MEMORANDUM OPINION

ROBERT H. JACOBVITZ, Bankruptcy Judge.

This matter is before the Court on cross-motions for partial summary judgment filed by The Jicarilla Apache Nation (the "Nation") and by the Debtor Platinum Oil Properties, LLC ("Platinum").1 Platinum claims that it owns certain operating rights and working interests in and under two oil and gas leases: a) Jicarilla Oil and Gas Lease No. 71 covering certain real property described in Exhibit A to the Stipulation in Connection with Cross-Motion of Platinum Oil Properties, LLC for Summary Judgment on Threshold Issues (the "Stipulation"); and b) Jicarilla Oil and Gas Lease No. 363 covering other real property described in Exhibit A to the Stipulation. The Nation claims that Platinum has no operating rights or working interests in and under the two leases. (The operating rights and working interests at issue in the cross motions for summary judgment will be referred to herein as "Operating Rights and Working Interests").2 The United States Department of Interior ("DOI") supports the Nation's position but has not participated in the contested matters commenced by the filing of the cross motions for summary judgment except for the filing of an amicus brief on one issue. BP America Production Company takes no position on the issue before the Court based on the Stipulation under which the only rights or interests at issue are the Operating Rights and Working Interests.

PROCEDURAL HISTORY

Platinum commenced its chapter 11 bankruptcy case on March 2, 2009. On March 6, 2009, Platinum filed a Motion for an Order Authorizing Assumption of Leases. See Docket No. 10. On April 10, 2009, Platinum filed a Motion for Order Authorizing Secured and Super-Priority Financing. See Docket No. 27. On May 11, 2009, the Nation filed a Motion to Dismiss Chapter 11 Case. See Docket No. 43. The Nation objected to the two motions filed by Platinum. See Docket Nos. 18 and 38. Platinum objected to the Nation's motion to dismiss. See Docket No. 29. On June 30, 2009, Platinum filed a plan and disclosure statement. See Docket Nos. 55, 56 and 90. The Nation, the DOI and Enervest Energy Ltd. objected to the disclosure statement. See Docket Nos. 72 and 77. A threshold issue necessary for the determination of all three motions, and to the consideration of Platinum's disclosure statement and confirmation of its plan is whether Platinum owns the Operating Rights and Working Interests.

On June 15, 2009, the Nation filed a complaint to commence Adversary Proceeding No. 09-10832 naming Platinum as the sole defendant. The Nation asserted in the complaint, among other things, that Platinum has no rights or interests in or under Leases Nos. 71 or 363. On August 21, 2009, the Nation filed a motion for summary judgment in Adversary Proceeding No. 09-10832. See Adversary No. 09-10832, Docket No. 8.

The Court held a Status Conference in the bankruptcy case on August 31, 2009. At the Status Conference the parties who appeared, including Platinum, the Nation and the DOI, agreed that the Court should determine as a threshold matter issues relating to Platinum's ownership of the Operating Rights and Working Interests before deciding other issues raised by Platinum's motion to assume leases and motion for post-petition financing, and the Nation's motion to dismiss. See Order, Docket No. 120. The Court, with the concurrence of the parties, directed the Nation to file its motion for summary judgment in the bankruptcy case so the threshold issue would be determined in a contested matter affording any party interest with an opportunity to participate. Id. The Court also ruled that parties could take discovery relating to the Motion for Summary Judgment and fixed a deadline for responses to the Nation's motion for summary judgment after the end of the discovery period. Id. The DOI elected not to respond to the Nation's motion for summary judgment.

On September 15, 2009, the DOI filed a motion to withdraw the reference to the United States District Court for the District of New Mexico so the District Court would decide the issues relating to Platinum's ownership of the Operating Rights and Working Interests. See Docket No. 111. The Nation joined in the motion. Docket No. 134. Platinum and BP America Production Company objected to the motion. See Docket Nos. 131 and 132. On April 7, 2010, the District Court entered a Memorandum Opinion and Order denying the motion to withdraw the reference. See Case No. 09-CV-00922; Docket No. 18. On May 25, 2010 this Court held oral argument on the Nation's and Platinum's cross motions for summary judgment, and set a schedule for supplemental briefs. See Order, Docket No. 220.

SUMMARY JUDGMENT STANDARDS

The Court should grant summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), made applicable to adversary proceedings by Fed. R.Bankr.P. 7056. In considering a motion for summary judgment, the Court must "`examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'" Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995) (quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). Cross motions for summary judgment raise an inference that summary judgment may be appropriate. Crossingham Trust v. Baines (In re Baines), 337 B.R. 392, 396 (Bankr.D.N.M. 2006). Nevertheless, before a Court may grant summary judgment, the Court must satisfy itself that the requesting party has independently satisfied the requirements of Rule 56(c). See Harris v. Beneficial Oklahoma, Inc., (In re Harris), 209 B.R. 990, 998 (10th Cir. BAP 1997); see also, Renfro v. City of Emporia, 948 F.2d 1529, 1534 (10th Cir.1991) (stating that a cross motion for summary judgment does not relieve the court of its obligation to determine if a genuine issue of material fact exists). "[A] party opposing a properly supported motion for summary judgment `may not rest on mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial'" through affidavits or other supporting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Rule 56(e), Fed.R.Civ.P.).

FACTS NOT IN GENUINE DISPUTE

The Court finds that the following facts are not in genuine dispute:

1. On March 2, 2009, Platinum filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Court for the District of New Mexico. See Docket No. 1.

2. The Nation is a federally recognized Indian Tribe organized under the Indian Reorganization Act of 1934 located on a reservation in northwestern New Mexico.

3. On March 19, 1992, Chace Oil Company, Inc. ("Chace") and Golden Oil Company, a Delaware corporation ("Golden Oil"), among others, executed an Assignment, Bill of Sale and Conveyance under which Chace purported to assign and convey to Golden Oil, all of Chace's operating rights, leasehold interests and other ownership interests in certain leases under which the Nation was the lessor (the "Jicarilla Leases"), including but not limited to leases commonly known as Jicarilla Lease No. 71 and Jicarilla Lease No. 363 (individually, Jicarilla Lease No. 71 and Jicarilla Lease No. 363; and together Jicarilla Lease Nos. 71 and 363). See Myore Deposition at pp. 42-44; Sandoval Deposition at pp. 130 and Exhibit 24 thereto; see also The Nation's Objection to Motion to Assume (Platinum Oil Docket No. 18), ¶¶ 4 and 5.

4. A defect in the transfer of title by Chace to Golden Oil of Chace's interest in Jicarilla Lease Nos. 71 and 363 resulted in a failure to complete and perfect the transfer. See Settlement Agreement between Golden Oil Company and McKay-Lotspeich Group, ¶ 16; Third Amended and Restated Joint Plan, ¶ 7.2.

5. Jicarilla Lease Nos. 71 and 363 contain no express provision requiring approval by the Nation of a transfer of Jicarilla Lease Nos. 71 and 363 or any interest in those leases. See Jicarilla Lease No. 71, including ¶ 3(h) of the Lease—Deposition of Kurt Sandoval ("Sandoval Deposition"), Exhibit 20; and Jicarilla Lease No. 363, including ¶ 3(h) thereto—Sandoval Deposition, Exhibit 19. Jicarilla Lease Nos. 71 and 363 do not by their express terms incorporate existing and future regulations of the DOI and do not incorporate existing or future laws or regulations of the Nation. See Jicarilla Lease No. 71, including ¶ 3(g) of the Lease—Sandoval Deposition, Exhibit 20; and Jicarilla Lease No. 363, including ¶ 3(g) thereto—Sandoval Deposition, Exhibit 19.

