Enable Oklahoma Intrastate v. 25 Foot Wide Easement , 908 F.3d 1241 ( 2018 )

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.
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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
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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
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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.)
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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.)
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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”
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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
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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
9455, 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
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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
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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
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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.
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