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 n atural 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 Su ccessors in Interest of EMAUGOBAH, Caddo Allotment #84, deceased, known heirs believed to be: MATTHEW MARTIN WARE, and spouse if any; BETTY LOU WA RE, 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; EDMO ND L. CARTER, and spouse if any; CA RRI 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 Court2 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 SILVERH ORN, 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 kno wn 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 Fan e LLP, Overland Park, Kansas; and Andrew W. Lester, of Spencer Fane LLP, Oklahoma City, Oklahoma, for Plaintiff-App ellant. Robert J. Troester, Acting United States Attorney; Tom D. Major s, Assistant United States Attorney; Conor Cleary and Alan Woodcock, Department of the Interior; Jeffrey H. Wood, Acting Assistant Attorn ey General; Eric Grant, Deputy Assistant Attorney General; and William B. Lazarus, J effrey S. Beelaert, and Mary Gabrielle Sprague, Attorneys, United Stat es Department of Jus tice, Washington, D.C ., for DefendantAppellee United States of America. Dustin T. Greene, of K ilpatrick Townsend & Stockton LLP, Winsto n-Salem, North Carolina; and ThurstonH. Webb, of Kilpatrick Townsend & Stockt on LLP, Atlanta, Georgia, for Defendants-Appellees Matthew Martin Ware; Betty Lo u Ware; Benjamin

* After examining the briefs and appellate record, this panel de termined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case was therefore ordered subm itted on the briefs on September 21, 2018

.3 Blackstar; Corey Ware; Patricia W are; Jean Ann Carter Ware; Edm ond L. Carter; Carri Gwen Dupont; Patricia Ann Carte r; Marcia W. Davilla; Mayredean Mammedaty Palmer; Janice C. Mammedaty; Katina Dherie Smith Lipton; R ena A. Ware ( Killsfirst); William Kendrix Ware; Wesley Ware, III; A ngela Rae Ware Silverhorn; Samuel Martin Ware; and Thomas Blackstar, III.