7. On May 12, 2003, Golden Oil filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas, Case No. 03-36974 (the "Golden Bankruptcy Case"). See Golden Oil Bankruptcy Docket (Notice of Filing, Exhibit 1); Sandoval Deposition, Exhibit 31.

8. On October 22, 2003, the DOI, through the Bureau of Indian Affairs, filed a Proof of Claim in the Golden Bankruptcy Case (the "DOI Proof of Claim"). See Notice of Filing, Exhibit 22. The DOI Proof of Claim stated, in part, that to the extent it is determined that plugging and abandonment liabilities of Golden Oil under Jicarilla Lease Nos. 71 and 363 are "claims" in the Golden Bankruptcy Case, claims for such plugging and abandonment liabilities were made. See Golden Oil Bankruptcy Case, Claim No. 62 (Notice of Filing, Exhibit 22). The DOI Proof of Claim further stated, in part, that "[t]he Debtor [referring to Golden Oil] is a lessee and the Jicarilla Apache Nation (Nation) is the lessor of the oil and gas leases listed about [which include Jicarilla Lease Nos. 71 and 363] which were all approved by the BIA pursuant to 25 U.S.C. § 396a, et seq. (the Indian Mineral Leasing Act)." Id.

9. A Second Amended and Restated Joint Disclosure Statement was filed in the Golden Oil Bankruptcy on March 22, 2004. See Golden Oil Bankruptcy, Docket No. 203 (Notice of Filing, Exhibits 1 and 3).

10. The DOI filed an objection in the Golden Oil Bankruptcy Case to the Second Amended and Restated Joint Disclosure Statement (the "DOI Disclosure Statement Objection"). See Golden Oil Bankruptcy, Docket No. 216 (Notice of Filing, Exhibit 4). In the DOI Disclosure Statement Objection, the DOI stated:

11. Golden Oil entered into a Settlement Agreement dated March 17, 2004 (the "Settlement Agreement"), with a group of thirty-six (36) individuals or entities referred to in the Settlement Agreement as the "McKay-Lotspeich-Group" (herein, "MLG"). See Golden Oil Bankruptcy, Docket No. 311; Exhibit B (Notice of Filing, Exhibit 11); Sandoval Deposition, Exhibit 30; Nation's Memorandum of Law (Platinum Oil Docket No. 104), Exhibit C; Exhibit A to Debtor's Motion to Approve Compromise filed in the Golden Oil Case, Exhibit 11.

12. The Settlement Agreement describes the members of MLG as a "group of limited partners and working interest owners." See Settlement Agreement, second recital. The Settlement Agreement also describes the members of MLG as "including individuals, corporations, partners and other interest owners represented by the law firm of Dolan & Domenici, PC ..., both individually and in any other capacities, including as former or current officers, directors, joint venturers, shareholders or control person ... of Chace Oil Company, Ltd., Golden Oil Company...." See Settlement Agreement, ¶ 1.

13. The Settlement Agreement provided the liabilities MLG would assume as transferee of assets that included the Operating Rights and Working Interests would be limited to royalties and taxes in specified dollar amounts and plug and abandonment liabilities. Settlement Agreement ¶¶ 3 a and 11.

14. The Settlement Agreement provided, among other things, for the assignment of the operating rights and other interests Jicarilla Lease Nos. 71 and 363 by Golden Oil to MLG. See attachment to Motion to Approve Compromise, Exhibit 11. The Settlement Agreement further provided for the termination of certain unspecified partnerships "to fully effectuate the separation and divorce of ownership interest and operations as intended under this Agreement...." Settlement Agreement, ¶ 7(b).

15. The Nation and certain agencies of the United States were given notice of the motion to approve the Settlement Agreement in the Golden Bankruptcy Case. See Certificate of Service attached to Debtor's Motion to Approve Compromise, Exhibit 11.

16. On July 10, 2004, the Bankruptcy Court entered an order approving the Settlement Agreement in the Golden Oil Bankruptcy Case (the "Order Approving Settlement Agreement"). See Exhibit 13 and Exhibit 1, Docket No. 361.

17. Notice of the Order Approving Settlement Agreement was given to the Nation and to the United States of America/Bureau of Indian Affairs. See Exhibit 14, Certificate of Service.

18. On March 30, 2004, Platinum was organized as a New Mexico limited liability company. See Nation's Statement of Uncontested Fact (Platinum Oil Docket No. 104) at ¶ 9.

19. MLG formed Platinum to own and operate certain rights under certain Jicarilla Leases, including Jicarilla Lease Nos. 71 and 363. See Motion to Enforce Compromise and Amended Stipulated Order on MLG's Motion to Enforce Compromise filed in the Golden Bankruptcy Case (Notice of Filing, Exhibits 17 and 20); Letter from Pete V. Domenici Jr. (then counsel for MLG and Platinum) to Naomi Barnes (then counsel for the Nation), dated August 24, 2004; Golden Oil Bankruptcy Docket Nos. 466, 501, and 543 (Notice of Filing, Exhibits 17, 18 and 20); Sandoval Deposition, Exhibit 34; Deposition of David Lionette ("Lionette Deposition") at p. 23.

20. Sagebrush Holdings/O & G, LLC ("Sagebrush") now owns one hundred percent of Platinum's capital stock. See the Nation's Statement of Uncontested Facts (Platinum Oil Docket No. 104) ¶ 11.

21. Sagebrush is owned by FRI Holding, which is a collection of investment funds solely managed by Madison Capital Company, LLC. See Lionette Deposition at p. 131 (Notice of Filing, Exhibit 25).

22. A Third Amended and Restated Joint Disclosure Statement (the "Golden Oil Disclosure Statement") was filed in the Golden Bankruptcy case on April 22, 2004. (Notice of Filing, Exhibit 1, Golden Oil Docket No. 223 and Exhibit 5). On April 23, 2004 an order was entered approving the Golden Oil Disclosure Statement. (Notice of Filing, Exhibit 1, Golden Oil Docket No. 226). A copy of the order approving the Golden Oil Disclosure Statement was served on the Nation on April 26, 2004. See Certificate of Service attached to Exhibit 8.

23. In the Golden Oil Disclosure Statement, there is a disclosure that Golden Oil and the other plan proponents, on the one hand, and the Bureau of Indian Affairs and the Nation, on the other, dispute whether the transfers contemplated by the plan require the approval of the Bureau of Indian Affairs and the Nation. See Golden Oil Disclosure Statement, ¶ 10.5.2, Exhibit 3.

24. The Golden Oil Disclosure Statement further provides, in part:

Golden Oil Disclosure Statement § 10.5.3.

25. The Third Amended Plan ("Golden Oil Plan") was filed in the Golden Bankruptcy Case on April 23, 2004. See Golden Oil Bankruptcy Case Docket No. 224, Exhibit 1.

26. The Golden Oil Plan provides, in part:

27. The DOI filed an objection in the Golden Oil Bankruptcy Case to the Golden Oil Plan (the "DOI Original Plan Objection"). Exhibit 9. In the objection, the DOI asserted, among other things:

28. The DOI subsequently filed an Amended Objection to the Golden Oil Plan (the "DOI Amended Plan Objection"). Exhibit 10. The DOI Amended Plan Objection states, in part: "The United States (BIA) previously filed an objection to confirmation. After discussions with the plan proponents, the United States has resolved all issues regarding approval of the Indian mineral owner, bonding and submission documents required by federal regulations." DOI Amended Plan Objection, ¶ 1. "The United States only remaining objection is to the Release of unknown liabilities of the Debtor for removal of non-hazardous waste buried by the previous lessee on the lands of the Jicarilla Apache Nation." Id. at ¶ 2.

