Case Information
*2 Before TYMKOVICH , Chief Judge, LUCERO and HARTZ , Circuit Judges.
TYMKOVICH , Chief Judge.
Enаble Intrastate Transmission, LLC owns and operates a natural gas pipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year easement for the pipeline expired in 2000. Enable failed to renew the easement but also failed to remove the pipeline. In response, roughly three-dozen *3 individual Native American Allottees—who hold equitable title in the allotted land—filed this lawsuit.
The district court granted summary judgment to the Allottees, ruling on the basis of stipulated facts that Enable was liable for trespass. The court then enjoined the trespass, ordering Enable to remove the pipeline. Enable appeals both rulings, claiming several legal errors. [1]
We affirm in part, reverse in part, and remand for further proceedings. The district court properly granted summary judgment to the Allottees but erred in issuing the permanent injunction. The availability of equitable relief in this case depends on the relative weight of interests not yet considered below. We leave those considerations for the district court to determine in the first instance.
I. Background
“After the formation of the United States, the [Indian] tribes became
‘domestic dependent nations,’ subject to plenary control by Congress.”
Puerto
Rico v. Sanchez Valle
,
Congress exercised that power during the “Allotment Era” of the late-
nineteenth and early-twentieth centuries by “carv[ing] [Indian] reservations into
allotments and assign[ing] thе land parcels to tribal members.”
Pub. Serv. Co. v.
Barboan
,
But all did not go according to plan. “[M]any of the early allottees quickly
lost their land through transactions that were unwise or even procured by fraud.”
Cty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation
, 502
U.S. 251, 254 (1992). In response, Congress “restricted immediate alienation or
*5
encumbrance” in favor of a trust-based model.
Id.
Through the Dawes Act, ch.
119, 24 Stat. 388 (1887),
repealed by
Indian Land Consolidation Act
Amendments of 2000, Pub. L. No. 106-462, §§ 101–103, 114 Stat. 1991,
1991–2006 (codified at 25 U.S.C. §§ 2201–2219), Congress empowered the
President to allot reservation land
in trust
rather than granting immediate, fee
simple ownership,
County of Yakima
,
It was through this program that, in August of 1901, Prеsident William McKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman named Emaugobah. But Congress’s allotment project “came to an abrupt end . . . with passage of the Indian Reorganization Act” in 1934. Id. at 255. Under that legislation, “Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands.” Id. As a result, Emaugobah never received a fee simple patent. And well over a century later, the federal government still holds roughly 136 acres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some individual Allottees.
Meanwhile, Congress’s vacillation on Indian land policy left “a
checkerboard of tribal, individual Indian, and individual non-Indian land
interests” across Indian country.
Barboan
,
As relevant here, these laws empowered the Secretary of the Interior to approve easements “for all purposes . . . over and across any lands . . . held in trust by the United States for individual Indians or Indian tribes.” 25 U.S.C. § 323. But the Secretary could not do so unilaterally. Instead, the Secretary needed “the consent of the proper tribal officials” or, where applicable, “individual Indian owners.” Id. § 324. In the case of allotments shared among multiple Indians, the law required consent of a “majority of the [equitable] interests” to approve a right-of-way. Id.
In 1980, acting under these provisions, the Secretary allowed conveyance of a twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment. *7 By its terms, the easement would allow Producer’s Gas Company to “install . . . and thereafter use, operate, inspect, repair, maintain, . . . and remove a single buried [twenty-inch] natural gas pipeline” within a twenty-year period. App. 40. Producer’s Gas later conveyed both the easement and the pipeline to Enable.
When the easement expired in November 2000, however, Enable’s pipeline remained buried in the ground. Enable eventually sought a new twenty-year easement by approaching the Allottees and applying for approval from the Bureau of Indian Affairs. But the company failed to secure approval for the new easement from a majority of the equitable interests. Accordingly, the Bureau cancelled Enable’s right-of-way application. Apparently undeterred, Enable continued to operate the pipeline.
