City of Morgan City v. South Louisiana Elec. Co-op. Ass'n

• Decision Date: 03 April 1995
• Docket Number: No. 93-4295,93-4295
• Citation: 49 F.3d 1074
• Parties: CITY OF MORGAN CITY, Plaintiff-Intervenor-Defendant-Appellant, v. SOUTH LOUISIANA ELECTRIC COOPERATIVE ASSOCIATION, Defendant-Intervenor-Appellee, Third Party-Plaintiff-Appellee, and Cajun Electric Power Cooperative Inc., Intervenor-Plaintiff-Appellee, and United States of America, thru Rural Electrification Administration (REA), Third Party-Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1074

49 F.3d 1074

CITY OF MORGAN CITY, Plaintiff-Intervenor-Defendant-Appellant, v. SOUTH LOUISIANA ELECTRIC COOPERATIVE ASSOCIATION Defendant-Intervenor-Appellee, Third Party-Plaintiff-Appellee and Cajun Electric Power Cooperative Inc., Intervenor-Plaintiff-Appellee and United States of America, thru Rural Electrification Administration (REA), Third Party-Defendant-Appellee.

No. 93-4295.

United States Court of Appeals Fifth Circuit.

April 3, 1995.

Dale Hughes Hayes, Leonard & Hayes, Morgan City, LA, Wallace E. Brand, Brand, Beeny, Berger & Whitler, Washington, DC, T.H. Freeland, T.H. Freeland, IV, Freeland & Freeland, Oxford, MS, for Morgan City.

James M. Funderburk, Duval, Funderburk, Sundbery & Lovell, Houma, LA, for South Louisiana Elec. Co-op. Ass'n.

William E. Hodgkins, John Schwab, Schwab & Walter, Baton Rouge, LA, for Cajun Elec. Power Co-op., Inc.

Thomas M. Bondy, Mark B. Stern, Civ. Div., Appellate Staff, John Christopher Kohn, U.S. Dept. of Justice, Washington, DC, for U.S.

Clifton S. Elgarten, Amy J. Mauser, Crowell & Moring, Washington, DC, for amicus American Public Power Ass'n, Nat. Institute of Mun. Law Offices & Nat. League of Cities.

Wallace F. Tillman, Jonathan Hemenway Glazier, Nat. Rural Elec. Co-op. Ass'n, Washington, DC, for amicus Nat. Rural Elec. Co-op. Ass'n.

N. Beth Emery, Sutherland, Askill & Brennan, Washington, DC, for amicus Nat. Rural Elec. Appeal from the United States District Court for the Western District of Louisiana.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN

BANC

(Opinion September 12, 1994, 5th Cir.1994, 31 F.3d 319)

Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

We deny Morgan City's petition for rehearing in this case. ¹ We take this opportunity, however, to address a number of Morgan City's arguments.

Morgan City first argues that we have created a far-reaching "per se" rule of preemption that is inconsistent with the Supreme Court's decision in Arkansas Electric Coop. Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983). The Arkansas Electric case is distinguishable. In that decision, a rural electric cooperative mounted a facial challenge to a state's right to regulate a rural cooperative's wholesale electric rates. The Court held that the Rural Electrification Act ("REAct"), 7 U.S.C. Sec. 901 et seq., does not preempt a state's "mere assertion of jurisdiction" to regulate a cooperative's rates. Id. at 389, 103 S.Ct. at 1915.

In the present case, SLECA does not assert a facial challenge to a state's power to regulate or expropriate a rural cooperative's service area and equipment. Rather, SLECA challenges actual expropriations of its specific property and service rights. Morgan City's characterization of our decision as creating a "per se" rule of preemption is therefore mistaken. The panel's preemption analysis focussed on the actual effect of these specific expropriations, not whether the REAct facially preempts all attempts by states to expropriate the property of a rural cooperative. Significantly, Arkansas Electric confirms that concrete action taken by a state "may so seriously compromise important federal interests, including the ability of the [coop] to repay its loans, as to be implicitly preempted by the Rural Electrification Act." 461 U.S. at 389, 103 S.Ct. at 1915 (emphasis added). Morgan City's argument is thus unavailing.

Morgan City argues next that the language of the REAct does not create a federal purpose which could be frustrated if the threatened condemnation were allowed to proceed. We disagree. The language of 7 U.S.C. Sec. 907 reflects Congress' concern that piecemeal disposition of a cooperative's property and service rights might impair the Rural Electrification Administration's ("REA") security interest in the cooperative's assets. Section 907 prohibits a cooperative or other entity that borrows funds from the REA from "sell[ing] or dispose[ing] of its property, rights, or franchises" without the agency's prior approval. In the panel opinion, we declined to decide whether Sec. 907 should be interpreted broadly enough to allow the REA to prevent a proposed expropriation. ² However, at the very least, the provision reflects a general federal policy of protecting the integrity of the REA's security interests. Thus, even a narrow interpretation of Sec. 907 supports the panel's preemption analysis.