29. A proposed order confirming the Golden Oil Plan was submitted to the Bankruptcy Court in the Golden Oil Case approved by, among others, counsel for the Bureau of Indian Affairs (the "Proposed Golden Confirmation Order"). Exhibit 12.

30. An order confirming the Golden Oil Plan ("Golden Confirmation Order") was entered in the Golden Bankruptcy Case on October 6, 2004. See Golden Oil Bankruptcy Case Docket No. 399, Exhibit 1.

31. The Proposed Confirmation Order was substantially similar to the Golden Confirmation Order entered October 6, 2004 in the Golden Oil Case confirming the Golden Oil Plan. Compare Exhibits 12 and 15. Both the Proposed Golden Confirmation Order and the entered Golden Confirmation Order contained the following provisions, among others:

32. Notice of the entered Golden Confirmation Order was given to the Nation and to the United States of America/Bureau of Indian Affairs. See the Certificate of Service that is part of Exhibit 16.

33. MLG informed the Nation by a letter from Pete V. Domenici Jr. (then counsel for MLG and Platinum) to Naomi Barnes (then counsel for the Nation), dated August 24, 2004, that MLG and Platinum contemplated a transfer of the rights under Jicarilla Lease Nos. 71 and 363 to Platinum pursuant to the Settlement Agreement and Golden Oil Plan. Sandoval Deposition, Exhibit 34.

34. Neither the Settlement Agreement, Golden Oil Disclosure Statement, Golden Oil Plan, nor the Golden Confirmation Order mentions or refers to Platinum, expressly approves the transfer of any assets to MLG's designee, or indicates that MLG intends to form an entity to take title to any assets. See Exhibits 5, 6, 11 and 15.

35. On January 4, 2005, the Nation granted Platinum an Oil & Gas Operating Permit on the Jicarilla Apache Reservation for a term of one year. Sandoval Deposition, Exhibit 18. Platinum provided the Nation with a certificate of liability insurance. Id.

36. Golden Oil, Platinum and MLG executed and recorded a Quitclaim Assignment and Bill of Sale, effective April 1, 2005, that included the conveyance of the Operating Rights and Working Interests from Golden Oil to Platinum. Sandoval Deposition Exhibit 22.

37. On February 3, 2005, MLG filed a motion in the Golden Oil Bankruptcy Case to compel compliance with the terms of the Settlement Agreement (the "Motion to Enforce"). See Golden Oil Bankruptcy Docket No. 466, Exhibit 1; and Exhibit 17. The Motion to Enforce recites that MLG formed Platinum to hold all of its interests. Id.

38. Neither the DOI nor the Nation filed an objection to the Motion to Enforce. See Golden Oil Docket, Exhibit 1.

39. The Court in the Golden Bankruptcy Case entered an amended stipulated order resulting from the Motion to Enforce, approved by Golden Oil and by MLG and Platinum, by their respective counsel. Exhibit 20. The findings contained in the order regarding the interests of Platinum in the Jicarilla Lease Nos. 71 and 363 are findings regarding the agreement of the parties approving the order and not findings regarding MLG's and Platinum's actual interests in the Jicarilla Lease Nos. 71 and 363. Id. The order further provides, in part: "This order affects only the relationship between the parties [to the stipulated order] and does not otherwise modify any previous order by the court." Id.

40. By a letter dated August 13, 2007 from counsel for the Nation to counsel for Golden Oil, with a copy to counsel for Platinum and MLG, the Nation required Golden Oil to execute certain assignment documents to complete the earlier purported assignment from Chace to Golden Oil, and required Golden Oil and Platinum to execute certain documents to effectuate the assignments from Golden Oil to Platinum of, among other things, interests in Jicarilla Lease Nos. 71 and 363. See Sandoval Deposition, Exhibit 36. The letter states that the transfers will be made pursuant to the Settlement Agreement between the MLG Group and Golden Oil, and refers to the Golden Oil Bankruptcy Case. Id.

41. The documents included with the August 13, 2007 letter from counsel for the Nation, prepared for execution by Platinum, designated Platinum as assignee of certain working interests in Jicarilla Lease Nos. 71 and 363, among other interests. The documents contained an Acceptance and Assumption by Assignee that included the following language:

42. MLG and Platinum, as seller, and Star Acquisition VII LLC ("Star"), as buyer, entered into a Purchase and Sale Agreement (the "Purchase and Sale Agreement") dated June 20, 2005. In connection with the Purchase and Sale Agreement, MLG and Platinum, as assignor, and Star, as assignee, executed an Assignment and Bill of Sale dated June 23, 2005, and a Corrective Assignment and Bill of Sale dated July 7, 2005. See Exhibits A, B, and C to Lionette Affidavit—Exhibit 32; Lionette Deposition, Exhibit 67; Nation's Statement of Uncontested Facts, ¶ 38, Docket No. 104-1.

43. The assets to be transferred by Platinum and MLG to Star under the Purchase and Sale Agreement included "the oil and gas leasehold interests and working interests in the oil and gas leases described on Exhibit A [to the Purchase and Sale Agreement]" which included all oil and leasehold interests and working interests in Jicarilla Lease Nos. 71 and 363. See Purchase and Sale Agreement, Article I, Definition of Properties and ¶ 2. 1.

44. The Corrective Bill of Sale incorporated by reference the terms of the Purchase and Sale Agreement, and provided that if there is conflict between the terms of the Purchase and Sale Agreement and the Corrective Bill of Sale, the provisions of the Purchase and Sale Agreement would control. Corrective Bill of Sale, ¶ 4.

45. The Purchase and Sale Agreement includes the following provisions:

46. The Nation did not approve the assignment of property or interests in Jicarilla Lease Nos. 71 and 363 by Platinum and MLG to Star under the Purchase and Sale Agreement. Sandoval Deposition at pp. 86-88; Nation's Statement of Uncontested Facts, ¶ 42, Docket No. 104-1; Deposition of Manuel Myore ("Myore Deposition") at p. 16.

47. The DOI did not approve the assignment of property or interests in Jicarilla Lease Nos. 71 and 363 by Platinum and MLG to Star under the Purchase and Sale Agreement Nation's Statement of Uncontested Facts, ¶ 42, Docket No. 104-1.

48. Mr. Sandoval, the Nation's Rule 30(b)(6) witness, testified at his deposition that it was his understanding that since the Nation and BIA did not approve the assignment from Platinum to Star the assignment was ineffective to transfer ownership. Sandoval Deposition at pp. 86-87.

49. Mr. Myore, a realty officer for the Bureau of Indian Affairs, testified that if the BIA does not approve an assignment of operating rights under an oil and gas lease the assignment is not effective. Myore Deposition at p. 16.

50. Tract Notes on the Nation's Lease Data Sheets for Jicarilla Lease Nos. 71 and 363 state in part:

51. On June 24, 2008, the Nation's Legislative Council passed a resolution reflecting the transfer as a result of the Golden Oil Bankruptcy Case of the Leasehold Interests from Chace Oil Company to Golden Oil, From Golden Oil to MLG and from MLG to Platinum. Sandoval Deposition, Exhibit 40; Jones Affidavit, Exhibit A.

