Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County
2010 U.S. App. LEXIS 25006
| 9th Cir. | 2010Background
- Transwestern Pipeline Co. sought to condemn 897 Arizona properties, including Agua Fria Investments’ land, to build a FERC-approved natural gas pipeline.
- After district court delayed immediate possession via quick-take, Transwestern entered settlement talks but continued condemnation proceedings.
- Transwestern ultimately altered the pipeline route with FERC approval and moved to voluntarily dismiss the condemnation action.
- Agua Fria requested reimbursement of litigation costs and fees under 42 U.S.C. § 4654(a)(2) on the theory that the proceeding was abandoned by the United States.
- The district court denied Agua Fria’s request; Agua Fria appealed challenging whether Transwestern’s action can be treated as abandonment by the United States.
- The Ninth Circuit held that the term “United States” in § 4654(a)(2) does not include private entities like Transwestern.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether United States includes private entities for §4654(a)(2) | Agua Fria: United States may include private entities under §4601(1) and plain meaning of United States. | Transwestern: United States does not include private condemners; only the government abandoning qualifies. | United States does not include private parties; Agua Fria loses claim. |
| Effect of private abandonment on §4654(a)(2) | If abandonment by a private, acting under federal authority, counts as abandonment by United States. | Abandonment must be by the United States itself, not a private entity. | Abandonment by private entity does not trigger §4654(a)(2). |
| Plain meaning versus legislative history for United States | Plain meaning includes federal agencies and thus private entities under Federal agency power. | Plain meaning does not extend to private parties; legislative history supports government abandonment. | Plain meaning controls; not extended to private entities. |
| Tennessee Gas Pipeline authority to treat abandonment differently | Tennessee Gas supports treating abandonment as triggering costs regardless of who abandons. | Tennessee Gas is distinguishable and not controlling for private abandoners. | Tennessee Gas does not compel treating private abandonments as United States abandonment. |
| Whether §4654(a)(1) argument was waived | Agua Fria could seek §4654(a)(1) costs for final judgment of inability to condemn. | Waived because not raised in district court. | Argument not considered on appeal. |
Key Cases Cited
- Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632 (1st Cir. 1994) (distinguishes government abandonment versus private abandonment)
- Greenwood v. CompuCredit Corp., 615 F.3d 1204 (9th Cir. 2010) (plain-meaning vs. legislative-history constrain interpretation)
- Paul Revere Ins. Grp. v. United States, 500 F.3d 957 (9th Cir. 2007) (consult dictionary definitions to determine plain meaning)
- Perrin v. United States, 444 U.S. 37 (U.S. 1979) (plain meaning of statutory terms ordinarily interpreted)
- Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080 (9th Cir. 2007) (assist in interpreting statutory language)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (avoidance of retroactive effect; statutory interpretation guidance)