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IEl'ATE OF OI(LAHOMA

I JUN21 _UlUCaseNo. 107431

(Consolidated With 107432, 107433, 107434) MICA'iA[=L _, I'_I(JHIE

I _ _ CLERKIN THE SUPREME COURT

i OF THE STATE OF OKLAHOMA -

I SENECA TELEPHONE COMPANY,

Plaintiff/Appellee,

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I MIAMI TRIBE OF OKLAHOMA, d/b/a

WHITE LOON CONSTRUCTION COMPANY,

i Defendant/Appellant.

i APPELLEE'S ANSWER BRIEF

I Appeal from the District Court of Ottawa CountyCase No. SC-2008-530 (Consolidated Case)

The Honorable William E. Culver, Special Judge

!Counsel for Plaintiff/Appellee:

I Michael T. Torrone, O.B.A. #21848Donna L. Smith, O.B.A. #12865

Leonard M. Logan, IV, O.B.A. #11129mm LOGAN & LOWRY, LLP

101 South Wilson Street

P. O. Box 558

I OK 74301-0558Vinita,

(918) 256-7511

Attorneys for Plaintiff/Appellee Seneca Telephone

I Company

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ICase No. 107431

(Consolidated With 107432, 107433, 107434)

IN THE SUPREME COURT

OF THE STATE OF OKLAHOMA

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SENECA TELEPHONE COMPANY,

Plaintiff/Appellee,

V°

MIAMI TRIBE OF OKLAHOMA, d/b/a

WHITE LOON CONSTRUCTION COMPANY,

Defendant/Appellant.

APPELLEE'S ANSWER BRIEF

Appeal from the District Court of Ottawa County

Case No. SC-2008-530 (Consolidated Case)

The Honorable William E. Culver, Special Judge

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June 21, 2010

Counsel for Plaintiff/Appellee:

Michael T. Torrone, O.B.A. #21848

Donna L. Smith, O.B.A. #12865

Leonard M. Logan, IV, O.B.A. #11129

LOGAN & LOWRY, LLP

101 South Wilson Street

P. O. Box 558

Vinita, OK 74301-0558

(918) 256-7511

Attorneys for Plaintiff/Appellee Seneca Telephone

Company

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INDEX

Background .... ............................................................. 1

Okla. Stat. tit. 63, § 142.1 ................................................. 1

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, Inc.,

523 U.S. 751 (1998) ................................................. 6

Rice v. Rehner, 463 U.S. 713 (1983) ......................................... 7

47 U.S.C. § 152(b) ....................................................... 6

Okla. S. Ct. Rule 1.1 l(k)(1) ................................................ 2

Argument and Authorities ..................................................... 9

PROPOSITION I: THE OTTAWA COUNTY DISTRICT COURT PROPERLY EXERCISED

SUBJECT MATTER JURISDICTION OVER STC'S ACTIONS AND TRIBAL SOVEREIGN

IMMUNITY IS NOT A DEFENSE TO SUIT IN THIS 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. Independent 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) ....................... 10

Rice v. Rehner, 463 U.S. 713 (1983) ................................ 9, 10, 1 I, 12

18 U.S.C. § 1161 .................................................... 10, 11

(ii) Application of the preemption analysis to private tort actions against an Indian

tribe: Bittle v. Bahe. .................................................... 12

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) ........................... 12, 13, 14, 15

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Kiowa Tribe of Okla. v. Mfg. Technologies, Inc.,

523 U.S. 751 (1998) .................................................. 13, 14

Montana v. U.S., 450 U.S. 544 (1981) ....................................... 13

Okla. Tax Commn. v. Citizen Band Pottawatomi lndian Tribe of Okla.,

498 U.S. 505 (1991) ..................................................... 14

Rice v. Rehner, 463 U.S. 713 (1983) ............................... 12, 13, 14, 15

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ........................... 13

Williams v. Lee, 358 U.S. 217 (1959) ....................................... 13

Okla. Stat. tit. 37, §9 501, et. seq ........................................... 15

Okla. Stat. tit. 37, 9 537 and 537(A)(2) ................................... 12, 15

18 U.S.C. 9 1161 .................................................... 14, 15

(iii) Overarching state interest applicable to every preemption analysis ......... 16

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) .................................... 16

Cossey v. Cherokee Nation Enterp., 212 P.3d 447 (Okla. 2009) ................... 16