52. On December 17, 2007, the Mining Minerals Service issued an Order to Report to Golden Oil ordering Golden Oil to submit certain Oil and Gas Operations Reports ("OGORs") for Lease Nos. 71 and 363. Margaret Louise Williams Deposition Exhibit 1. Golden Oil filed an appeal of the MMS Order to Report. Margaret Louise Williams Deposition Exhibit 2. The MMS issued a decision in the appeal that the "OGOR reporting requirement for the wells on Jicarilla 71 and 363 were the responsibly of Platinum Oil Properties, LLC for the production months [in question], and that `MMS agrees that Platinum Oil Properties, LLC is the responsible operator to report the OGORs.'" Docket No. 194-95, page 15 of 16.

DISCUSSION

A. The Golden Plan is binding on the Nation and DOI and has res judicata effect; consequently, any provision of the Indian Mineral Leasing Act or the Nation's Code that requires the Nation to approve the transfer of the Operating Rights and Working Interests pursuant to the plan is not implicated.

The Nation argues that a confirmed chapter 11 plan cannot supersede the Indian Mineral Leasing Act or the Nation's laws, and argues further that because the transfer of Operating Rights and Working Interests to Platinum pursuant to the confirmed Golden Oil Plan would violate the Indian Mineral Leasing Act and the Nation's laws the transfer may not be effectuated. Without deciding whether the transfer would violate the Indian Mineral Leasing Act and the Nation's laws, the Court concludes that the confirmed Golden Oil Plan is binding on the DOI and the Nation even if it arguably violates those laws. The Nation also asserts that 11 U.S.C. § 106(a), which abrogates the sovereign immunity of governmental units with respect to 11 U.S.C. § 1141, does not abrogate the Nation's sovereign immunity such that 11 U.S.C. § 1141 has no application to the Nation. For the reasons set forth in Section B of this opinion, the Court disagrees.

A confirmed Chapter 11 plan is binding on all parties described in 11 U.S.C. § 1141(a) who received proper notice. See 11 U.S.C. § 1141(a) (as to the binding effect of a confirmed plan).4 In fact, confirmation binds creditors and other parties in interest even if those parties have not accepted the plan.5 Consequently, a creditor who received proper notice is bound by the terms of a confirmed plan "even if it had a different understanding of their meaning or did not realize their effect." In re K.D. Co., Inc., 254 B.R. 480, 491 (10th Cir. BAP 2000).6 A confirmation order is treated as a final order that has res judicata effect.7

The confirmed Golden Oil Plan provided for the vesting of good title to the Operating Rights and Working Interests held by Golden Oil, and the transfer of those rights under the terms of the plan without further approval by the DOI or the Nation (other than as may be required under the plan terms). The confirmed Golden Oil Plan limited the liabilities to be assumed by the designated transferee of the Operating Rights and Working Interests to certain pre-petition royalties and taxes and to plugging and abandonment liabilities. See Plan § 7.1; Settlement Agreement, ¶¶ 3a and 11. Both DOI and the Nation are bound by these terms.

The Nation's and DOI's8 arguments that the confirmed Golden Oil Plan cannot supersede the Indian Mineral Leasing Act or the Nation's Code are unavailing because of the res judicata effect of the confirmed Golden Oil Plan. Even if the confirmed Golden Oil Plan contains terms that are contrary to the Indian Mineral Leasing Act or the Nation's Code, the confirmed plan controls.

Under 11 U.S.C. § 1123(a)(5), "notwithstanding any otherwise applicable nonbankruptcy law," a chapter 11 plan must "provide adequate means for the plan's implementation." 11 U.S.C. § 1123(a)(5). Under this section, otherwise applicable nonbankruptcy laws that would interfere with a debtor's means for implementing a plan can be preempted.10 The scope of this section, and whether it preempts all otherwise applicable nonbankruptcy law is not entirely settled.11 However, whether the Golden Oil Plan contained provisions that failed to comply with the provisions of the Indian Mineral Leasing Act, or whether Golden Oil could rely on 11 U.S.C. § 1123(a)(5) to supersede any requirements under the Indian Mineral Leasing Act that would impair its ability to effectuate the transfers contemplated under its plan, are issues that the DOI and the Nation were required to raise in connection with the Golden Oil confirmation proceedings or by a direct appeal.12 The Golden Oil plan is now res judicata as to this issue. Having failed to object to the Golden Oil Plan on the ground that it violated the Indian Mineral Leasing Act and the Nation's laws or to appeal from the Golden Confirmation Order, the DOI and the Nation remain bound the terms of the Golden Oil Plan and Golden Confirmation Order.13

The DOI originally objected to the Golden Oil Plan on grounds that the Golden Oil Plan did not require the DOI or the Nation to consent to the transfer to MLG as required by the Indian Mineral Leasing Act; and, therefore, the transfer is rendered ineffectual. The DOI later amended its objection to the Golden Oil Plan. In its amended objection, the DOI stated that all of it objections were resolved except for an objection to a release of certain unknown liabilities. The DOI subsequently approved an order confirming the Golden Oil Plan that provided for the transfer of the oil and gas interests to MLG without further approval of the DOI. The confirmation order entered by the Golden Oil Court was substantially in the form the DOI approved. The DOI did not take an appeal from the Golden Confirmation Order. Having approved a confirmation order in substantially the form entered by the Golden Oil Court, the DOI is bound by the terms of the confirmed Golden Oil Plan.

Likewise, the Nation is bound by the terms of the confirmed Golden Oil Plan. The Nation did not participate in the confirmation proceedings in the Golden Oil bankruptcy case, but did receive notice in the case, including notices of the plan and disclosure statement filed in the case and the Golden Confirmation Order. "Questions of the propriety or legality of the bankruptcy court confirmation order are. . . properly addressable on direct appeal." Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1050 (5th Cir.1987). Having failed to object to confirmation of the plan in the Golden Oil bankruptcy case, and having failed to timely appeal the Golden Confirmation Order, any attempt to alter its terms constitutes an impermissible collateral attack. The Nation is now foreclosed from asserting that the confirmed Golden Oil Plan is contrary to applicable law.

The Nation also argues that because the confirmed Golden Oil Plan as well as the Nation's laws required the transferee to execute the Nation's forms, by the terms of the confirmed plan the transferee was required to accept transfer documents in a form required by the Nation's Code. The documents the Nation prepared for transfer of the Operating Rights and Working Interests included assumption of liabilities as a condition to transfer that exceeded the scope of the limited liabilities the transferees of the Operating Rights and Working Interests were to assume as provided under the terms of the confirmed Golden Oil Plan.

Because the Golden Oil Plan expressly limited the liabilities that MLG, as transferee of the Operating Rights and Working Interests, would assume to certain pre-petition royalties and taxes and plugging and abandonment liabilities, and because the Nation is bound by the terms of the confirmed Golden Oil Plan, the Nation's argument fails.

As to the transfer of Operating Rights and Working Interests by Chace to Golden Oil, Section 7.2 of the confirmed Golden Oil Plan authorizes Golden Oil to sign documents on behalf of Chace necessary to effectuate the transfer of assets from Chace to Golden Oil under a 1991 asset purchase agreement, "specifically including forms required by the Jicarilla Apache Nation, even though Chace Oil Company may no longer exist." However, Section 7.2 further provides that the "Debtor and Reorganized Debtor [referring to Golden Oil] shall incur no liability for signings these required forms, or actions taken in reliance thereof." Accordingly, under the confirmed Golden Oil Plan, the Nation is not permitted to require Golden Oil to assume any liabilities in connection with a transfer of the Operating Rights and Working Interests by Chace to Golden Oil regardless of what is required by the Nation's Code as a condition of transfer or what assumption of liability provisions are contained in the Nation's transfer forms. "Any preconfirmation rights of creditors survive only to the extent allowed in the reorganization plan." Robins, 216 B.R. at 179 (citing In re Circle K Corp., 198 B.R. 784 (Bankr. D.Ariz.1996) and In re Poplar Run Five Ltd. P'ship, 192 B.R. 848 (Bankr.E.D.Va. 1995) (remaining citations omitted)).

