PUBLISH UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

TED KIMZEY, an individual; TROY MILLER, an individual; ESTATE OF CLOVIS MILLER, SR., an individual; GENEVA MILLER, an individual; STEELE KIMZEY, an individual, Plaintiffs-Appellants, No. 11-6211

v. FLAMINGO SEISMIC SOLUTIONS INC., a foreign for profit business corporation, Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:10-CV-00906-M)

Submitted on the briefs: * Randy C. Smith, Hickman Law Group, PLLC, Oklahoma C ity, Oklahoma; Thomas B. Goodwin, Thomas B. Goodwin La w Firm, Cheyenne, Oklahoma, for Plaintiffs-Appellants. Michael E. Smith and Sharon T. Thomas, Hall, Estill, Ha rdwick, Gable, Golden & Nelson, P.C., Oklahoma City, Ok lahoma, for Defendant-Appellee.

* After examining the parties’ briefs a nd the appellate reco rd, this panel has determined unanimously that oral argum ent would not materi ally assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered s ubmitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### October 15, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Before LUCERO , McKAY , and GORSUCH , Circuit Judges.

McKAY , Circuit Judge.

This is an appeal from a summary judgment dismissal in the district court. Plaintiffs brought a trespass action for damages to their land caused by Defendant’s seismic exploration activities. Plaintiffs or iginally filed their ac tion in the state court of Oklahoma; Defendant rem oved it to federal district court based on diversity of citizenship. Defendant moved for summary judgment, arguing that it had permission to enter the property and conduct seismic testing from owners of the mineral rights and/or oil and gas leasehold rights, which lie under the su rface estate of Plaintiffs’ properties. The district court agreed a nd granted summary judgment for Defendant. Defendant sought an award of attorney’s fees pursuant to tit le 12, section 940(A) of the Oklahoma Code. The district court awarded Defendant $71,560 in attorney’s fees as the prevailing party. Plaintiffs appeal both the summary judgme nt and the award of attorney’s fees. BACKGROUND Plaintiffs own surface es tates in Roger Mills Count y in Western Oklahoma. Defendant is a company engaged in geophy sical data services for the oil and gas industry. Owners of undivide d interests in the oil and gas leasehold and/or mineral estate underlying Plaintiffs’ lands grante d permission to Defendant to enter the- 3 - properties and conduct seismic exploration. 1 Plaintiffs argued th at the owners of the oil and gas leaseholds, as lessees, had no ri ght to grant Defendant permission to enter the properties, and that such permission was further invalid because the seismic exploration did not benefi t the mineral estate. In its summary judgment ruling, the distri ct court held “[i]t is undisputed that [D]efendant was granted permission to cond uct seismic testing by the owners of the mineral rights and/or oil and gas leasehold rights that lie under the surface estate of [P]laintiffs’ property.” Aplt. App. at 301. The district court obs erved “[i]t is . . . well-established under Oklahoma la w that an owner of minera l interests and/or oil and gas leasehold rights can validly grant a permit authorizi ng another person to conduct seismic exploration of the mineral estate.” Id . at 302. Thus, the district court held that no trespass had occurred. The district court further found that “there is no support in the case law for [P]lainti ffs’ assertion that there must be a benefit to the mineral estate in order for an owner to have authority to assign his right to conduct seismic operations.” Id . at 303. Regardless, the district c ourt found there was a benefit to the mineral estate in this case from the “greater pot ential for the developm ent of the land as a result of the seismic operations.” Id

. After the district court granted summa ry judgment, Defendant moved for an award of attorney’s fees. Pl aintiffs argued that because th e district court held there

1 Plaintiffs did not dispute this fact during the district court proceedings.- 4 - was no trespass, and therefor e did not address the issue of injury to Plaintiffs’ properties, title 12, section 940(A) of the Oklahoma Code di d not apply. The district court rejected Plaintiffs’ ar gument and awarded Defendant $7 1,560 in attorney’s fees. DISCUSSION “We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” Garrison v. Gambro, Inc. , 428 F.3d 933, 935 (10 

### th Cir. 2005) (quotation omitted). “When applying this standard, we view the eviden ce and draw reasonable inferen ces therefrom in the light most favorable to the nonmoving party.” Id . (quotation omitted). Summary judgment is available “if the movant shows th at there is no genuine dispute as to any material fact and the mova nt is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We agree with the district court that Oklahoma law clearly permits owners of mineral estates to grant acc ess to the surface property in order to conduct seismic exploration. In Oklahoma, the owner of a mineral interest has the right to enter the land to explore for oil and gas. See DuLaney v. Okla. State Dep’t of Health , 868 P.2d 676, 680 (Okla. 1993). 2 “The authority to explore for oil and gas extends to the

