U.S. v. 14.02 Acres of Land More or Less, No. 05-17347.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Canby
• Citation: 547 F.3d 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 14.02 ACRES OF LAND MORE OR LESS IN FRESNO COUNTY; Edna E. Stone; Paul Krajian; Shriners Hospital For Crippled Children; David C. Whitlock; Edward H. Marsella; Henry Schafer, Jr.; Sharon Cecile Peckinpah; Sharon Cecile Marcus aka Sharon Cecile Peckinpah; Fern L. Peter, Lola A. Swanson; Florence F. Class; Clarence E. Bernhauer, Jr.; Jane Whitlock Stiles; Norma B. Gibbs; June E. Lucas; Irene Marley; Henry Schafer, Sr.; Denver C. Peckinpah; Susan Jane Peckinpah; Agnes H. Vignola; Dong She Mar; Bessie E. Bernhauer; Leonard P. LeBlanc; Ivone M. Carlson; Elvira Mosher; Lorraine S. Eichenberger; Eleanor C. Hicks; Trustee Peter Frechou; Kathryn McAfee; Trustee John C. Ricksen Kathryn Brown; Estate Of Johnny Bello; Estate Of Louis Bello; Francis Bello; Edward C. Beaumont; Pauline Eichenberger; Lorraine C. Fortnoy; Floreen L. Walsh; Trustee Mary Frechou Allen Moore; Beverly M. Fielder; Hal E. Verble; May Evylen Bernhard; Gordon Winant Hewes; Pauline D. Hanson; Eloise Mitchell; Lawrence E. Austin; Evelyn Santos; Samuel B. Breck David Biswell; Stephen Biswell; Melissa Brook Peckinpah; Joan Leonard; Maude Dawson; Gertrude Porterfield; William J. Mathos; John Robert Shorb; Candace Haas; Kristen Louise Pechinpah; Matthew David Pechinpah; J. Daniel Hare, III; Bradley B. Leonard; Security Title Insurance; Vicki Treasurer, Fresno County; Russ Freeman; Thomas C. Hare, Defendants, and Maxine H. Sawyer; Mark W. Sawyer; Harriet H. Leonard; Charles A. Sawyer; Andrew Klemm; Ramon Echeveste, Defendants-Appellants.
• Docket Number: No. 05-17347.
• Decision Date: 24 June 2008

547 F.3d 943 UNITED STATES of America, Plaintiff-Appellee,
v.
14.02 ACRES OF LAND MORE OR LESS IN FRESNO COUNTY; Edna E. Stone; Paul Krajian; Shriners Hospital For Crippled Children; David C. Whitlock; Edward H. Marsella; Henry Schafer, Jr.; Sharon Cecile Peckinpah; Sharon Cecile Marcus aka Sharon Cecile Peckinpah; Fern L. Peter, Lola A. Swanson; Florence F. Class; Clarence E. Bernhauer, Jr.; Jane Whitlock Stiles; Norma B. Gibbs; June E. Lucas; Irene Marley; Henry Schafer, Sr.; Denver C. Peckinpah; Susan Jane Peckinpah; Agnes H. Vignola; Dong She Mar; Bessie E. Bernhauer; Leonard P. LeBlanc; Ivone M. Carlson; Elvira Mosher; Lorraine S. Eichenberger; Eleanor C. Hicks; Trustee Peter Frechou; Kathryn McAfee; Trustee John C. Ricksen Kathryn Brown; Estate Of Johnny Bello; Estate Of Louis Bello; Francis Bello; Edward C. Beaumont; Pauline Eichenberger; Lorraine C. Fortnoy; Floreen L. Walsh; Trustee Mary Frechou Allen Moore; Beverly M. Fielder; Hal E. Verble; May Evylen Bernhard; Gordon Winant Hewes; Pauline D. Hanson; Eloise Mitchell; Lawrence E. Austin; Evelyn Santos; Samuel B. Breck David Biswell; Stephen Biswell; Melissa Brook Peckinpah; Joan Leonard; Maude Dawson; Gertrude Porterfield; William J. Mathos; John Robert Shorb; Candace Haas; Kristen Louise Pechinpah; Matthew David Pechinpah; J. Daniel Hare, III; Bradley B. Leonard; Security Title Insurance; Vicki Treasurer, Fresno County; Russ Freeman; Thomas C. Hare, Defendants,

[547 F.3d 944]

and
Maxine H. Sawyer; Mark W. Sawyer; Harriet H. Leonard; Charles A. Sawyer; Andrew Klemm; Ramon Echeveste, Defendants-Appellants. No. 05-17347. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2008. Filed June 24, 2008. Amended October 24, 2008.

[547 F.3d 947]

Bruce Leichty, Clovis, CA, for the defendants-appellants.

Douglas R. Wright, United States Attorney, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, District Judge, Presiding. D.C. No. CV-03-06019-REC/LJO.

Before: WILLIAM C. CANBY, JR. and MILAN D. SMITH, JR., Circuit Judges, and STEPHEN G. LARSON,^* District Judge.