Similarly, as to the transfer of Operating Rights and Working Interests by Golden Oil to MLG, the confirmed Golden Oil Plan and the Settlement Agreement approved by the Plan limited the liabilities to be assumed by MLG to certain royalty payments and state taxes and to plug and abandonment liabilities. Under the confirmed Golden Oil Plan, the Nation is not permitted to require MLG to assume any liabilities in connection with a transfer of the Operating Rights and Working Interests by Golden Oil to MLG beyond those specified in the confirmed Golden Oil Plan and the Settlement Agreement regardless of what is required by the Nation's Code as a condition of transfer or what assumption of liability provisions are contained in the Nation's transfer forms.

B. The Nation does not enjoy sovereign immunity from operation of the binding effect of the Golden Oil Plan.

The Nation asserts that its sovereign immunity shields it from the effects of 11 U.S.C. § 1141(d), which makes a confirmed chapter 11 plan binding on parties receiving proper notice regardless of whether they actively participated in the bankruptcy case. The Nation received proper notice in the Golden Oil bankruptcy case, and chose not to participate. The Nation argues that because there is no clear expression of Congressional intent for the Bankruptcy Code to preempt or supplant the regulatory scheme imposed under the Indian Mineral Leasing Act, the Nation's rights under the Indian Mineral Leasing Act and the Nation's Code have not been abrogated under the Bankruptcy Code. In other words, under the doctrine of sovereign immunity, the Nation asserts that it is not bound by the terms of the confirmed Golden Oil Plan. This Court disagrees.

The Nation's independent sovereignty to regulate oil and gas leasing activity conducted on the Nation's tribal land as contemplated under the Indian Mineral Leasing Act is not being questioned. It is not, therefore, necessary for the Court to consider whether Congress expressed a clear intent in the Bankruptcy Code to abrogate the Nation's sovereignty under the Indian Mineral Leasing Act. As discussed above, any provision contained in the confirmed Golden Oil Plan that is arguably contrary to otherwise applicable laws enacted by an exercise of the Nation's sovereign power is nevertheless binding because of the res judicata effect of the confirmed Golden Oil Plan irrespective of the operation of the Indian Mineral Leasing Act and the Nation's laws.

To the extent the Nation asserts that sovereign immunity would otherwise insulate it from the binding effect of a confirmed chapter 11 plan under 11 U.S.C. § 1141(a), the Court finds that 11 U.S.C. § 106 abrogates sovereign immunity of Indian tribes. Indian tribes, including the Nation, generally enjoy sovereign immunity from suit.14 Tribal sovereign immunity is not absolute, however, and can be abrogated by Congress.15 Congressional abrogation of tribal sovereign immunity must be explicit; abrogation may not be implied.16 Abrogation of tribal sovereign immunity by Congress will only be found where Congress has clearly and unequivocally expressed its intent to abrogate the immunity pursuant to a valid exercise of its congressional power.17

Section 106(a)(1) of the Bankruptcy Code provides, in relevant part:

11 U.S.C. § 106(a)(1).

This section embodies a clear, and unequivocal intent to abrogate the sovereign immunity of governmental units. The Bankruptcy Code defines "governmental unit" as follows:

11 U.S.C. § 101(27).

The language "or other foreign or domestic government" found in 11 U.S.C. § 101(27) includes Indian tribes, such that 11 U.S.C. § 106 together with 11 U.S.C. § 101(27) embodies Congress' clear and unequivocal abrogation of tribal sovereign immunity.18 This Court agrees with those courts that hold that 11 U.S.C. § 106(a) abrogates tribal sovereign immunity.19 The Nation is not shielded from the binding effect of the confirmed Golden Oil Plan under 11 U.S.C. § 1141 by its sovereign immunity. Bankruptcy Code § 106(a), 11 U.S.C. § 106(a), expressly abrogated its sovereign immunity with respect to that section of the Bankruptcy Code.

C. Neither Platinum nor MLG Divested Themselves of the Operating Rights Under a Purchase and Sale Agreement Between Them and Star Acquisition VII LLC.

Platinum and MLG, as sellers, and Star Acquisition VII LLC ("Star"), as buyer, entered into a Purchase and Sale Agreement dated June 29, 2005 ("Sale Agreement") for the transfer of certain interests, including the Operating Rights and Working Interests. The Nation argues that Platinum has no interest in the Operating Rights and Working Interests because Platinum and MLG divested themselves of any interest in the Operating Rights and Working Interests under the Sale Agreement, regardless of whether any interest in the Operating Rights and Working Interests vested in Star as a result of the Sale Agreement. The Court disagrees.

The property interest to be transferred by Platinum and MLG to Star under the Sale Agreement included not only the Operating Rights and Working Interests, but also leasehold interests in Jicarilla Lease Nos. 71 and 363.20 In paragraph 14.4 of the Sale Agreement, the parties expressly acknowledged that at closing the seller (Platinum and MLG) "may not have record title to all of the Properties, and may not have all necessary approvals (including tribal approvals and approvals of the Bureau of Indian Affairs (BIA)) for its title in and to the Properties." Paragraph 14.4a required Platinum and MLG to use their best efforts and diligence to cause title to the Properties to be fully vested in Star, with all necessary tribal and BIA approvals and any approvals required by the Bankruptcy Court in the Golden Oil Bankruptcy Case. Specifically, Paragraph 14.4b provides, in part:

A Corrective Bill of Sale, executed and delivered to effectuate the conveyance of title to the Properties under the Sale Agreement, incorporated by reference all terms of the Sale Agreement, including paragraph 14. Corrective Bill of Sale, ¶ 4.

Neither the DOI nor the Nation has expressly approved any of the transfers contemplated by the Sale Agreement. Because the Sale Agreement provided for the transfer of title to leasehold interests in Jicarilla Lease Nos. 71 and 363, DOI approval of the transfer was required. See 25 C.F.R. § 211.53. The required DOI approvals were never given; therefore, complete title to the Properties to be transferred under the Sale Agreement was not vested in Star. Id. Under the express terms of the Sale Agreement, Platinum and MLG retained whatever ownership interests they had in, under or with respect to the Properties to be transferred under the Sale Agreement, including leasehold interests, operating rights and working interests, and Star's interest was limited to that of a subcontractor operator for Platinum and MLG. The Nation's argument that under the Sale Agreement Platinum and MLG divested themselves of the Operating Rights and Working Interests fails because the Sale Agreement expressly contemplates that Platinum and MLG may not have record title to the Properties to be transferred under the Sale Agreement and outlines the parties' rights and obligations pending the complete vesting of title to the Properties in Star.

D. The Settlement Agreement, Golden Oil Plan and Golden Confirmation Order are unambiguous; consequently parol evidence is not admissible to establish that Platinum, rather than MLG, was the intended transferee.

The Nation argues that even if this Court were to find that the Golden Oil Plan binds the DOI and the Nation to a transfer by Golden Oil of the Operating Rights and Working Interests without further approval of the DOI or the Nation, the Golden Oil Plan only authorized Golden Oil to transfer the Operating Rights and Working Interests to MLG, not to Platinum. The Nation therefore urges the Court to conclude that Golden Oil's purported transfer of the Operating Rights and Working Interests to Platinum is ineffective.

