Interstate Natural Gas Co. v. Southern California Gas Co., No. 13373.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtSTEPHENS, ORR and POPE, Circuit
Citation209 F.2d 380
PartiesINTERSTATE NATURAL GAS CO. v. SOUTHERN CALIFORNIA GAS CO. et al.
Docket NumberNo. 13373.
Decision Date29 December 1953

209 F.2d 380 (1953)

INTERSTATE NATURAL GAS CO.
v.
SOUTHERN CALIFORNIA GAS CO. et al.

No. 13373.

United States Court of Appeals Ninth Circuit.

December 29, 1953.


209 F.2d 381
COPYRIGHT MATERIAL OMITTED
209 F.2d 382
Guthrie, Darling & Shattuck, Milo V. Olson, Los Angeles, Cal., for appellant

T. J. Reynolds, L. T. Rice, Los Angeles, Cal., for appellee Southern California Gas Co.

Milford Springer, Los Angeles, Cal., for appellee Southern Counties Gas Co.

Pillsbury, Madison & Sutro, Turner H. McBaine, Thomas E. Haven, Byron E. Kabot, San Francisco, Cal., for appellees Southern California Gas Co. and Southern Counties Gas Co.

Before STEPHENS, ORR and POPE, Circuit Judges.

ORR, Circuit Judge.

Appellant sued for damages in the District Court alleging a refusal by appellees to transport through its pipeline system natural gas belonging to appellant in violation of the Mineral Lands Leasing Act, 30 U.S.C.A. § 185, the Natural Gas Act, 15 U.S.C.A. § 717, and the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1 and 2.

Appellees, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., moved for dismissal of the action on the ground that, (1) the complaint failed to state a claim upon which relief could be granted, (2) because the court lacked jurisdiction over the subject matter of the action, and, (3) that there was a failure to join indispensable parties. The trial court granted the motion to dismiss on the ground that primary jurisdiction was in the Federal Power Commission and that appellant

209 F.2d 383
had failed to exhaust its administrative remedies, D.C., 102 F.Supp. 685. Appellant filed an amended complaint which was also dismissed on the same ground, D.C., 103 F.Supp. 317. The pertinent allegations of the amended complaint are as follows

Appellees own and operate a natural gas pipeline system constructed upon rights-of-way across government land under permits granted by the Secretary of Interior pursuant to provisions of the Leasing Act, 30 U.S.C.A. § 185; that said Act required appellees to operate its pipeline as a common carrier and appellees agreed in writing with the Secretary of Interior that its pipeline would be so operated; that appellees as a common carrier of natural gas were required to file rates with the Federal Power Commission and to transport gas for all shippers of natural gas at reasonable and nondiscriminatory rates; that from October 18, 1949, until October 25, 1950, appellant had natural gas which it desired to ship and sell in interstate commerce; that despite oral and written demands upon appellees to file such rates, appellees refused to do so, and, with the exception of El Paso Natural Gas Company, have at no time complied with the law. Further, it is alleged, that appellees justify their refusal to carry appellant's gas because of the provisions of a contract whereby Southern Counties Gas Company and Southern California Gas Company obligated themselves to purchase from El Paso Natural Gas Company 91% of the pipeline capacity; that said contract was entered into for the purpose of monopolizing and restraining trade in violation of the Sherman Anti-Trust Act; that as a result of the alleged unlawful agreement and the refusal to transport appellant's gas, appellant was prevented from selling gas in interstate commerce and damaged in a substantial sum; and it is alleged, that it would be a futile and useless act for appellant to attempt to invoke the aid of the Federal Power Commission because the failure to file a rate deprived the Commission of jurisdiction; that appellant made numerous "personal oral requests" of the Commission to require appellees to file rates as a common carrier, but was informed by officers of the Commission that it had no authority to require appellees to do so. It is also alleged that in another matter relating to the issuance of a certificate of convenience and necessity to El Paso Natural Gas Company and other pipeline companies, appellant filed a petition in intervention requesting that as a condition to the issuance of the certificate the pipeline companies be required to file with the Commission a common carrier tariff; that the Commission refused to impose such a condition; and, in addition, it is alleged that appellees are estopped from claiming that appellant failed to exhaust its administrative remedies by their failure to do that which the law and their agreement with the Secretary of the Interior already required them to do.

Assuming, without deciding, that appellees were required to operate their pipeline system as a common carrier, we are of the opinion that the trial court correctly held that appellant was required to first seek relief from the Federal Power Commission before bringing an action in the District Court.

The principle of primary administrative jurisdiction is well established by a long line of cases following Texas & Pacific R. Co....

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185 practice notes
  • Grant v. Aurora Loan Serv., Inc., Case No. CV 09-08174 MM(CTx)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 10 Septiembre 2010
    ...Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir.2008) (quoting Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1954)). The trustee's deed on the sale of the Woodland Hills property 36 is a document recorded by the Los Angeles County Recor......
  • Blackman-Baham v. Kelly, Case No. 16-cv-03487-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 21 Febrero 2017
    ...parties on the basis that they are "records and reports of administrative bodies." See Interstate Nat. Gas Co. v. S. California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953); see also Lacayo v. Donahue, No. 14-cv-4077 JSC, 2015 WL 993448 (Mar. 4, 2015, N.D. Cal.) ("The extrinsic evidence that ......
  • Marsh v. San Diego County, No. CIV. 05-1568WQH(NLS).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 5 Mayo 2006
    ...See Lee v. City of Los Angeles, 250 F.3d 668, 689-690 (9th Cir.2001); see also Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1953) (holding a court may take judicial notice of records and reports of administrative In the Complaint, Plaintiff alleges s......
  • In re Conagra Foods Inc., Case No. CV 11–05379 MMM (AGRx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 15 Noviembre 2012
    ...is appropriate for records and ‘reports of administrative bodies,’ ” citing Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1953)). 40. See Briseno Dismissal at 7–14. 41. Opposition at 2. 42. Complaint, ¶¶ 98–99. 43.Id., ¶ 115. 44.Id., ¶ 125. 45.Id., ¶ ......
  • Request a trial to view additional results
185 cases
  • Grant v. Aurora Loan Serv., Inc., Case No. CV 09-08174 MM(CTx)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 10 Septiembre 2010
    ...Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir.2008) (quoting Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1954)). The trustee's deed on the sale of the Woodland Hills property 36 is a document recorded by the Los Angeles County Recor......
  • Blackman-Baham v. Kelly, Case No. 16-cv-03487-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 21 Febrero 2017
    ...parties on the basis that they are "records and reports of administrative bodies." See Interstate Nat. Gas Co. v. S. California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953); see also Lacayo v. Donahue, No. 14-cv-4077 JSC, 2015 WL 993448 (Mar. 4, 2015, N.D. Cal.) ("The extrinsic evidence that ......
  • Marsh v. San Diego County, No. CIV. 05-1568WQH(NLS).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 5 Mayo 2006
    ...See Lee v. City of Los Angeles, 250 F.3d 668, 689-690 (9th Cir.2001); see also Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir.1953) (holding a court may take judicial notice of records and reports of administrative In the Complaint, Plaintiff alleges s......
  • Blackman-Baham v. Kelly, Case No. 16-cv-03487-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 21 Febrero 2017
    ...parties on the basis that they are "records and reports of administrative bodies." See Interstate Nat. Gas Co. v. S. California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953); see also Lacayo v. Donahue, No. 14-cv-4077 JSC, 2015 WL 993448 (Mar. 4, 2015, N.D. Cal.) ("The extrinsic evidence that ......
  • Request a trial to view additional results

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