Montana v. U.S., 450 U.S. 544 (1981) ....................................... 16

Nevada v. Hicks, 533 U.S. 353 (2001) ....................................... 16

Rappaport v. Nichols, 156 A.2d 1 (1959) .................................... 15

Okla. Const. art. II, § 6 .................................................. 16

(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 ..................... 17

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) .................................... 17

Rice v. Rehner, 463 U.S. 713 (1983) ........................................ 17

° No tradition of tribal sovereignty or immunity in the realm of

underground telecommunication facilities or in excavation

causing damage to the same ......................................... 17

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) .................................... 19

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) .... .................................... 19

Wetsel v. Independent SchoolDist., 670 P.2d 986, 993 (Okla. 1983) ............... 19

47 U.S.C. 9 151,152 .................................................... 18

. The goal of the congressional plan in enacting The Federal

Communications Act, Title 47 U.S.C. 99 151 et. seq. was to

delegate to the states authority to regulate all intrastate communications ...... 19

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) .................................... 21

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Cheyenne River Sioux Tribe Tel. Auth. v. Pub. Utilities Commn. of S.D.,

595 N.W. 604 (S.D. 1999) ................................................ 20

Conn. Natl. Bank v. Germain, 503 U.S. 249 (1992) ......................... 20,21

N.C. Util. Commn. v. FCC, 552 F.2d 1036, 1041-1042 (4 _ Cir. 1977) .............. 20

47 U.S.C. §221(a) ...................................................... 20

47 U.S.C. § 152(b) ................................................ 19, 20, 21

Okla. Const. art. IX, § 18 ................................................. 21

Okla. Stat. tit. 17, § 131 .................................................. 21

. Oklahon_a's interest in regulating communications within its

borders and its enactment of a statutory scheme to further such interest ...... 21

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) .................................... 21

Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994) ..................... 22, 23

Rice v. Rehner, 463 U.S. 713 (1983) ........................................ 21

Tate v. Browning-Ferris, Inc., 833 P.2d 1218 (Okla. 1992) ...................... 22

Okla. Stat. tit. 6333 142.2(15) and 142.9a(B) ................................. 22

47 U.S.C. § 152(b) ........................ . .......................... 21, 23

. Bittle mirrors Seneca Telephone Company v. Miami Tribe of

Oklahoma d/b/a White Loon Construction Company ..................... 23

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) ................................. 23, 24

Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994) ........................ 24

Kiowa Tribe of Okla. v. Mfg. Technologies, lnc.,

523 U.S. 751 (1998) ..................................................... 23

. Consideration of Oklahoma's overarching interest to provideaccess to state courts .............................................. 24

Bittle v. Bahe, 192 P.3d 810 (Okla. 2008) .................................... 24

Cossey v. Cherokee Nation Enterp., 212 P.3d 447 (Okla. 2009) ................... 24

. Finding of proper state jurisdiction extinguishes attorneys' fees

and costs issue ................................................... 25

Okla. S. Ct. Rule l.ll(k)(1) ............................................... 25

. 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 ................. ........................... 25

Essence, Inc. v. City of Federal Heights, 285 F.3d 1272 (10 _ Cir. 2002) ............ 26

lndep. School Dist. No. 9 of Tulsa Co. v. Glass, 639 P.2d 1233 (Okla. 1982) ........ 26

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PROPOSITION Ih APPLYING NEGLIGENCE PER SE, DETERMINING VIOLATION OF

A DUTY, AND DETERMINING EXTENT OF DAMAGES ARE ALL MATTERS FOR THE

FACT FINDER AND THE OTTAWA COUNTY DISTRICT COURT WAS NOT "CLEARLY

ERRONEOUS" IN AWARDING JUDGMENT TO STC .......................... 26

A. Standard and Scope of Review ........................................... 26

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Anderson v. Bessemer City, 470 U.S. 564 (1985) .............................. 26

U.S.v. De la Cruz Tapia, 162 F.3d 1275 (10 _ Cir. 1998) ........................ 26

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 ............................................ 26

Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994) ..................... 27,.28Okla. Const. art. XXIII, § 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 ....................... 28

Jones v. Okla. Nat. Gas. Co., 894 P.2d 415 (Okla. 1994) ........................ 29

Leak v. Fahle, 55 P.3d 1054 (Okla. 2002) .................................... 28

Wetsel v. Independent SchoolDist., 670 P.2d 986, 993 (Okla. 1983) ............... 29

