relationship with respect to minerals, mining, taxation and tribal jurisdiction over environmental regulation on Indian lands. CERT has also sent a letter to FERC supporting the project, and developed key training with Greenberg Traurig, including the development of a culture resources/energy development summit for tribal leaders that attracted more than 70 participants from nearly every tribe along the project route, and a series of tribal employment workshops to introduce tribal members to potential employment opportunities with project contractors. More than 300 tribal members have participated in the five employment workshops to date. Also working to advance tribal curation facilities to house artifacts disturbed by the project so that the important cultural items remain in Indian Country accessible to tribes. Also working to implement a seed-banking/nursery program to protect tribal access to traditional plants and medicines that might be disturbed by construction activities.
El Paso Corporation/Begay Class Action
Represent El Paso Natural Gas Corporation (EPNG) against a group of plaintiffs who are alleging breach of trust and trespass by EPNG and 11 other defendants including the Secretary of the Interior and the United States.
The plaintiffs are members of the Navajo Nation who hold ownership interests in land held in trust by the United States pursuant to the General Allotment Act of 1887. The allotted lands at issue are located in the so-called “Checkerboard Area” of the Navajo Nation atop an oil- and natural gas-producing basin. The plaintiffs have sued the United States and the Secretary (“Federal Defendants”), EPNG and various other private defendants (ROW Defendants) in connection with pipeline and transmission line right-of-ways that cross these allotted lands. The plaintiffs bring this action on behalf of themselves and all similarly-situated parties, and are asking that it be certified as a class action.
The plaintiffs allege the United States breached a trust duty to individual allottees by failing to obtain appraisals, failing to advise and assist allottees, and failing to obtain fair market value for the grant or renewal of right-of-ways on allotted land. They claim that while the Navajo Nation receives fair market value for right-of-ways on tribal trust land, and that allottees receive comparatively less for right-of-ways on their allotments. The plaintiffs seek declaratory and injunctive relief against the United States for this alleged breach of trust.
The plaintiffs bring two claims against EPNG and the other ROW defendants: breach of trust and trespass. They claim the private companies knew or should have known of the United States’ alleged breach of trust and, therefore, are subject in equity to the imposition of a constructive trust upon their right of way grants. They also claim that by reason of such knowledge, the ROW defendants’ construction and maintenance of their pipelines constitutes trespass. The plaintiffs seek both trespass damages and equitable relief from EPNG, including cancellation of its right-of-ways and removal of its pipelines.
El Paso Natural Gas has a significant amount of exposure in this matter as the rights-of-way directly affect the company’s ability to provide a substantial portion of the natural gas used in California, Arizona and other western states. The results of this matter could also potentially affect the building of the Ruby Pipeline, a 675-mile natural gas transmission pipeline that will traverse portions of four states connecting natural gas reserves in the Rocky Mountain Basin with growing markets on the West Coast.
Cash Advance v. Suthers — Led tribal amici briefing in Colorado Supreme Court case involving efforts by Colorado Attorney General to investigate tribal internet payday loan businesses of the Santee Sioux Nation and the Miami Nation of Oklahoma. Authored two major briefs at the invitation of the court and coordinated amici efforts by Colorado Indian Bar Association, Ute Mountain Ute Tribe, University of Colorado American Indian Law Clinic and University of New Mexico American Indian Law Center. Coordinated with Native American Rights Fund''s Supreme Court Project. Case has important national implications for development of law with respect to tribal sovereign immunity of tribal business entities.
The Colorado Supreme Court invited amicus briefing from organizations, Indian Law experts, on six different issues upon which court granted certiorari in high-stakes tribal sovereign immunity case. Fourteen states and the AARP have filed amicus briefs in support of the Colorado Attorney General.
Case is being closely watched by tribes and Indian Law practitioners around the country. Widely expected that whatever the result before the Colorado Supreme Court, one side or the other will petition the U.S. Supreme Court for certiorari. The U.S. Supreme Court has not heard a major tribal sovereign immunity case since 1998, when it invited Congress to act on tribal sovereign immunity issues. Congress held various hearings in accord thereafter, but did not enact legislation. Many experts anticipate that the Court may want to revisit the issue and the Colorado case is one of several winding their way through states courts around the country. It will be the first case in a procedural posture for a petition to the Court.