# Opposition Brief — Southern Union Co. v. Jicarilla Apache Tribe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2328%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 970 ## Text Supreme Court, U.S. FILED Nos. 86-225 SEP 17 1008 86-219 ~ JOSEPH F. SPANIOL, JR, 86-224 nacht Sy IN THE Supreme Court of the Gnited States OCTOBER TERM, 1986 SOUTHERN UNION COMPANY, UNICON PRODUCING COMPANY, SOUTHLAND ROYALTY COMPANY, and EXXON CORPORATION, Petitioners, V. JICARILLA APACHE TRIBE, DONALD P. HODEL, Secretary of the United States Department of the Interior, and STATE OF NEW MExiIco, Respondents. On Petition For a Writ of Certiorari To The United States Court of Appeals For The Tenth Circuit BRIEF IN OPPOSITION OF RESPONDENT JICARILLA APACHE TRIBE ROBERT J. NORDHAUS B. REID HALTOM NORDHAUS, HALTOM, TAYLOR & TARADASH 507 Roma N.W. Albuquerque, New Mexico 87102 Tel: 505-243-4275 Counsel for Respondent Jicarilla Apache Tribe OE A TT STAT ARE AR AR AGN I he PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 r.' QUESTIONS PRESENTED Petitioners have presented eleven different ques- tions in four separate Petitions for a Writ of Certiorari. Respondents submit, however, that the real issues are the following: 1. Whether the Secretary made an earlier admin- istrative determination of value or had in fact merely accepted the Petitioners’ royalty payments without review or audit. 2. Whether the Secretary’s determination that dual accounting was required was reasonable and in ac- cordance with the Secretary’s fiduciary obligation. 3. Whether the Secretary’s interpretation of the regulations and his requirement of an accounting by the Petitioners involves an important question of fed- eral law warranting consideration by this Court. ii LIST OF PARTIES In order to clarify the relationship of the partie at the times pertinent to this case, Respondent set forth the following relationships of the parties thi have existed during the periods the leases were ei tered into and amended and during the periods tl gas purchase contracts in suit were executed by tt parties. The predecessor of Southern Union Company w: Southern Union Gas Company. Gas Company of Ne Mexico was the operating division in New Mexico Southern Union Gas Company. As set forth in ot 2 on page 6 of Southern Union Company’s (SUS brief, Southern Union sold substantially all of the ) sets of Gas Company of New Mexico (GCNM) to Pr" lic Service Company of New Mexico (PNM). Su claims that as part of that sale, SUG retained cert: liabilities including liability up to date of sale for : ditional royalties which may be assessed in this I. gation. SUG does not state what the disposition wor, be of royalties held by the District Court in escr or additional royalties paid to the Tribe since ju ment and reimbursed to the producing companies? SUG. Counsel for SUG has advised counsel : ‘ ‘ . 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App. Vol. VII, A-1297-1301) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO THE JICARILLA APACHE TRIBE, Plainttff, Vv. No. —— Civil SOUTHERN UNION GAS COMPANY, a Delaware corporation, et al., Defendants. STIPULATION FOR SETTLEMENT Come now the Plaintiff, The Jicarilla Apache Tribe, an Indian Tribe organized and incorporated under the laws of the United States of America, (the ‘‘Tribe’’), Defendant Gas Company of New Mexico, a division of Southern Union Gas Company, a Delaware corporation, (formerly Southern Union Gas Company), (““GCNM”’’), and Defendant Southern Union Gathering Company and hereby stipulate and agree as follows: 1. The Tribe and GCNM have entered into a Settlement Agreement, a Royalty Gas Gathering Agreement and a Royalty Gas Purchase Contract, all of even date herewith settling other matters in dispute between the Tribe and GCNM, which Agreements are incorporated herein by ref- erence. 2. The Jicarilla Apache Tribal oil and gas leases covering Tribal lands in Rio Arriba County, New Mexico, give the 2la Tribe the right to take its royalty gas in kind upon the giving of notice as provided for therein. It is agreed with respect to all of the tribal oil and gas leases on Tribal lands that if and to the extent the Tribe takes its royalty gas in kind, and if and to the extent GCNM may at such time have gathering systems connected to such wells, then subject to the payment of reasonable transportation charges therefor, GCNM agrees to gather and deliver, and to permit the Tribe to take its share of the royalty gas from wells from which GCNM purchases gas at a point on the Tribal reservation lands from the GCNM gathering pipeline system, upon reasonable written notice, which shall be not less than ninety (90) days, from the Tribe to GCNM, any necessary tap, connections and other facilities neces- sary to effect such delivery shall be installed by GCNM at GCNM’s expense, and the Tribe shall provide rights-of- way and other surface rights therefor free of cost to GCNM. The point of delivery to the Tribe shall be at a point on GCNM’s existing gathering system having the pipeline capacity to deliver such royalty gas without con- struction of any additional pipeline or compression facili- ties. 3. GCNM’s performance under the Royalty Gas Gath- ering Agreement with the Tribe is excused until it is es- tablished by a court of competent jurisdiction or by agreement of the