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Northern Natural Gas Company v. 80 Acres of Land in Thurston County

United States District Court, D. Nebraska

October 23, 2018

NORTHERN NATURAL GAS COMPANY, Plaintiff,
v.
80 ACRES OF LAND IN THURSTON COUNTY, NEBRASKA; et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE

         This dispute involves the renewal of a right-of-way across tribal and allotted lands located within reservation boundaries of the Omaha Tribe of Nebraska. The plaintiff, Northern Natural Gas, filed this suit seeking to condemn individually owned interests in two parcels of allotted land: Allotment No. 742-2 and Allotment No. 742-4. The defendants in this case each have an individual interest in Allotment No. 742-2, Allotment No. 742-4, or both.

         One of the individual interest holders, Nolan J. Solomon, has filed a motion to dismiss (filing 51) Northern's complaint. Northern has also moved for summary judgment (filing 52). For the reasons that follow, the Court will grant Northern's motion for summary judgment and deny Solomon's motion to dismiss.

         BACKGROUND

         The Court's prior Memorandum and Order (filing 49) set forth the background of this case in detail. Generally speaking, Northern Natural Gas owns and operates a pipeline system spanning much of the Midwest. Filing 30 at 2. In 1931, Northern obtained a right-of-way allowing three of its pipelines to cross the Omaha Tribe's Reservation located in Thurston County, Nebraska. Filing 30 at 2-3. That right-of-way was renewed in 1992 for a thirty-year term set to expire on February 7, 2018 ("the original ROW"). Filing 37-2.

         In anticipation of the original ROW's expiration, Northern initiated a renewal process with the Bureau of Indian Affairs ("BIA"). Filing 30 at 3-4. This process, at least originally, went smoothly: Northern and the Omaha Tribe entered into an agreement to renew the rights-of-way across tribal trust lands ("the New ROW"), see filing 37-3 at 1-7, a majority of the individual interest holders in Allotment No. 742-2 and Allotment No. 742-4 consented to that grant, see 25 U.S.C. § 324, and the BIA approved the New ROW and granted Northern the right-of-way, see filing 37-5. But at some point, one of the individual interest holders in Allotment No. 742-2 and Allotment No. 742-4 withdrew his consent. Filing 30 at 3. That meant Northern would need to acquire its right-of-way across Allotment No. 742-2 and Allotment No. 742-4 by virtue of condemnation rather than agreement. Compare25 U.S.C. § 324 with 25 U.S.C. § 357.

         So, Northern filed the underlying complaint seeking condemnation of the Allotments. See filing 30 at 1-7. A few weeks after this condemnation action was initiated, one of the individual interest holders in Allotment No. 742-2 and Allotment No. 742-4, Nolan J. Solomon, deeded a fractional interest to the United States in trust for the Omaha Tribe. Filing 37-6; filing 37-7. In a previous round of briefing, Solomon argued that conveyance prevents Northern from condemning any interests in Allotment No. 742-2 and Allotment No. 742-4. In light of the Tribe's consent to the right-of-way, the Court rejected that argument and determined that Northern could condemn the remaining non-tribal interests in those parcels. See filing 49 at 8-9.

         Now Solomon moves to dismiss Northern's complaint on different grounds: that the Tribe must be joined to the proceeding as a necessary party. See filing 51 at 1. And Northern, for its part, has moved for summary judgment alleging that there is no genuine dispute regarding the value of Solomon's condemnable interest. Filing 53 at 1. For the reasons discussed below, the Court will deny Solomon's motion to dismiss and grant Northern's motion for summary judgment.

         STANDARD OF REVIEW 12(B)(7)

         When deciding a motion to dismiss under Rule 12(b)(7), the Court must first determine if the party is a "necessary party" under Rule 19(a)(1). Baker Grp., L.C. v. Burlington N. & Santa Fe Ry. Co., 451 F.3d 484, 490 (8th Cir. 2006). If the party is "necessary," and joinder would not deprive the Court of subject matter jurisdiction, then the Court must join the party. Fed.R.Civ.P. 19(a). If, however, the necessary party cannot be joined because the joinder would deprive the Court of subject matter jurisdiction, then the Court must determine under Rule 19(b), if "in equity and good conscience the action should proceed among the parties before it, or should be dismissed." Baker Grp., 451 F.3d at 491.

         There are four factors to consider when determining if efficiency and fairness demand the party be joined under Rule 19(b). Those factors, generally, include (1) the extent a judgment rendered in the person's absence might prejudice that person or the existing parties, (2) the extent to which any prejudice could be lessened or avoided by protective provisions in the judgment, shaping the relief, other measures; (3) whether a judgment rendered in the person's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. Fed. R. Civ. P 19(b); see Two Shields v. Wilkinson, 790 F.3d 791, 798 (8th Cir. 2015). The Rule 19 inquiry is a pragmatic rule whose application turns on considerations of efficiency and fairness in the particular case. See Baker Grp., 451 F.3d at 490; Pujol v. Shearson/American Express, Inc., 877 F.2d 132, 134 (1st Cir. 1989); see also Ranger Transp., Inc. v. Wal-Mart Stores, 903 F.2d 1185, 1187 (8th Cir. 1990).

         RULE 56(A)

         Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

         On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.

         DISCUSSION

         I. SOLOMON'S ...


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