Okla. Stat. 63, §149(a)(B) ................................................ 29

D. Determination as to amount of relief or damages is a question of fact ........... 29

Complete Auto Transit, Inc. v. Reese, 425 P.2d 465 (Okla. 1967) ................. 29

Okla. Stat. tit. 23, § 61 ................................................... 29

Conclusion ................................................................. 30

(iv)

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APPELLEE'S ANSWER BRIEF

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 115-03B) 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. 63 § 142.1 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

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hearing. Appellants challenged the trial court's decision in all four cases, and all four cases were

consolidated into case no. 107431 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, 119. I

2. The Miami Tribe is a federally-recognized Indian tribe and White Loon is an

excavation company partly owned and operated by Miami Tribe. In 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 6.

3. On December 4, 2007, Appellants damaged underground STC telephone line 115-

03B while performing excavation activities. The STC telephone line services the Consumer

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This citation is based on Okla. Sup. Ct. R. 1.11 (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.

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Facilities owned by EST. Line 115-03B was clearly marked by pedestals 2 bearing visible

warning labels alerting excavators to the presence of buried cable in the vicinity. Damage to line

115-03B caused Consumer Facilities to lose telephone service for a period of time. STC's cost

in repairing the line totaled $5,152.00. 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, 111-112; Def's Mot. to Dis. 1. 3

4. On August 4, 2008, Appellants again damaged underground telephone line 115-

03B while performing excavation activities for EST. The damage site was in close proximity

to the first severing of STC line 115-03B occurring on December 4, 2007. This line provides

telecommunications to the EST social services building. Line 115-03B was clearly marked by

pedestals that contained visible labels warning excavators of the line's existence. Damage to

line 115-03B caused the Consumer Facilities to lose telephone service for a period of time.

STC's cost in repairing the line totaled $4,237.55. Appellants again failed to notify STC of

forthcoming excavation activities prior to commencing work.

Trial Tr., June 18, 2009 at 52-57, 112-114; Trial. Tr. July 17, 2009 at 60, 82.

5. On August 11, 2008, Appellants damaged underground telephone line 115-03

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

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Pedestals are green boxes approximately 28-32 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 45.

3

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-08-531 unless otherwise stated.

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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 115-03 was clearly marked by a pedestal

bearing the'aforementioned warning labels. Damage to line 115-03 caused residents of the

housing subdivision to lose service for a period of time. STC's cost in repairing the line totaled

$1,497.90. 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-I 15; Trial Tr., July 17, 2009 at 60, 82.

6. 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 115-03B and line 115-03 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-08-530, SC-08-531, SC-08-532, Nov. 3, 2008.

7. 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 "Indian 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 theI

pending lawsuits and that Appellants had not waived said immunity.

Def.'s Mot. to Dis. at 1-3.

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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 3-12.

9. On February 3, 2009, with three lawsuits pending and before the hearing on

Appellants' motion to dismiss, Appellants again damaged line 115-03B while excavating. In

fact, Appellants damaged this cable less than a 100 feet from where it cut the same line on

August 4, 2008. This line provides telecommunications to the EST social services building.

Line I 15-03B was clearly marked by a pedestal bearing visible labels warning excavators of the

line's existence. Damage to line 115-03B again caused the Consumer Facilities to lose

telephone service. STC's repair costs totaled $3,361.48. Appellants called STC to locate line

115-03B 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, 115-116; Trial Tr., July 17, 2009 at 60, 82.

10. 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 Indian 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 Indian Offenses

regulations, things of this nature could be brought in that Court.

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I am saying, and I can't represent to the Court that if this case

were to be heard in the Court of Indian 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 Indian 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 Indian tribes in excavation or telecommunications, and admitted that Tribal

courts do not have authority to hail non-members, STC, into Indian 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 In 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 Indian 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 Indian tribes

do not have the authority to regulate in the realm of Oklahoma telecommunications or public

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utilities. Consequently, Indian 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, 15-20.

11. 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 7.

12. 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.

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further presented evidence of damages for each case and requested relief in the amount of

$14,248.93.

Trial Tr., June 18, 2009 at 21-129; Trial Tr., July 17, 2009 at 61-67.

13. The District Court considered evidence presented by both parties and determined

that UFDPA creates a duty to protect underground facilities. The District Court acknowledged

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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 $13,648.93 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 115-121.

14. 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 $34,655.09 in attorney's fees.

