PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ENABLE OKLAHOMA INTRASTATE 

TRANSMISSION, LLC, 

 Plaintiff - Appellant, 

v. 

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. 

No. 17-6188 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 15, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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 DefendantAppellee 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. 
3 

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 
4 

Indian, and individual non-Indian land interests, Congress passed several right-ofway 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 twentyfive-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 
5 

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.) 
6 

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.) 
7 

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-ofstate (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” 
8 

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 
9 

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 
10 

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 
11 

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 
12 

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 outof-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 
13 

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.