PUBLIC SERVICE CO. OF NEW MEXICO v. BARBOAN

No. 16-2050.

857 F.3d 1101 (2017)

PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation, Plaintiff-Appellant, v. Lorraine BARBOAN, a/k/a, Larene H. Barboan; Benjamin House, also known as, Bennie House; Annie H. Sorrell, also known as, Anna H. Sorrell; Mary Rose House, also known as, Mary R. House; Dorothy House, also known as, Dorothy W. House; Laura H. Lawrence, also known as, Laura H. Chaco; Jones Dehiya; Jimmy A. Charley, also known as, Jim A. Charley; Mary Gray Charley, also known as, Mary B. Charley; Bob Gray, Deceased, also known as, Bob Grey; Christine Gray Begay, also known as, Christine G. Begay; Thomas Thompson Gray, also known as, Thomas Grey; Jimmie Grey, also known as, Jimmie Gray; Melvin L. Charles, also known as, Melvin L. Charley; Marla L. Charley, also known as, Marla Charley; Kalvin A. Charley; Irene Willie, also known as, Irene James Willie; Charley Joe Johnson, also known as, Charley J. Johnson; Elouise J. Smith; Leonard Willie; Shawn Stevens; Glen Charles Charleston, also known as, Glen C. Charleston; Glenda Benally, also known as, Glenda G. Charleston; Navajo Nation; United States of America, Defendants-Appellees, and Approximately 15.49 Acres of Land in McKinley County, New Mexico; Navajo Tribal Utility Authority; Continental Divide Electric Cooperative, Inc.; Transwestern Pipeline Company, LLC; Citicorp North America, Inc.; Chevron USA Inc., as successor in interest to Gulf Oil Corp.; Harry House, Deceased; Pauline H. Brooks; Leo House, Jr.; Nancy Deheva Eskeets; Lorraine Spencer; Laura A. Charley; Marilyn Ramone; Wynema Giberson; Eddie McCray, also known as, Eddie R. McCrae; Ethel Davis, also known as, Ethel B. Davis; Wesley E. Craig; Hyson Craig; Noreen A. Kelly; Elouise Ann James, also known as, Elouise James Wood, also known as, Eloise Ann James, also known as, Elouise Woods; Alta James Davis, also known as, Alta James; Alice Davis, also known as, Alice D. Chuyate; Phoebe Craig, also known as, Phoebe C. Cowboy; Nancy James, also known as, Nancy Johnson; Betty James, Deceased; Linda C. Williams, also known as, Linda Craig-Williams; Genevieve V. King; Lester Craig; Fabian James; Daisy Yazzie Charles, also known as, Daisy Yazzie, also known as, Daisy J. Charles; Rosie Yazzie, Deceased; Kathleen Yazzie James, also known as, Catherine R. James; Verna M. Craig; Juanita Smith, also known as, Juanita R. Elote; Alethea Craig, Sarah Nelson, Larry Davis, Jr.; Berdina Davis; Michelle Davis; Steven Mccray; Velma Yazzie; Geraldine Davis; Larrison Davis, also known as, Larrison P. Davis; Adam McCray; Michelle McCray; Eugenio Ty James; Larson Davis; Cornelia A. Davis; Celena Davis, also known as, Celena Bratcher; Frankie Davis; Verna Lee Bergen Charleston, also known as, Verna L. Charleston; Vern Charleston; Kelly Ann Charleston, also known as, Kelly A. Charleston; Sheryl Lynn Charleston, also known as, Sheryl L. Charleston; Spencer Kimball Charleston, Jr., Deceased; Edwin Allen Charleston, also known as, Edwin A. Charleston; Charles Baker Charleston, also known as, Charles B. Charleston; Sam Mariano; Harry House, Jr; Matilda James; Darlene Yazzie; Unknown Owners, Claimants and Heirs of The Property Involved; Unknown Heirs of Harry House, Deceased; Unknown Heirs of Bob Gray (Bob Grey), Deceased; Unknown Heirs of Betty James, Deceased; Unknown Heirs of Rosie C. Yazzie, Deceased; Unknown Heirs of Spencer Kimball Charleston, Jr., (Spencer K. Charleston), Deceased; Unknown Heirs of Helen M. Charley, Deceased; Estate of Rosie C. Yazzie; Estate of Spencer K. Charleston; United States Department of Health & Human Services; United States Department of the Interior, Defendants. GPA Midstream Association; The National Congress of American Indians; Pueblo of Laguna; The Ute Mountain Ute Tribe; The Confederated Tribes of the Umatilla Indian Reservation, Transwestern Pipeline Company, LLC, Amici Curiae.

United States Court of Appeals, Tenth Circuit.

Filed May 26, 2017.


Attorney(s) appearing for the Case

Kirk R. Allen ( Stephen B. Waller , with him on the briefs), Miller Stratvert P.A., Albuquerque, New Mexico, for Plaintiff-Appellant.

Paul Spruhan , Assistant Attorney General ( Ethel Branch , Attorney General, with him on the brief), Navajo Nation Department of Justice, Window Rock, Arizona, for Navajo Nation, Defendant-Appellee.

Jeffrey S. Beelaert ( John C. Cruden , Assistant Attorney General, James C. Kilbourne , William B. Lazarus , and Mary Gabrielle Sprague , Attorneys, with him on the brief), U.S. Department of Justice, Washington, D.C., for the United States, Defendant-Appellee.

Zackeree S. Kelin ( Michael M. Mulder , The Law Offices of Michael M. Mulder, Evanston, Illinois, with him on the brief), Davis Kelin Law Firm LLC, Albuquerque, New Mexico, for the Individual Allottees, Defendants-Appellees.

Clint Russell and Stratton Taylor , Taylor, Foster, Mallett, Downs Ramsey & Russell, Claremore, Oklahoma, filed an amicus brief for GPA Midstream Association, in support of Plaintiff-Appellant.

Jennifer H. Weddle , Troy A. Eid , Harriet McConnell , and Laura E. Jones , Greenberg Traurig, LLP, Denver, Colorado, for Ute Mountain Ute Tribe; John Dossett , National Congress of American Indians, Embassy of Trial Nations, Washington, D.C.; Dan Rey-Bear , Rey-Bear McLaughlin, LLP, Spokane, Washington, for Pueblo of Laguna; Naomi Stacy and Dan Hester , for Confederated Tribes of the Umatilla Indian Reservation, Pendleton, Oregon, Amici Curiae.

Deana M. Bennett and Emil J. Kiehne , Modrall Sperling Roehl Harris & Sisk, PA, Albuquerque, New Mexico, filed an amicus brief for Transwestern Pipeline Company, LLC, in support of Plaintiff-Appellant.

Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.


Unable to win the consent of all necessary landowners, a public utility company now contends that it has a statutory right to condemn a right-of-way on two parcels of land in New Mexico. Because federal law does not permit condemnation of tribal land, the Navajo Nation's ownership of undivided fractional interests in the...

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