The Allottees eventually sued. Their complaint claimed Enable was committing a trespass and sought a court order compelling the pipeline’s removal. The parties agreed on most of the relevant facts, so the Allottees moved for partial summary judgment on liability for trespass and injunctive relief. The district court granted the motion. Enable now appeals.
II. Analysis
Enable raises two issues on appeal. First, it argues the district court erred in granting summary judgment to the Allottees on their trespass claims. Second, it contends the district court erred in issuing a permanent injunction to enforce the *8 summary judgment ruling. We affirm the district court’s entry of summary judgment. We reverse its entry of a permanent injunction, however, and remаnd for the appropriate weighing of equities.
A. Summary Judgment
We review district court grants of summary judgment de novo.
White v.
York Int’l Corp.
,
But it is
the law
, not the material facts, that complicates this case. When a
dispute arises over possessory rights in Indian allotted land, federal law governs.
See Nahno-Lopez v. Houser
,
Because we lack a federal body of trespass law to protect the Allottees’
federal property interests, we must borrow state law to the extent it comports with
federal policy.
See Kamen v. Kemper Fin. Servs., Inc.
,
Our reading of Oklahoma law thus yields three elements constituting the Allottees’ federal trespass claims. First , the Allottees must prove an entitlement to possession of the allotment. Second , they must prove Enable physically entered or remained on the allotment. Finally , they must prove Enable lacked a legal right—express or implied—to enter or remain. The stipulated facts already described definitively prove the first two elements. Enable takes issue, however, with the entry of summary judgment on the third.
1. Consent as a Defense to Trespass Enable contends it has produced evidence of consent sufficient to prove a legal right to maintain the pipeline despite the easement’s expiration. See Aplt. Br. 20–23. Moreover, Enable argues the Allottees’ failure to address this evidence in their opening summary judgment brief below should have rendered the motion insufficient at the outset. See id. at 23–25.
We first address the role of consent in this area of law. In Nahno-Lopez we considered a similar trespass action regarding Indian allotted land. See 625 F.3d 1279. Several individual Comanche had agreed to lease their allotted land to the Fort Sill Apache Tribe for development of a casino parking facility. A controversy then arose among the allottees, the Tribe, and the Bureau of Indian Affairs regarding the lease’s validity. The allottees sued the Tribe, claiming trespass. The district court granted summary judgment to the Tribe.
We affirmed. We reasoned that the Comanche allottees had not offered record evidеnce sufficient to survive summary judgment. We specifically noted the Comanche allottees’ failure to controvert the Tribe’s evidence of “consent” to the alleged trespass—namely, the lease document and acceptance of rent payments. See id. at 1280, 1284. Because, in our words, “consent forms a complete defense to trespass” under the incorporated Oklahoma law, we upheld the summary judgment order. Id. at 1284.
Enable relies on this language in arguing it has a sufficient fact question regarding consent. In 2004, Enable obtained written consent forms from five of the thirty-seven individual Allottees in this case. The forms show these five Allottees’ willingness to grant a new right-of-way for the pipeline in exchange for cash payments. [4] Despite the fact that these Allottees hold less than ten percent of the interests in equitable title, Enable contends their consent creates a triable faсtual dispute precluding summary judgment under Nahno-Lopez . See Aplt. Br. at 21–23. If consent is “a complete defense to trespass,” Enable argues, then these forms would allow a reasonable jury to rule against trespass liability.
This argument confuses the law. Admittedly, our concise presentation of “consent” as a “complete defense to trespass” in Nahno-Lopez somewhat oversimplified the rule. To be sure, the rightful possessor of real property cannot hold his licensees liable for trespass under Oklahoma law. But this is because—as we have just explained—the defendant’s lack of a right to enter is an element of the claim . Accordingly, evidence of a plaintiff’s consent to a defendant’s entry on the land will defeat liability in those cases where the plaintiff’s consent itself creates a right to enter or remain. In such cases, the claim will fail for lack of proof on an essential element.