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Pl.'s Br. in Support of App. For Atty.'s Fees 1-2; Order Granting Pl.'s Atty. Fees 5.

ARGUMENT AND AUTHORITIES

PROPOSITION I: THE OTTAWA COUNTY DISTRICT COURT PROPERLY

EXERCISED SUBJECT MATTER JURISDICTION OVER STC'S ACTIONS AND

TRIBAL SOVEREIGN IMMUNITY IS NOT A DEFENSE TO SUIT IN THIS 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. Independent 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 994-95. 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 brief-

in-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.

In Rice v. Rehner, the United States Supreme Court considered whether the State of

California could require a federally licensed Indian trader operating a general store on an Indian

reservation, to obtain a state license to sell liquor for off-premises consumption. Rice, 463 U.S.

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at 713. The Court answered the certified question in the affirmative and allowed California to

require the Indian trader to obtain a state license. Id.

The Indian trader, Rehner, argued in twofold that state licensing requirements would

infringe upon tribal sovereignty and that Title 18 U.S.C. § 1161 pre-empted state regulation of

Indian 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

Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption." Id.

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 Indian trader, on Indian land, to obtain a state liquor lieense. Rice, 463 U.S. 713.

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 Indians in the context of liquor regulation. Id. at 718-720. The Court

noted that tribal sovereignty should only be used to inform the preemption analysis rather than

be determined by it. Id. at 718. If the Court determines that tradition recognizes sovereign

immunity in favor of Indian 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, Id. at 719-720. If 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 Indian regulation of alcohol is important to Indian self-

governance 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

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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 Indians" 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.'" Id. at 724. Rather,

there existed a historical tradition of concurrent state and federal jurisdiction in the area of liquor

in Indian Country due to the state interests in regulating the same. Id.

The next step in the preemption analysis was to determine whether Title 18 U.S.C. §

1161 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 Indians 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 Indians 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 Indian Country. ld. at 734-735.

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." Id. 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

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required to authorize state jurisdiction over Indians in Indian 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 Indian tribe:

Bittle v. Bahe.

In 2008, the Oklahoma Supreme Court further defined the Rehner preemption analysis

in the Bittle case. In 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 Indian tribe. Id. 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

812-813. She named the motorist involved in the accident, the Absentee Shawnee Tribe qf

Oklahoma, and Thunderbird Entertainment Center, Inc. as defendants. Id. at 813. She claimed

that the Indian 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 Indian tribe, through its enterprise, served alcohol to the

already intoxicated motorist. Id. The District Court dismissed the lawsuit against the Indian

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. Id. at 813-814. 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. Id. at 817. The Court began its consideration of the issues by

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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. Id. at 816-821.

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." Id. 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." Id. 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 Indian 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 9-11. As discussed infra, Bittle is analogous and "on all fours" with STC's

actions.

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commercial activities and regardless of whether they were made on or offa reservation." Id. 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. Id. 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 Id. at 823.

In 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 822-823. Recall, the Rehner Court held that California could

require an Indian trader to obtain a state liquor license, but Rehner did not involve a matter of

It

adjudicatory jurisdiction. Rice, 463 U.S. at 713. In 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 822-823 (Bold added). Therefore, congressional

6

Appellants rely heavily on Kiowa in Proposition of Error I 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 Indian 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 Indians in Indian 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.

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delegation under 8 1161 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 Indian country because of the "unquestionable interest in the liquor traffic that, tl

occurs within its borders," the Court reviewed Oklahoma's statutory scheme in place to regulate

alcoholic beverages. Id. at 818. The regulatory scheme codified in Okla. Stat. tit. 37, 88 501,

et. seq., and at § 537(A)(2) prohibited the sale, delivery, or furnishing of alcohol to intoxicated

persons, ld. at 813-814. The penalty for violating that law was declared to be a felony subject

to monetary fine among other sanctions. Id. 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). Id. 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." Id. 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 Indian 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, 8 1161 abrogates any tribal immunity from suit in the area of alcoholic

beverage laws." Id. at 821. This quotation appears to hold that without a tradition of sovereign

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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. Id. at 819. Article

II, § 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, Indian 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)).

Indian 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. Id.

However, in the case of non-Indian members, a tribal forum otien cannot exercise civil

jurisdiction over that individual. Id. at 457. The ability to exercise civil jurisdiction over a non-

member absolutely requires tribal authority to regulate non-member activity. Id. 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. Id. 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 non-

members on Indian 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 456-57 (citing

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Montana, 450 U.S. at 565-566). 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. Id. 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.

