U.S. v. 3.6 Acres of Land

• Decision Date: 13 September 2004
• Docket Number: No. CS-03-0473-EFS.,CS-03-0473-EFS.
• Citation: 395 F.Supp.2d 982
• Parties: UNITED STATES of America, Plaintiff, v. 3.6 ACRES OF LAND, more or less, situated in the County of Spokane, State of Washington, Pring Corporation, a Washington Corporation, John Tonati and Julie Tonani, husband and wife, et al., Defendant.
• Court: U.S. District Court — District of Washington

395 F.Supp.2d 982

UNITED STATES of America, Plaintiff, v. 3.6 ACRES OF LAND, more or less, situated in the County of Spokane, State of Washington, Pring Corporation, a Washington Corporation, John Tonati and Julie Tonani, husband and wife, et al., Defendant.

No. CS-03-0473-EFS.

United States District Court, E.D. Washington.

September 13, 2004.

Pamela Jean Derusha, US Attorney's Office, Spokane, WA, for Plaintiff.

Michael James Hines, Michael A. Roozekrans, Ryan M. Beaudoin, Stanley Martin Schwartz, Timothy Michael Lawlor, Witherspoon Kelley Davenport & Toole, James P. Emacio, Spokane, WA, for Defendant.

ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR RULE 56(F) CONTINUANCE AND GRANTING THE UNITED STATES' MOTION FOR SUMMARY JUDGMENT

SHEA, District Judge.

A telephonic hearing was held in the above-captioned matter on September 8, 2004. Before the Court were Defendants' Motion for Summary Judgment, (Ct.Rec.20), and Motion for Rule 56(f) Continuance, (Ct.Rec.40), and United States of America's Cross Motion for Summary Judgment, (Ct.Rec.30). Plaintiff United States of America was represented by Pamela Jean DeRusha. Defendants Pring Corporation and the Tonanis were represented by Michael Hines and Michael Roozekrans. Ryan Beaudoin appeared on behalf of Defendant Crown Castle. After hearing oral argument and reading the submitted materials and relevant case law and statutes, the Court is fully informed. The Court grants the United States' motion and denies the Defendants' motions.

I. Cross Motions for Summary Judgment

Defendants Pring Corporation and John and Juluee Tonani (hereinafter "Defendants") seek an order establishing that the Plaintiff United States' action on land used by the Defendants as a Recreational Vehicle Park ("R.V.Park") constitutes a taking, obligating the United States to pay the Defendants just compensation on the grounds that (1) the United States' filing of the Declaration of Taking pursuant to the Declaration of Taking Act constitutes a taking as a matter of law, (2) depriving the Defendants of the use of their property constitutes a Fifth Amendment taking, and (3) the United States should be estopped from asserting that the elimination of the R.V. Park is not a taking that must be compensated. In turn, the United States seeks an order that the easement rights taken by virtue of the Declaration of Taking do not exceed the rights reserved by the United States in its previously acquired easement, that the United States did not deprive Defendants of a compensable property interest, and that no compensation is due to the Defendants.

In response to the United States' motion, the Defendants seek a Rule 56(f) continuance, if the Court finds that the Land Use Agreement did not restrict the United States from closing the R.V. Park, in order to conduct discovery on whether the R.V. Park interferes with the 500-kV lines.

A. Facts

The Defendants purchased the 3.6 acre parcel at issue in 1992, as part of an approximate 6 acre parcel, from the Paynes, who had previously purchased it from the United States. (Defendants' Statement of Facts ¶ 1.) During the United States-Paynes transaction, the United States reserved a perpetual easement to the United States and the Bonneville Power Administration ("BPA") over 3.6 acres (hereinafter "the Property"): "[e]asement in favor of United States of America, the Bonneville Power Administration and its assigns...." The Defendants purchased the 6 acre parcel through a Quitclaim Deed. The Quitclaim Deed stated, "RESERVING TO the United States of America, the Bonneville Power Administration, and its assigns, a perpetual easement and right-of-way for electric power transmission purposes in, upon, over, and under that portion of the above described tract...." In March 1994, a Correction Deed was filed in regards to the Deed between the United States and the Paynes to include a standard clause, which was inadvertently left out of the deed, explaining the electrical transmission line right-of way:

... This reservation includes the right to enter and to locate, construct, operate, maintain, repair, rebuild, upgrade, remove, and patrol one or more lines of poles or structures and appurtenances thereto, supporting conductors of one or more electric circuits of any voltage together with the present and future right to clear the right-of-way and to keep the same clear of all structures, trees, brush, vegetation, and fire hazards, provided, however, that vegetation and fire hazards shall not include agricultural crops.