________________ _________________ Before LUCERO , McKAY , and MATHESON , Circuit Judges.

________________ _________________ McKAY , Circuit Judge.

________________ _________________ Plaintiff Enable Oklahoma Intr astate Transmission, LLC, appeals the district court’s dismissal of its case fo r lack of subject matter jurisd iction and for failure to join an indispensable party. E nable also challenges the amountof attorney fees the court awarded to the landowner d efendants. Because our decisio n in Public Service Company of New Mexico v. Barboan , 857 F.3d 1101 (10th Cir. 2017), is dispositive of the subject matter jurisdicti on issue, we affirm the distric t court’s order dismissing the action. We likewise affirm the attorney fees award as cons istent with Oklahoma law. I. As discussed in Barboan , during the late nineteenth century, Congress began carving Indian reservations into allotments assigned to individ ual tribal members. 857 F.3d at 1104. With the passage of the 1887 General Allotme nt Act, or Dawes Act, the federal government began holding the allotments in tru st for a period of twenty-five years, after which t he allottee or his heirs would receive a fee patent to the land. Id. “As allotments began to creat e a checkerboard of tribal, indi vidual4 Indian, and individual non-Indian l and interests, Congress pass ed several right-ofway statutes to help ensure th at necessities such as telegraph lines and roads could continue without encumbrance.” Id. at 1105. The 1934 Indian Reorganization Act ended the Allotment Era, indefin itely extending the twenty-five year trust period. Id. at 1105-06. Subsequent acts of C ongress 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 descen t, 25 U.S.C. § 2206(a)(2)(D). Barboan , 857 F.3d at 1106. This case concerns a 136.25-acr e 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 lan d was held in trust by the United States for several i ndividuals and the Kiowa Tribe o f Oklahoma, which had an approximately 1.1% undivi ded ownership interest. In Nov ember 1980, the United States Department of the I nterior Bureau of Indian Affai rs granted a twentyfive-foot-wide easement, containi ng approximately 0.73 acres of land, to Producer’s Gas Company for $1,925.00 to ins tall and maintain a twenty-foot natural gas pipeline for a term of twenty years. In J une 2002, Enogex Inc. wrote to the BIA seeking to acquire a new twenty-year easem ent for $3,080.00 over the same property to continue the operation and maintena nce of the pipeline. Some landowners withheld their c onsent to Enogex’s right-of-way application, and in 2006 Enogex was required to pay a $1,098.35 trespass ass essment for its continued operation of the pipe line without the easement. In J une 2008, the local5 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 cons ent, the granting of the easeme nt will not cause any injury to the land or the owner ship, and to prevent a condemnat ion action in United States Federal Court.” (Appella nt’s App. at 66-67.) The follo wing month, several landowners appealed that decision to the BIA Regional Director and informed him they were rejecting Enogex’s offe r for the easemen t. One owneralso wrote to the Superintendent asking her to w ithdraw her decision because it h ad been made “without informing the landowners o r seeking their consent” and the majority of the known landowners had r ejected Enogex’s “offe r and the seven and [a] half year old appraisal of the expired leases.” (Id. at 69.) In March 2010, the Regional Dir ector issued his decision ruling on the landowners’ appeal. The Directornoted that, as of January 201 0, Enogex had yet to make any payments for the right o f way the Superintendent had g ranted. He also determined that the amount Enogex had offered and the Superinte ndent had approved for the easement “appear[ed] to be inadequate” a nd concluded th at the Superintendent “lacked the aut hority to approve” the easement a pplication without the landowners’ consent. ( Id. at 73.) Accordingly, the Director vacated the Superintendent’s decision and st ated, “If valid approval of a r ight of way for this tract is not timely secured, En ogex should be directed to move the pipeline off the subject property.” (Id. )6 Enogex did not appeal the Direc tor’s decision. In November 201 5, however, Enogex’s successor in i nterest, Enable, filed suit in the Unite d States District Court for the Western District of Okla homa. Enable’s complaint asser ted jurisdiction under 25 U.S.C. § 357 and s ought to condemn the easement. In January 2016, the landowners moved to dis miss Enable’s compla int on the basis tha t the Kiowa Tribe’s 1.1% ownership interest made i t a required party under Fed. R. Civ. P. 19(a) and 71.1, but the tribe could not be joined because i t retained sov ereign immunity. The landowners also argued § 357 did not allow fo r condemnation of land in which a tribe has a beneficial interest. In Ma rch 2016, the United States fi led its own motion to dismiss, joining the landowners’ indispensable-party argument b ut focusing on whether § 357 allowed for condem nation of lands owned at least in part by a tribe. The district court ruled on both motions in August 2016. The c ourt observed that § 357 would impart subject m atter jurisdiction “if the tra ct at issue was owned solely by Indians to whom the t ract had been allo tted in severa lty.” (Appellant’s App. at 250-51.) Because the Kio wa Tribe held a 1.1% interest in Kiowa Allotment #84, however, the court held tha t the tract was tribal land not subject to condemnation under § 357 and th erefore § 357 did not convey sub ject matter jurisdiction over the case. Consid ering the alternative indisp ensable-party argument, the court determined that the tr ibe was a required party to the action but could not be joined due to its sovereign imm unity and concluded that “equity and good conscience mandate that this action should be dismissed.” ( Id. at 252-55.)7 In September 2016, the landowne rs filed a motion for costs and attorney fees pursuant to Okla. Stat. tit. 66 , § 55(D). That same month, how ever, Enable filed a motion for new trial, urging th at § 357 did allow condemnation of allotment lands in which a tribe “holds a fractiona l, non-divided interest” and as king the district court to hold the motion in abeyance un til 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 dismi ssing this case.” (Id. at 356-57.) The district court subsequently ruled on the landowners’ motion for costs and attorney fees, concluding that c osts were not recoverable underthe Oklahoma statute but reasonable fees were. The cour t addressed Enable’s argumen t 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.) off ices rather than local Oklaho ma rates. The court concluded the fees were reasona ble given the landowners’ inabil ity 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 m atter jurisdiction or for an alleged failure to join a necessary party.” (Appellant’ s Opening Br. at 9.) Enable also notes, however, it “p resents this error out of an a bundance of caution”8 should the U.S. Supreme C ourt grant certiorari in Barboan or should this Court grant rehearing en banc of this opinion. ( Id. at 10) Indeed, as the Uni ted States points out in its brief, Barboan is “binding circuit precedent th at requires the dismissal of Enable’s condemnation action.” (United States Appellee’s Br. a t 21.) Moreover, the landowners filed a notice of suppl emental authority in April 20 18 informing this court that the Supreme Court had denied the petition for a writ of certiorari in Barboan