In 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. Indian 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

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there is a tradition of tribal sovereignty in the area of telecommunications regulation. 595 N.W.

604 (S.D. 1999). In Cheyenne, a telephone company desired to sell telephone exchanges, partly

located on Indian land, to a tribal subsidiary. Id. at 606-07. The Public Utilities Commission

of South Dakota ("PUC"), 8 intervened and disapproved the sale. Id. 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"). Id. at 610-11. 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." Id. 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 Indian 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 Indian land.

Moreover, an extensive study of Indian 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.

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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. In 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 Indian 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 47 § 152(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 47 § 152(b) in its Order denying

the Appellants' motion to dismiss at page 7. The District Court stated Title 47 § 152(b) "places

jurisdiction over intrastate communications with a state..."

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against state interests to determine whether federal law preempts state law. Title 47 U.S.C. 9§

151 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, 1041-1042 (4 thCir. 1977)•

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Bank v. Germain, 503 U.S. 249, 253-54 (1992). It 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 Indian

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 810.

3. 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 822-823. It

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

I1

Telephone companies operating in Oklahoma are under the governance of both the Federal FCC

and the OCC. Okla. Stat. tit. 17 § 131 and Article IX § 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.

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to communicate in emergency situations. The legislature has promulgated various statutes to

protect public health and safety, but the UFDPA is most relevant to the instant case.

The UFDPA is a comprehensive statutory scheme created by the legislature to protect

both the public and underground facilities. Jones v. Okla. Natural Gas Co., 894 P.2d 415,418

(Okla. 1994). UFDPA defines "underground facility" to mean:9

any underground line, cable, facility, system and appurtenances

thereto, for producing, storing, conveying, transmitting or

distributing communication (including voice, video or date

information)... (Emphasis added).

Okla. Stat. tit. 63 § 142.2(15). In the instant case, STC's underground telecommunication lines

fit within the statutory definition. Pertinent to the case at bar is § 142.9a(B) which imposes a

duty on excavators to take measures to protect underground facilities. See Jones, 894 P.2d at

420 (stating that the Act imposes obligations on excavators). However, in analyzing the

UFDPA, the Oklahoma Supreme Court found that the Act failed to provide a remedy for anyone

damaged because of a violation of the UFDPA. ld. Significantly, extant jurisprudence holds

that the UFDPA imposes a duty upon operators and excavators and that both may be summoned

into state district court in a common law negligence action to recover for injury caused by the

breach of that duty. See id. at 419-420 ("Before a statutory scheme may be construed to

abrogate common law rights, '...its alteration must be clearly and plainly expressed. '") (quoting

Tate v. Browning-Ferris, lnc., 833 P.2d 1218 (Okla. 1992)). Jones, therefore, stands for the

proposition that even ifa statute provides a remedy, that remedy does not preclude common law

rights without clear andplain expression of such intent.

It is clear that the legislature enacted the UFDPA to protect underground facilities, which

furthers the State's interest in regulating telecommunications for the purpose of promoting safety

of life and property. Id. at 418. Further, the Oklahoma Supreme Court recognizes that state

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courts have jurisdiction to hear cases involving damages to underground telecommunications,

whether that action is brought based on a statutory duty or a common law duty grounded in

negligence. Id. at 419-20. This exercise of adjudicatory jurisdiction adheres to the congressional

intent codified in Title 47 U.S.C. § 152(b). Thus, the Court should permit STC to bring its

actions in state court against Appellants for their violation of UFDPA statutory duty and

common law duty, as recognized in Jones, because such actions further purposes of

telecommunication regulation through exercise of adjudicatory authority.

4. Bittle mirrors Seneca Telephone Company v. Miami Tribe of Oklahoma d/b/a

White Loon Construction Company.

A brief comparison of the Bittle decision and the circumstances of the instant case

reveals that the Ottawa County District Court properly exercised jurisdiction over STC's actions.