In 1994, the Defendants became interested in constructing and operating an R.V. Park on the 3.6 acres.¹ In addition, the Defendants intended to construct and operate/rent a gas station, convenience store, laundromat, car wash, retail stores, and a mini storage facility on the remaining part of the six acres. (Defendants' Statement of Facts ¶ 6.) The Defendants contacted BPA to clarify what BPA's easement included. Id.

A Land Use Agreement ("LUA") was ultimately reached by BPA and the Defendants. The LUA describes the "Subject" of the LUA as: "Use of Bonneville Power Administration (BPA) Easement Area for Paved Parking, Driveway, Grassy Stormwater Drainage Catchment, Landscaping, and Overnight Motor Home/Travel Trailer Parking, Located in a Portion of the NE...." The LUA then goes on to discuss that controversy exists over whether exposure to electric and magnetic fields is a health hazard, but notes that BPA cannot infringe on the land owner's rights. The LUA specifically states,

We do not recommend overnight motor home/trailer parking within the BPA easement area. People should not be living in these recreational vehicles on the transmission line right-of-way.

. . . . .

We have determined that the above-described use of this easement will not presently be an interference with BPA's land rights as long as the following conditions are met.

LUA p. 1 (emphasis in original). The conditions include the following:

17. Future Construction: You should be aware that in the future BPA will likely construct an additional transmission line, or lines, within the currently vacant portion of this right-of-way. Also, BPA may upgrade or reconstruct the existing transmission lines to higher voltages. If one or both of these occur, your use of the right-of-way could be further restricted and/or temporarily halted. In addition, any increase in cost of design, materials, and construction, incurred by BPA as a result of your facilities being in the right-of-way, shall be charged against and be paid by you.

18. Additional Uses of Right-of-Way Not on Application: You shall not make any additions to the uses within the right-of-way as listed on your application ...

. . . . .

If your use of BPA's easement area should at any time become an interference with BPA's land rights, or a hazard to the presently installed electrical facilities of BPA, or any facilities added or constructed in the future or should such use interfere with the inspection, maintenance or repair of the same, or with the access along such easement, you will be required to remove such interference at no expense to BPA.

LUA p. 4.

The cover letter accompanying the LUA stated, that the LUA:

includes the terms and conditions to be complied with to assure that your facilities will not interfere with operation and maintenance of BPA's existing and future transmission facilities across your property.

. . . . .

We do not recommend people living in motor homes and trailers while they are parked on the right-of-way. The original plan also did not anticipate parking along the southerly vacant portion of the right-of-way because of the strong possibility that an additional transmission line will be constructed in this location in the future. The location of the new double circuit 500-kV Grand Coulee-Bell line has now been determined. It will replace the southerlymost 115-kV wood pole line, with a separation of 75 feet from the remaining (northerly) wood pole line. The proposed overnight parking for travel trailers and motor homes will almost certainly be incompatible with this new line. Since the line has not yet been sagged, we do not know the structure locations, conductor (wire) clearances, phasing data, etc, and are unable to analyze the electric fields. It is likely that a tower will be sited in the area just east of the highway. If so, several RV stalls will be eliminated, and the water system will need to be relocated. If no tower is sited in this area, the conductors will be lower, with a greater chance of unacceptable electric field levels. In any case, if construction proceeds you would be required to pay BPA for any increase in the cost of design, materials, and construction, as a result of your facilities being in the right-of-way, or you would be required to remove your interfering facilities at your expense.

08/18/94 Cover Letter pp. 1-2.

Sometime between December 2002 to March 2003, BPA informed the Defendants of its plans to upgrade and install new 500-kV transmission lines on the easement. (Defendants' Statement of Facts ¶ 19.) On April 4, 2003, BPA informed the Defendants that it was rescinding any right of the Defendants to use the easement area as an R.V. Park. (Defendants' Statement of Facts ¶ 20.) The United States filed a Declaration of Taking, pursuant to 40 U.S.C. §§ 3113 and 3114, on December 10, 2003, regarding the Property. The Declaration of Taking describes the "estate acquired" as:

A perpetual easement and right-of-way for electrical power transmission purposes in, upon, over, and under Tract GC-S-351, as hereinafter described in Schedule B and as shown in Schedule C. The easement shall include the right to enter and to locate, construct, operate, maintain, repair, rebuild, upgrade, remove and patrol one or more lines of poles or structures and appurtenances thereto, supporting conductors of one or more electric circuits of any voltage, together with...