. That case addressed one questi on certified by the district cour t for interlocutory appeal: “[D]oes § 357 authorize condemnation aga inst land in which the United States holds fee title in trust for an Indian tribe, when the tribe has a fractional beneficial int erest in the parcel?” Barboan , 857 F.3d at 1108. Section 357 provides, “Lands allotted in seve ralty to Indians may be condem ned for any public purpose under the laws of the Sta te or Territory where located in the same manner as land owned in fee may be condemn ed . . . .” 25 U.S.C. § 357. We concluded in Barboan that this language authorizes “condemnation of any land parcel previously allotted and whose current benef icial owners are individual Ind ians,” “[b]ut starkly absent from § 357’s language is a ny similar authorization for t ribal lands,” which include allotted lands in which the United States holds any par t in trust for a tribe. 857 F.3d at 1108, 1111. A parcel’s status as t ribal 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 irreleva nt that the land at issue h ere9 involves only a 1.1% tribal inter est. Because the tribe has an undivided ownership interest in this land, Kiowa A llotment #84 is tribal land not s ubject to condemnation under § 357 and the district cour t correctly dismi ssed 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 th at “[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 couns el practice, instead of the ho urly rates charged in Oklahoma.” (Appellant’s Opening Br. at 18.) We review a distr ict court’s award of attorney fees for an abuse of dis cretion, but review the court’ s underlying legal analysis de novo. Praseuth v. Rubbermaid, Inc. , 406 F.3d 1245, 125 7 (10th Cir. 2005). The parties agree that Okl ahoma law governs the award o f fees in this case. Moreover, as the landowners pointout, Enable does not question that Okla. Stat. tit. 66, § 55(D), authorizes attor ney fees in a condemnation ac tion such as this one “where the final judgment is thatthe real property cannot be a cquired by condemnation.” Instead, Enable challenges the am ount of attorney fees awarded by the district court, noting that we have obser ved, “When state law governs wh ether to award attorney fees, all agree that st ate law also governs how to cal culate the amount.” Chieftain Royalty Co. v. Enervest Energy Institutional Fund XIII-A, L.P. , 888 F.3d10 455, 461 (10th Cir. 201 7). Enable identifies Burk as Oklahoma’s lead case on the reasonableness of fees. There, t he Oklahoma Supreme Court adop ted the lodestar method for determining attorn ey 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 va lue of services should be predic ated on the standards within the local legal community.” Id. at 663. According to Enable, “the Burk rule” is “that an atto rney fees award under Oklahoma law must be ‘predicated on the standards within the lo cal 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 p oint to the Oklahoma Supreme Court’s subsequent decision in Conti v. Republic U nderwriters Insurance Co. , 782 P.2d 1357 (Okla. 19 89), 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 attorney s had sufficiently documented th eir work and whether their fees were reasonable in li ght of the factors set forth in Oklahoma’s Code of Professional Responsibility. See 782 P.2d at 1362. Conti framed the issue, bas ed on the appellant’ s argument, as whethe r “the guidelines set out in [ Burk] are mandatory, and . . . failure of couns el to follow those documentation guidelines prohibits an award of attorney fees.” Id. The court observed, “The precise language from Burk is that: ‘Attorn eys in this state should be required to present . . . deta iled time records . . .’ and that ‘lawyers who seek an11 award of attorney fees should offer evidence relating to one or more of the criteria . . .’ set forth in th e Code of Professional Responsib ility.” Id. (quoting Burk , 598 P.2d at 663) (emphasi s and alterations in Conti ). Thus, the court held in Conti that the district court did not a buse its discretion in awardin g fees to an attorney who had not kept detailed time sh eets in accordance with the Burk guidelines. Id. at 1362- 63. Enable argues Conti is inapplicable here b ecause it concerned only Burk ’s “documentation guidelines.” (Appe llant’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 thatthe Burk guidelines are not mandatory in de termining an award of attorne y fees. See Conti , 782 P.2d at 1362. In support of its argumen t, Enable cites to Morgan v. Galilean Health Enterprises, Inc. , in which the Oklahoma Supreme Court, in response to an attorn ey fee award “ based solely upon the provisions of the conti ngent-fee contract,” stated, “Lawyers must present to the tri al court detailed time records showing the work performed together with evidence of the reasonable value of dif ferent types of legal work based on local standards.” 977 P.2d 357, 364-65 (Okla. 19 98) (emphasis in original). Enable ignores the portion of this sentence referen cing Burk ’s documentation guidelines to suggest the locality of fees “remai ns a mandatory requirement” despite Conti . (Appellant’s Reply Br. at 8-9.) Morgan , however, does12 not support any distin ction 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 f ee rates may be applied if “th e subject of the litiga tion is ‘so unusual orrequires such speci al 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)). Ena ble argues Oklahoma has not exp ressly adopted this exception and we should therefor e not apply it here. Notably, however, as the Oklahoma Supreme Court recognized in Morgan , Burk indicated Oklahoma courts could enhance fee awar ds by considering factors “taken from fed eral court practice” in addition to those listed in the Oklahoma Rules of Profession al Responsibility. Morgan , 977 P.2d at 364; see also Burk , 598 P.2d at 661. Although Burk placed those factors in the context o f the lodestar method for common fund fee awards, see 598 P.2d at 661, we ar e persuaded that Burk and its progeny are sufficiently flexible to allow for an attorney fee aw ard based on prevailing rates wh ere defense counsel is located rather than where the litigation occurs, under the prop er circumstances. Enable briefly disputes that this case presents appropriate cir cumstances for awarding attorney fees based on out-of-state rates. The distri ct court’s order awarding attorney fees in this case, however, specifically foun d that the landowners “could not afford to hire counsel a nd were unable to locate any counsel, let alone an attorney with expertise in Indian law, locally who would repres ent them.” (Appellant’s App. at 362.) In su pport of this conclusion, the court cited to the affidavit of the Executive Direct or of Oklahoma Indian Legal Se rvices, in which the13 Director stated the organization had found there was no one in Oklahoma who could represent the landowners given t heir need for pro bono represen tation in a case involving complex legal issues. “[W]e will reverse the distric t court’s factual findings only if we have a defin ite and firm conviction that th e lower court made a clear error of judgment or exceede d the bounds of permissible c hoice in the circumstances.” Praseuth , 406 F.3d at 1257. We see no cl ear error in this case, and we cannot say the district court abused its discretion in award ing 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’ unwil lingness to handle case without up-front payment of costs). IV. For all of the for egoing 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.