2 The Oklahoma Legislature recently conf irmed this “histori cal right” in its enactment of title 52, secti on 803 of the Oklahoma Code, effective July 1, 2012: “[T]he mineral owner has had, and shall her eafter continue to have, the right to make reasonable use of the surface estate, including the right of ingress and egress therefor, for the purpose of exploring, severing, capturing and produc ing the minerals (continued . . .)- 5 - mineral interest owner’s lessee.” Id . “The right includes surface ingress and egress and the authority to occupy the surface to th e extent reasonably necessary for exploring and marketing the oil and gas.” Id . “The interest is in th e nature of a property right, and the surface estate is serv ient to the dominant estate for the purpose of oil and gas development.” Id . (footnote omitted). An oil and gas lessee owns an “easement in the surface, which is incident to or implied from the lease, [and whic h] extends to such parts of the demised premises as are reasonably necessary for the purpose of exploration or production.” Hinds v. Phillips Petroleum Co. , 591 P.2d 697, 699 (Okla. 1979). Such interest is “clearly divisible” and “sep arately alienable.” Id

. Indeed, “leasehold interests are freel y alienable under [Oklahoma] law.” Id. ; see also Enron Oil & Gas Co. v. Worth , 947 P.2d 610, 613 (Okla. Ci v. App. 1997) (“[A] mineral owner may sever and assign the surface easement for the li mited purpose of conducting geophysical exploration.”). Plaintiffs argue that while a mineral ow ner may assign its right to an oil and gas lessee, a lessee may not similarly assign it s right. Plaintiffs are mistaken. In Hinds , the oil and gas lessee executed a contract conveying its surface easement to a third party, similar to the co nveyance in this case. Hinds , 591 P.2d at 698. The Oklahoma

underlying the tract of real property or lands spaced or pooled therewith.” Okla. Stat. tit. 52, § 803(A). “It is the intent of this act to conf irm the mineral owner’s historical right to make reasonable use of the su rface estate, . . . .” Id . § 803(F).- 6 - Supreme Court upheld the conveyance. Again, “leasehold interests are freely alienable under [Oklahoma] law.” Id . at 699. Plaintiffs also argue that Oklahoma la w requires that any co nveyance of surface rights must benefit the mi neral estate, perhaps rely ing on the statement in Hinds that “the transfer of rights to [t he defendant] did not operate to benefit any premises other than those of landowner-lessor.” Id . at 700. In Hinds , the oil and gas lessee conveyed to a third party the right to ente r onto the surface to lay and maintain a pipeline from a producing well on the landowne r’s property. The court compared that scenario with one from another case where a Kentucky court struck down a conveyance of the surface easement granted in order to lay pipe over the subject property, which would carry oil and gas from a wholly separate property. See Ky. Pipe Line Co. v. Hatfield , 3 S.W.2d 654 (Ky. 1927). Thus, in Hinds , the Oklahoma court was merely noting that the easement conveya nce must at least relate to the subject property, which it does here. Nowhere in Hinds did the Oklahoma court condition the alienability of the leasehold interest on a benefit to the land. The only restraint the Hinds court recognized was that the lessee’s surface easeme nt “extends to such parts of the demised premises as are reasonably necessary for th e purpose of explora tion or production.” 3

3 We also agree with the district court th at even if Oklahoma law requires that any oil and gas lessee permit must benefit the oil and gas lessee or the mineral owner, Defendant’s exploration in this case does so . Despite the oil a nd gas lessee allegedly not having a contractual right to receive th e seismic results of De fendant’s exploratory study, it could still purchase that study from De fendant, and thereby receive a benefit. (continued . . .)- 7 - Hinds , 591 P.2d at 699. Defenda nt’s actions in this ca se were specifically for exploration and directly related to the mi neral estate underlying Plaintiffs’ surface

estates. Defendant entered onto Plaintiffs’ proper ties with the expre ss, written consent of the owners of leasehold interests. Thus, no trespass occurred, and summary judgment was proper. To the extent Plain tiffs now raise the issue of Defendant’s unreasonable use of Plaintiffs ’ surface properties, we do not address such issue; Plaintiffs did not raise it in the district court. See Utah Animal Rights Coal. v. Salt Lake Cnty. , 566 F.3d 1236, 1244 (10th Cir. 2009) (“[W]e generally do not consider new theories on appeal—even those that fa ll under the same general category as one that was presented in the district court.”). We now turn to the issue of attorney’s fees. We must first consider our jurisdiction. Defendant clai ms we lack jurisdiction to review the district court’s award of attorney’s fees beca use Plaintiffs did not file a second notice of appeal after the district court’s fee award. See Utah Women’s Clinic, Inc. v. Leavitt , 75 F.3d 564, 567 (10th Cir. 1995) (“Th e Supreme Court has held that th e question of attorney’s fees and costs are collateral to and separate fro m a decision on the me rits.”). Here, the district court entered its su mmary judgment dismissal on Ju ly 19, 2011. Plaintiffs