*13 When it comes to maintaining a pipeline over Indian allottеd land, however, Congress has dictated the prerequisites of a right to enter by statute. Enable thus has no legal right to keep a structure on the Allottees’ land unless and until it secures a right-of-way for that purpose from the Secretary of the Interior. See 25 U.S.C. § 323. The Secretary must, in turn, have the approval of the relevant Indian stakeholders. See id. § 324.
The statute notwithstanding, Enable argues “[a]
single owner
of a tenancy
in common may enter into a lease for the entire co-tenancy property without any
other’s consent.” Aplt. Br. at 22 (emphasis added). Enable gives us no reason to
equate the Allottees’ interest in the land with a traditional tenancy in common.
But even if it were, the authorities Enable identifies do not support this bold
assertion.
See United States v. Craft
,
Moreover, even if Oklahoma
would
say that this evidence could defeat any
trespass claim, we would not incorporate such a rule into the Allottees’
federal
right of action. As we explained above, federal courts should only incorporate
state rules of decision into federal claims to the extent those rules are consistent
with federal law and policy.
See, e.g.
,
Kamen
,
In light of this conclusion, Enable’s proffered evidence plainly does not warrant reversal of the district court’s summary judgment ruling. The undisputed facts—expirаtion of the easement, specifically—show that Enable lacks a legal right to keep the pipeline in the ground. The consent forms would not allow a reasonable jury to find otherwise.
The Allottees’ briefing below did not bar the district court from reaching
this conclusion either. To be sure, the Allottees had to show liability was
“appropriate as a matter of law” to support summary judgment.
Trainor v. Apollo
Metal Specialties, Inc.
,
Nor did the district court exceed its discretion by allowing the Allottees to
file a reply brief addressing consent after Enable raised the issue.
See Beaird v.
Seagate Tech., Inc.
,
2. Demand for Removal Enable also argues that no duty to remove the pipeline ever arose— expiration of the easement notwithstanding—because the Allottees never demanded that Enable remove the pipeline.
We note first that Enable failed to raise this argument below. A litigant
must preserve an issue for appellate review by pressing it in the trial court.
See,
e.g., Carney v. Okla. Dep’t of Pub. Safety
,
Recognizing this problem, Enable has attempted to shift blame to the
Allottees. According to Enable, the Allottees could only secure summary
judgment if they briefed all elements of their trespass claim—including demand
for removal.
See
Aplt. Br. at 18–20; Reply Br. at 2–4. But our adversarial system
does not work that way. To be sure, a party seeking summary judgment must
show the law and available evidence compel the requested outcome.
See
Fed. R.
Civ. P. 56;
Adickes v. S. H. Kress & Co.
,
But Enable’s forfeiture does not prevent us from definitively rejecting its
demand argument on the merits.
See, e.g.
,
United States v. Jarvis
,
Again, we incorporate Oklahoma law into this federal claim so long as it
does not frustrate federal policy.
See, e.g.
,
Kamen
,
Moreover, even assuming—as Enable urges—that Oklahoma follows the Restatement (Second) of Torts, see Aplt. Br. at 17 & n.6; but cf. Frank , 985 P.2d at 776 (noting that the Oklahoma Supreme Court has “quoted [the Second Restatement] with approval,” rather than adopting it), the argument still fails. The Restatement provides that “the continued presence on the land of a structure . . . which the actor . . . has placed” there “with the consent of” the lawful рossessor constitutes a trespass “if the actor fails to remove it after the consent has been effectively terminated .” Restatement (Second) of Torts § 160 (Am. Law Inst. 1977) (emphasis added). The comments clarify that “[i]f a structure . . . is placed on the land with the possessor’s consent conditioned upon the actor’s subsequently removing it, the termination of consent creates a duty to remove it.” Id. cmt. d. And, unsurprisingly, “the lapse of any specified period of time by which the consent is restricted” terminates consent. Id. § 171(a).
