Nos. 07-7068 15-7041 3511 the waiter! ?tatez QEnurt of Qppealg qur the Gland) (?lirtuit PATRICK DWAYNE MURPHY, Petitioner-Appellant, V. TERRY ROYAL, WARDEN, Respondent?Appellee. MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION IN SUPPORT OF PETITION FOR PANEL REHEARING OR REHEARING EN-BANC Anthony J. Ferate, OBA No. 21171 Ferate PLLC 4308 Echohollow Trail (202) 486?7211 AJ @Feratepllc.c0m Counsel for Oklahoma Independent Petroleum Association Dated: September 27, 2017 MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION IN SUPPORT OF PETITION FOR PANEL HEARING OR REHEARING ENBANC PurSuant to F. R. App. P. Rule through F. R. App. P. Rule 29(b) (3), amicus curiae Oklahoma Independent Petroleum Association, respectfully moves for leave to ?le an amicus brief in the present case. As set forth below, good cause exists for this request because of the signi?cant impact that the panel decision will have beyond the requested habeas relief Appellant seeks in his petition. 1. The Oklahoma Independent Petroleum Association represents more than 2,200 independent oil and natural gas operators that explore for and produce crude oil and natural gas in the state of Oklahoma. OIPA also represents a number of oil?eld service companies that provide important services that support exploration and production activities. OIPA members do not re?ne oil into gasoline or heating fuels, nor do they market gasoline. 2. This Court issued its panel decision and judgment on August 8, 2017. 3. Upon learning of the panel decision, OIPA staff and members reviewed the case and recognized that the effect of the decision extended far beyond the implications of federal habeas law. Due to the broad implications of the panel decision, this case presents complex issues of exceptional importance regarding state territory, tribal lands, regulatory primacy, and economic impacts due to taxation considerations. 4. An amicus brief on behalf of OIPA would address a) error on the part of the panel decision related to the Oklahoma Court of Criminal Appeals analysis under Salem, and b) the impact of the decision on oil and natural gas producers in the State of Oklahoma. 5. OIPA ?les this request as a motion for leave to ?le as opposed to an unopposed ?ling because counsel for Appellant objected to the organization?s ?ling in this matter. 6. As support to thismotion, OIPA has attached the brief that it would ?le if this motion is approved by the Court. 7. Accordingly, an approval of motion for leave to file an amicus should be approved to bring these important issues to light for consideration of whether a panel rehearing or rehearing en banc should be approved. CONCLUSION For these reasons, amicus OIPA respectfully requests that the Court grant this motion for leave to ?le in the present matter, to grant a panel rehearing or rehearing en banc. DATED this 27th day of September, 2017. Respectfull? sightedE tho . rate, OBA No. 21171 Attorney for Amicus, Oklahoma Independent Petroleum Association CERTIFICATE OF SERVICE I hereby certify that on this 27th day of September, 2017, I electronically ?led the foregoing using the court?s ECF system which will send noti?cation of such ?ling to all counsel of record. Anth . erate Nos. 07?7068 15?7041 3511 the U?niteh ?tate? (?lnurt of Qppealg 31:01:th QEirtuit PATRICK DWAYNE MURPHY, Petitioner-Appellant, v. TERRY ROYAL, WARDEN, Respondent?Appellee. BRIEF OF AMI CUS CURIAE OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION IN SUPPORT OF PETITION FOR PANEL REHEARING OR REHEARING EN-BAN Anthony J. Ferate, OBA No. 21171 Ferate PLLC 4308 Echohollow Trail (202) 486?7211 AJ @_Feratepllc.c0m Counsel for Oklahoma I ndependent Petroleum Association Dated: September 27, 2017 CORPORATE DISCLOSURE STATEMENTS In accordance with Rule 26.1 of the Federal Rules of Appellate Procedure, amicus Oklahoma Independent Petroleum Association, a 501(c)6 non?pro?t corporation incorporated in the State of Oklahoma, through its attorney, makes the following disclosures: 1. Oklahoma Independent Petroleum Association is not a publicly held corporation or other publicly held entity. 2. Oklahoma Independent Petroleum Association does not have a parent corporation. 3. No publicly held company owns 10% or more of the Oklahoma Independent Petroleum Association. TABLE OF CONTENTS PAGE INTEREST OF AMICI CURIAE 1 STATEMENT OF COMPLIANCE WITH 29 (C) (5) 2 SUMMARYOFARGUMENT 3 A.. THIS FINDING THAT THE OKLAHOMA COURT OF CRIMINAL APPEALS DECISION WAS CONTRARY TO SOLEM BECAUSE THE PANEL DECISION DID NOT APPLY SOLEM, IS NOT CORRECT AND WARRANTS RECONSIDERATION EN BANG 4 THE OCCA OPINION IS NOT CONTRARY TO CLEARLY ESTABLISHED LAW 5 THE OCCA ANALYSIS 6 B. THE BREADTH OF THE PANEL DECISION IS SUCH THAT IF ALLOWED TO STAND, IT WILL IMPACT REGULATORY, TAX, AND LEGAL JURISDICTION ACROSS OKLAHOMA 8 ANY AREA OF OKLAHOMA THE PANEL DECISION WOULD APPLY WOULD SUBJECT OIL AND NATURAL GAS PRODUCERS TO FEDERAL AND TRIBAL JURISDICTION, AS COMPARED TO THE CURRENT OKLAHOMA JURISDICTION . 