United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, UNITED STATES DISTRICT JUDGE
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.
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
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").
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.
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.
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.
OF REVIEW 12(B)(7)
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.
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).
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.
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.