                                                                          FILED
                                                              United States Court of Appeals
                                      PUBLISH                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                November 15, 2018

                                                                    Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                      Clerk of Court
                         _________________________________

ENABLE OKLAHOMA INTRASTATE
TRANSMISSION, LLC,

      Plaintiff - Appellant,

v.                                                    No. 17-6188

25 FOOT WIDE EASEMENT, and right of
way for underground natural gas pipeline
lying and situated in the SW Quarter of the
SE Quarter and the West Half of the SE
Quarter of the SE Quarter in Section 28
Township 7 North Range 11 West of the
1.B. & M. in Caddo County, State of
Oklahoma; UNITED STATES OF
AMERICA, The Trustee as a matter of
affecting title to certain lands previously
allotted to Native Americans but held in
trust with certain restraints on alienation
and presently held in trust for: The
Respective Heirs and Successors in Interest
of EMAUGOBAH, Caddo Allotment #84,
deceased, known heirs believed to be:
MATTHEW MARTIN WARE, and spouse
if any; BETTY LOU WARE, and spouse if
any; BENJAMIN BLACKSTAR, and
spouse if any; COREY WARE, and spouse
if any; PATRICIA WARE, and spouse if
any; JEAN ANN CARTER WARE, and
spouse if any; EDMOND L. CARTER, and
spouse if any; CARRI GWEN DUPONT,
and spouse if any; PATRICIA ANN
CARTER, and spouse if any; MARCIA W.
DAVILLA, and spouse if any;
MAYREDEAN MAMMEDATY
PALMER, and spouse if any; JANICE C.
MAMMEDATY, and spouse if any;
KATINA DHERIE SMITH LIPTON, and
spouse if any; RENA A. WARE, and
spouse if any; WILLIAM KENDRIX
WARE, and spouse if any; WESLEY
WARE, III, and spouse if any; ANGELA
RAE WARE SILVERHORN, and spouse
if any; SAMUEL MARTIN WARE, and
spouse if any; THOMAS BLACKSTAR,
III, and spouse, if any all if living, and if
any deceased, their respective heirs,
executors, administrators, devisees,
trustees, successors and assigns, immediate
and remote, both known and unknown,

      Defendants - Appellees.
                      _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                             (D.C. No. 5:15-CV-01250-M)
                       _________________________________

Submitted on the briefs:*

Barry L. Pickens, of Spencer Fane LLP, Overland Park, Kansas; and Andrew W. Lester,
of Spencer Fane LLP, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Robert J. Troester, Acting United States Attorney; Tom D. Majors, Assistant United
States Attorney; Conor Cleary and Alan Woodcock, Department of the Interior; Jeffrey
H. Wood, Acting Assistant Attorney General; Eric Grant, Deputy Assistant Attorney
General; and William B. Lazarus, Jeffrey S. Beelaert, and Mary Gabrielle Sprague,
Attorneys, United States Department of Justice, Washington, D.C., for Defendant-
Appellee United States of America.

Dustin T. Greene, of Kilpatrick Townsend & Stockton LLP, Winston-Salem, North
Carolina; and Thurston H. Webb, of Kilpatrick Townsend & Stockton LLP, Atlanta,
Georgia, for Defendants-Appellees Matthew Martin Ware; Betty Lou Ware; Benjamin

       *
        After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case was
therefore ordered submitted on the briefs on September 21, 2018.
                                                2
Blackstar; Corey Ware; Patricia Ware; Jean Ann Carter Ware; Edmond L. Carter; Carri
Gwen Dupont; Patricia Ann Carter; Marcia W. Davilla; Mayredean Mammedaty Palmer;
Janice C. Mammedaty; Katina Dherie Smith Lipton; Rena A. Ware (Killsfirst); William
Kendrix Ware; Wesley Ware, III; Angela Rae Ware Silverhorn; Samuel Martin Ware;
and Thomas Blackstar, III.
                       _________________________________