10 DUE TO POTENTIAL JURISDICTIONAL SHIFTS, QUESTIONS OF TAXATION WILL ARISE, MOST PROFOUNDLYINTHE CITY OF TULSA 12 CONCLUSION 13 CERTIFICATE OF DIGITAL SUBMISSION 15 CERTIFICATE OF COMPLIANCE . 1 6 CERTIFICATE OF SERVICE 17 ii TABLE OF AUTHORITIES PAGE FEDERAL CASES SOLEM V. BARTLETT, 465 U.S. 463 (1984). - 4, 6 MURPHY V. ROYAL, F.3D AT *46 (10TH CIR. 2017) 4, 6 EARLYV. PACKER, 537 U.S. 3 (2002) 4 YARBROUGH V. ALVARADO, 541 U.S. 562 (2004) 5, 9 WILLIAMS V. TAYLOR, 529 U.S. 362 (2000) . . 5 LOCKYER V. ANDRADE, 538 U.S. 63 (2003) - 6 CITY OFSHERRILL, N. Y. V. ONEIDA INDIANNATION, 544 U.S. 197 (2004) 7 MONTANA V. CROW TRIBE OEINDIANS, 484 U.S. 997 (1988) 12 MONTANA V. CROWTRIBE OFINDIANS, 523 U.S. 696 (1998) 13 THE TULALIP TRIBES, ETAL. V. THE STA TE OF WASHINGTON, CASE 7, 8 STATE CASES MURPHY V. OKLAHOMA, 124 P.3D 1198, (2005) 4, 7, 8 FEDERAL STATUTES 28 U.S.C. ?2254 3 STATE STATUTES TIT. 52 OKLA. STAT. ?139 11 INTEREST OF AMICI CURIAE The Oklahoma Independent Petroleum Association represents more than 2,200 independent oil and natural gas operators that explore for and produce crude oil and natural gas in the state of Oklahoma. OIPA also represents a number of oil?eld service companies that provide important services that support exploration and production activities. OIPA members do not re?ne oil into gasoline or heating fuels, nor do they market gasoline. As part of its mission to its membership, OIPA engages as amicus curiae in legal matters it views as holding exceptional importance?matters that have the ability to impact the production of oil and natural gas. To this end, OIPA has submitted amicus ?lings in numerous cases, including Charles Pummill, et al. v. Hancock Exploration LLC, et al., No. 114703 (Oklahoma Court of Civil Appeals), Bank ofAmerica, NA. 0. El Paso Natural Gas Co., No. (Oklahoma Supreme Court, 2015), and before this Court in the same case, Appellate Case No. 16?610. OIPA does not traditionally comment in habeas matters, but the organization?s membership is compelled to provide comment on this case due to the broad impact that this case may have not just on criminal matters in Oklahoma, but also on the existing regulatory authority the state of Oklahoma currently maintains. If the panel decision is correct, members of OIPA may not have submitted drilling permits, air permits, water permits and potentially other applications to the proper permitting authority. For example, the Oklahoma Corporation Commission has historically maintained authority Over oil and gas production on state and private lands in Oklahoma. But tribal lands?including reservation land? are regulated by the Department of the Interior, raising question of whether regulatory permitting was submitted to the appropriate agency. Under EPA rules that allow tribes treatment as a state, water and air permitting may be taken from Oklahoma and issued to the various tribes that comprise vast portions of the state. Issues of taxation are raised as well when the practical matter exists that oil and gas production taxes, which have been paid to Oklahoma for years, may now be subject to taxation by both Oklahoma and the tribe when a well falls within the reservation territory. These impacts, as well as others, are of signi?cance to OIPA and raise the imperative of reconsideration. STATEMENT OF COMPLIANCE RULE 29(0) (5) This brief is submitted pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure. No party or party?s counsel authored this brief in whole or in part or contributed money that was intended to fund preparing or submitting the brief. No person, other than amici curiae or their counsel contributed money intended to fund preparation or submission of this brief. SUMMARY OF ARGUMENT The Panel decision of this Court greets Oklahoma with the same suspect smile Lewis Carroll reports the Cheshire cat wore upon meeting Alice.1 With the same unsure footing Alice possessed as she chased the rabbit down the rabbit?hole, the panel decision opens Oklahoma oil and natural gas producers to a wide array of questions in regulatory and taxation matters, among others, that will likely require legal determinations by federal courts for decades to come. A review of the panel decision ?nds several multiple legal bases for reconsideration. The decision of the Oklahoma Court of Criminal Appeals was in no way ?contrary to?2 clearly established federal law in . part because there does not exist a case on point that establishes a contrary position in federal law. But more to the point, the OCCA did, in fact, apply 1 Carroll, Lewis. Alice's Adventures in Wonderland, New York: MacMillan. (1865). didn?t know that Cheshire cats always grinned; in fact, Ididn?t know that cats could grin.? 2 Antiterrorism and Effective Death Penalty Act of 1996, 28 US. ?2254(d)(1) the necessary analysis required in Salem v. Bartlett?? when it established that ?