Platinum counters with the following arguments in support of its contention that Platinum is the transferee designated in the confirmed Golden Oil Plan: 1) because MLG is comprised of thirty-six individuals, a transfer to MLG is unworkable as a practical matter; consequently it was clear that the "Lease Interests" would be assigned to an entity to be formed by MLG,21 2) both the DOI and Nation were aware and understood that the "Lease Interests" (Platinum's terminology) would be assigned to Platinum, not to MLG; 3) a motion to compel enforcement of the Settlement Agreement filed in the Golden Oil bankruptcy case referred to MLG having formed Platinum to take title to the "Lease Interests", neither the DOI nor the Nation objected to the motion, and the stipulated order resolving the motion to compel recognized that MLG had formed Platinum to take title to the "Lease Interests;" and 4) the Nation made several admissions in its own documents and other communications that the "Lease Interests" were to be transferred to Platinum.22

The Timeline for the Relevant Documents in the Golden Oil Bankruptcy

Until Golden Oil filed a motion to enforce the Settlement Agreement on February 3, 2005, all documents (that are in evidence before this Court) filed or entered in the Golden Oil Bankruptcy Case describe a transfer of the Operating Rights and Working Interests by Golden to MLG. The Settlement Agreement, the Golden Oil Plan, the disclosure statement approved in connection with confirmation of the Golden Oil Plan, and the Golden Confirmation Order all refer to a transfer of the Operating Rights and Working Interests to MLG subject to specified liabilities. No reference is contained in those documents to a transfer of the Operating Rights and Working Interests to an entity to be formed by MLG, to MLG's designee or to Platinum.

The Settlement Agreement, dated March 17, 2004, provides for a transfer of the Operating Rights and Working Interests to MLG. It defines MLG as the parties described on an attached Exhibit A,23 refers to MLG as a group of thirty-six (36) individuals or entities, and describes the members of MLG as a "group of limited partners and working interest owners." See Settlement Agreement, p. 1. The Settlement Agreement does not expressly refer to Platinum, which had not yet been formed when the Settlement Agreement was made, and does not indicate that the transferee will be MLG's designee or an entity to be formed by MLG. MLG formed Platinum on March 30, 2004, thirteen days after the date of the Settlement Agreement, to take title to the assets to be transferred by Golden Oil to MLG.

The Golden Oil Plan was filed April 23, 2004, after MLG formed Platinum. The Golden Oil Plan provides for a transfer of the Operating Rights and Working Interests to MLG. The Golden Oil Plan defines MLG to mean and include "all persons including individuals, corporations, partners and other interest owners represented by the law firm of Dolan & Domenici, PC as detailed in their letter of representation sent to GOCO dated February 6, 2004 attached,24 both individually and in any and all other capacities...." Golden Oil Plan, ¶ 1.30, pp. 3-4. The order confirming the Golden Oil Plan, entered on October 6, 2004, six months after Platinum was formed, simply refers to MLG without indicating what or who it is.

The first reference filed of record in the Golden Oil Bankruptcy Case to a transfer of the Operating Rights and Working Interests to Platinum is in a Motion to Enforce Compromise filed on February 3, 2005, nearly four months after the entry of the Golden Confirmation Order, and more than six months after the approval of the Settlement Agreement. That motion recites that MLG formed Platinum to hold all of its interests. The amended stipulated order resolving the Motion to Enforce Compromise states that certain operating rights and working interests are now owned by Platinum. However, the amended stipulated order by its express terms is only binding as between the parties approving it: Golden Oil, Platinum and MLG.25 Because the findings contained in the order regarding the interests of Platinum in the Operating Rights and Working Interests are findings regarding the agreement of the parties approving the order, and the order binds only Golden Oil, Platinum, and MLG, the order cannot be relied upon by Platinum to establish MLG's and Platinum's actual interests.

Platinum's principal argument that Platinum is the transferee of the Operating Rights and Working Interests, and that no further approvals of the DOI or JAN are required, is that the DOI and Nation are bound by the provisions of the Golden Oil Plan and the Golden Confirmation Order. Under the confirmed plan, Golden Oil would convey good title to the Operating Rights and Working Interests subject only to limited liabilities specified in the plan, all without any further consent on the part of the DOI or the Nation. The Court agrees with Platinum that the DOI and the Nation are bound by the terms of the Golden Oil Plan and the Golden Confirmation Order, and may not collaterally attack the confirmation order on the ground that it violates the Indian Mineral Leasing Act or the Nation's laws. However, the Court disagrees with Platinum that it can construe the plan and confirmation order as providing for the transfer of the Operating Rights and Working Interests to Platinum rather than to MLG. The Golden Oil Plan, the Settlement Agreement approved by confirmation of the plan, and the Golden Confirmation Order all provide for a transfer of the Operating Rights and Working Interests by Golden Oil to MLG. MLG is defined in those documents variously to mean certain named individuals, or certain named individuals and entities, which, for convenience, together were called MLG. The definition of MLG does not refer to Platinum or an entity to be formed by MLG, even though Platinum had been formed before the Golden Oil Plan was filed.

Without expressly invoking the parol evidence rule, Platinum essentially asks the Court to consider parol evidence to determine that by providing for a transfer of the Operating Rights and Working Interests to MLG, the Golden Oil plan necessarily contemplated that Platinum would be the transferee. Courts apply the parol evidence rule to interpret a confirmed chapter 11 plan when the plan contains an ambiguity.26 Further, many courts recognize the doctrine of latent ambiguity in connection with application of the parol evidence rule.27 "`An ambiguity is latent when the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.'" Moore v. Pennsylvania Castle Energy Corp., 89 F.3d 791, 796 (11th Cir.1996) (citation to quoted case omitted).28 The classic example of a latent ambiguity is when a contract refers to an object by a particular name, but more than one object has the same name.29 A latent ambiguity may also exist when language used in a contract has a specialized meaning in a trade.30

This Court agrees that parol evidence is admissible to determine whether a latent ambiguity exists, but only if the party seeking to admit the evidence can provide a plausible alternative meaning for the language in question.31 If parol evidence reveals that a latent ambiguity exists, parol evidence may also be admitted to explain or clarify the meaning of the language revealed to be ambiguous. However, parol evidence is not admissible to contradict the writing32 or to ascertain what the parties intended to be written independently of interpreting the meaning of the language actually used.33 In other words, parol evidence is appropriately admitted "`to declare the meaning of what is written in the instrument, not of what was intended to be written.'"34

In light of these rules governing the admission of parol evidence, this Court must consider what was actually written in the Golden Oil Plan in order interpret its meaning; the Court must not attempt to divine what was intended to be written. The term "MLG" is defined in the Settlement Agreement and Golden Oil Plan variously to mean thirty-six named individuals, or thirty-six named individuals and entities. That term cannot be interpreted to mean a corporation or limited liability company formed or to be formed by those thirty-six named individuals and entities even if that is what was actually intended. No latent ambiguity therefore exists in the language of the Settlement Agreement, Golden Oil Plan, or Golden Confirmation Order with regard to whether "MLG" meant "Platinum" or an entity to be formed by MLG because that is not a plausible alternative meaning for the defined term "MLG."