Before LUCERO, McKAY, and MATHESON, Circuit Judges.
                  _________________________________

McKAY, Circuit Judge.
                        _________________________________

       Plaintiff Enable Oklahoma Intrastate Transmission, LLC, appeals the district

court’s dismissal of its case for lack of subject matter jurisdiction and for failure to

join an indispensable party. Enable also challenges the amount of attorney fees the

court awarded to the landowner defendants. Because our decision in Public Service

Company of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017), is dispositive

of the subject matter jurisdiction issue, we affirm the district court’s order dismissing

the action. We likewise affirm the attorney fees award as consistent with Oklahoma

law.

                                                I.

       As discussed in Barboan, during the late nineteenth century, Congress began

carving Indian reservations into allotments assigned to individual tribal members.

857 F.3d at 1104. With the passage of the 1887 General Allotment Act, or Dawes

Act, the federal government began holding the allotments in trust for a period of

twenty-five years, after which the allottee or his heirs would receive a fee patent to

the land. Id. “As allotments began to create a checkerboard of tribal, individual


                                            3
Indian, and individual non-Indian land interests, Congress passed several right-of-

way statutes to help ensure that necessities such as telegraph lines and roads could

continue without encumbrance.” Id. at 1105. The 1934 Indian Reorganization Act

ended the Allotment Era, indefinitely extending the twenty-five year trust period. Id.

at 1105-06. Subsequent acts of Congress entitled Indian tribes to purchase interests

in previously allotted lands, 25 U.S.C. § 2212, and to inherit small fractional interests

in land through intestate descent, 25 U.S.C. § 2206(a)(2)(D). Barboan, 857 F.3d

at 1106.

      This case concerns a 136.25-acre tract of land located in Caddo County,

Oklahoma, and referred to by the parties as Kiowa Allotment #84. The tract was

originally allotted to Emaugobah, but as of April 2013, the land was held in trust by

the United States for several individuals and the Kiowa Tribe of Oklahoma, which

had an approximately 1.1% undivided ownership interest. In November 1980, the

United States Department of the Interior Bureau of Indian Affairs granted a twenty-

five-foot-wide easement, containing approximately 0.73 acres of land, to Producer’s

Gas Company for $1,925.00 to install and maintain a twenty-foot natural gas pipeline

for a term of twenty years. In June 2002, Enogex Inc. wrote to the BIA seeking to

acquire a new twenty-year easement for $3,080.00 over the same property to continue

the operation and maintenance of the pipeline.

      Some landowners withheld their consent to Enogex’s right-of-way application,

and in 2006 Enogex was required to pay a $1,098.35 trespass assessment for its

continued operation of the pipeline without the easement. In June 2008, the local

                                           4
BIA Superintendent notified the landowners that the Bureau had decided “to approve

the new easement for Enogex for the reasons that it has been impracticable to obtain

a majority of the ownership consent, the granting of the easement will not cause any

injury to the land or the ownership, and to prevent a condemnation action in United

States Federal Court.” (Appellant’s App. at 66-67.) The following month, several

landowners appealed that decision to the BIA Regional Director and informed him

they were rejecting Enogex’s offer for the easement. One owner also wrote to the

Superintendent asking her to withdraw her decision because it had been made

“without informing the landowners or seeking their consent” and the majority of the

known landowners had rejected Enogex’s “offer and the seven and [a] half year old

appraisal of the expired leases.” (Id. at 69.)

      In March 2010, the Regional Director issued his decision ruling on the

landowners’ appeal. The Director noted that, as of January 2010, Enogex had yet to

make any payments for the right of way the Superintendent had granted. He also

determined that the amount Enogex had offered and the Superintendent had approved

for the easement “appear[ed] to be inadequate” and concluded that the

Superintendent “lacked the authority to approve” the easement application without

the landowners’ consent. (Id. at 73.) Accordingly, the Director vacated the

Superintendent’s decision and stated, “If valid approval of a right of way for this

tract is not timely secured, Enogex should be directed to move the pipeline off the

subject property.” (Id.)