[t]he land in question had its Indian character expunged through conveyances to non?Indians.?4 ARGUMENT A. THIS FINDING THAT THE OKLAHOMA COURT OF CRIMINAL APPEALS DECISION WAS CONTRARY TO SOLEM BECAUSE THE PANEL DECISION DID NOT APPLY SOLEM, IS NOT CORRECT AND WARRANT RECONSIDERATION EN BAN C. The panel decision correctly recognized ?that the failure to cite governing law, does not on its own mark the OCCA decision as ?contrary to? that law?5 and goes further to note that the AEDPA does not even require awareness of a decision of the Supreme Court if the state court does not contradict federal law.6 OIPA takes the position that it is evident from reading the Court?s analysis that the panel decision was not correct; rather, there are several points of critical Solem analysis in the OCCA opinion. 3 Salem v. Bartlett, 465 U.S. 463 (1984). 4 Murphy 1). Oklahoma, 124 P.3d 1198, 1206 (Okla. Crirn. App. 2005). 5 Murphy 1). Royal, - F.3d at *46 (10"11 Cir. Aug. 8, 2017). 61d, citing Early v. Packer, 537 U.S. 3, 8 (2002). 4 i. The OCCA opinion is not contrary to clearly established law While the difference between applying a rule and extending it is not always clear,7 for the OCCA opinion to be contrary to clearly established law, there must ?rst be clearly established law. In the present example, the OCCA correctly recognized this as a matter of ?rst impression upon which there was not capacity to act contrary to, or act ?in con?ict with,?3 existing law. The more appropriate standard, in circumstances such as this, would be for the Court to have applied the ?unreasonable application? element of AEDPA. Where a ?contrary to? standard requires clearly established law, the state outcome must be ?in con?ict opposite to an established federal law, ?9 an ?unreasonable application? of law standard requires that fair?minded jurists could not agree with the decision-making process of the-state court.10 The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.11 In the present case, the OCCA was allowed ?broad 7 Yarbrough v. Alvarado, 541 US. 652, 666 (2004). 3 Webster?s Ninth New Collegiate Dictionary 285 (1983). 9 Williams 1). Taylor, 529 US. 362, 389 (2000). '0 See Yarborough v. Alvarado, 541 US. 652 (2004). 11 Id. discretion?12 to consider materials pertinent to determining whether a reservation had been disestablished. The Court in Solem created an analysis, rather than a test, knowing that formality was dif?cult when analyzing what should be classi?ed as tribal lands; ritual formality is not required as it might be at Texas midnight yell practice.13 Statutory establishment is going to vary tribe to tribe, given the necessity of negotiating each act with the specific tribe it addressed.14 In fact, de facto, if not de jure [disestablishment] may have occurred.15 Explicit language of cession and unconditional compensation are not prerequisites.16 ii. The OCCA analysis Despite the panel decision analysis insisting that the OCCA did not undertake a Solem analysis,17 the OCCA did clearly undertake the analysis. What did the OCCA review in its analysis? The opinion reveals analysis including: ?2 See Lockyer v. Andrade, 538 U.S. 63, 76 (2003). ?3 (viewed Sept. 15, 2017). ?4 See Salem 1). Bartlett, 465 U.S. 463, 467 (1984). 15 Id. at 471. 15 Id. 17 Murphy v. Royal, F.3d at *49 (10th Cir. Aug. 8, 2017). 6 The Creek Allotment Act of 190113 The Supplemental Creek Allotment Agreement of 190219 18 U.S.C. ?1151 ?Indian country de?ned?20 0 City of N.Y. v..Oneida Indian Nation21 0 The Oklahoma Constitution22 0 At least one title opinion presented at the evidentiary hearing by a title attorney that ?regularly renders title opinions Creek Nation.?23 0 Findings of fact and conclusions of law from an evidentiary hearing requested by the Thorough efforts to search for ahother case addressing disestablishment where only a 1/12th mineral interest from the original allotment, and25 Examined pertinent history26 ?3 Murphy v. State, 124 P.3d 1198, 1124 19 Id. at 1118, 21, 25 201d. at 21 City of Sherrill, N. Y. 1). Oneida Indian Nation 544 U. S. 197 (2004), at the time a brand-new case related to similar lssues of tribal land. 22Murphy at 1l28. 