According to these rules, the easement’s expiration created a duty to remove the pipeline. Permission to lay and maintain the pipeline came *19 hand-in-hand with an obligation to remove it. See App. 40 (granting the easement to “install . . . and remove” the pipeline within a term of twenty years); cf. 25 C.F.R. § 161.5(I) (1980) (requiring right-of-way applicants to expressly agree to restore the land to its original condition). Indeed, there would have been no sense in limiting the easement term to twenty years otherwise. The Restatement would therefore not impose a separate obligation to demand removal on these facts. [5]
To be sure, had the Allottees refused to allow Enable to remove the pipeline, the Restatement might have forbidden liability for trespass. See Restatement (Second) of Torts §§ 160 cmt. m, 161 cmt. d. But Enable gives us no reason to believe the Allottees have ever prevented removal of the pipeline. Instead, Enable espouses the view that it would have incurred trespass liability for attempting to remove the pipeline unless and until the Allottees made a removal demand. This argument mischaracterizes the right-of-way grant and misstates Oklahoma law. Both allowed Enable to enter the land to remove the pipeline at least within the easement term, if not beyond it. See App. 40; Williamson , 956 P.2d at 862.
Ignoring these issues, Enable focuses on rules pertaining to structures “tortiously placed” on land and subsequently transferred to new оwners. See *20 Aplt. Br. at 18 (discussing Restatement (Second) of Torts § 161). Of course, Producer’s Gas—Enable’s predecessor—did not tortiously place the pipeline on the land; it constructed the pipeline with permission. And the fact that Enable kept the pipeline on the land without permission does not render the initial placement tortious. Moreover, the only transfer of the pipeline occurred during the easement term, at which point the parties agree the pipeline’s presence was still lawful. Finally, even assuming this case had involved a transfer after expiration of the easement, the Restatement makes clear that notice of a duty to remove—for instance, through the terms of an easement contract—binds the transferee. See Restatement (Second) of Torts § 161(2) .
Finally, Enable errs by relying on the Ninth Circuit’s decision in
United
States v. Milner
,
Even if we assumed the legal principles the Ninth Circuit applied in Milner had bearing on this case, [6] they would not support Enable’s argument for a demand element. As we have explained, Enable acquired the pipeline already knowing the right-of-way would eventually expire. It therefore cannot—and indeed does not—claim it lacked nоtice of its duty to remove or intent to maintain the trespass.
We thus reject Enable’s contention that the Allottees had to demand removal of the pipeline for trespass liability to arise.
* * *
*22 In sum, Enable’s arguments against summary judgment fail under the incorporated trespass law of Oklahoma. And Enable has not argued for any conflict between that law, as we understand it, and federal policy regarding Indian allotted land. We therefore affirm the district court’s grant of summary judgment.
B. Permanent Injunction
The Allottees’ success on the merits notwithstanding, Enable argues the district court applied the wrong legal standard in determining whether to issue a permanent injunction. According to Enable, the district court incorporated a simplified injunction rule from Oklahoma law when it should have adhered to basic tenants of federal equity jurisprudence. Aplt. Br. at 25–28. [7]
We agree. By failing to apply the federal courts’ traditional equity jurisprudenсe to its remedy analysis, the court below committed an error of law and thus abused its equitable discretion. Accordingly, we must reverse the injunction order and remand for a full weighing of the equities.
Federal district courts have the power to order injunctive relief when equity
so requires.
See Signature Props. Int’l Ltd. P’ship v. City of Edmond
, 310 F.3d
1258, 1268 (10th Cir. 2002). We review a district court’s exercise of that power
*23
for abuse of discretion only.
See, e.g.
,
id.
As always, however, a district court
abuses its discretion when it “bases its decision on an erroneous conclusion of
law.”
Wyoming v. U.S. Dep’t of Agric.
