MEMORANDUM OPINION AND ORDER
JAMES A. PARKER, District Judge.
In the MOTION TO CONFIRM STATUS OF COURT'S STAY ORDER (Doc. No. 142) (Motion), Public Service Company of New Mexico (PNM) asks the Court to continue a stay of these consolidated cases pending the outcome of a PNM's proposed petition for certiorari to the United States Supreme Court. PNM states it will seek review of the Tenth Circuit Court of Appeals' opinion affirming this Court's ruling in the MEMORANDUM OPINION AND ORDER (Doc. No. 101)and in the MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO ALTER OR AMEND ORDER DISMISSING NAVAJO MATION AND ALLOTMENT NUMBERS 1160 AND 1393 (together the Opinion).1 In the Opinion, the Court dismissed PNM's claims against the Navajo Nation without prejudice, and the Court dismissed claims involving two parcels of land (the Two Allotments) concluding that the Court lacked jurisdiction under 25 U.S.C. § 357 to grant condemnation over lands partially owned by an Indian tribe.2 Twenty-two of the individual defendants in the condemnation action (No. 15 CV 501 JAP/CG) oppose the Motion. See INDIVIDUAL DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO STAY (Doc. No. 143) (Response). PNM filed a reply brief. See REPLY IN SUPPORT OF MOTION TO CONFIRM STATUS OF COURT'S STAY ORDER (Doc. No. 145) (Reply). The United States and the Navajo Nation take no position on the Motion. (Mot. at 4.) Because PNM had failed to show good cause to continue the stay, the Court will deny the Motion.
I. BACKGROUND
Since 1960, PNM's electric transmission line (the AY Line) has crossed five parcels of land in McKinley County, New Mexico owned by individual members of the Navajo Nation who are Plaintiffs in No. 15 CV 826 JAP/CG. Those parcels or allotments are identified as Allotment 1160; Allotment 1204; Allotment 1340; Allotment 1392; and Allotment 1877 (the Five Allotments). The Navajo Nation owns fractional undivided beneficial interests in Allotments 1160 and 1392 (the Two Allotments). PNM's fifty-year consensual easement to operate the AY Line expired on April 8, 2010. In 2009, PNM began a year-long attempt to obtain another consensual easement. After initial consent, a majority of the owners of the Five Allotments withdrew their consent. As a result, the Bureau of Indian Affairs (BIA) denied PNM's application for renewal of the right of way. On June 13, 2015, PNM filed this condemnation action. On September 18, 2015, twenty-two of the seventy-seven individual owners of the Five Allotments, filed a suit in trespass.3 No. 15 CV 826 JAP/CG. This Court consolidated the condemnation case with the trespass case. MEMORANDUM OPINION AND ORDER (Doc. No. 128) (Mar. 7, 2016).
In the Opinion, the Court dismissed the Navajo Nation as a party without prejudice, and the Court dismissed the Two Allotments because the Court lacked jurisdiction under 25 U.S.C. § 357. The Court determined that because the Navajo Nation owned a partial beneficial interest in the Two Allotments, those parcels were no longer "lands allotted in severalty to Indians." Id. The Court also ruled that even if the Two Allotments could be condemned under § 357, the Navajo Nation was an indispensable party to the condemnation action, but it could not be joined due to its sovereign immunity from suit in this Court. Consequently, under the Court's ruling, PNM must obtain a consensual easement from a majority of the fractional owners of the Two Allotments and from the Navajo Nation or it must move its transmission line to bypass the Two Allotments. PNM has the authority under § 357 to condemn the other three Allotments.
The Court issued another order staying the consolidated cases pending PNM's interlocutory appeal of the Opinion to the Tenth Circuit. See 167 F.Supp.3d 1248 (D.N.M. Mar. 2, 2016).4
On May 26, 2017, the Tenth Circuit Court of Appeals affirmed the Opinion. Pub. Serv. Co. of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017). On July 21, 2017, the Tenth Circuit denied PNM's petition for rehearing en banc. On July 31, 2017, the Tenth Circuit issued its mandate returning jurisdiction of this case to this Court. (See Doc. No. 140.)