23 Id. at 1l26. 24 Id. 25 Id. at 'll44. The result of this full and detailed review?sufficient to ful?ll the necessary Salem analysis?resulted in the correct determination: that Appellant committed his crime on lands Where Oklahoma retains jurisdiction over criminal matters. But perhaps more curious is the notion stated in the panel decision that OCCA required Petitioner to show af?rmative evidence that the reservation exists today. The OCCA in fact states the pertinent question as ?whether or not the land in question is part of a reservation that has never been disestablished.?27 The OCCA does not reach the question of whether the reservation was ever disestablished; it did not need to as it determined that the speci?c parcel where the murder occurred did not retain the character of Creek land.28 B. THE BREADTH OF THE PANEL DECISION IS SUCH THAT IF ALLOWED TO STAND, IT WILL IMPACT REGULATORY, TAX, AND LEGAL JURISDICTION ACROSS OKLAHOMA. It should not go unnoticed that at least one tribe has already attempted to apply the Panel decision to prosecute Walgreens and CVS for opiate distribution. The Cherokee Nation Attorney General now claims a 26 Id. at 1148, 53. 27 Murphy at 1147 2?3 ?[T]he Indian title to the tract formerly allotted to Lizzie Smith has been extinguished for purposes of criminal jurisdiction over the crime in question.? Murphy at 1146 ?substantial alternative basis? for the tribe?s jurisdiction over the two pharmacies subsequent to the panel decision.29 Any question related to how the Panel decision will impact Oklahoma can be seen clear through the Cherokee Nation?s premature efforts to apply the panel decision, even before the order was rendered ?nal. Oklahoma has never been shy about its proud tribal past, present and future, but the overbroad panel decision upends the symbiotic relationship the state and tribes share. Further, it opens the courts to a number of additional determinations of where tribal authority exists and where it does not. The majority of the state has at one point or another been mapped with tribal territories. While not all tribes will require a jurisdictional analysis, it does place industries with activity across the state, such as the oil and natural gas industry, at the mercy of a number of regulatory and taxation issues that this Court should contemplate, ultimately deciding that rehearing is appropriate. 29 Cherokee Nation says Opioid lawsuit belongs in tribal court, The Oklahoman, August 17, 2017 (Viewed September 15, 2017). i. Any area of Oklahoma the panel decision would apply would subject oil and natural gas producers to federal and tribal jurisdiction, as compared to the current Oklahoma jurisdiction. While exploration and production continues to occur across Oklahoma, many of the wells in the state are near the end of their productive lives. So? called ?marginal? or ?stripper? wells are those that produce no more than ten barrels of oil per day during a twelve?month period. While on a well-by? well basis these wells provide nominal production, 11%30 of all oil produced in the United States, and 10% of oil produced in Oklahoma,31 collectively comes from marginal wells. This is to say that these wells in bulk produce a large amount of the national volume despite their geriatric state. Drilled decades ago in most instances, these wells were drilled under state regulation, with regulatory predictability calculated in their economic plan when the well was drilled. Unfortunately, due to the breadth of the panel decision?s analysis, many of these wells may fall under the future regulatory control of the Department of the Interior, or possibly the tribes themselves upon an application for primacy .to regulate air and water through the Environmental Protection Agency. These regulatory regimes 3" Friedman, vNicole (September 7, 2015). "?Strz'ppers? Pose Dilemma for Oil Industry". WSJ. Retrieved September 15, 2017. 31Marginal Wells: Fuel for Economic Growth, Interstate Oil and Gas Compact Commission, 2015. 