Town of Davis v. West Virginia Power and Trans.

• Decision Date: 10 August 2007
• Docket Number: Civil Action No. 2:05-00081.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: TOWN OF DAVIS, a municipal corporation, Petitioner, v. WEST VIRGINIA POWER AND TRANSMISSION COMPANY, INC., a/k/a Allegheny Power and Canaan Valley Institute, Inc., Respondents.

647 F.Supp.2d 622

TOWN OF DAVIS, a municipal corporation, Petitioner, v. WEST VIRGINIA POWER AND TRANSMISSION COMPANY, INC., a/k/a Allegheny Power and Canaan Valley Institute, Inc., Respondents.

Civil Action No. 2:05-00081.

United States District Court, N.D. West Virginia.

August 10, 2007.

Harry A. Smith, III, Jory & Smith, Elkins, WV, for Petitioner.

Edward G. Kennedy, The West Virginia Power & Transmission Co., Greensburg, PA, Larry W. George, Charleston, WV, for Respondents.

MEMORANDUM OPINION AND ORDER

DAVID A. FABER, District Judge.

Pending before the court is petitioner's objection to the removal of this action from the Circuit Court of Tucker County, West Virginia (Doc. No. 8), which the court will address as a motion to remand. Also pending is respondent Canaan Valley Institute's motion to compel the joinder of certain parties (Doc. No. 18), and the motion to intervene of the National Youth Science Foundation (Doc. No. 24). For the reasons set forth below, the court DENIES the motion to remand, GRANTS IN PART and DENIES IN PART the motion to compel joinder, and GRANTS the motion to intervene.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, the Town of Davis, West Virginia ("Davis"), is a public municipal corporation. (Doc. No. 1 Ex. A at 7.) In October 2005, it filed an application for condemnation of land in the Circuit Court of Tucker County, West Virginia, with regard to two tracts of land it contends are owned by respondents West Virginia Power and Transmission Company ("Allegheny Power") and Canaan Valley Institute ("CVI").¹ (Doc. No. 1 Ex. A.) Davis's application alleges that the condemnation is necessary so that Davis may appropriate a spring, stream, and surrounding property in order to protect and preserve the purity of the town's water supply. (Id. at 8.)

CVI removed the action to this court on October 17, 2005, claiming jurisdiction pursuant to 28 U.S.C. § 1442, the federal officer removal statute.² The notice of removal states that CVI purchased the land in question with federal grant money disbursed to it by the National Oceanic and Atmospheric Administration ("NOAA"), an agency of the United States Department of Commerce. (Doc. No. 1 ¶ 10.) CVI explains that the grants were made under the statutory authority of the Secretary of Commerce pursuant to 15 U.S.C. § 313, "for the specific purposes of environmental conservation and research and education programs conducted by CVI and other governmental, charitable and private research organizations under the NOAA Mid-Atlantic Highlands Program." (Doc. No. 1 ¶¶ 11-12.)

CVI further explains that its use, management, and disposition of the land is governed by federal law and is subject to NOAA's direct supervision and control. (Id. ¶ 14; see 15 C.F.R. § 14.32.)³ Citing 15 C.F.R. § 14.37, CVI describes its interest in the land as constituting only "bare legal title."⁴ (Doc. No. 1 ¶ 15.) In accordance with this regulation, the contractual agreement entered into between NOAA and CVI states that CVI must obtain NOAA's permission before disposing of, modifying the use of, or changing the terms of the title to the property. (Doc. No. 1 ¶ 16.) It further dictates that CVI "will record the Federal interest in the title of real property in accordance with [NOAA] directives...." (Id.) This interest was not recorded until the commencement of this litigation, however, at which time CVI recorded a "Deed Notation and Security Interest" with a nunc pro tunc date of December 18, 2002, the date it acquired Parcel B. (Doc. No. 18 Ex. A.)

CVI contends that removal is proper under either § 1442(a)(1) or (a)(2). (Id. at ¶ 18.) Allegheny Power joins in the notice of removal. (Doc. No. 3.) On November 1, 2005, Davis filed its motion to remand, objecting to the notice of removal on several grounds. (Doc. No. 8.) In March of this year, CVI requested that the court enter a scheduling order if it desires a response by CVI to Davis' motion to remand. (Doc. No. 16 at 6). In order to avoid further delay, however, and because respondents' position is adequately represented in the notice of removal, the court declines CVI's suggestion.

On April 6, 2007, CVI filed a motion to compel the joinder of the United States Department of Commerce, the West Virginia Division of Natural Resources, and the West Virginia Public Land Corporation. (Doc. No. 18.) Additionally, on May 15, 2007, the National Youth Science Foundation filed a motion to intervene, alleging a contractual interest in a portion of the land at issue. (Doc. No. 24.) CVI joined in this motion on June 7, 2007. (Doc. No. 33.) Davis opposes both the motion to compel joinder and the motion to intervene.