It is quite possible that the parties in fact intended that the transferee under the Golden Oil Plan would be Platinum, or an entity to be formed by MLG. Platinum has proffered evidence of such intention. But evidence that a written contract did not conform to the parties' intent would be relevant to a claim of mistake;35 it would not be admissible as parol evidence to clarify an ambiguity. A mistake does not constitute a latent ambiguity.36 Thus, while it is appropriate to admit parol evidence when there is a latent ambiguity "for the purpose of explaining or clarifying language revealed to be ambiguous," such evidence cannot be used "for the purpose of uncovering the parties' alleged `true intent.'" Pennsylvania Castle Energy, 89 F.3d at 796 (citation omitted).

E. To Obtain Relief from the Designation of MLG as the Transferee of the Operating Rights and Working Interests under the Golden Oil Plan and Golden Confirmation Order, Platinum Must Obtain Relief from the Plan and Order under Rule 60 from the Court that Confirmed the Plan.

Platinum's assertion that the Settlement Agreement, Golden Oil Plan and the Golden Confirmation Order should be read to provide for the transfer of the Operating Rights and Working Interests to Platinum instead of MLG is, in reality, a claim of mistake. It is a claim that the written documents did not conform to the intent and true understanding of the parties—that, in fact, the parties meant for MLG to mean Platinum or an entity to be formed by MLG. Mistake can be relied upon to reform a contract.37 A confirmed chapter 11 plan "has some indicia of a contract.... Yet, it is also clear a confirmed plan is much more than a contract. For example, once confirmed, a plan is enforceable as a court order against parties who did not even agree to its terms." United States Trustee v. CF & I Fabricators of Utah, Inc. (In re CF & I Fabricators of Utah, Inc.), 150 F.3d 1233, 1239 (10th Cir.1998).

A confirmation order is an order of the court with the binding effect of a final judgment.38 Rule 9024, Fed.R.Bankr. P., makes Rule 60, Fed.R.Civ.P., applicable to cases under the Bankruptcy Code, including chapter 11 cases. Rule 60 provides the mechanism for seeking relief from an order, including an order confirming a plan.39 In order to obtain relief from the designation of MLG as the transferee of the Operating Rights and Working Interests under the Golden Oil Plan and Golden Confirmation Order based on mistake, Platinum must proceed under Rule 60, Fed.R.Civ.P.

Both Rule 60(a) and Rule 60(b)(1) provide for relief from a judgment or order based on mistake. Rule 60(a), Fed.R.Civ. P., provides:

Rule 60(b), Fed.R.Civ.P., provides:

A motion under Rule 60(b)(1) must be made within one year after the entry of the judgment or order or the date of the proceeding. Rule 60(c)(1), Fed.R.Civ.P. The Golden Confirmation Order was entered on October 6, 2004. Platinum filed its chapter 11 case well over a year later, on March 2, 2009. Consequently Rule 60(b), Fed.R.Civ.P. is no longer an option. Unless Platinum were to seek relief from the Golden Confirmation Order by an equitable action referenced in Rule 60(d)(1), Fed.R.Civ.P.,40 Platinum must demonstrate the type of mistake for which relief is available under Rule 60(a).41

Ordinarily, a motion to correct a mistake under Rule 60(a) should be made to the court that rendered the order or judgment.42 Some courts hold that a registration court (i.e. the court in which the judgment is registered) may not entertain a Rule 60(b) motion unless the motion alleges that the judgment is void for lack of personal jurisdiction or alleges grounds that would support an independent equitable action.43 Other courts require that all Rule 60(b) motions to be presented to the rendering court.44 This Court has not found a reported decision in which a court that did not render the judgment or order entertained a motion under Rule 60 for relief from the judgment or order that did not involve an allegation of lack of jurisdiction or fraud on the court, and did not assert the type of independent action referenced in Rule 60(d)(1). The Golden Oil Plan and Golden Confirmation Order, which both provide for a transfer of the Operating Rights and Working Interests to MLG, cannot be interpreted to mean anything other than providing for a transfer to MLG. And because the alleged mistake is embodied in an order issued by another court, it is not appropriate for this Court to entertain a motion for relief from that order under Rule 60. For these reasons, the Court concludes that Platinum must return to the Texas bankruptcy court if it wishes to obtain relief from the Golden Confirmation Order.

F. Neither Platinum nor the Nation has established whether a valid transfer of the Operating Rights and Working Interests to Platinum Occurred Outside the Golden Confirmation Order and the Settlement Agreement entered in the Golden Oil Bankruptcy Case.

Platinum argues, in the alternative, that even if the confirmed Golden Oil Plan did not provide for a transfer of the Operating Rights and Working Interests to Platinum, the transfer of those rights and interests by Golden Oil to Platinum nevertheless is effective because it was made in accordance with applicable nonbankruptcy law. Platinum asserts that the transfer did not require the Nation's approval; that the only governmental approval Platinum needed for the transfer was that of the DOI pursuant to 25 C.F.R. § 211.53; and that DOI approval was given. See Platinum's Reply to the DOI's Advisory Brief, pp. 3-6 (Docket No. 228). Platinum further asserts that even if the Nation's approval of a transfer were required, the Nation has recognized Platinum as the owner of the Operating Rights and Working Interests and is bound by its admissions.

The DOI asserts that its approval of a transfer of operating rights for leases on Indian lands is required under 25 C.F.R. § 211.53 and that it has not given its approval. The Nation asserts that DOI approval is not required under 25 C.F.R. § 211.53, but that the transfer required the Nation's approval, which it has not given. Platinum contends that under 25 C.F.R. § 211.53 the Nation has the right to approve a transfer of operating rights only if the oil and gas lease so provides; thus, because Jicarilla Lease Nos. 71 and 363 do not contain express provisions requiring the Nation's approval of any assignments or transfers, the Nation's approval of the transfer is not required. The Nation counters that its laws requiring approval of a transfer of operating rights is valid and enforceable regardless of whether 25 C.F.R. § 211.53 applies to a transfer of operating rights or whether the lease expressly requires such approval.

The record before the Court is insufficient to determine: 1) whether 25 C.F.R. § 211.53 applies to the transfer of operating rights or, if it does, whether the Indian mineral owner may by enactment of legislation require its consent to the transfer when the operative lease does not expressly require such consent; or 2) whether the Nation is bound by any admissions that Platinum is the owner of the Operating Rights and Working Interests. The Court does find, based on the record before it, that the DOI did not approve a transfer of the Operating Rights and Working Interests to Platinum and that that Platinum cannot take advantage of the limited liabilities to be assumed by the transferee of the Operating Rights and Working Interests set forth in the Confirmed Golden Oil Plan unless the Golden Plan provided for a transfer to Platinum. The Court will address each of these points in turn.

1) The Court cannot on the record before it decide whether 25 C.F.R. § 211.53 applies to the transfer of operating rights or whether the Indian mineral owner may require that it consent to such a transfer when the operative oil and gas lease does not expressly provide for such consent.

Whether a transfer of the Operating Rights to Platinum requires approval by the DOI, the Nation, or both, centers on the meaning of 25 C.F.R. § 211.53. That section provides:

Based on the language in the regulation, it is not entirely clear whether the transfer of operating rights is governed by 25 C.F.R. § 211.53. Compare Cross Creek Corp., 131 IBLA 32 (1994) with Golden Oil Company v. Chace Oil Company, 128 N.M. 526, 994 P.2d 772 (Ct.App.1999).45 It is also not entirely clear whether, assuming 25 C.F.R. § 211.53 applies to operating rights, the Nation's approval of a transfer of operating rights for properties on its lands is required when the applicable lease does not contain a provision expressly requiring the Nation's approval.46 Courts give substantial deference to an agency's interpretation of its own regulations unless its interpretation is unreasonable, plainly erroneous, or inconsistent with the regulation's plain meaning.47 Apart from the DOI's position taken in this case and a footnote in Cross Creek Corp. regarding the Bureau of Indian Affairs' administration of 25 C.F.R. § 211.53 in 1994, there is no evidence before the Court regarding the practice and policy of the Bureau of Indian Affairs in administering 25 C.F.R. § 211.53. Therefore, the record before the Court is insufficient for the Court to determine whether 25 C.F.R. § 211.53 applies to the transfer of operating rights or whether the Indian mineral owner may require that it consent to such a transfer when the operative oil and gas lease does not provide for such consent.