Finally, we reject Morgan City's contention that the record does not support the panel's conclusions. SLECA's summary judgment evidence includes a copy of a comprehensive twenty-eight page report on the effect of proposed expropriations prepared by the REA, the agency charged with administering the REAct. The report considered not only the number of SLECA's customers affected by the expropriations, but also the extent to which these customers accounted for a large percentage of SLECA's revenues because of the density of the service area involved. The report concludes that the planned condemnations would reduce SLECA's gross revenues by $768,000 annually and decrease its system operating margins by 88.26%. In assessing the effect of the condemnations, the REA also considered future planned expropriations by Morgan City (the Phase III Plan) and the nearby City of Houma.

Morgan City's summary judgment affidavits fail to effectively rebut the REA report's detailed findings. Morgan City's primary contention is that the panel should not have considered the proposed future expropriations in assessing the impact on SLECA. However, these proposed condemnations were not merely hypothetical threats. SLECA points to testimony by Morgan City's mayor that Phase III was fully planned and ready for implementation. The REA report also points to statements by Houma city officials revealing that the city planned to expropriate SLECA's adjoining service area. These planned future expropriations were thus highly relevant to assessing the overall impact of the expropriations on SLECA. If courts are not allowed to consider fully planned future expropriations under these circumstances, states and municipalities could escape preemption by merely dividing planned expropriations into incremental phases that, when considered individually, are insufficient to invoke preemption.

For these reasons, Morgan City's petition for panel rehearing is DENIED.

A member of the court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor, rehearing en banc is DENIED.

EDITH H. JONES, Circuit Judge, with whom, JERRY E. SMITH and DeMOSS, Circuit Judges, join, dissents from the Denial of Rehearing En Banc:

The panel opinion and opinion on rehearing in this case have, under the rubric of "frustration preemption," ¹ approved a breathtaking federal power-grab by REA from local government units that otherwise enjoy broad eminent domain authority. Neither the REA nor its regulations contemplate preemption of this quintessential local power--the agency's regulations in fact assume the opposite. ² That REA lacks broad preemptive authority was emphasized by the Supreme Court's rebuff of agency efforts to thwart local electrical rate regulation. Arkansas Electric Cooperative v. Arkansas Public Service Commission, 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1982). Surely, if state rate regulation is permitted, though it contains the power to hobble a federally financed cooperative, ³ then the eminent domain power--exercisable only on payment of just compensation--has not been overridden by statute or, even more vaguely, by a conclusional judicial stamp labelled "frustration of purpose." Because the panel opinion has given REA authority that Congress clearly denied it and that the Supreme Court, I am confident, has also withheld, I respectfully dissent from the denial of en banc rehearing.

By relying on the notion of frustration preemption, the original panel opinion held that Morgan City's attempted annexation of customers from SLECA, an REA-financed rural electrical cooperative, must fail because it might impair SLECA's ability to repay REA's loans. Curiously, that opinion never cited Arkansas Electric, the critical Supreme Court decision concerning preemption of local regulatory authority under the Rural Electrification Act. Only in its rehearing opinion does the panel attempt to grapple with the implications of Arkansas Electric. To me, that case is fatal to the panel's decision.

In Arkansas Electric, the Supreme Court rejected an implied preemption argument nearly identical to that advanced here. REA argued that local rate regulation may "frustrate important federal interests":

[I]n passing on rate questions, the REA considers, not only the security thus afforded for payment of the loan, but also the suitability of the rates and structure to the Act's underlying purpose of facilitating the availability of cheap electric power in rural America.

. . . . .

The spectre of state regulation poses a threat to the REA loan because of the possibility that the state may refuse to permit its cooperatives to pay a generation and transmission association the rates to which they agreed and upon the security of which the loan was issued. Moreover, the policy behind the Rural Electrification Act is at stake ... [T]he REA has always encouraged its borrowers to establish affordable rates for all of its subscribers. In this way, costs are shared in a manner which, over the long run, benefits all by the creation of a sound, extensive rural electric system.

Arkansas Electric, 461 U.S. at 385-86, 103 S.Ct. at 1913 (omissions in original).

To REA's policy arguments, the Court responded, first, that, "[A]lthough the REA was expected to play a role in assisting the fledgling rural power cooperatives in setting their rate structures, it would do so within the constraints of existing state...