Posted by: Patricia Salkin | July 3, 2008

Ninth Circuit Court of Appeals Upholds Use of Eminent Domain for Electric Power Transmission

In a case where the United States had instituted condemnation proceedings to acquire easements for the Western Area Power Administration (WAPA), Sawyer and several other plaintiffs challenged the use of eminent domain. The plaintiffs alleged that the taking was unauthorized, that it was not for a public use, and that it violated California law.
The court held that WAPA had authority to condemn land for the purpose of constructing electric power transmission upgrades. Regardless of the fact that the various Congressional authorizations for the project did not specifically mention WAPA’s ability to use eminent domain, the court found that this power was implied: “When Congress mandates the construction of a new high-voltage transmission line and appropriates funds to carry it out, it implies, by necessity if not common sense, the authority on the part of the executing agency to acquire land on which the transmission line may be constructed.”
As to the question of whether the condemnation was for a public use, the court held that it was, even though “the beneficiaries of the project arguably [were] the customers of the privately-owned utilities, as opposed to the public at large.” The court emphasized the Supreme Court’s broad reading of the public use requirement, and pointed out that the taking in this case “hardly entail[ed] a private-to-private transfer at all.” The court, moreover, refused to question Congress’ determination that the power upgrade would be a public use.  
Finally, the court rejected Sawyer’s contention that the taking was invalid because WAPA did not first obtain approval from California Public Utility Commission. This claim was waived, because Sawyer did not raise it in a timely fashion, but in any event, the claim was precluded by the Supremacy Clause (U.S. Const. Art. VI, cl. 2). As the court explained, “[p]reemption of state law ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’”
Sawyer also raised a number of procedural challenges, but these were rejected. The district court’s grant of summary judgment in favor of the government was affirmed.

 United States v. Sawyer, No. 05-17347 (9th Cir. 6/24/2008).


The opinion can be accessed at:$file/0517347.pdf?openelement


 Thanks to Amy Lavine, Esq. of the Government Law Center for this posting.  Visit Amy’s blog on community benefits agreements at:

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