parties hereto and the parties claiming otherwise that GCNM has the right to gather and deliver the Tribe’s royalty gas taken in kind. Until such deter- mination has been made, GCNM’s performance under said agreement is subject to the claims of Southern Union Pro- duction Company and other parties having contractual rights to process said gas or to the liquid products derived therefrom. In the event GCNM, Southern Union Company, or any other subsidiary or division of Southern Union Com- pany does not acquire ownership of the Lybrook Process- ing Plant, and/or successfully negotiate contractual arrangements to permit GCNM to gather and deliver the 22a Tribe’s royalty gas taken in kind and to permit the Tribe to process such gas at the point of such delivery, by March 1, 1977, the parties hereto agree to resume negotiations to arrange an alternate method of delivery of the Tribe’s royalty gas. GCNM further agrees to purchase, and the Tribe agrees to sell to GCNM, under the terms of the Gas Purchase Contract of even date herewith, any portion of the Tribe’s royalty gas taken in kind which is in excess of the Tribe’s daily requirements. 4. If the Tribe does not elect to take its natural gas in kind, but a producer selling under a contract to GCNM is ordered by the Court or voluntarily agrees to make ac- counting to the Tribe for its royalty interest on the basis of a net realization method, other liquids method or BTU adjustment method of accounting, then GCNM agrees to cooperate with said producer in furnishing information for such accounting to the Tribe. 5. GCNM shall pay the Tribe within ten (10) days after the approval of this stipulation by the Court and entry of the same as its judgment, the sum of Six Hundred Thou- sand Dollars ($600,000.00) for settlement of all claims made by the Tribe against GCNM and Southern Union Gathering Company in this case and for execution concurrently here- with of an agreement concerning pipeline rights-of-way, facility sites and other surface leases or easements and for agreement that all claims and causes of action of the Tribe against GCNM and Southern Union Gathering Com- pany set forth and alleged in the First Amended Complaint on file herewith are released and discharged and all such claims and causes of action are dismissed with prejudice as to the defendants GCNM and Southern Union Gathering Company. 6. GCNM’s agreement to gather and deliver the Tribe’s royalty gas may be subject to regulations by State or Federal authorities having jurisdiction. To the extent that such State or Federal authorities have jurisdiction, the parties agree that this agreement is subject to such rules 23a and regulations as may be imposed by such authorities. The parties agree to cooperate in seeking any approvals which may be required by such authorities, if any, and to secure the agreement provided for in Paragraph 3 above, to effectuate the intent of this agreement. 7. This Stipulation shall be construed to pertain to all claims of the Tribe against GCNM and Southern Union Gathering Company relating to oil and gas, including rights-of-way matters, accruing to the date of this Stipu- lation. All of said claims merge into this Stipulation and are governed by its terms. 8. All matters in controversy in this case between the Tribe and the Defendants GCNM and Southern Union Gathering Company having been settled, the parties liereto request the Court to enter this Stipulation as its Final Judgment in this case, and the case shall be dismissed with prejudice in its entirety as to GCNM and Southern Union Gathering Company, each party to bear its own costs. Executed this 21st day of October, 1976, in several coun- terparts, each of which shall be considered an original. THE JICARILLA APACHE TRIBE ATYEST: /s/ Barbara Gonzales By /s/ Dale Vigil Secretary Acting President NORDHAUS, MOSES & DUNN By /s/ RoBERT J. NORDHAUS Robert J. Nordhaus Attorneys for The Jicarilla Apache Tribe GAS COMPANY OF NEW MEXICO ATTEST: 24a /s/ Illegible Secretary /s/ JACK HERTZ Jack Hertz Vice President and General Attorney for Gas Company of New Mexico ATTEST: /s/ Illegible Secretary By /s/ W. T. Baumhouse President MONTGOMERY, FEDERICI, ANDREWS & HANNAHS By /s/_ William Federici Counsel for Gas Company of New Mexico SOUTHERN UNION GATHERING COMPANY By /s/_Illegible Vice President MONTGOMERY, FEDERICI, ANDREWS & HANNAHS By /s/ William Federici Counsel for Southern Union Gathering Company 25a APPENDIX K 42 FEDERAL REGISTER 40263, AUGUST 9, 1977 Geological Survey [NTL-5] VALUE OF NATURAL GAS FOR ROYALTY PURPOSES On May 4, 1977, the Geological Survey published in the FEDERAL REGISTER (Vol. 42, No. 86, pp. 22610-22611) its final notice to Lessees and Operators, NTL-5. This Notice sets forth the procedures to be utilized for royalty computation purposes in determining the value of natural gas produced from Federal and Indian oil and gas leases under the jurisdiction of the Geological Survey. Pursuant to a request by the Acting Deputy Commis- sioner of Indian Affairs, the application of NTL-5 to oil and gas leases on the Jicarilla Apache Indian Reservation in New Mexico is hereby suspended for an indefinite pe- riod, effective as of 7 a.m., June 1, 1977. V.E. McKELVEY, Director. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2328%3A3. Public record. Not legal advice.