,
In this case, the district court relied primarily on Oklahoma law—with supplemental authority from other federal courts—to conclude that “equity will restrain [a continuing] trespass.” App. 268 (quoting Fairlawn Cemetery , 496 P.2d at 1187). [8] As a result, it did not apply the usual four-factor test guiding federal courts’ grant of permanent injunctive relief. See, e.g. , eBay Inc. v.
MercExchange, L. L. C.
,
Generally, federal courts adopt state law even when the dispute is
“governed exclusively by federal [common] law.”
See United States v. Turley
,
But federal courts do not meсhanically apply state law in every
circumstance. “Whether to adopt state law or to fashion a nationwide federal rule
is a matter of judicial policy ‘dependent upon a variety of considerations.’”
United States v. Kimbell Foods, Inc.
,
The district court erred because the circumstances presented here reveal “a
distinct need for nationwide legal standards.”
Kamen
,
This uniform standard is necessary because the Secretary has undoubtedly approved easements over and across Indian land in multiple states. And since *26 many of these easements are likely for a limited duration, these easements—for pipelines, telecommunication lines, and roads—like the easement at issue here, may fail to receive consent to renew by a “majority of the [equitable] interests” and may therefore be subject to an order of removal. See id. § 324. This prospect shows the distinct need for easement holders to be subject to the same standard for when an equitable remedy is required and when a legal remedy is sufficient—regardless of where the easement is located. Otherwise, an easement holder in Oklahoma and one in Kansas could be subject to differing permanent injunction standards despite both receiving an easement from the Secretary of the Interior pursuant to the same federal program.
We therefore conclude that the district court erred in failing to apply the federal permanent-injunction standard even though it properly applied Oklahoma trespass law. This is because our jurisprudence distinguishes between matters of right and matters of remedy. The Supreme Court has concluded that “State law cannot define the remedies which a federal court must give” and that “a federal court may afford an equitable remedy for a substantive right recognized by a State even though a state court cannot give it.” Guaranty Trust Co. of N.Y. v. York , 326 U.S. 99, 105 (1945). Thus, the practice of borrowing state rules of decision does not apply with equal force to determining appropriate remedies, especially equitable remedies, as it does to defining actionable rights.
Moreover, applying the federal permanent-injunction standard differs
significantly from applying the federal common law of trespass. As explained,
federal courts lack a body of federal trespass law to protect the Allottees’ federal
property interests. So applying federal trespass law would require our court to
construct rules entirely of this court’s creation. We accordingly borrow a body of
well-developed state law to the extent it does not conflict with federal policy.
These same considerations are not present when seeking to apply federal equitable
remedies, however. Applying federal remedial law does not require this court to
create federal common law or even to “fill the interstices of federal remedial
schemes” with the court’s own rules.
See Kamen
,
This is because the federal judiciary already has a well-developed body of
law regarding equitable remedies to guide judicial discretion. The Supreme Court
has repeatedly weighed in on the standard federal courts apply when granting or
denying a permanent injunction.
See, e.g.
,
eBay Inc. v. MercExchange, L.L.C.
,
547 U.S 388, 391 (2006);
Amoco Prod. Co. v. Vill. of Gambell, AK
,
Thus, a federal district court’s decision to permanently enjoin a continuing
trespass on allotted land should take into account (1) whether an injunction is
necessary to prevent “irreparable harm,” (2) whether “the threatened injury
outweighs the harm that the injunction may cause” to the enjoined party, and (3)
whether the injunction would “adversely affect the public interest.”
Kitchen v.
Herbert
,
The Allottees’ attempts to escape this conclusion do not persuade us. First, they argue the district court did not, in fact, apply a simplified rule. Instead, they *29 claim the court merely applied the usual rule to simplified facts. See Aple. Br. 35–38. But we see little support for this reading. The court below made no mention of the appropriate equitable considerations. Indeed, it went to great lengths to justify its analysis as legally, rather than just factually, appropriate.
Second, the Allottees invite us to affirm the district court
even if
it applied
incorrect law, claiming the record clearly warrants relief regardless.
See
Aple.
