CaseNo JUN21 _UlU (Consolidated With , , ) MICA'iA[=L _, I'_I(JHIE I CLERK IN THE SUPREME COURT. for Plaintiff/Appellee:

Transcription

1 CaseNo El'ATE OF O(LAHOMA JUN21 _UlU (Consolidated With , , ) MCA'iA[=L _, '_(JHE CLERK N THE SUPREME COURT i OF THE STATE OF OKLAHOMA - SENECA TELEPHONE COMPANY, Plaintiff/Appellee, v. MAM TRBE OF OKLAHOMA, d/b/a WHTE LOON CONSTRUCTON COMPANY, i Defendant/Appellant. i APPELLEE'S ANSWER BREF Appeal from the District Court of Ottawa County Case No. SC (Consolidated Case)! The Honorable William E. Culver, Special Judge Counsel for Plaintiff/Appellee: Michael T. Torrone, O.B.A. #21848 Donna L. Smith, O.B.A. #12865 Leonard M. Logan, V, O.B.A. #11129 m LOGAN & LOWRY, LLP 101 South Wilson Street P. O. Box 558 Vinita, OK (918) Attorneys for Plaintiff/Appellee Seneca Telephone Company l:

2 Case No (Consolidated With , , ) N THE SUPREME COURT OF THE STATE OF OKLAHOMA SENECA TELEPHONE COMPANY, Plaintiff/Appellee, MAM TRBE OF OKLAHOMA, d/b/a WHTE LOON CONSTRUCTON COMPANY, Defendant/Appellant. V APPELLEE'S ANSWER BREF Appeal from the District Court of Ottawa County Case No. SC (Consolidated Case) The Honorable William E. Culver, Special Judge June 21, 2010 Counsel for Plaintiff/Appellee: Michael T. Torrone, O.B.A. #21848 Donna L. Smith, O.B.A. #12865 Leonard M. Logan, V, O.B.A. #11129 LOGAN & LOWRY, LLP 101 South Wilson Street P. O. Box 558 Vinita, OK (918) Attorneys for Plaintiff/Appellee Seneca Telephone Company

3 NDEX Background Okla. Stat. tit. 63, Summary of the Record... 2 Bittle v. Bahe, 192 P.3d 810 (Okla. 2008)... 7 Cossey v. Cherokee Nation Enterp., 212 P.3d 447 (Okla. 2009)... 7 Kiowa Tribe of Okla. v. Mfg. Technologies, nc., 523 U.S. 751 (1998)... 6 Rice v. Rehner, 463 U.S. 713 (1983) U.S.C. 152(b)... 6 Okla. S. Ct. Rule 1.1 l(k)(1)... 2 Argument and Authorities... 9 PROPOSTON : THE OTTAWA COUNTY DSTRCT COURT PROPERLY EXERCSED SUBJECT MATTER JURSDCTON OVER STC'S ACTONS AND TRBAL SOVEREGN MMUNTY S NOT A DEFENSE TO SUT N THS CASE... 9 A. Standard and scope of review... 9 Bittle v. Bahe, 192 P.3d 810 (Okla. 2008)... 9 Cossey v. Cherokee Nation Enterp., 212 P.3d 447 (Okla. 2009)... 9 Salve Regina College v. Russel, 499 U.S. 225 (1991)... 9 Watson v. Gibson Capital, L.L.C., 187 P.3d 735 (Okla. 2008)... 9 Wetsel v. ndependent School Dist., 670 P.2d 986, 993 (Okla. 1983)... 9 no Employment of the Rice and Bittle preemption analysis results in properly exercised state court jurisdiction in the present case... 9 (i) The tradition of tribal sovereign immunity: Rice v. Rehner... 9 McClanahan v. Az. St. Tax Commn., 411 U.S. 164 (1973) Rice v. Rehner, 463 U.S. 713 (1983)... 9, 10, 1, U.S.C , 11 (ii) Application of the preemption analysis to private tort actions against an ndian tribe: Bittle v. Bahe Bittle v. Bahe, 192 P.3d 810 (Okla. 2008)... 12, 13, 14, 15 (i)

4 i i Kiowa Tribe of Okla. v. Mfg. Technologies, nc., 523 U.S. 751 (1998)... 13, 14 Montana v. U.S., 450 U.S. 544 (1981) Okla. Tax Commn. v. Citizen Band Pottawatomi lndian Tribe of Okla., 498 U.S. 505 (1991) Rice v. Rehner, 463 U.S. 713 (1983)... 12, 13, 14, 15 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) Williams v. Lee, 358 U.S. 217 (1959) Okla. Stat. tit. 37, 9 501, et. seq Okla. Stat. tit. 37, and 537(A)(2)... 12, U.S.C , 15 (iii) Overarching state interest applicable to every preemption analysis Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) Cossey v. Cherokee Nation Enterp., 212 P.3d 447 (Okla. 2009) Montana v. U.S., 450 U.S. 544 (1981) Nevada v. Hicks, 533 U.S. 353 (2001) Rappaport v. Nichols, 156 A.2d 1 (1959) Okla. Const. art., (iv) The facts of the instant case and applicable law lend support to the reasoning of courts which have found tribal sovereign immunity to be no defense to the exercise of state court jurisdiction Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) Rice v. Rehner, 463 U.S. 713 (1983) No tradition of tribal sovereignty or immunity in the realm of underground telecommunication facilities or in excavation causing damage to the same Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Utilities Commn. of S.D., 595 N.W. 604 (S.D. 1999)... 17, 18 Rice v. Rehner, 463 U.S. 713 (1983) Wetsel v. ndependent SchoolDist., 670 P.2d 986, 993 (Okla. 1983) U.S.C , The goal of the congressional plan in enacting The Federal Communications Act, Title 47 U.S.C et. seq. was to delegate to the states authority to regulate all intrastate communications Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) (ii)