                                            5
      Enogex did not appeal the Director’s decision. In November 2015, however,

Enogex’s successor in interest, Enable, filed suit in the United States District Court

for the Western District of Oklahoma. Enable’s complaint asserted jurisdiction under

25 U.S.C. § 357 and sought to condemn the easement. In January 2016, the

landowners moved to dismiss Enable’s complaint on the basis that the Kiowa Tribe’s

1.1% ownership interest made it a required party under Fed. R. Civ. P. 19(a) and

71.1, but the tribe could not be joined because it retained sovereign immunity. The

landowners also argued § 357 did not allow for condemnation of land in which a tribe

has a beneficial interest. In March 2016, the United States filed its own motion to

dismiss, joining the landowners’ indispensable-party argument but focusing on

whether § 357 allowed for condemnation of lands owned at least in part by a tribe.

      The district court ruled on both motions in August 2016. The court observed

that § 357 would impart subject matter jurisdiction “if the tract at issue was owned

solely by Indians to whom the tract had been allotted in severalty.” (Appellant’s

App. at 250-51.) Because the Kiowa Tribe held a 1.1% interest in Kiowa Allotment

#84, however, the court held that the tract was tribal land not subject to

condemnation under § 357 and therefore § 357 did not convey subject matter

jurisdiction over the case. Considering the alternative indispensable-party argument,

the court determined that the tribe was a required party to the action but could not be

joined due to its sovereign immunity and concluded that “equity and good conscience

mandate that this action should be dismissed.” (Id. at 252-55.)



                                           6
       In September 2016, the landowners filed a motion for costs and attorney fees

pursuant to Okla. Stat. tit. 66, § 55(D). That same month, however, Enable filed a

motion for new trial, urging that § 357 did allow condemnation of allotment lands in

which a tribe “holds a fractional, non-divided interest” and asking the district court to

hold the motion in abeyance until we issued our decision in Barboan. (Appellant’s

App. at 303-04, 315.) We issued our opinion in Barboan in May 2017, and in July

2017, the district court denied Enable’s motion, concluding in light of Barboan “that

it did not err in dismissing this case.” (Id. at 356-57.)

       The district court subsequently ruled on the landowners’ motion for costs and

attorney fees, concluding that costs were not recoverable under the Oklahoma statute

but reasonable fees were. The court addressed Enable’s argument that the

landowners’ claimed fees were unreasonable under State of Oklahoma ex rel. Burk v.

City of Oklahoma City, 598 P.2d 659 (Okla. 1979), and Lippoldt v. Cole, 468 F.3d

1204 (10th Cir. 2006), because they were based on the attorneys’ rates in their out-of-

state (e.g., Washington, D.C.) offices rather than local Oklahoma rates. The court

concluded the fees were reasonable given the landowners’ inability to find qualified

local counsel. Enable appealed.

                                                II.

       On appeal, Enable first contends “[t]he district court erred by granting the

Defendants’ motions to dismiss for an alleged lack of subject matter jurisdiction or

for an alleged failure to join a necessary party.” (Appellant’s Opening Br. at 9.)

Enable also notes, however, it “presents this error out of an abundance of caution”

                                            7
should the U.S. Supreme Court grant certiorari in Barboan or should this Court grant

rehearing en banc of this opinion. (Id. at 10) Indeed, as the United States points out

in its brief, Barboan is “binding circuit precedent that requires the dismissal of

Enable’s condemnation action.” (United States Appellee’s Br. at 21.) Moreover, the

landowners filed a notice of supplemental authority in April 2018 informing this

court that the Supreme Court had denied the petition for a writ of certiorari in

Barboan.