Regardless, “[t]he greater the number of parties allowed to explore, the more exploration will occur and the greater will be the potential for development of the land.” Mustang Prod. Co. v. Texaco, Inc. , 754 F.2d 892, 895 (10th Cir. 1985).- 8 - filed their timely notice of appeal on Au gust 12, 2011. The district court awarded attorney’s fees to Defendant on October 11, 2011. Plaintiffs did not file an additional notice of appeal after the Oc tober 11th order. However, on November 8, 2011, within thirty days of the fee-award order, Pl aintiffs filed their opening brief in the previously-noticed appeal and specifically ch allenged the fee award. It is appropriate to construe Plaintiffs’ brief as the functional equivalent of a notice of appeal from the order awarding fees if it provides the notic e required by Fed. R. App. P. 3(c)(1). See Smith v. Barry , 502 U.S. 244, 248 (1992). 4 Under Rule 3(c)(1), a notice of appeal must “specify the pa rty or parties taking the appeal . . .; designate the judgment, order, or part thereof being appealed; and . . . name the court to which the appeal is taken.” Fed. R. App. P. 3(c)(1). Plaintiffs’ appellate brief meet s all of these requirements: it refers to the district court’s October 11th fee award order; it identifies Plaintiffs as the appealing parties; and it names this court as th e court to which the appeal is taken. Thus, we have jurisdiction. We review “a district court’s award of at torney fees . . . subj ect to an abuse of discretion standard, but any le gal conclusions that provide a basis for the award are reviewable de novo .” Tulsa Litho Co. v. Tile & Deco rative Surfaces Magazine Publ’g
Inc. , 69 F.3d 1041, 1043 (10th Cir. 1995). Defenda nt is entitled to a ttorney’s fees if a

4 This rule is not limited to pro se appeals. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp. , 531 F.3d 1282 (10th Cir. 2008).- 9 - contract or statute so provides. Walden v. Hughes , 799 P.2d 619, 619 (Okla. 1990). Title 12, section 940(A) of th e Oklahoma Code provides: In any civil action to recover damages for the negligent or willful injury to property a nd any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney’s fees, courts costs and interest to be set by the court and to be taxed a nd collected as other costs of the action. Okla. Stat. tit. 12, § 940(A) (emphasis a dded). The Oklahoma Supreme Court has interpreted Section 940(A) to “contemplat e only those actions for damages for the negligent or willful physical injury to property.” Woods Petroleum Corp. v. Delhi Gas Pipeline Corp. , 700 P.2d 1011, 1013 (Okla. 1984) . “A party who successfully defends a property damage clai m is entitled to an attorn ey fee award under section 940 of title 12.” Lee v. Griffith , 990 P.2d 232, 234 (Okla. 1999); see also Evans v. Sitton , 735 P.2d 334, 336 (Okla. 1987) (“Section 940(A) states that if a judgment is rendered for the defendant, the defendant is entitled to attorney fees as the prevailing party.”). 5
In the face of this clear Ok lahoma precedent, there is no merit to Plaintiffs’ argument

5 Our conclusion in Weyerhaeuser Co. v. Brantley , 510 F.3d 1256, 1268 (10th Cir. 2007), that “a prevailing party must recove r actual damages for ph ysical injury to property to recover attorney’s fees under § 940(A), even in a trespass action[,]” reiterates the Oklahoma Supreme Court’s ruling that a physical injury must have occurred, as opposed to a non-physical injury si milar to lost profits. It does not affect the Oklahoma Supreme Court’s position that a defendant who successfully defends against a property damage cl aim, thus recovering no da mages but instead defending against such a recovery, is also entitled to attorn ey fees under § 940(A). See Evans , 735 P.2d at 336. In their complaint, Plaint iffs pled actual, physical, and substantial damages to their properties. Thus, a pplication of § 940(A) is appropriate.- 10 - that § 940(A) does not apply because the di strict court found th at no trespass had occurred and therefore did not reach the issue of damages fo r the negligen t or willful injury to property. Defendant, as the preva iling party, is entitled to attorney’s fees. Finally, we hold that the district cour t did not abuse its discretion in awarding Defendant $71,560.00. The di strict court carefully review ed Defendant’s affidavits and time records in support of its fee request pursuant to the relevant factors set forth in State of Oklahoma ex rel. Bu rk v. City of Oklahoma City , 598 P.2d 659, 661 (Okla. 1979). Further, the district cour t reduced the hourly rates of several of Defendant’s attorneys based on its own kno wledge of prevailing market rates. See Lippoldt v. Cole , 468 F.3d 1204, 1225 (10th Cir. 2006). The fee award was therefore reasonable. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment and award of attorney’s fees.