Platinum further asserts that because the Leases did not expressly require the Nation's approval as a condition of assignment,48 under 25 C.F.R. § 211.53 only the consent of DOI was required. If 25 C.F.R. § 211.53 does not obviate the need for the Nation's approval, then the Nation's approval of the transfer is required by the Nation's Code enacted pursuant to 25 C.F.R. § 211.1(d). That section provides:

A law requiring the Nation's approval of the transfer of operating rights under leases within its territorial jurisdiction constitutes the regulation of the conduct of persons, businesses, operations or mining. Therefore, unless 25 C.F.R. § 211.53 both 1) applies to a transfer of operating rights, and 2) limits the Nation's right to approve a transfer only when the lease expressly provides for approval of the Indian mineral owner, the Nation's laws requiring the Nation's approval of a transfer of operating rights are valid and enforceable. Based on the foregoing uncertainties in the operation of 25 C.F.R. § 211.53, the Court cannot determine what approvals are required. And, as discussed in footnote 49 below, if the Nation's approval was required, the evidence is insufficient to establish that the Nation approved the transfer of the Operating Rights and Working Interests to Platinum.

2) The record before the Court is insufficient to determine whether the Nation is bound by any admissions that Platinum is the owner of the Operating Rights.

In support of its position that the Nation is bound by its admissions that Platinum is the owner of the Operating Rights and Working Interests, Platinum relies on: 1) tract notes in the Nation's Lease Data Sheets stating the Golden Oil bankruptcy court gave Platinum the right to operate and ownership of the oil and gas interests claimed by Golden Oil; 2) a draft memorandum of understanding and a title history prepared by Shenan Atcitty, then counsel for the Nation, in which the Nation acknowledges it is bound by the orders of the Golden Oil bankruptcy court including orders requiring the assignment of the Operating Rights and Working interests down the chain from Chace to Platinum; 3) verbal acknowledgments by Ms. Atcitty that Platinum owns the Operating Rights and Working Interests and Platinum's reliance on those statements; and 4) a Resolution of the Nation's Legislative Counsel acknowledging that the Golden Oil bankruptcy court ordered the assignment of the Leases to Platinum.49 The Nation objects to Platinum's assertions about the meaning of these statements on the ground that each of those communications was made in furtherance of settlement and are inadmissible under Federal Rule of Evidence 408(a)(2). The Nation further argues that the Legislative Council resolution was rescinded when settlement negotiations fell apart, and that the Lease Data sheets state that the assignment of operating rights has not been submitted or approved by the DOI or Nation.

The Court cannot based on the record before it rule on the Nation's objections under Federal Rule of Evidence 408(a)(2). There is insufficient evidence before the Court regarding what documents may have been prepared in connection with settlement negotiations. Further, the Court cannot, based on the record before it, determine whether the Nation, as a sovereign government, is bound by the alleged statements and representations upon which Platinum relies.50

3) The DOI did not approve a transfer of the Operating Rights and Working Interest to Platinum pursuant to 25 C.F.R. § 211.53.

Platinum, relying on a decision of the Mining Minerals Service ("MMS"), which is part of the Department of Interior, argues that DOI did in fact grant its approval of the transfer of the Operating Rights and Working Interests to Platinum pursuant to 25 C.F.R. § 211.53 (assuming 25 C.F.R. § 211.53 applies to a transfer of operating rights). The Court disagrees.

On December 17, 2007, the MMS issued an Order to Report to Golden Oil ordering Golden Oil to submit certain Oil and Gas Operations Reports ("OGORs") for Lease Nos. 71 and 363. Golden Oil filed an appeal of the MMS Order to Report. The MMS issued a decision in the appeal that the "OGOR reporting requirement for the wells on Jicarilla 71 and 363 were the responsibly of Platinum Oil Properties, LLC for the production months [in question], and that `MMS agrees that Platinum Oil Properties, LLC is the responsible operator to report the OGORs.'" See Docket No. 194-95, page 15 of 16.51 This decision on appeal does not constitute DOI approval of a transfer of operating rights to Platinum under 25 C.F.R. 211.53 for two reasons.

First, the regulations contained in 25 C.F.R. Part 25, which include the requirement for DOI approval of assignments governed by 25 C.F.R. § 211.53, are to be administered by the Bureau of Indian Affairs under the direction of the Secretary of Interior, not by MMS. 25 C.F.R. § 225.1. Actions to be taken by the Secretary of Interior pursuant to 25 C.F.R. Part 25 may be taken by an authorized representative of the Secretary. See 25 C.F.R. § 225.3 (defining "Secretary" to include an authorized representative, with one limitation not applicable here). Consistent with this requirement, the decision on an appeal of an order issued by MMS involving Indian leases is to be rendered by the Deputy Commissioner of the Bureau of Indian Affairs, not by MMS. 30 C.F.R. § 290.105(g). Notwithstanding this requirement, MMS instead of the Bureau of Indian Affairs rendered the decision in Golden Oil's appeal of the MMS Order to Report.52 Therefore, any approval of the transfer to Platinum of Operating Rights and Working Interests stemming from the decision made in the Golden Oil appeal was given by MMS, not by the Bureau of Indian Affairs.53

Second, the MMS decision on appeal did not address ownership of the Operating Rights and Working Interests. MMS' decision on appeal was that the reporting requirements were the responsibility of Platinum as the "responsible operator to report the OGORs," not that Platinum was the owner of any operating rights or working interests. A designated operator need not be a lessee or owner of operating rights.54 Therefore, a finding that Platinum was the operator is not a finding that Platinum owned any operating rights.

4) If the confirmed Golden Plan did not provide for a transfer of the Operating Rights and Working Interests to Platinum, then Platinum cannot take advantage of the limited liabilities to be assumed by the transferee of the Operating Rights and Working Interests set forth in the confirmed Golden Oil Plan.

The only limitation of assumed liabilities upon which Platinum relies is the limitation of assumed liabilities in the Settlement Agreement and confirmed Golden Oil Plan. Thus, even if the Court were to determine that 25 C.F.R. § 211.53 does not apply to a transfer of operating rights (thereby rendering DOI approval of such transfer unnecessary), and even if Platinum were able to show that the Nation is bound by an admission that Platinum is the owner of the Operating Rights and Working Interests, unless the confirmed Golden Oil Plan were to provide for a transfer of the Operating Rights and Working Interests to Platinum then Platinum could not take advantage of the provisions of the Settlement and Plan under which the assumed liabilities of the transferee are limited. Without the protection of the Settlement Agreement and confirmed Golden Oil Plan, Platinum would take the Operating Rights and Working Interests without any limitation on assumed liabilities.

CONCLUSION

Based on the foregoing, the Court concludes that the cross-motions for summary judgment must be denied. This Memorandum Opinion is entered in accordance with Rule 7052, Fed.R.Bankr.P. An order consistent with this Memorandum Opinion will be entered.