       That case addressed one question certified by the district court for

interlocutory appeal: “[D]oes § 357 authorize condemnation against land in which

the United States holds fee title in trust for an Indian tribe, when the tribe has a

fractional beneficial interest in the parcel?” Barboan, 857 F.3d at 1108. Section 357

provides, “Lands allotted in severalty to Indians may be condemned for any public

purpose under the laws of the State or Territory where located in the same manner as

land owned in fee may be condemned . . . .” 25 U.S.C. § 357. We concluded in

Barboan that this language authorizes “condemnation of any land parcel previously

allotted and whose current beneficial owners are individual Indians,” “[b]ut starkly

absent from § 357’s language is any similar authorization for tribal lands,” which

include allotted lands in which the United States holds any part in trust for a tribe.

857 F.3d at 1108, 1111.

       A parcel’s status as tribal land does not depend upon the size of the tribe’s

interest in the land. The two parcels at issue in Barboan involved a 13.6% and a

0.14% tribal interest, id. at 1110, and it is equally irrelevant that the land at issue here

                                             8
involves only a 1.1% tribal interest. Because the tribe has an undivided ownership

interest in this land, Kiowa Allotment #84 is tribal land not subject to condemnation

under § 357 and the district court correctly dismissed Enable’s action for lack of

subject matter jurisdiction. As in Barboan, because we affirm the district court’s

decision on this basis, we need not consider whether the tribe was a necessary party

to the action. See id. at 1107-08.

                                               III.

      Enable next argues that “[t]he district court erred by granting Defendants’

motion for an award of attorney fees based on the hourly rates charged by law firms

in the region where defense counsel practice, instead of the hourly rates charged in

Oklahoma.” (Appellant’s Opening Br. at 18.) We review a district court’s award of

attorney fees for an abuse of discretion, but review the court’s underlying legal

analysis de novo. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.

2005). The parties agree that Oklahoma law governs the award of fees in this case.

Moreover, as the landowners point out, Enable does not question that Okla. Stat.

tit. 66, § 55(D), authorizes attorney fees in a condemnation action such as this one

“where the final judgment is that the real property cannot be acquired by

condemnation.”

      Instead, Enable challenges the amount of attorney fees awarded by the district

court, noting that we have observed, “When state law governs whether to award

attorney fees, all agree that state law also governs how to calculate the amount.”

Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIII-A, L.P., 888 F.3d

                                           9
455, 461 (10th Cir. 2017). Enable identifies Burk as Oklahoma’s lead case on the

reasonableness of fees. There, the Oklahoma Supreme Court adopted the lodestar

method for determining attorney fees in common fund cases. See Burk, 598 P.2d

at 660-62. The portion of Burk on which Enable focuses, however, is the court’s

statement that “[r]easonable value of services should be predicated on the standards

within the local legal community.” Id. at 663.

      According to Enable, “the Burk rule” is “that an attorney fees award under

Oklahoma law must be ‘predicated on the standards within the local legal

community.’” (Appellant’s Opening Br. at 21 (quoting Burk, 598 P.2d at 663).) The

landowners, however, assert that Enable “mischaracterizes Burk” by substituting

“must” for “should.” (Landowner Appellees’ Br. at 31.) They point to the Oklahoma

Supreme Court’s subsequent decision in Conti v. Republic Underwriters Insurance

Co., 782 P.2d 1357 (Okla. 1989), as evidence that Burk does not prescribe stringent

rules for determining attorney fee awards. Conti did not address the locality of fees,

but rather whether the attorneys had sufficiently documented their work and whether

their fees were reasonable in light of the factors set forth in Oklahoma’s Code of

Professional Responsibility. See 782 P.2d at 1362.