5 ! Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Utilities Commn. of S.D., 595 N.W. 604 (S.D. 1999) Conn. Natl. Bank v. Germain, 503 U.S. 249 (1992)... 20,21 N.C. Util. Commn. v. FCC, 552 F.2d 1036, (4 _ Cir. 1977) U.S.C. 221(a) U.S.C. 152(b)... 19, 20, 21 Okla. Const. art. X, Okla. Stat. tit. 17, Oklahon_a's interest in regulating communications within its borders and its enactment of a statutory scheme to further such interest Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994)... 22, 23 Rice v. Rehner, 463 U.S. 713 (1983) Tate v. Browning-Ferris, nc., 833 P.2d 1218 (Okla. 1992) Okla. Stat. tit (15) and 142.9a(B) U.S.C. 152(b) , 23. Bittle mirrors Seneca Telephone Company v. Miami Tribe of Oklahoma d/b/a White Loon Construction Company Bittle v. Bahe, 192 P.3d 810 (Okla. 2008)... 23, 24 Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994) Kiowa Tribe of Okla. v. Mfg. Technologies, lnc., 523 U.S. 751 (1998) Consideration of Oklahoma's overarching interest to provide access to state courts Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) Cossey v. Cherokee Nation Enterp., 212 P.3d 447 (Okla. 2009) Finding of proper state jurisdiction extinguishes attorneys' fees and costs issue Okla. S. Ct. Rule l.ll(k)(1) Appellants relied on misleading and inapplicable case law in their Brief-in-Chief and have asserted arguments that should not be considered by the court Essence, nc. v. City of Federal Heights, 285 F.3d 1272 (10 _ Cir. 2002) lndep. School Dist. No. 9 of Tulsa Co. v. Glass, 639 P.2d 1233 (Okla. 1982) (iii)

6 ,! PROPOSTON h APPLYNG NEGLGENCE PER SE, DETERMNNG VOLATON OF A DUTY, AND DETERMNNG EXTENT OF DAMAGES ARE ALL MATTERS FOR THE FACT FNDER AND THE OTTAWA COUNTY DSTRCT COURT WAS NOT "CLEARLY ERRONEOUS" N AWARDNG JUDGMENT TO STC A. Standard and Scope of Review... 26, _ B. Anderson v. Bessemer City, 470 U.S. 564 (1985) U.S.v. De la Cruz Tapia, 162 F.3d 1275 (10 _ Cir. 1998) The application of negligence per se and contributory negligence is a matter for the fact finder and the District Court was not clearly erroneous in declining to apply the same Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994)... 27,.28 Okla. Const. art. XX, 6 27 Ct Determining that the Appellants breached a duty owed to STC is a matter for the fact finder and the District Court was not clearly erroneous in finding the Appellants breached the duty Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994) Leak v. Fahle, 55 P.3d 1054 (Okla. 2002) Wetsel v. ndependent SchoolDist., 670 P.2d 986, 993 (Okla. 1983) Okla. Stat. 63, 149(a)(B) D. Determination as to amount of relief or damages is a question of fact Complete Auto Transit, nc. v. Reese, 425 P.2d 465 (Okla. 1967) Okla. Stat. tit. 23, Conclusion (iv)

7 ! APPELLEE'S ANSWER BREF Background This appeal results from four separate lawsuits filed in Ottawa County District Court by Seneca Telephone Company ("STC") against the Miami Tribe d/b/a White Loon Excavation Company (collectively "Appellants") to recover damages to underground facilities. Between December 4, 2007 and February 3, 2009, Appellants committed four negligent acts damaging STC's telephone lines. Appellants' egregious behavior towards STC's property is evidenced by the severing of the exact same telephone cable (STC Line B) on three occasions within two years. Appellants also showed a complete indifference to a particular telephone cable that was uncovered by Appellants' excavators, observed by Appellants' agents, and then severed without waiting for STC to identify the line or relocate the same. Appellants failed to notify STC of planned excavation in all four cases. Appellants appeal the trial court's: (1) failure to grant their motion to dismiss for lack of subject matter jurisdiction based on tribal sovereign immunity; (2) failure to apply negligence per se against STC; (3) finding that Appellants breached a duty to STC; and (4) granting "extraordinary" relief to STC, contrary to the type of relief contemplated by the Underground Facilities Damage Prevention Act codified in Okla. Stat. tit et. seq. ("UFDPA"). Upon examination, proposition of error (1) above is a legal issue ripe for a de novo review and propositions of error (2), (3), and (4) above are fact issues to be reviewed using the "clearly erroneous" standard. Appellants do not claim error in the admission of or failure to admit evidence. Appellants do not claim error regarding the reasonableness of the award of attorney's fees and costs. The only proposition of error related to attorney's fees is based on the District Court's ruling on Appellants' reassertion of their immunity defense during the attorney fee Page 1