Br. at 38–41. But though—as we have already noted—we may generally affirm a
district court order on any sufficient grounds the parties have had an opportunity
to brief,
see Champagne Metals
,
Moreover, if we did endeavor to balance the equities ourselves, we would
not get very far. As the above makes clear, the sheer right to exclude simply
*30
cannot begin and end the equitable analysis.
Cf. eBay
,
In sum, we must remand the decision to the district court to weigh the equities in the first instance. [10]
III. Conclusion
For the reasons stated above, we AFFIRM the district court’s grant of summary judgment to the Allottees, REVERSE the entry of the permanent injunction, and REMAND for further proceedings.
*31 17-6088, Davilla v. Enable Midstream Partners
HARTZ , Circuit Judge, concurrence and partial dissent:
Except in one respect, I am pleased to join Chief Judge Tymkovich’s opinion. Where I differ from the panel opinion is that I would apply the state law of Oklahoma, rather than federal law, to determine the remedy for Enable’s trespass. Because the panel opinion covers the ground so well, my discussion can be relatively brief.
The dispute in this case concerns about 1300 feet оf natural-gas pipeline that is part of a 100-mile pipeline between Canute and Cox City, Oklahoma, which in turn is part of a broader 2200-mile pipeline system within Oklahoma. Plaintiffs’ claim is that this quarter-mile pipeline segment trespasses property held in trust for them by the United States. Because of the interest of the federal government, federal law governs. But there is no applicable federal trespass statute, so we decide this case as a matter of federal common law. As a general rule, federal common law regarding interests in real property adopts the law of the state where the property is located. See United States v. Turley , 878 F.3d 953, 956–57 (10th Cir. 2017). Transactions can be handled more expeditiously and with greater confidence when the government’s counterparty knows it can rely on the local law with which it (or its attorney) is familiar.
The dispute before us, however, does require some consideration of federal statutory law. Easements for rights-of-way over what can be described, roughly speaking, as Indian lands must comply with 25 U.S.C. §§ 323–28, which set forth how consent to a right-of-way must be obtained, ordinarily through approval of the majority ownership interest of the known property owners (or tribal officials, if the land is tribal *32 land), see id. at § 324. The easement for the pipeline in this case explicitly cites to those statutory provisions. Much of the panel opinion, with which I fully agree, explains why we believe that such consent had lapsed for the pertinent portion of Enable’s easement.
But consent is only one element of a trespass claim. For the other elements, Oklahoma law governs. That choice of law makes particularly good sense here. The record does not show how much of the 100-mile pipeline or the 2200-mile pipeline system crosses land held in trust by the United States and how much of it crosses land that is privately owned. But all of it is within Oklahoma, and surely it facilitates commerce to have a single legal regime govern what happens when a pipeline crosses land without the owner’s consent. Thus, this panel unanimously agrees that Oklahoma law governs the requirements of notice and demand to the trespasser.
Where I depart from the majority is regarding the law governing whether a permanent injunction should issue. In my view, we should continue to apply Oklahoma law on that issue. As one leading treatise has stated, “Rights and remedies are closely interrelated concepts; to deviate from the state’s definition of the latter often also would change the former.” Wright & Miller § 4513 at 567. That statement appears in a discussion of the Erie doctrine, explaining why in diversity cases federal courts should ordinarily look to state law in determining what remedy is appropriate, even when considering equitable remedies. But the point applies here as well. Once the federal court has decided that federal common law should incorporate state law regarding a cause of action, the same considerations should ordinarily counsel in favor of incorporating state law regarding the remedies available for that cause of action.
2
The majority believes that there are good reasons not to follow that approach here.
The panel opinion states that there is “‘a distinct need for nationwide legal standards’”
with respect to the remedy in this case. Maj. Op. at 25 (quoting
Kamen v. Kemper Fin.
Servs., Inc
.,
I am not persuaded. There is certainly a federal interest in uniform national
application of the federal statutes that govern whether there has been valid consent to an
easement over Indian land. But once, as here, it has been determined that there has not
been compliance with the statute, that interest in uniformity has been served. We begin
with a “‘presumption that state law should be incorporated into federal common law.’”