      Conti framed the issue, based on the appellant’s argument, as whether “the

guidelines set out in [Burk] are mandatory, and . . . failure of counsel to follow those

documentation guidelines prohibits an award of attorney fees.” Id. The court

observed, “The precise language from Burk is that: ‘Attorneys in this state should be

required to present . . . detailed time records . . .’ and that ‘lawyers who seek an

                                           10
award of attorney fees should offer evidence relating to one or more of the

criteria . . .’ set forth in the Code of Professional Responsibility.” Id. (quoting Burk,

598 P.2d at 663) (emphasis and alterations in Conti). Thus, the court held in Conti

that the district court did not abuse its discretion in awarding fees to an attorney who

had not kept detailed time sheets in accordance with the Burk guidelines. Id. at 1362-

63. Enable argues Conti is inapplicable here because it concerned only Burk’s

“documentation guidelines.” (Appellant’s Reply Br. at 8.) The Code of Professional

Responsibility criteria referenced in Conti, however, include the fees normally

charged in the locality for similar legal work, see Burk, 598 P.2d at 661-62, and

Conti did not make distinctions among these criteria in holding that the Burk

guidelines are not mandatory in determining an award of attorney fees. See Conti,

782 P.2d at 1362.

      In support of its argument, Enable cites to Morgan v. Galilean Health

Enterprises, Inc., in which the Oklahoma Supreme Court, in response to an attorney

fee award “based solely upon the provisions of the contingent-fee contract,” stated,

“Lawyers must present to the trial court detailed time records showing the work

performed together with evidence of the reasonable value of different types of legal

work based on local standards.” 977 P.2d 357, 364-65 (Okla. 1998) (emphasis in

original). Enable ignores the portion of this sentence referencing Burk’s

documentation guidelines to suggest the locality of fees “remains a mandatory

requirement” despite Conti. (Appellant’s Reply Br. at 8-9.) Morgan, however, does



                                           11
not support any distinction between those two portions of the Burk holding, nor does

it purport to overrule Conti’s holding that the Burk guidelines are not mandatory.

       In Lippoldt, we remarked that out-of-state fee rates may be applied if “the

subject of the litigation is ‘so unusual or requires such special skills’ that only an out-

of-state attorney possesses.” 468 F.3d at 1225 (quoting Ramos v. Lamm, 713 F.2d

546, 555 (10th Cir. 1983)). Enable argues Oklahoma has not expressly adopted this

exception and we should therefore not apply it here. Notably, however, as the

Oklahoma Supreme Court recognized in Morgan, Burk indicated Oklahoma courts

could enhance fee awards by considering factors “taken from federal court practice”

in addition to those listed in the Oklahoma Rules of Professional Responsibility.

Morgan, 977 P.2d at 364; see also Burk, 598 P.2d at 661. Although Burk placed

those factors in the context of the lodestar method for common fund fee awards, see

598 P.2d at 661, we are persuaded that Burk and its progeny are sufficiently flexible

to allow for an attorney fee award based on prevailing rates where defense counsel is

located rather than where the litigation occurs, under the proper circumstances.

       Enable briefly disputes that this case presents appropriate circumstances for

awarding attorney fees based on out-of-state rates. The district court’s order

awarding attorney fees in this case, however, specifically found that the landowners

“could not afford to hire counsel and were unable to locate any counsel, let alone an

attorney with expertise in Indian law, locally who would represent them.”

(Appellant’s App. at 362.) In support of this conclusion, the court cited to the

affidavit of the Executive Director of Oklahoma Indian Legal Services, in which the

                                            12
Director stated the organization had found there was no one in Oklahoma who could

represent the landowners given their need for pro bono representation in a case

involving complex legal issues. “[W]e will reverse the district court’s factual

findings only if we have a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Praseuth, 406 F.3d at 1257. We see no clear error in this case, and

we cannot say the district court abused its discretion in awarding the fees it did here.

Cf. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 703-07 (3d Cir.

2005) (concluding district court’s attorney fee award based on rates in counsel’s

location was not clearly erroneous given local attorneys’ unwillingness to handle

case without up-front payment of costs).

                                                IV.

      For all of the foregoing reasons, we AFFIRM the district court’s dismissal of

this action for lack of subject matter jurisdiction. We also AFFIRM the district

court’s attorney fee award to the landowner defendants.




                                           13
