SOUTHERN UTE INDIAN TRIBE v. AMOCO PRODUCTION CO.

No. 92-1201.

2 F.3d 1023 (1993)

SOUTHERN UTE INDIAN TRIBE, Plaintiff-Appellant, v. AMOCO PRODUCTION COMPANY; Shirley K. Adams; Henry Ashworth; Carla M. Aspaas; Eric K. Aspaas; Helen Ruth Aspaas; Laura Belle Aspaas; Leta M. Adkins; Rita M. Adkins; Maxwell C. Anderson; Earl A. Barker; Maurice C. Breen, named as: the Heirs of Maurice C. Breen, deceased; Horace F. Buchanan, named as: the Heirs of Horace Buchanan, deceased; George A. Bugg; Carbone Investment Company; Jack Carmack; Rowland Carmack; Joseph C. Ciancio; William Kemp Clark; Colorado National Bank, George Veto Trust; Colorado National Bank of Longmont, conservator Gladys N. Frazzini; Dorothy A. Corgin; Kelly Cox, named as: the Heirs of Kelly Cox, deceased; A.B. Crosby; Barbara Crosby; David Crosby; John Crow, Jr.; Margaret Crow; Manuel Cruz; Louis M. Cummins; Frederick E. Dickerson; J.M. Eakes; Robert McFerran Eakes; Margaret Ellison; Sally M. Etterbeck; Minnie Flaks; Tillie Flaks; Cassio Frazzini; Adele Frost; Robert Galbasin; Abel S. Gallegos; Montey Garnand; Ruby Gibbs Goggans; Christine Hamilton; Hardin Simmons University; H.A. Harmon, named as: the Heirs of H.A. Harmon, deceased; Catherine Frances McElvain Harvey; Hondo Oil & Gas Company, named as: the shareholders of Hondo Oil & Gas Company (dissolved); Hyde Oil and Gas Corporation; Charles Kettering; Fidel Lucero; Richard C. Malcomb; Suzanne Heath Manges; Catherine B. McElvain; Mabel McElvain; Thornton H. McElvain, Jr.; Dorothy N. McKelvey; Edwin L. McKelvey; R. Franklin McKelvey; W.R. McMahon; McMurry Oil Company; W. Clay Meredith Charitable Trust; W.A. Moncrief, named as: the Heirs of W.A. Moncrief, deceased; Roy E. Montgomery, personal representative for the Estate of W. Clay Meredith, deceased; Forrest D. Miller, named as: the Heirs of Forrest D. Miller, deceased; Helen L. Miller, named as: the Heirs of Helen L. Miller, deceased; Thomas S. Morrissey; Thomas J. Morrissey; Emil Mosbacher; Emil Mosbacher, III; John David Mosbacher; R. Bruce Mosbacher; Myra Theresa Moulds; North Central Oil Corporation; H.L. Oliver; Clara Onofrio; Margaret C. Pargin; Harold F. Payne, Jr.; Neville G. Penrose; Ben M. Peterson, Jr.; Frederick Petrocco; Phillips Petroleum Company; James M. Raymond; W.E. Rennie, named as: the Heirs of W.E. Rennie, deceased; Thomas C. Romolo; Benton E. Smullyen; Clinton I. Smullyen; William Stirling; J.L. Tatum, named as: the Heirs of J.L. Tatum, deceased; Anna Carleo Tomeo; Ernest Tomeo; Turner Securities; Richard W. Turner, Sr.; George C. Vance, named as: the Heirs of George C. Vance, deceased; Anthony H. Veto; Joseph F. Ware, Jr.; Albert E. Zarlengo; Anthony F. Zarlengo, John Doe and all other unknown persons claiming an interest in the mineral estate located within the N/2 of section 12, T33N, R8W, N.M.P.M., La Plata County, Colorado; AMAX Oil & Gas, Inc.; Bowen/Edwards Associates, Inc.; Conoco, Inc.; Fuel Resources Development Company; Markwest Energy Partners Limited; McKenzie Methane Corporation; Meridian Oil, Inc.; Mobil Oil Corporation; National Cooperative Refinery Association; Northwest Pipeline Corporation; Pablo Operating Company; Palo Petroleum, Inc.; Palo/Eagle Joint Ventures; Richmond Petroleum, Inc.; Tiffany Gas Company; Williams Production Company; Union Texas Petroleum Corporation, John Doe oil company and all other unknown persons or entities claiming leasehold working interests or operating rights to explore for, produce or develop coalbed methane or coal constituents from coal or coal strata reserved by the United States in patents issued under The Act of June 22, 1910, for lands located within the exterior boundaries of the Southern Ute Indian Reservation, and which entities have not obtained tribal consent to and federal approval of said exploration, production of development activities; Manuel Lujan, Jr., Secretary of the United States Department of the Interior; Department of Interior, and its subordinate agencies; Bureau of Indian Affairs; Bureau of Land Management; Minerals Management Service; Eddie F. Brown, Assistant Secretary of the Bureau of Indian Affairs; Delos Cy Jamison, Director of the Bureau of Land Management; Scott S. Sewell, Director of the Minerals Management Service; Class of Defendants situated similarly to those named non-governmental defendants who claim ownership of an interest in coalbed methane and other coal constituents or claim the right to explore for, develop or produce those substances from coal or coal strata reserved by the United States in patents issued under the Act of March 3, 1909, or the Act of June 22, 1910, for lands located within the exterior boundaries of the Southern Ute Indian Reservation and which class members have not obtained tribal consent to and federal approval of said interests of rights; J.M. Huber Corporation, Oil & Gas Division, Defendants-Appellees.

United States Court of Appeals, Tenth Circuit.

August 10, 1993.


Attorney(s) appearing for the Case

Scott B. McElroy (Bruce R. Greene and M. Catherine Condon of Greene, Meyer & McElroy, P.C., Boulder, CO, Thomas H. Shipps and Frank E. (Sam) Maynes of Maynes, Bradford, Shipps & Sheftel, Durango, CO, with him on the brief), of Greene, Meyer & McElroy, P.C., Boulder, CO, for plaintiff-appellant.

Anthony J. Shaheen (Thomas S. Nichols and Charles L. Kaiser of Davis, Graham & Stubbs, Denver, CO, David E. Brody of Amoco Production Co., Denver, CO, with him on the brief), of Davis, Graham & Stubbs, Denver, CO, for defendant-appellee.

Before SEYMOUR and MOORE, Circuit Judges, and THEIS, District Judge.


SEYMOUR, Circuit Judge.

Southern Ute Indian Tribe (Tribe) sued Amoco Production Company (Amoco) and other oil companies and individuals, claiming they were extracting from their oil and gas leases coalbed methane reserved by the United States for the benefit of the Tribe. The district court certified a defendant class,1 and also issued a cost allocation order requiring the Tribe to pay the oil companies 25% of the companies' cost of mineral...

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