8 l -,q, hearing. Appellants challenged the trial court's decision in all four cases, and all four cases were consolidated into case no for review by this Court. Summary of the Record STC's Summary of the Record is submitted to supplement or correct inaccuracies in Appellants' summary and is as follows: 1. STC is a utility company licensed to do business in Oklahoma and operates under the authority of the Oklahoma Corporation Commission ("OCC"). STC provides telecommunications to individuals and corporate entities in Ottawa County, Oklahoma, partly through a network of underground telecommunication facilities. One of STC's prominent customers in Ottawa County is the Eastern Shawnee Tribe of Oklahoma ("EST"). STC provides telephone services to a travel plaza, social services center, gaming casino, and housing subdivision ("Consumer Facilities") owned by EST. 'Trial Tr., June 18, 2009 at 6-7, 40, 57, The Miami Tribe is a federally-recognized ndian tribe and White Loon is an excavation company partly owned and operated by Miami Tribe. n 2007 and 2008, EST hired White Loon to perform excavation and construction activities at or near EST's Consumer Facilities. Trial Tr., June 18, 2009 at 6; Trial Tr., July 17, 2009 at On December 4, 2007, Appellants damaged underground STC telephone line B while performing excavation activities. The STC telephone line services the Consumer 1 This citation is based on Okla. Sup. Ct. R (j)(1), but transcripts are referenced by date rather than volume due to the fact that the trial took place over two days a month apart. Page 2

9 ! li i! i Facilities owned by EST. Line B was clearly marked by pedestals 2 bearing visible warning labels alerting excavators to the presence of buried cable in the vicinity. Damage to line B caused Consumer Facilities to lose telephone service for a period of time. STC's cost in repairing the line totaled $5, Appellants, having prior knowledge of STC's lines on the property, failed to notify STC of excavation activities prior to commencing work and did not afford STC with an opportunity to mark or relocate its lines. Trial Tr., June 18, 2009 at 7-8, 27-30, 39-41, 50-52, 108, ; Def's Mot. to Dis On August 4, 2008, Appellants again damaged underground telephone line B while performing excavation activities for EST. The damage site was in close proximity to the first severing of STC line B occurring on December 4, This line provides telecommunications to the EST social services building. Line B was clearly marked by pedestals that contained visible labels warning excavators of the line's existence. Damage to line B caused the Consumer Facilities to lose telephone service for a period of time. STC's cost in repairing the line totaled $4, Appellants again failed to notify STC of forthcoming excavation activities prior to commencing work. Trial Tr., June 18, 2009 at 52-57, ; Trial. Tr. July 17, 2009 at 60, On August 11, 2008, Appellants damaged underground telephone line while performing excavation activities for EST. Prior to severing the line, Appellants uncovered the cable and requested a STC agent travel to the location to identify the line. Upon Mark 2 Pedestals are green boxes approximately tall used for the maintenance ofburied eables. Pedestals also mark the presence of buried lines. Trial Tr., June 18, 2009 at 39; Trial Tr., July 17, 2009 at Appellants submitted three different motions to dismiss containing identical language in the three pending small claims actions. For the sake of brevity and clarity, this brief references all pleadings filed by the parties in case SC unless otherwise stated. Page 3

10 , Wyrick's, STC agent, ("Wyrick") arrival on the scene, he noticed the line was cut and Appellants continued excavating without waiting for Wyrick to identify the line. This telephone line serviced the EST housing subdivision.. Line was clearly marked by a pedestal bearing the'aforementioned warning labels. Damage to line caused residents of the housing subdivision to lose service for a period of time. STC's cost in repairing the line totaled $1, Appellants failed to notify STC of excavation activities prior to commencing work and did not afford STC with an opportunity to mark or relocate its lines. Trial Tr., June 18, 2009 at 58-61,114-15; Trial Tr., July 17, 2009 at 60, On November 3, 2008, STC filed three Small Claims Affidavits in the Ottawa County District Court for each incident described above. The Affidavits requested the full amount of damage caused to line B and line and each stated that"defendant owes Plaintiff... for negligently and willfully damaging Plaintiff's property when said Defendant's agents and employees dug through an underground telephone line." Mitchell's Aff.'s, SC , SC , SC , Nov. 3, Appellants subsequently filed a motion to dismiss for lack of subject matter jurisdiction alleging that tribal sovereign immunity barred the District Court from proceeding further. Specifically, the Appellants contended that "ndian tribes enjoy the same immunity from suit enjoyed by sovereign powers and are 'subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.'" Further, Appellants argued that '_o abrogate tribal immunity, Congress must unequivocally express that purpose and to relinquish its immunity, a tribe's waiver must be clear." Appellants argued that there was no express congressional authorization waiving or abrogating tribal sovereign immunity with regard to the pending lawsuits and that Appellants had not waived said immunity. Def.'s Mot. to Dis. at 1-3. Page 4

11 ! i! il 8. STC based its response by mirroring recent Oklahoma Supreme Court decisions arguing that: (1) there was no tradition of tribal sovereign immunity governing the matters giving rise to the lawsuit and (2) that Congress authorized suit and that express abrogation was not necessary when employing the proper preemption analysis balancing federal/tribal interests against state interests and that such analysis should afford little weight to tribal sovereign immunity. Pl.'s Resp. to Def.'s Mot. To Dis. at On February 3, 2009, with three lawsuits pending and before the hearing on Appellants' motion to dismiss, Appellants again damaged line B while excavating. n fact, Appellants damaged this cable less than a 100 feet from where it cut the same line on August 4, This line provides telecommunications to the EST social services building. Line 15-03B was clearly marked by a pedestal bearing visible labels warning excavators of the line's existence. Damage to line B again caused the Consumer Facilities to lose telephone service. STC's repair costs totaled $3, Appellants called STC to locate line B prior to excavation, but subsequently removed the concrete containing the locate markings and then failed to notify STC of further excavation activities and did not afford STC with an Opportunity to mark or relocate its lines. Trial Tr., June 18, 2009 at 62-66, 96, 100, ; Trial Tr., July 17, 2009 at 60, On February 10, 2009, the District Court heard oral argument on Appellants' motion to dismiss. Appellants asserted their position regarding need for express congressional authorization for suit or clear waiver of immunity by the tribe. Appellants further stated that:... [T]he ease should be heard in the Court of ndian Offenses. So, the Plaintiff is not without recourse in this matter, not withstanding the issue of sovereign immunity that there could be a Court that would hear this under the Court of ndian Offenses regulations, things of this nature could be brought in that Court. Page 5