10 may render these wells uneconomic to operate, wiping out a signi?cant source of domestic production. The Oklahoma Legislature has determined that the Oklahoma Corporation Commission should have ?exclusive jurisdiction, power and authority? over the conservation of oil and gas on lands that the state maintains jurisdiction over.32 However, if rehearing is not granted, many operators that were preparing to drill new wells may rethink their business decisions due to the unpredictability the panel decision brings. For example: 0 The Indian Mineral Leasing Act authorizes the Secretary of the Interior, through the Bureau of Land Management,33 to approve the leasing of tribal lands 0 The Indian Mineral Development Act authorizes certain forms of agreements for oil and gas development 0 Under the Clean Air Act and the Safe Drinking Water Act, EPA can grant ?treatment as .a state? status to tribes to establish ?primacy,? or regulatory authority over programs Oklahoma currently 32 Tit. 52 Okla. Stat. ?139 33 In Oklahoma, the Bureau of Indian Affairs maintains authority over the Osage Nation minerals; all other tribal lands are regulated by the Bureau of Land Management. 11 oversees. Primacy requires minimum standards but does not preclude the expansion of regulation. If the reservation was not diminished or disestablished, as the panel decision claims, a jurisdictional shift could occur for many wells, and with I the jurisdictional shift could come differing regulation that could impact the business costs of how wells are operated, the paperwork involved in operations, and overall, could drive well operators to avoid drilling new wells or, for marginal wells, plugging the well prematurely. ii. Due to potential jurisdictional shifts, questions of taxation w?l arise, most profoundly in the City of Tulsa. The City of Tulsa is a driving force behind oil and natural gas production in the state. Once referred to as the ?Oil Capital of the World,? Tulsa is a signi?cant tax base for operations of state government. Tulsa city limits also fall under Creek Nation land as contemplated in the Panel decision.34 This is concerning to OIPA because under Montana v. Crow Tribe of Indians,35 a new taxation regime would overtake the existing state authority on any reservation in Oklahoma that has not been diminished or 34 Under the Panel decision, the ?rst two wells drilled in Oklahoma, at Red Fork and Glen Pool, would fall under Creek jurisdiction as opposed to the historical view that they were drilled in Oklahoma Territory. 35 Montana Crow Tribe of Indians, 484 US. at 997 (1988). 12 disestablished36 while non?Indians would continue to be taxed by the state, creating a double taxation scenario that will negatively impact the growth of oil and gas drilling and production. In a pending case that could foreshadow similar issues for Oklahoma, the ulalip Tribesi?:7 question if the state of WashingtOn even has taxation authority over. non?Indian businesses that exist on Indian land.38 While the State of Washington could see the potential loss of $40 million per year in property, use, and other taxes in that case,39 the potential for greater losses to the Oklahoma state budget in the Tulsa area would exist if the Tulalip theories are correct and applied in Oklahoma. CONCLUSION For the reasons stated herein, OI-PA respectfully requests this Court to vacate the panel opinion and grant rehearing en banc or alternatively before a new panel. 36 See Montana 1). Crow Tribe of Indians, 523 U.S. 696 (1998). While it appears that past revenues may not require disgorgement under Crow II, there would remain a disputable claim that the circumstances at issue could require disgorgement despite Justice Ginsberg?s 1998 opinion. 37 The Tulalip Tribes are joined in their suit by the U.S. government as Plantiff Intervenors. 33 The Tulalip Tribes, et. al., v. The State of Washington, Case (Filed 2015). 39See to-stop-taxes?on?reservation/ (Viewed September 18, 2017) 13 DATED this 27th day of September 2017. Respectfully submitt d, AWFerate, OBA No. 21171 Attorney for Amicus, Oklahoma Independent Petroleum Association 14 CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS I hereby certify that, with respect to the foregoing amicus brief by OIPA, as submitted in Digital Form Via the Court?s ECF system: (1) all required privacy redactions have been made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial Virus scanning program, and according to the program are free of Viruses. 15 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certi?cate of Compliance with ype?Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type?volume limitation of Fed. R. App. P. because this brief contains 2582 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a) 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2007 version in a 14?point Roman font. Date: September 27, 2017 AW om 16 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of September 2017, I electronically ?led the foregoing using the court?s ECF system which will send noti?cation of such ?ling to all counsel of record. 2% Mr 17