On August 3, 2017, Magistrate Judge Carmen E. Garza ordered the parties to the consolidated cases to file a Joint Status Report and Provisional Discovery Plan. (Doc. No. 144) (JSR). The parties' JSR covers the condemnation related to Allotments 1204, 1340, and 1877.
II. STANDARD OF REVIEW
Various Rules of Procedure govern stays in district courts and courts of appeals pending further appeals. See Fed. R. Civ. P. 62(h) (governing stays pending appeals in district courts); Fed. R. App. P. 8(a) (governing motions for stays in circuit courts); and Fed. R. App. P. 41(d) (governing motions for a stay of the circuit court's mandate pending petition for certiorari). Importantly, the Tenth Circuit summarily denied a motion to stay its mandate pending review by the Supreme Court. (Resp. Ex. 2.)
Under Rule 62(h), district courts must consider these factors: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
III. DISCUSSION
PNM asks the Court to continue the stay claiming that the same reasons that prompted the Court to stay the action pending an interlocutory appeal to the Tenth Circuit still apply. In other words, PNM claims that its request for a stay pending review by the Supreme Court is just a continuation of the interlocutory appeal process. PNM also contends that if the Supreme Court grants certiorari, it will decide an important statutory issue vital to PNM's authority to condemn real property in Indian Country. Finally, PNM argues that a stay pending a decision by the Supreme Court would prevent piecemeal condemnation of the Five Allotments. PNM maintains that if it wins the appeal in the Supreme Court, it can then condemn all Five Allotments, but if it loses the appeal, even though PNM may condemn three of the five allotments, PNM "may have to change the location of its transmission line to bypass the Two Allotments." (Mot. at 3.) In its Reply, PNM points out that this Court should continue the stay to avoid the complications that could occur if this case and the appeal in the Supreme Court case proceed simultaneously.
However, the Court is unconvinced that a ruling by the Supreme Court favorable to PNM will necessarily result in the condemnation of all Five Allotments. If the Supreme Court grants certiorari and reverses the Tenth Circuit, it could remand the case to allow the Tenth Circuit to decide the questions on appeal on which it did not rule. The important issues the Tenth Circuit did not consider were whether the Navajo Nation is an indispensable party to any condemnation proceeding against the Two Allotments and whether the Navajo Nation can be joined despite its sovereign immunity. The Tenth Circuit explained:
Though we need not reach the other questions raised on appeal, we note that the district court's orders provide thorough and well-reasoned bases to affirm on each. The court's orders are especially persuasive on the question of tribal immunity, which the court rightly observes must be abrogated unequivocally, not implicitly, by Congress. See Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150, 1152 (10th Cir. 2011). PNM offers evidence of only implicit abrogation. We take note of this to demonstrate that even had PNM prevailed on the § 347 statutory question, it still would have had a long, difficult road ahead before its condemnation action could proceed.
Pub. Serv. Co. of New Mexico v. Barboan, 857 F.3d 1101, 1108 (10th Cir. 2017).
The Court concludes that PNM has failed to show that it is likely to succeed in its petition for certiorari. There is no circuit split on this legal issue—the only other circuit court that has ruled on the issue gave support for this Court's decision. In addition, no Tenth Circuit judge dissented from the denial of en banc review. Moreover, even if PNM obtains certiorari review and reversal of the Tenth Circuit, PNM will still face the difficult issue of the Navajo Nation's sovereign immunity and Congress's failure to explicitly abrogate that immunity in § 357.
PNM has also failed to convince the Court that the balance of harms favors a continuation of the stay. Hilton, 481 U.S. at 776. But the Allottees persuasively assert that many of them "are elderly and have not received compensation from [PNM] for use of the right of way since it expired in 2010." (Resp. Ex. 1 at 1-2.) Finally, the public interest lies in a decision or settlement related to the AY Line's location.
IT IS ORDERED that the MOTION TO CONFIRM STATUS OF COURT'S STAY ORDER (Doc. No. 142) is denied.