12 am saying, and can't represent to the Court that if this case were to be heard in the Court of ndian Offenses, that the Tribe would come in and not assert sovereign immunity as well, because sovereign immunity applies in Tribal Court, but rather than the State Court, the Court of ndian Offenses would be a more proper forum for this matter to be heard. Appellants, in response to Court inquiry, stated that state courts do not possess jurisdiction in the particular matter, that Congress does not expressly authorize suit or allow the states to regulate ndian tribes in excavation or telecommunications, and admitted that Tribal courts do not have authority to hail non-members, STC, into ndian courts. Appellants did however acknowledge that the United States and the Oklahoma Supreme Courts have employed a preemption analysis to balance federal/tribal interest and state interests and considering whether to afford tribal sovereign immunity any weight in the analysis when there is not tradition of the same in a particular area. Appellants relied heavily on Kiowa Tribe of Oldahoma v. Manufacturing Technologies to support their contentions. 523 U.S. 751 (1998). STC argued that the Appellants' reliance on Kiowa was misplaced as the current matter involved an action grounded n tort and not in contract. STC addressed the right for Oklahoma citizens to seek redress for injuries in state court and the importance of state court jurisdiction. STC contended that there was no tradition of tribal sovereign immunity in the area of excavation as it relates to underground facilities. Further, where no tradition exists, an ndian tribe cannot use sovereign immunity as a defense to a lawsuit filed in state court. STC also argued that Congress authorized suit against Appellants by enacting 47 U.S.C. 152(b), which delegated to the States the authority to regulate telecommunications within an individual State's borders. Moreover, STC argued that the Oklahoma legislature adopted the UFDPA to ensure that telecommunication facilities were protected for the public good. STC asserted that ndian tribes do not have the authority to regulate in the realm of Oklahoma telecommunications or public Page 6..._:;_.,, _,.i... :

13 i utilities. Consequently, ndian tribes also lack adjudicatory authority in this area. Arguing that the trial court should deny Appellants' motion to dismiss, STC relied on Bittle v. Bahe, 192 P.3d 810 (Okla. 2008); Rice v. Rehner, 463 U.S. 713 (1983); and Cossey v. Cherokee Nation Enterprises, 212 P.3d 447 (Okla. 2009). Tr. Hearing on Mot. to Dis. at 6-12, The District Court denied the motion to dismiss for lack of subject matter jurisdiction adopting STC's position. On March 17, 2009, STC filed the fourth Small Claims Affidavit against the Appellants for damages caused on February 3, 2009, and the four cases proceeded to trial. Appellants stipulated to causing all of the damage resulting in the four lawsuits, but denied breaching any duty owed to STC. Order with Findings of Fact & Conclusions of Law, Mar. 3, 2009; Mitchell Aft., Mar. 17, 2009; Trial Tr., June 18, 2009 at STC presented evidence at trial in the form of testimony and exhibits showing that Appellants knew or should have known that STC had telephone lines running underground on EST property. Evidence also showed that there were clearly visible pedestals indicating the location of STC telephone lines. Further, testimony was offered to prove that after the first incident of damage, Appellants had actual notice of lines running underground. STC agents testified that Appellants did not properly notify the STC office to warn of excavation activities. Moreover, Appellants' witness testified that the Oklahoma OneCall System ("OneCall")" records did not show any calls made by Appellants around the dates in question. STC argued that Appellants breached the duty created by the UFDPA charging excavators to take measures to protect underground facilities and the common law duty to avoid injuring STC's property. STC 4OneCall is a statewide notification center providing requesting excavators with the locations of underground facilities. Page 7

14 further presented evidence of damages for each case and requested relief in the amount of $14, Trial Tr., June 18, 2009 at ; Trial Tr., July 17, 2009 at The District Court considered evidence presented by both parties and determined that UFDPA creates a duty to protect underground facilities. The District Court acknowledged -.. that UFDPA_ does not provide a sanction for an operator or remedy for an excavator if an operator fails to register with OneCall, and that Appellants never called OneCall before excavating around the time of damage. Moreover, the District Court opined that Appellants owed a common law duty to excavate using a reasonable standard of care. The court found that it was clear from the evidence that Appellants had actual notice of STC telephone lines in the areas of question prior to the dates damage occurred. Further, the court acknowledged the existence of light green pedestals clearly visible on and near EST property that contained yellow warning labels. The trial court when discussing the existence of the pedestals stated "[t]hat in and of itself should also provide notice to a contractor, or an excavator that there are buffed lines in the area and they now have an affirmative duty to locate those lines before they go moving dirt, cutting holes in the ground." The District Court in essence found that Appellants breached the aforesaid common law duty to use reasonable care while excavating. The District Court awarded STC $13, in damages. The judgment was $600 less than STC's request for relief as the court required a reduction in the award related to the first incident of damage because STC had performed an upgrade to undamaged lines. Trial Tr., July 17, 2009 at Upon application, the District Court held a hearing to determine the appropriateness of STC's request for attorney's fees and reasonableness of said fees. The court entered an order granting STC $34, in attorney's fees. Page 8

