Jicarilla Apache Tribe v. Supron Energy Corp.

PER CURIAM. These cases are before the court for rehearing en banc. The majority of the court adopts the prior dissenting opinion of Judge Seymour, reported at 728 F.2d 1555, 1563 (10th Cir.1984), with the exceptions and additions set out below. As Judge Seymour noted in dissent, whether the New Mexico Natural Gas Pricing Act (NMNGPA), N.M.Stat.Ann. § 62-7-1 et seq. (1982), applies to sales by non-Indian producers to non-Indian buyers of gas produced on the reservation is an issue that need not be decided in this case and we specifically do not decide it. We adopt the view that under the NMNGPA, value for royalty purposes can exceed sales prices and thus can exceed the price ceilings. Given this construction, the Act creates no possible conflict with federal law, so we need not decide the preemption issue addressed in the dissent. There is one issue not reached in the dissent which must now be decided. The trial judge held that the Tribe had stipulated away part of its claim against defendant Southland Royalty Company. The court said that “[ajcknowledging the inconsistency of this result, I state only that plaintiff is bound by the stipulation of counsel.” 479 F.Supp. 536, 552 (D.N.M. 1979). The Tribe argues that the court’s construction of its stipulation is not logical. Given the context in which the stipulation was made, we agree. Prior to trial, the court granted partial summary judgment in favor of defendants on the issue of “value” for royalty purposes, holding that defendants had paid royalties on the “value” of minerals produced from the leased lands by basing royalties on the actual price received for sale of gas at the wellhead. Although the court ultimately reversed itself on this issue, its decision was the law of the case throughout the trial. The Tribe argues persuasively that when it stipulated, in the middle of the trial, that Southland had paid royalties at the appropriate rate on the consideration Southland had received, the stipulation only applied to the situation where the sale price had been held by the court to be conclusive evidence of value. On appeal, Southland has provided no reason why the Tribe would drop its claim against Southland and not against other defendants. We thus conclude that the trial court misconstrued the stipulation. We have considered the other arguments of the various defendants and conclude that they are without merit. Accordingly, the district court is affirmed in all respects except for its limitation on the Tribe’s recovery against Southland. In this regard, the cause is reversed and remanded to the district court for computation of the additional amount owing from Southland to the Tribe.