As in Bittle, where the plaintiff brought a private tort action against an Indian tribe and its

enterprise grounded in negligence; STC brought a private tort action against an Indian tribe and

its enterprise grounded in negligence. Like in Bittle, where the tribe argued that it was immune

from suit by relying on Kiowa and stating that there was no express congressional authorization

for suit, Appellants argued they were immune from suit by relying on Kiowa and stating that

there was no express congressional authorization for suit. Similarly, in Bittle where there was

no tradition of sovereign immunity in the realm of a particular regulatory area; Appellants in the

instant case do not benefit from a tradition of sovereign immunity in the realm of

telecommunications regulation. As in Bittle, where in absence of said tradition, Congress

"implicitly" authorized the exercise of state regulatory and adjudicatory jurisdiction through

delegation to the states; in the instant case, where there is an absence of said tradition in the area

of telecommunications, Congress has 'implicitly' authorized the exercise of state regulatory and

adjudicatory jurisdiction through delegation to the State of Oklahoma to regulate

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telecommunications within its borders. Like in Bittle, where the Indian tribe could be

summoned into state district court for breaching a statutory duty arising from a state statue

enacted to further a state's regulatory scheme and for breaching a common law duty recognized

in jurisprudence as furthering the states's statutory scheme, Appellants can be summoned into

the Ottawa County District Court for breaching the aforesaid statutory duty arising from the

UFDPA enacted to further Oklahoma's telecommunication regulatory scheme and for breaching

the aforesaid common law duty recognized in Jones as furthering the state's statutory scheme.

Finally, as in Bittle, where the court found that the state district court could exercise jurisdiction

over plaintiff's tort action against the tribe; this court should find that the Ottawa County District

Court properly exercised jurisdiction over STC's tort action against Appellants. See Bittle supra.

5. Consideration of Oklahoma's overarching interest to provide access to state

courts.

As discussed in Part B(iii) supra, the State of Oklahoma has a strong interest in ensuring

that its citizens have a judicial forum to address injuries. Bittle, 192 P.3d at 819. This interest

is grounded in the Oklahoma Constitution and in case law. Further, Federal Indian law

jurisprudence has recognized the importance of"dual sovereignty" and the concept of concurrent

jurisdiction of federal and state courts. Cossey, 212 P.3d at 455. If the Court in the instant ease

grants Appellants' requested relief in this appeal, STC will be left without any means of seeking

redress for injuries caused by Appellants. Typically, Indian tribes attempt to argue that

individuals may seek redress in Tribal Court, however, in this case such assertion would be

meaningless. In oral argument on Appellants' motion to dismiss, Appellants stated that the

Court of Indian Offenses was the proper forum to hear the actions. However, Appellants further

stated that tribal sovereign immunity applied in said Court as well" Appellants implied that they

would assert that defense when they stated that "I [Tribe's counsel] can't represent to the Court

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that if this case were to be heard in the Court of Indian Offenses, that the Tribe would come in

and not assert sovereign immunity as well." Moreover, as discussed supra, a tribe's

adjudicatory authority is only as strong as its regulatory authority. It is clear that Appellants do

not have authority to regulate telecommunications in this case and thus could not adjudicate a

claim brought by a non-Indian for damage to underground telecommunications.

If this Court grants Appellants' requested relief STC will be letl without redress and

Appellants will have escaped liability from its negligent actions that resulted in four telephone

cable cuts and over $14,000 in damage. STC requests that consideration is given to Oklahoma's

overarching interest to provide access to courts for its citizens when employing the preemption

analysis.

6. Finding of proper state jurisdiction extinguishes attorney's fees and costs issue.

Appellants did not raise the issues of reasonableness of or entitlement to fees and costs

awarded to STC and thereby waived the issue on appeal. See Okla. S. Ct. Rule 1.11(k)(1)

("Issues raised in the Petition in Error but omitted from the brief may be deemed waived.

Argument without supporting authority will not be considered."). Further, because the entire

judgment should be affirmed on the issues of sovereign immunity and negligence raised and

briefed herein, STC will remain the prevailing party entitled to fees and costs.

7. 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.

Appellants at pages 9-16 of their brief relied on inapplicable case law to support their

positions. These cases were inapplicable because they were either unpublished, concerned the

workers' compensation court, failed to interpret a federal statute, or did not involve a private tort

action against a tribe.