15 l Pl.'s Br. in Support of App. For Atty.'s Fees 1-2; Order Granting Pl.'s Atty. Fees 5. ARGUMENT AND AUTHORTES PROPOSTON : THE OTTAWA COUNTY DSTRCT COURT PROPERLY EXERCSED SUBJECT MATTER JURSDCTON OVER STC'S ACTONS AND TRBAL SOVEREGN MMUNTY S NOT A DEFENSE TO SUT N THS CASE. A. Standard and seope of review. The review of a jurisdictional issue is a question of law. Bittle, 192 P.3d at 816. An assigned error of law is reviewed de novo. Cossey, 212 P.3d at 451. Under de novo review, where the appellate court shows no deference to trial court decisions on questions of law, the appellate court independently determines legal questions. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991). An appellate court will only consider issues supported by the record, and it is the appellant's burden to "procure a record that contains all the proceedings necessary for the review." Wetsel v. ndependent School Dist., 670 P.2d 986, 993 (Okla. 1983). Moreover, an appellate court will not reverse a trial court judgment based on a theory not presented to the trial court, ld. at An appellate court will not review a claim of error that does not include an argument and/or legal citations supporting the claim of error in the appellant's briefin-chief, ld. at 992. Finally, an appellate court may affirm a lower court's ruling upon a correct legal theory, even though the trial court employed an incorrect theory in reaching its decision. Watson v. Gibson Capital, L.L.C., 187 P.3d 735,739 (Okla. 2008). B. Employment ofthe Rice and Bittle preemption analysis results in properly exereised state court iurisdiction in the present case. 0) The tradition of tribal sovereign immuni_: Rice v. Rehner. n Rice v. Rehner, the United States Supreme Court considered whether the State of California could require a federally licensed ndian trader operating a general store on an ndian reservation, to obtain a state license to sell liquor for off-premises consumption. Rice, 463 U.S. Page 9

16 at 713. The Court answered the certified question in the affirmative and allowed California to require the ndian trader to obtain a state license. d. The ndian trader, Rehner, argued in twofold that state licensing requirements would infringe upon tribal sovereignty and that Title 18 U.S.C pre-empted state regulation of ndian liquor transactions. See generally id. The Court began its opinion by addressing Rehner's concept that inherent tribal sovereignty worked to bar state jurisdiction. Justice O'Connor noted that recent Supreme Court cases have trended "away from the idea of inherent ndian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption." d. at 718 (quotingmcclanahan v. Az. St. Tax Commn., 411 U.S. 164,172 (1973)). Relying on the recent trend, the Court employed a preemption analysis in reaching its ruling allowing California to require an ndian trader, on ndian land, to obtain a state liquor lieense. Rice, 463 U.S The preemption analysis balanced federal/tribal interest against state interests in a particular area of regulation and began with a determination of the tradition of tribal sovereign immunity in favor of ndians in the context of liquor regulation. d. at The Court noted that tribal sovereignty should only be used to inform the preemption analysis rather than be determined by it. d. at 718. f the Court determines that tradition recognizes sovereign immunity in favor of ndian tribes then the Court is reluctant to infer that Congress authorized state jurisdiction, except where there has been express delegation to the applicability of State laws, d. at f such a tradition does not exist or if the court determines that the balance of state, federal, and tribal interests so requires, less weight may be accorded to the "backdrop" of tribal sovereignty when using the preemption analysis, ld. at 720. Despite Rehner's argument that ndian regulation of alcohol is important to ndian selfgovernance and is a matter affecting the internal and social life of the Tribe, the Court refused to find a tradition of sovereignty, ld. at 717. The Court reviewed the historical concept of tribal Page 10

17 sovereignty with regard to liquor regulation and found that "tradition simply has not recognized a sovereign immunity of inherent authority in favor of liquor regulation by ndians" and "[i]n the area of liquor regulation, we find no 'congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.'" d. at 724. Rather, there existed a historical tradition of concurrent state and federal jurisdiction in the area of liquor in ndian Country due to the state interests in regulating the same. d. The next step in the preemption analysis was to determine whether Title 18 U.S.C pre-empted state authority to require Rehner to obtain a state liquor license. With regard to Title 18 U.S.C. 1161, the Court stated: 1161 was intended to remove federal discrimination that resulted from the imposition of liquor prohibition on Native Americans. Congress was well aware that the ndians never enjoyed a tradition of tribal self-government insofar as liquor transactions were concerned. Congress was also aware that the States exercised concurrent authority insofar as prohibiting liquor transactions with ndians was concerned. By enacting 1161, Congress intended to delegate a portion of its authority to the tribes as well as to the States, so as to fill the void that would be created by the absence of the discriminatory federal prohibition. ld. at 733. The Court found that Congress had, in part, delegated to the states the authority to regulate the use and distribution of alcoholic beverages in ndian Country. ld. at Significantly, when considering the preemption of federal law over state law, the Court discussed the weight to be given to state interests and specifically stated, "[a] state's regulatory authority interest will be particularly substantial if the State can point to off-reservation effects that necessitate State intervention." d. at 724. The Court found that the State had a substantial interest to regulate liquor trafficking because of possible off-reservation effects and thus did not fred federal law preempted state law. ld. This case further developed the principle that express congressional delegation is not Page 11