ORDER

The opinion filed June 24, 2008, slip op. 7271 [530 F.3d 883, 892], and appearing at 530 F.3d 883 (9th Cir.2008), is amended as follows:

At slip op. at 7271 [530 F.3d at 892], delete the full paragraph (beginning "In any event ...") and its accompanying footnote 3, and substitute therefor the following two paragraphs:

In any event, the Supremacy Clause, Article VI, clause 2, of the United States Constitution forecloses Sawyer's noncompliance argument. Because WAPA is an agency of the federal government, its activities "in connection with the construction and operation of the transmission line in question, are wholly immune from local control, unless it can be established that Congress has directed that [WAPA] subjects itself thereto." Maun v. United States, 347 F.2d 970, 974 (9th Cir.1965). We have accordingly required federal agencies seeking to condemn easements to construct power transmission lines to comply with state and local siting requirements where the Congress' authorization expressly required such compliance. See id. at 975 (requiring Atomic Energy Commission to comply with local ordinances in constructing overhead transmission line where the authorizing statute mandated that "[n]othing in [the relevant] chapter shall be construed to affect the authority or regulations of any Federal, State, or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission"); cf. Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 603 (9th Cir.1981) (requiring the Bonneville Power Administration to comply with the substantive standards of Washington State's siting act — but not its procedural hurdles — where an applicable statute expressly required "compliance with State standards").

In this case, however, Sawyer has not pointed to a comparable unequivocal pronouncement by Congress to overcome the presumption of preemption — and we could find none. None of the authorizing statutes discussed earlier in this opinion mandate compliance with

[547 F.3d 948]

state law. Indeed, the only statutory provision cited by Sawyer in support of its noncompliance argument is the Reclamation Act of 1902. 43 U.S.C. § 383. Although the Reclamation Act of 1902 does disclaim preemption of state law, it is irrelevant to this case, for it applies only to the "control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder." Id. (emphases added). We therefore conclude that California law is preempted and WAPA is not required to comply therewith in constructing the congressionally-authorized Path 15 Upgrade.

With these amendments, the panel has voted to deny the appellants' petition for panel rehearing. Judge Smith has voted to deny appellants' petition for en banc rehearing, and Judges Canby and Larson have so recommended.

The full court has been advised of the above amendments and of appellants' petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellants' petition for panel rehearing and petition for rehearing en banc are denied. There are no other pending petitions for panel or en banc rehearing. No further petitions for panel or en banc rehearing will be entertained.

OPINION

CANBY, Circuit Judge:

Pursuant to a 2001 order of the Secretary of Energy, the Western Area Power Administration ("WAPA") selected certain land estates in the western portion of the San Joaquin Valley in California, where it planned to construct a high-voltage transmission line. The United States began condemnation proceedings in the district court on behalf of WAPA, seeking transmission easements on the lands selected by WAPA. Sawyer and a few other individual owners of condemned property (collectively "Sawyer") challenged the government's exercise of its power of eminent domain, claiming that the taking lacked proper congressional authorization, was not for a "public use" as required by the Takings Clause, and violated California law. The district court dismissed Sawyer's objections and, when the parties reached an agreement on the compensation amount, entered summary judgment sua sponte. Sawyer filed this appeal. We affirm.

BACKGROUND

In 2001, in an effort to mitigate California's electric power transmission constraints, the Secretary of Energy directed WAPA to prepare plans to construct the Los Banos-Gates Transmission Project, or Path 15 Upgrade. The project consists of an additional 84-mile, 500-kilovolt transmission line along Path 15, which is located in the western portion of the San Joaquin Valley and connects its northern terminus near Los Banos, California with its southern terminus at the Gates Substation near Coalinga, California. See Department of Energy, Los Banos-Gates Transmission Project: Record of Decision (hereinafter, "DOE Record of Decision"), 66 Fed.Reg. 65,699 (Dec. 20, 2001). The Secretary also instructed WAPA to explore partnership opportunities with private industry, see id., and delegated authority to WAPA to acquire and condemn property interests in land to complete the project. Department of Energy, Delegation Order No. 00-036.00 (Dec. 6, 2001), available at http:// www.directives.doe.gov/ pdfs/sdoa/00-036_00.pdf (last visited May 28, 2008). WAPA updated plans that it had originally developed in the mid-1980s and accepted proposals from Trans-Elect and Pacific Gas and Electric Company to "finance, construct, and co-own the system additions." DOE Record of Decision, 66 Fed. Reg. at 65,699-700. The Federal Energy

547 F.3d 949

Regulatory Commission ("FERC") approved the proposed upgrade, which provided, among other things, that "WAPA w[ould] own the new 500 kV transmission line and associated land that is the most significant part of the transmission upgrades." Western Area Power Administration, FERC Order Accepting Letter Agreement, 99 FERC ¶ 61,306, at 62,278, 2002 WL 1308653 (2002), aff'd, Pub. Util. Comm'n. of Cal. v. FERC, 367 F.3d 925 (D.C.Cir.2004).

In 2003, the United States began condemnation proceedings in the district court on behalf of WAPA to acquire easements on approximately 14.02 acres of land in western Fresno County, California. Sawyer filed an answer to the government's complaint and challenged the condemnation by asserting eight affirmative defenses. The government moved to strike the affirmative defenses or, in the alternative, for judgment on the pleadings as to its authorization to take. The district court granted the government's motion, concluding that "WAPA was fully authorized by federal law to construct the Path 15 Project and to condemn the power line transmission easement[s] for it." The district court also rejected Sawyer's argument that the upgrade did not serve a "public purpose."

One year later, the parties filed a Joint Pretrial Statement, in which they agreed that the "value of the property taken is $7,374.32." At a later evidentiary hearing, the government asserted that no viable issue remained for trial because the district court had previously granted judgment as to the lawfulness of the taking. Sawyer disagreed. The district court then requested supplemental briefing.

With the benefit of the parties' briefing, the district court concluded that no issue remained for trial and granted summary judgment sua sponte in favor of the government. The district court then entered final judgment and apportioned the stipulated value of the easements, $7,374.32, among the "approximately 73 ownership entities." Each entity was assigned compensation according to its percent ownership interest. (Id.) Ownership interests were computed on the basis of...