SOUTHERN UTE INDIAN TRIBE v. AMOCO PRODUCTION CO.

No. 94-1579.

151 F.3d 1251 (1998)

SOUTHERN UTE INDIAN TRIBE, Plaintiff-Appellant, v. AMOCO PRODUCTION COMPANY; Shirley K. Adams; Henry Ashworth; Carla M. Aspaas; Eric K. Aspaas; Helen Ruth Aspaas; Laurabelle Aspaas; Leta M. Adkins; Rita M. Adkins; Maxwell C. Anderson; Earl A. Barker; Maurice C. Breen, named as: 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; 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.; Fuel Resources Development Company; McKenzie Methane Corporation; Meridian Oil, Inc.; Mobil Oil Corporation; National Cooperative Refinery Association; Northwest Pipeline Corporation; Pablo Operating Company; Palo/Eagle Joint Ventures; Richmond Petroleum, Inc.; Williams Production Company; 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; Catherine Frances McElvain Harvey; Delos Cy Jamison, Director of the Bureau of Land Management; and 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; Jack Balle; J.M. Huber Corporation, Oil & Gas Division; Mary Jean Balle; Donald C. Ciancio; Susie M. Ciancio; NCNB Texas National Bank, as Trustee of the Kelly Cox Testamentary Trust; Addie G. Crosby; Jack W. Crosland, Jr.; Henry L. Enochson; Mary Jane Enochson; J.L. Goggans; Liberty Tulsa, as trustee of the Christine J. Hamilton Trust; Helen Crosland Hendricks; Thomas L. Johnstone; James Eric Kaindl; Larry James Kaindl; Lisa Jean Kaindl; Jane P. Mosbacher, named as The Heirs of Jane P. Mosbacher, Deceased; PM Associates, a Colorado general partnership; First Interstate Bank of Denver, as Co-trustee of the Estate of W.E. Rennie est W.E. Rennie; Roderick L. Turner; Wells Fargo Bank, as trustee of the George C. Vance Trust; Albert E. Zarlengo, Jr., as trustee for the Albert E. Zarlengo Trust; Bell South Corporation Health Care Trust; J. Magness, Inc.; SG Interests I, Ltd; Mosbacher U.S.A., Inc.; Land Owners Coalseam Committee, Defendants-Appellees, and Meridian Oil, Inc.; Pablo Operating Company; Tiffany Gas 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 Reservations, and which entities have not obtained tribal consent to and federal approval of said exploration, production of development activities, Defendants. Independent Petroleum Association of Mountain States; La Plata County, Board of County Commissioners; La Plata County Cattlemen's Association; National Association of Royalty Owners; Campbell County Wyoming Mineral Owners, Ignacio School District 11 JT; Bayfield School District 10 JT-R, Amici Curiae.

United States Court of Appeals, Tenth Circuit.

July 20, 1998.


Attorney(s) appearing for the Case

Thomas H. Shipps, Maynes, Bradford, Shipps & Sheftel, Durango, Colorado (Scott B. McElroy and Alice E. Walker, Greene, Meyer & McElroy, P.C., Boulder, Colorado, and Michael T. McConnell, Long & Jaudon, Denver, Colorado, with him on the briefs), for Plaintiff-Appellant.

Charles L. Kaiser, Davis, Graham & Stubbs L.L.P., Denver, Colorado (Anthony J. Shaheen and Ezekiel J. Williams, Davis, Graham & Stubbs L.L.P., Denver, Colorado, and David E. Brody, Amoco Production Company, Denver, Colorado, with him on the brief), for Amoco Production Company, Defendant-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, KELLY, HENRY, and BRISCOE, Circuit Judges, and MCKAY, Senior Circuit Judge.


SEYMOUR, Chief Judge.

OPINION ON REHEARING EN BANC

This case arose from the relatively recent development of technology that has made coal bed methane (CBM) commercially valuable. The Southern Ute Indian Tribe (the Tribe) appealed the district court's grant of summary judgment to defendants Amoco Production Company and others on the Tribe's claim to ownership of coal bed methane contained in coal acquired by the Tribe as successor in interest to a statutory...

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