18 i! required to authorize state jurisdiction over ndians in ndian Country when there is no tradition of sovereign immunity in a particular regulatory area. /d. at 731. With the Rehner preemption analysis in mind, an examination of recent Oklahoma Supreme Court decisions is necessary. (ii) Application of the preemption analysis to private tort actions against an ndian tribe: Bittle v. Bahe. n 2008, the Oklahoma Supreme Court further defined the Rehner preemption analysis in the Bittle case. n Bittle, the Court determined whether the doctrine of tribal sovereign immunity prevented a state court from exercising jurisdiction over a private tort action against an ndian tribe. d. Bit-tie filed a common law tort action in state court to recover damages for personal injuries she sustained in an automobile accident occurring on a state highway, ld. at She named the motorist involved in the accident, the Absentee Shawnee Tribe qf Oklahoma, and Thunderbird Entertainment Center, nc. as defendants. d. at 813. She claimed that the ndian tribe and its enterprise should be liable under a common law theory of negligence arising out of a duty contained within a dram shop liability statute codified in Okla. Stat. tit. 37, 537. ld. Bittle contended that the ndian tribe, through its enterprise, served alcohol to the already intoxicated motorist. d. The District Court dismissed the lawsuit against the ndian tribe and its enterprise for lack of subject matter jurisdiction finding that said defendants did not waive their tribal sovereign immunity, and neither the Oklahoma statutes nor the common law allowed a private person to enforce violations of Okla. Stat. tit. 37, 537. d. at The Oklahoma Supreme Court employed the Rehner preemption analysis, ultimately vacated the lower courts' orders, and remanded the ease for trial on the merits. See generally Bittle, 192 P.3d 810. The Court presented the preemption analysis in an enumerated fashion that clarified the formula asserted in Rehner. d. at 817. The Court began its consideration of the issues by Page 12

19 addressing the tradition of tribal sovereign immunity and the tribe's contention that Kiowa barred state court jurisdiction because there was no express Congressional abrogation of sovereign immunity or a waiver of the same by the tribe. d. at The Bittle decision further defines the "tradition of tribal sovereign immunity" prong of the preemption analysis. The Court opined that it is the notion of tribal sovereignty that gives rise to the immunity from private suit "in order to protect the dignity of the sovereign." d. at 818. Further, a tribe only has inherent sovereignty in those specific situations involving governmental interests and internal affairs, ld. at 817 (citing Montana v. U.S., 450 U.S. 544 (1981)). As in Rehner, there existed no tradition of tribal sovereign immunity with regard to jurisdiction over matters involving liquor because the case did not "affect the Tribe's membership or the Tribe's right to govern its members." d. at 821. The Court elaborated stating "this case does not interfere with the Tribe's internal affairs or tribal govemment that barred the exercise of adjudicatory power in Williams v. Lee and Santa Clara Pueblo v. Martinez. ''5 ld. The Court afforded little or no weight to tribal sovereignty when performing the preemption analysis because there existed no tradition. See generally id. While examining the "tradition of sovereign immunity" prong, the Bittle decision further pronounced the principle that an express Congressional abrogation of tribal immunity was not required to permit exercise of state jurisdiction in the absence of the aforesaid tradition, ld. at 823. The ndian tribe argued that without express Congressional abrogation, Kiowa immunized tribes from "suit on contracts, regardless of such contracts involving governmental or 5 STC includes this quotation from the Oklahoma Supreme Court to show that Appellants' reliance on Williams and Santa Clara Pueblo is misplaced in the present action. See Appellants Br. in Chief at As discussed infra, Bittle is analogous and "on all fours" with STC's actions. Page 13

20 commercial activities and regardless of whether they were made on or offa reservation." d. at 821. The Court, unwilling to damage the precedent embodied in Kiowa, dismissed the case as inapplicable stating that Kiowa was a case involving contract and the matter at bar was grounded in tort. d. Thus, the preemption analysis, and specifically the principle that an express congressional abrogation of immunity is not required when theri_ is no tradition of the same continued to apply to private tort actions. 6 d. at 823. n determining the congressional plan of Title 18 U.S.C. 1161, the Bittle ruling followed Rehner stating that Congress intended to delegate authority to the states in the realm of liquor regulation because of historic concurrent federal and state jurisdiction. See generally id. Bittle is an extremely important ruling because it expanded "implicit" Congressional delegation under the preemption analysis to authorize state adjudicatory jurisdiction as well as state legislative jurisdiction. 7 ld. at Recall, the Rehner Court held that California could require an ndian trader to obtain a state liquor license, but Rehner did not involve a matter of adjudicatory jurisdiction. Rice, 463 U.S. at 713. n Bittle, the Court stated, "... there can be no doubt that when Congress enacted 1161, it was well aware of the breadth of the state's authority over alcoholic beverages, which involved the states' adjudicatory authority as well as its legislative authority." Bittle, 192 P.3d at (Bold added). Therefore, congressional 6 Appellants rely heavily on Kiowa in Proposition of Error of their brief-in-chief, however, as in Bittle it is not applicable to this appeal because STC's lawsuits were grounded entirely in tort. Appellant also relied on Oklahoma Tax Commission v. Citizen Band Pottawatomi ndian Tribe of Oklahoma, 498 U.S. 505 (1991), which the Bittle court stated was not helpful because it did not analyze the doctrine of immunity from suit in state court. Bittle, 192 P.3d at 814, fn 4. 7 STC refers to "implicit" congressional delegation as a means to identify the concept that Congress can authorize state jurisdiction over ndians in ndian country without express delegation if there is no tradition of sovereign immunity or tribal sovereignty in a particular area, and federal law does not preempt state law. Page 14 t

