A Ponca City dentist got the green light Feb. 22 to appeal a judicial decision that overruled several of his arguments aimed at blocking a water pipeline across the northern edge of his land, including a claim that the City of Enid is illegally exercising its power to condemn land for the benefit of the Osage Nation.
James Merrifield owns 198 acres that would be traversed by the 36-inch water pipeline from Kaw Lake to Enid. About three acres total would be taken for a permanent easement, and special commissioners awarded the dentist $47,700 for that loss.
In May 2021, the Osage Nation and Enid executed a “forbearance agreement” in which the Nation was paid $1 million to essentially stand down on its press to assert its water rights on the Arkansas River.
The Nation objected to the Enid water pipeline project as a violation of those rights, but to avoid litigation struck the agreement in exchange for the payment as well as two “service access points,” installed at Enid’s expense, from which the Nation could potentially draw up to 8 million gallons of water a day from Kaw Lake near the old Braden school and McCord.
“Enid is unlawfully exercising its Constitutionally-authorized eminent domain authority on behalf of a third party which does not itself have eminent domain authority,” Merrifield’s lawyer, Brad Hilton, argued.
“By entering into said Agreement, Enid has authorized and allowed the Osage Nation to essentially access, utilize and take [Merrifield’s] property, without any lawful authority to do so, and without any notice or due process protections.”
A litany of issues
Merrifield also is appealing other rulings by Osage County District Court Judge Stuart Tate, including:
- The novel argument, for a non-Indian, that the three acres the pipeline would consume Merrifield’s 198 acres is on the Osage Reservation and therefore any condemnation should go through federal, not state, court;
- That the pipeline construction would require a mining permit from the Osage Minerals Council and United States, or it would be at odds with the 10th Circuit Court of Appeals ruling in the legal battle over the Osage Wind development near Burbank that is a subsidiary of the Italian electricity giant Enel;
- That the entire condemnation procedure is unconstitutional because it consists of a city in Garfield County exercising jurisdiction over land in Osage County, three counties removed; and
- That Enid has enough water and is building the pipeline to benefit not the public but the Osage Nation and Koch Industries, which has a fertilizer plant on the Enid water system.
Enid: Project moves ahead, or post $7 million bond
Danny Williams, the attorney for Enid and the former U.S. Attorney for the Northern District of Oklahoma, said that Enid had no objection to the appeal but added that his client also had the right to move forward with the project given that Tate has already issued rulings in the case settling the issues being litigated in the city’s favor.
“In essence, they can appeal without posting bond, but we have the right to continue with the project on that property,” Williams said.
To continue to block the project, Williams said, Merrifield should have to post a bond equaling the damages that Enid would incur as an appeal unfolds. Williams said Enid would have to pay its contractor $4,790 a day for such a delay, or almost $1.75 million a year. Bonds are usually for double the amount of damages, Williams added, jacking the estimate up to almost $7 million if the appeal takes two years.
Merrifield’s attorney, Brad Hilton of Skiatook, countered that Williams’ estimate was “bizarre” and improper.
“If the court doesn’t allow the stay to continue, then the damage is already done before the appellate court reviews the matter,” Hilton said. “Staying this little piece really won’t have any bearing that would stop the whole thing. They’ve got 70 miles of pipeline that they can build on.
“The damage would be done and if the appellate court finds that this was unconstitutional or improper, obviously it would be a bad thing for the city – it’s going to be a lot worse removing a 36-inch pipeline off my guy’s property.”
Retorted Williams: “We know we’re taking a risk. I’m not trying to bamboozle anyone here. The law says that you have to post a bond.”
Judge Tate ultimately removed a 2020 order barring Enid from entering Merrifield’s property, effectively allowing work to proceed unless Merrifield files a new motion to stop construction on his land, at which point a bond could be set.
McGirt case cited
In his ruling that set off the appeal, Tate found no legal substance to Merrifield’s arguments. The judge heard four days of testimony about the issues in December and early January.
The first issue raised was based on the McGirt v. Oklahoma case that went to the U.S. Supreme Court. McGirt established that Oklahoma does not have jurisdiction on the historical Muscogee (Creek) Nation reservation to try criminal defendants in cases where the defendant is Native American and the crime occurred on Creek land. The reason: The reservation was never formally disestablished by U.S. Congress. (The ruling was later expanded by Oklahoma courts to include the reservations of the other four Civilized Tribes.)
While Merrifield’s land is on what was the Osage Reservation – and the Nation maintains remains the Osage Reservation – that is irrelevant to the case, Tate ruled.
“Merrifield has not produced evidence he is an Indian of a federally recognized tribe or that he has some quantum of Indian blood …” Tate wrote. “Merrifield has not alleged or shown his real property is subject to tribal or federal superintendence. Federal jurisdiction and federal procedure regarding condemnation would not be involved regardless of reservation status is this case.”
OMC authorized pipeline
As for needing Minerals Council and federal approval to build the pipeline due to the rulings in the case the council pursued against Enel over the wind project at Burbank, Tate also found Merrifield’s arguments without merit.
Since Merrifield has no subsurface rights – the Nation does – he has no standing to make the argument, Tate ruled.
To boot, the Minerals Council granted a waiver allowing the pipeline project to proceed, so Merrifield’s argument is moot, Tate wrote.
In the Enel case, the Minerals Council had never issued a waiver and in fact fought tooth and nail to stop the wind farm from being built.
Benefitting private parties?
Merrifield also argued that Enid is unlawfully using its power of eminent domain to make money by “peddling water” to the Koch Industries and the Osage Nation at Merrifield’s expense.
“Any benefits to the public from the proposed water pipeline are merely incidental to the benefits of Koch Industries, the Osage Nation, and other third-party entities who may purchase water from Enid,” Hilton wrote.
Tate, however, found that Enid was within its legal rights not only to seek water from three counties distant, but that the city had presented evidence about its future water needs.
The city has water studies dating back to 2009 that conclude the existing water supply, drawn from aquifers, will eventually be insufficient, and that alternative supplies will be needed.
While Koch is a major consumer of water, it is not the only consumer, Tate added: Enid sells water to other towns and cities as well as to Vance Air Force Base. As well, no evidence was ever produced suggesting that Koch – or the Osage Nation – had paid for any part of the pipeline that Enid is building or that the water was exclusively to be used by either or both of them.
“The City of Enid followed mandated legislative steps to authorize the project, the project is funded through the Oklahoma Water Resources Board, and Enid has pursued right-of-way acquisition,” Tate noted. “There is no evidence that Koch or any other entity or individual is either improperly or unlawfully participating in the pipeline project.”
Additionally, he noted, Enid’s agreement with the Osage Nation was borne out of the fact that the tribe is claiming ownership of the bed, the banks and the water of the Arkansas River, a claim with which Enid disagrees.
“The agreement,” Tate wrote in his Feb. 7 order, “avoids litigation of the opposing legal claims, protracted delay, and contains contractually binding terms with consideration. “It is analogous to the purchase of a necessary right-of-way without resorting to condemnation.”