II. ANALYSIS

A. Motion to Remand

As mentioned above, CVI claims jurisdiction under both 28 U.S.C. § 1442(a)(1) and (a)(2). Davis correctly observes that the plain language of the statute renders § 1442(a)(1) inapplicable to this case; it relates only to acts of a federal officer undertaken with regard to "the apprehension or punishment of criminals or the collection of the revenue." 28 U.S.C. § 1442(a)(1). Davis assumes in its brief that this last phrase applies also to the § 1442(a)(2) officer from whom title to property is derived:

The language "any such officer" obviously refers to the "officer" referred to in 28 U.S.C. § 1442(a)(1); "any such officer" ... is thus an officer who is sued either for an act done under color of his office or based upon a claim related to the apprehension of criminals or the collection of revenue.

(Doc. No. 9 at 3.) Case law indicates otherwise, however.

The issue was discussed in Town of Stratford v. City of Bridgeport, 434 F.Supp. 712 (D.Conn.1977), a case substantially similar to the one before this court. In that case, the Town of Stratford brought an action in state court to determine what compensation it owed for the taking by eminent domain of sewer easements through the land of Sikorsky Memorial Airport, land owned by the City of Bridgeport. Id. at 713. Bridgeport had obtained the land partially from the federal government, and the deed reserved certain interests in the land to the United States. Id. Bridgeport removed the case under the federal officer removal statute, citing various federal laws and regulations that stood to be affected by the suit. Id.

In analyzing § 1442(a)(2), the Stratford court noted that preceding versions of the section had included the requirement that the property owner's title be derived specifically from a federal revenue officer. Id. at 714. When Congress undertook a comprehensive revision of Title 28 in 1948, however, "the limitation of what is now § 1442(a)(2) to revenue officers and their successors and to revenue laws was dropped. The Reviser's Note gives no explanation for the change." Id. As a result, "§ 1442(a)(2) permits removal by a property holder whose title is derived from any United States officer when the action affects the validity of any United States law." Id. n. 1 (emphasis added); see also Faulk v. Owens-Corning Fiberglass Corp., 48 F.Supp.2d 653, 669 (E.D.Tex.1999) (same).

The Stratford court remanded the case because it found that Stratford's suit did not raise any issues as to the validity of a federal law. Stratford, 434 F.Supp. at 715. Although Bridgeport intended to raise federal issues in its defense, the court concluded that such defensive matters would not supply removal jurisdiction under the federal officer removal statute, "just as they would not supply federal question jurisdiction under [28 U.S.C] § 1331." Id. It was solely on this basis that the court remanded the action.

Subsequently, the United States Supreme Court clarified that § 1442 provides an exception to the general rule that a federal defense does not qualify a case for removal. "Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal question element is met if the defense depends on federal law." Jefferson County v. Acker, 527 U.S. 423, 430-31, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (citing Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989)). Although Acker and Mesa involved other subsections of § 1442, this reasoning has also been applied to suits removed pursuant to § 1442(a)(2). Bithorn v. Rosello-Gonzalez, No. 01-2053, 2002 U.S. Dist. LEXIS 15614, at *26-30 (D.P.R. March 18, 2002) (Delgado-Colon, Mag.), adopted by 200 F.Supp.2d 26 (D.P.R.2002) (Dominguez, J.).

Finally, the motion to remand states simply that "this eminent domain action obviously does not affect `the validity of any law of the United States.'" (Doc. No. 9. at 3.) CVI's notice of removal cites numerous laws and legal doctrines whose validity it asserts may be affected by this litigation. (Doc. No. 1 at 8-9.) On this point, however, the court need look no further than the above federal regulations, whose object—the reservation to the United States of certain interests in property purchased through federal grants—certainly stands to be frustrated by this action. Accordingly, the motion to remand must be denied.

B. Motion for Joinder

CVI moves to compel the joinder of the United States Department of Commerce on the grounds that the Department holds certain interests in the subject property, as described above, making it a necessary party to the proceedings. (Doc. No. 18.) CVI also seeks the joinder of the West Virginia Division of Natural Resources ("DNR") and the West Virginia Public Land Corporation ("PLC") because of their alleged interest in a portion of the Blackwater River encompassed by the subject parcels of land. (Doc. No. 18.) Respondent contends that the joinder of PLC is appropriate because it holds fee simple title to one-half acre of Parcel B pursuant to West Virginia Code Section 20-1A-1. (Id. ¶ 17.) CVI further states that recent state legislation operates to transfer title in the state's banks, shores, and the beds of the state's watercourses...