21 delegation under authorized state adjudicatory jurisdiction, and permitted a private plaintiff to file a lawsuit against a tribe in state court if such lawsuit furthered the legislative scheme or regulation in a particular area. See id. Finding that Congress had delegated to the states the ability to regulate liquor transactions in ndian country because of the "unquestionable interest in the liquor traffic that occurs within its borders," the Court reviewed Oklahoma's statutory scheme in place to regulate alcoholic beverages. d. at 818. The regulatory scheme codified in Okla. Stat. tit. 37, , et. seq., and at 537(A)(2) prohibited the sale, delivery, or furnishing of alcohol to intoxicated persons, ld. at The penalty for violating that law was declared to be a felony subject to monetary fine among other sanctions. d. at 824. Within the statutory scheme there was no explicit wording authorizing a private citizen to sue a tavern keeper for the breach of a certain duty found in 8 537(A)(2). d. However, the Court noted that "[e]xtant jurisprudence" allows for a private person to sue a tavern keeper under a common law duty imposed on a commercial vendor to exercise reasonable care in serving alcoholic beverages, ld. Permitting said common law suit was justified, because it "strengthen[s] and give[s] greater force to the enlightened statutory and regulatory precautions against such sales and their frightening consequences, and will not place any unjustifiable burdens upon defendants who can always discharge their civil responsibilities by the exercise of due care." d. at 825 (quoting Rappaport v. Nichols, 156 A.2d 1 (1959)). The Bittle decision expanded the applicability of the Rehner preemption analysis to cases involving tort actions brought by private individuals against an ndian tribe. Bittle, 192 P.3d 810. The Court concluded that "while Rice v. Rehner teaches there is no tribal immunity fi'om suit to be abrogated, abrogates any tribal immunity from suit in the area of alcoholic beverage laws." d. at 821. This quotation appears to hold that without a tradition of sovereign Page 15, tl

22 immunity there is no immunity to be abrogated, thus allowing state court jurisdiction without even a finding of"implicit" congressional abrogation of immunity. (iii) Overarching state interest applicable to every preemption analysis. As discussed supra, part of the preemption analysis is a balancing of federal/tribal interests or traditions against state interests, ld. at 817. The State of Oklahoma has a strong interest in ensuring that its citizens have a judicial forum to address injuries. d. at 819. Article, 6 of the Oklahoma Constitution states "the courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Further, ndian law jurisprudence has recognized the importance of access to state courts and has reiterated the authority of state courts as "courts of general jurisdiction" and further asserted the "dual sovereignty" by which state courts have concurrent jurisdiction with federal courts. Cossey, 212 P.3d at 455 (citing Nevada v. Hicks, 533 U.S. 353 (2001)). ndian tribes opposed to state court jurisdiction attempt to placate parties by stating that Tribal Court is the proper forum wherein an individual may seek redress for injuries. d. However, in the case of non-ndian members, a tribal forum otien cannot exercise civil jurisdiction over that individual. d. at 457. The ability to exercise civil jurisdiction over a nonmember absolutely requires tribal authority to regulate non-member activity. d. at 457 (citing Montana v. U.S., 450 U.S. 544 (1981)). Generally, tribes have no authority over the activities or conduct of non-members. d. at 456. However, a tribe may have the power to regulate activities of non-members if: 1) the non-member enters into a consensual relationship with the tribe or its members through contract or other arrangements; or 2) if the regulation involves nonmembers on ndian land when non-member conduct threatens or has some direct effect on the political integrity, economic security, health or welfare of the tribe, ld. at (citing Page 16

23 ! i Montana, 450 U.S. at ). Thus, if a tribe injures a non-member, and the tribe lacked regulatory authority over the activity resulting in such injury, then tribal forums are not proper to adjudicate claims and redress injuries. d. at 457. (iv) The facts of the instant ease and applicable law lend support to the reasoning of courts which have found tribal sovereign immunity to be no defense to the exercise of state court jurisdiction. n the instant case employing the preemption analysis in Rehner, as expanded by Bittle, it is clear that Appellants cannot escape liability through the shield of tribal immunity. This case involves underground telecommunication facilities, and excavators (Appellants) causing damage to the same. ndian tribes have neither traditional sovereign interests in underground telecommunication facilities nor in adjudicating cases wherein an excavator damaged said facilities. Rather, legislatures and courts have found that tribes must defer to state jurisdiction in the area of telecommunications. Congress has enacted a federal statute regulating telecommunications, but has delegated to the states the ability to regulate the same within the states' borders. Oklahoma enacted a statutory scheme to protect underground telecommunications within its borders and courts recognize the ability of private entities to bring tort actions based on a statutory duty and a common law duty imposed on excavators to protect such facilities. Further, granting Appellants' relief requested in this appeal leaves STC without any means of seeking redress for the injuries caused by Appellants' negligent acts. 1. No tradition of tribal sovereignty or immunity in the realm of underground telecommunication facilities or in excavation causing damage to the same. The instant case concerns Appellants' damage to STC's underground telecommunication facilities and the ability for Appellants to assert sovereign immunity as a defense to STC's state court actions seeking redress for said damage. Cheyenne River Sioux Tribe Telephone Authority v. Public Utilities Commission of South Dakota, provides guidance for determining whether Page 17

24 there is a tradition of tribal sovereignty in the area of telecommunications regulation. 595 N.W. 604 (S.D. 1999). n Cheyenne, a telephone company desired to sell telephone exchanges, partly located on ndian land, to a tribal subsidiary. d. at The Public Utilities Commission of South Dakota ("PUC"), 8 intervened and disapproved the sale. d. at 606. The telephone company and the tribal subsidiary stated that the intervention was an illegal infringement on tribal self-government, that PUC lacked jurisdiction over the sale, and that PUC was preempted by the Federal Communications Commission ("FCC"). d. at The court found that the telephone company was governed by both the FCC and the PUC as part of a scheme to provide "a rapid efficient, nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges." d. at 610 (citing 47 U.S.C. 151, 152). The court relied on 47 U.S.C. 152(b) in stating that the FCC did not have jurisdiction over intrastate communications, ld. Ultimately, the court ruled in favor of the PUC allowing the state agency to regulate the sale of telecommunications on ndian land and stated that PUC's authority was not preempted by federal law, but rather, it was "a significant, as well as authorized, part of the overall regulatory scheme." ld. Thus, Cheyenne stands for the proposition that there is no tradition of tribal sovereignty as such relates to regulating telecommunications on ndian land. Moreover, an extensive study of ndian law does not reveal a tradition of tribal self-government in the realm of excavation, or tribal jurisdiction over cases involving underground telecommunication facilities. Appellants offered nothing to show that there is a tradition of tribal sovereignty in the relevant regulatory area. Appellants merely stated in their brief-in-chief that "White Loon was $ The South Dakota PUC is analogous to the OCC in that both are state agencies charged with the duty of regulating telecommunications in their respective states. Page 18