United States v. Turley
,
I see no reason why local law should not determine what consequences flow when the former beneficiary of an easement loses its rights to the easement. The district court construed Oklahoma law as giving the victim of a continuing trespass an automatic right to obtain an order requiring the trespasser to remove the offending property. In the circumstances here, that means that Enable must remove its pipeline. What that amounts to in practice—since removal of the pipeline apparently would not benefit the landowners —is that the landowners have increased bargaining power in determining what Enable
3
must pay to continue the easement. This is an inherent and important component of the substantive rights provided to Oklahoma property owners. The purposes behind the federal statutes at issue here relate only to providing a reasonable mechanism for obtaining consent to an easement from Indian landowners. They say nothing about how much bargaining power landowners should have in negotiating with those seeking easements. In colloquial terms, the federal government has no dog in that fight. This is not a case, for example, where the easement was granted under a federal condemnation statute. In that circumstance the federal interest in having a pipeline cross the property might weigh against requiring the former easement holder to remove the pipeline from the burdened land. But in the present circumstance there is no such federal interest. Why should remedial rights of Indian landowners be different from those of other landowners who granted easements to Enable for the same pipeline? In particular, why should the Indian landowners have less bargaining power to negotiate a new easement price than do the other landowners, who can rely on Oklahoma state law when Enable trespasses on their land?
I acknowledge that there is problematic language in
Guaranty Trust Co. of N.Y. v.
York
,
4
permanent injunction”). I would refrain from incorporating the difficulty of Guaranty Trust into federal-common-law doctrine when that doctrine appears to provide the means to resolve the issue before us.
Also, I respectfully disagree with the panel opinion’s view that this case is
governed by Supreme Court authority governing the availability of permanent injunctions
as a remedy for federal statutory claims, as in
eBay Inc. v. MercExchange, LLC
, 547 U.S.
388, 391 (2006) (infringement suit under the Patent Act);
Amoco Prod. Co. v. Vill. of
Gambell, AK
,
I hesitate to dissent from what I consider to be a fine opinion. But we are plowing new ground here, and I think it useful to express some of the considerations that may counsel a different approach.
5
Notes
[1] The Allottees have also filed a motion for partial dismissal of this appeal, asserting that we lack jurisdiction over one of the interlocutory orders issued below. The merits briefing makes clear, however, that Enable does not appeal the order in question. We therefore DENY the motion as moot.
[2]
Nahno-Lopez
also concerned an alleged trespass on Indian allotted land.
See
[3] Of course, “[t]here is no federal
general
common law.”
Erie R.R. Co. v.
Tompkins
,
[4] The Allottees’ have contested the continued validity of these fourteen-year-old forms. See Aple. Br. at 32–33. We assume their validity for the sake of argument.
[5] For that matter, the complaint filed in district court acted as a demand for removal.
[6] The
Milner
court applied the Restatement (Second) of Tоrts under the
somewhat ambiguous reasoning that both federal precedent and borrowed
precedent from the State of Washington supported that application.
See United
States v. Milner
,
[7] The Allottees contend Enable forfeited this argument by failing to raise it below. See Aple. Br. at 34–35. Our review of the briefing below, howеver, reveals that Enable did not acquiesce to the Allottees’ proposed automatic- injunction rule and instead argued for the typical four-factor analysis.
[8] Where a refusal to remove a permanent structure effects the invasion of real
property, it constitutes a “continuing trespass” under Oklahoma law.
Fairlawn
Cemetery
,
[9] We acknowledge that our circuit’s articulation of the rule differs slightly from
that of the Supreme Court in
eBay
.
Compare Kitchen
,
[10] As a result, we do not reach Enable’s challenge to the district court’s compliance with Rule 52 of the Federal Rules of Civil Procedure. See Aplt. Br. at 28–30.