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Appellants asserted in their brief in footnote 25 on page 7, the contention that because

STC did not have a Bureau of Indian Affairs approved easement or right-of-way for EST lands

that it was a trespasser. At footnote 49 on page 20, Appellants use the concept of trespasser to

argue that it owed a lesser duty to STC. This contention regarding trespassing does not require

eqnsideration by this court because it is inapplicable and irrelevant. Appellants cannot assert

the rights of a third party as a defense to its negligence. Indep. SchoolDist. No. 9 of Tulsa Co.

v. Glass, 639 P.2d 1233, 1237 (Okla. 1982); Cf Essence, Inc. v. City of Fed. Heights, 285 F.3d

1272, 1281 (10th Cir. 2002) ("When a law does not apply to a party, that party has suffered no

invasion of a legally protected interest.") EST is not a party to the instant case. Accordingly,

any easement dispute between STC and EST is irrelevant to Appellants, and EST acquiesced to

STC's lines as EST is a prominent customer of STC.

PROPOSITION II: APPLYING NEGLIGENCE PER SE, DETERMINING VIOLATION

OF A DUTY, AND DETERMINING EXTENT OF DAMAGES ARE ALL MATTERS

FOR THE FACT FINDER AND THE OTTAWA COUNTY DISTRICT COURT WAS

NOT "CLEARLY ERRONEOUS" IN AWARDING JUDGMENT TO STC.

A. Standard and Scope of Review

A district court's factual findings are reviewed under the clearly erroneous standard of

review. "A finding is 'clearly erroneous' when although there is evidence to support it, the

reviewing court on the entire evidence is lei_ with the definite and firm conviction that a

mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting

U.S.v. De la CruzTapia, 162 F.3d 1275, 1277 (10th Cir.1998)). "This standard plainly does

not entitle a reviewing court to reverse the finding of the trier of fact simply because it is

convinced that it would have decided the case differently." Anderson, 470 U.S. at 573.

B. The application of neglisenee per se and contributo_ negligence is a matter for

the fact finder and the District Court was not clearly erroneous in declining to

apply the same.

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Appellants incorrectly state that the application of negligence per se and contributory

negligence is a matter of law. Appellant's Br. in Chief at 17. Generally, Article XXIII, § 6 of

the Oklahoma Constitution provides that "the defense of contributory negligence.., shall, in

all cases whatsoever, be a question of fact..." Specific to the instant case is the Jones case

discussed supra. In Jones, the plaintiff was an excavator who was injured when he struck the

defendant's (operator) underground facility. 894 P.2d at 416-17. Plaintiff argued that defendant

was negligent under the UFDPA in failing to properly mark its underground facilities. The

defendant argued that the plaintiffwas negligent under the UFDPA in failing to properly locate

the line before excavating, ld. at418-20. The court found that both parties violated the UFDPA,

and ruled that a violation of the UFDPA may be negligence per se but only if violation

proximately caused or contributed to damages at issue and that such a determination was a

question of fact to be left to the jury. ld. at 419.

Appellants contend that STC was comparatively negligent under the doctrine of

negligence per se for damages it suffered to its underground telephone lines. Specifically,

Appellants rely on the fact that STC was not a member of OneCall discussed within the UFDPA.

Appellants argue that had STC been a member of OneCall, Appellants could have located STC's

telephone lines before excavating. Appellants also alleged that they called OneCall before

excavating. Appellants do not specifically contest any one ruling from the four separate small

claims cases. Thus, STC must assume that all rulings are contested for the same reasons.

STC presented evidence at trial through testimony and exhibits showing Appellants had

knowledge of the existence of STC's telephone lines prior to performing the excavation

activities resulting in the four lawsuits. Further, testimony of STC agents also showed that

Appellants did not call the STC office to request that lines be located on the EST land prior to

excavating. Moreover, testimony and exhibits established that there were numerous pedestals

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bearing warning labels alerting excavators to the presence of underground cables in the vicinity.

A witness for Appellants testified that pedestals were clearly visible. Lastly, cross-examination

of Appellants' witness showed that Appellants' alleged calls to OneCall were not close enough

to the dates of damage in the case.

The court considered the evidence and found that Appellants negligently damaged STC's

telephone lines in each of the four cases. The court ruled from the bench and stated that STC

was not a member of OneCall under UFDPA, but stated there was nothing in the statute creating

a sanction for the same. He further stated that Oklahoma common law recognizes a duty to not

damage underground facilities. The fact finder found that the evidence did not support

Appellants' alleged calls to OneCall for the dates in question. The court found that Appellants'

prior knowledge of the existence of STC lines on EST property and the pedestals warning of

buried cable created an "affirmative duty" to locate the lines before excavating so as to avoid

damaging the same. The court relied on appropriate evidence when making its decision, and

there was nothing to indicate a "clearly erroneous" decision in not applying negligence per se

against STC. 12

C. Determining that the Appellants breached a duty_ owed to STCis a matter for the

fact finder and the Distriet Court was not dearly erroneous in finding the

Appellants breached the duty.