25 i established through the Tahway Construction and Development Act, a tribal law of the Miami Tribe of Oklahoma, and all revenues from White Loon's operations are used to support the Tribe's governmental operations, programs, and services." Appellants' Br. in Chief 2. However, the record does not support this contention nor does it contain a citation to any testimony or evidence validating the same and thus cannot be considered by this Court. Wetsel, 670 P.2d at 993. Even if considered, it does not establish tradition. As held in Rehner and reiterated in Bittle, when there is no tradition of tribal sovereignty or immunity in a particular regulatory area the preemption analysis may accord little or no weight to those principles or doctrines. See generally Rehner and Bittle supra. n this ease, Appellants do not benefit from a tradition of sovereignty and thus, the preemption analysis must proceed without deference to the same. Further, if no tradition of tribal sovereignty exists, Congress does not have to expressly authorize suit against an ndian tribe or abrogate sovereign immunity, rather such authorization must be discerned from the applicable federal statute. 2. The goal of the congressional plan in enacting The Federal Communications Act, Title 47 U.S.C. _ 151 et.seq. 9 was to delegate to the states authority to regulate all intrastate communications. The next phase of the preemption analysis requires the court to determine the congressional plan of a particular federal statute. Federal interests are then to be balanced 9 Appellants incorrectly contend at page 16 of their brief-in-chief that STC did not assert a claim under a federal statute nor did the District Court reference any federal statute expressly authorizing suit against Appellants. This contention is irrelevant. First, as discussed herein, STC is not alleging any violation of a federal statute. Rather, STC discusses Title (b) so as to give context and support for state court jurisdiction over its lawsuits. That federal statute delegates to the States the ability to regulate telecommunications within its borders and from such delegation (considering no tradition of sovereignty) authorizes the states to exercise jurisdiction. Moreover, the District Court did reference Title (b) in its Order denying the Appellants' motion to dismiss at page 7. The District Court stated Title (b) "places jurisdiction over intrastate communications with a state..." Page 19

26 against state interests to determine whether federal law preempts state law. Title 47 U.S.C et. seq. is the relevant federal statute in the instant case. 151 states in part that FCC shall regulate interstate and foreign commerce in communication by wire and radio for the purpose of promoting the safety of life and property. Also relevant to the instant case is Title 47 U.S.C. 152(b): (b) Exceptions to Federal Communication Commission jurisdiction.. nothing in this chapter shall be construed to apply or to gi_,e the [FCC] jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier... (Bold added). Title 47 U.S.C. 221(a) further defines the statutory plan:... nothing in this chapter shall be construed to apply or to give the [FCC] jurisdiction, with respect to charges, classifications, practices, services, facilities, or regulations for or in connection with.., telephone exchange service, even though a portion of such exchange service constitutes interstate or foreign communication, in any case where such matters are subject to regulation by State commission or by local governmental authority. (Emphasis added). 1 Case law discussing the statutory scheme of the Communications Act stands for the proposition that the FCC's authority to regulate interstate communications and the states' authority to regulate intrastate communications is part of a system to provide "a rapid, efficient, nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges." Cheyenne, 595 N.W. at 610. Courts have stated that the cardinal rule of statutory construction is to "presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Natl. 10 While the precise terms of this statutory provision discuss "point-to-point radio telephone exchange service," case law has found that 221(a) applies to "telephone exchange service" generally. N.C. Util. Commn. v. FCC, 552 F.2d 1036, (4 thcir. 1977) Page 20

27 Bank v. Germain, 503 U.S. 249, (1992). t is clear from the Communications Act that Congress delegated to the states the authority to regulate telecommunications within its borders as evidenced, in part, by the heading of 152(b) "[e]xceptions to [FCC] jurisdiction." Thus, in the instant case the State of Oklahoma has been delegated the authority to regulate STC's underground telecommunications and such delegation would extend to those facilities on ndian property. H As in Bittle, where the court stated that Congress was aware of the breadth of the state's authority over alcoholic beverages, which involved the state's adjudicatory authority; Congress would have been aware of the breadth Oklahoma's authority to regulate intrastate communications, which involved Oklahoma's adjudicatory authority. As a result, federal law would not act to preempt state law in cases brought in state court to further the purpose of the Oklahoma's telecommunications regulation. 192 P.3d Oklahoma's interest in regulating communications within its borders and its enactment of a statutory scheme to further such interest. The Rehner preemption analysis requires a review of a state's interest in regulating a certain area. 463 U.S. at 724. Bittle expanded the analysis to consider the state's interest in regulating and enforcing such regulation through the judieial system. 192 P.3d at t is undisputed that Oklahoma and the OCC have a heightened interest in regulating, supervising, and controlling telecommunications for the public safety and welfare. See 47 U.S.C. 151, 152(b). An example of this interest is seen in need to ensure all citizens of Oklahoma are able 1 Telephone companies operating in Oklahoma are under the governance of both the Federal FCC and the OCC. Okla. Stat. tit and Article X 18 of the Oklahoma Constitution grants the OCC the authority to exercise jurisdiction in regulating telecommunications and the operation of telephone utilities in the State of Oklahoma. Testimony at trial revealed that STC holds an OCC license to operate its underground telecommunications. Page 21