Oklahoma courts have stated that "if a duty exists, the trier of fact then determines

whether a violation of that duty has occurred." Leak v. Fahle, 55 P.3d 1054, 1057 (Okla. 2002).

As discussed supra, the UFDPA imposes a statutory duty on excavators to take measures to

12

STC's failure to register with OneCall does not result in a "clearly erroneous" ruling. Recall,

the Jones Court found that both operator and excavator violated the UFDPA, but those

violations were to be considered by the fact finder when applying comparative negligence

through the doctrine of negligence per se. Further, Jones recognized the ability to maintain a

common law action for damages apart from any duty imposed by UFDPA.

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protect underground facilities. Okla. Stat. tit. 63, § 149(a)(B). Further, Jones holds that a

common law negligence action for damages is proper, because the UFDPA does not clearly

abrogate common law rights. The District Court found that an affirmative duty to locate lines

exists when an excavator has previous knowledge of telephone lines in the vicinity or when, by

observing warn.ing pedestals, should have known of their existence. Appellants did not raise a

proposition of error refuting the affirmative duty employed by the District Court and cannot do

so now. Wetsd, 670 P.2d 986.

For the sake of brevity, STC will rely on the discussion contained within Proposition

II(B) above regarding the evidence and testimony presented at trial and the District Court's

finding that Appellants breached their duty to refrain from damaging STC's lines when they

failed to locate those lines prior to excavating. The District Court was not "clearly erroneous"

in finding Appellants breached a duty owed to STC.

D. Determination as to amount of relief or damages is a question of fact.

Appellants contend that the Court awarded extraordinary relief to STC because the

UFDPA requires an excavator to repair underground lines that are damaged, not pay for

replacements. However, as discussed supra, STC brought a negligence action for breach of a

common law duty against Appellants as well as an action based on a breach of a statutory duty.

It is well established that the extent of damages resulting from negligence are to be "exclusively"

determined by the fact finder. Complete Auto Transit, Inc., v. Reese, 425 P.2d 465,469 (Okla.

1967). Okla. Stat. tit. 23 § 61 provides that "for breach of an obligation not arising from

contract, the measure of damages,.., is the amount which will compensate for all detriment

proximately caused thereby, whether it could have been anticipated or not."

STC presented evidence and testimony showing that it suffered detriment in the amount

of $14,248.93 as a result of Appellants' excavation activities. Specifically, STC presented

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testimony regarding the cost of STC employed and contract labor and materials in remedying

the damage caused by Appellants. The Court relied on this evidence and even reduced the

amount of damage requested relative to the first cable cut by $600. This reduction accounted

for STC's upgrade it made to telephone lines as a result of the first cable cut. The Court

ultimately awarded STC $13,648.93 in damages. The Court relied on appropriate evidence

when making its decision assessing damages, and there is nothing to indicate that the decision

was "clearly erroneous."

Conclusion

Based on the arguments contained herein, STC requests that this Court affirm the Ottawa

County District Court's ruling regarding all matters. STC respectfully requests this Court render

a decision in favor of STC and award STC attorney's fees, costs, and all other relief, legal or

equitable, available under law.

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I Dated this 21 st day of June, 2010.

i Respectfully submitted,

LOGAN & LOWRY, LLP

I 101 S. Wilson St., P.O. Box 558Vinita, OK 74301

Telephone: (918) 256-7511

I Facsimile: (918) 256-3187E-mail: llogan_loganlowrT.com

dsmith_,loganlowry.com

I mtorrone@loganlowrv.com

Attorneys for Plaintiff/Appellee Seneca

I Telephone Company

gan, IV, O.B.A. #11129

Donna L. Smith, O.B.A. #12865

Michael T. Torrone, O.B.A. #21848I

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CERTIFICATE OF MAILING

I, Michael T. Torrone, do hereby certify that on this 21 st day of June, 2010, I mailed a

true and correct copy of the above and foregoing "Appellee's Answer Brief' to:

Robin Lash

202 S. Eight Tribes Trail

Miami, OK 74354

O. Joseph Williams

Rachel Csar

P.O. Box 427

124 East Main Street

Norman, OK 73070

with proper postage thereon fully prepaid.

Michael T. Torrone

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