ORDER
The opinion filed June 24, 2008, slip op. 7271 [
At slip op. at 7271 [
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 *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. RApp. 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
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 (Dee. 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,
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 the title information supplied by the government. As of final judgment, neither Sawyer nor any other condemnation defendant had disputed such information. 1 (Id.) Sawyer filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
I. Authorization and Lawfulness of the Taking
Where, as here, the parties do not dispute the amount of compensation, “[t]he only [substantive] question for judicial review in a condemnation proceeding is whether the purpose for which the property was taken is for a Congressionally authorized public use.”
United States v. 0.95 Acres of Land,
A. Statutory Authority
There is no dispute that, if any federal agency is authorized to acquire land by eminent domain for the purpose of constructing the Path 15 Upgrade, that agency is WAPA. See 42 U.S.C. § 7152(a)(1)(D) (“There are transferred to, and vested in, the Secretary [of Energy] all functions[previously] of the Secretary of the Interior ... with respect to ... the power marketing functions of the Bureau of Reclamation, including the construction, operation, and maintenance of transmission lines and attendant facilities.”); 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). The operative question before us, then, is whether Congress ever authorized the construction of the Path 15 Upgrade at all.
Numerous congressional enactments convince us that it did. In 1984, Congress enacted the Energy and Water Development Appropriations Act. The Act generally authorized
the Secretary of Energy ... to construct or participate in the construction of such additional facilities as he deems necessary to allow mutually beneficial power sales between the Pacific Northwest and California and to accept funds contributed by non-Federal entities for that purpose.
Pub.L. No. 98-360, tit. Ill, 98 Stat. 403, 416 (1984) (codified at 16 U.S.C. § 837g-l). This enactment clearly conferred discretion on the Secretary of Energy to construct power lines in the area where the Path 15 Upgrade is located. By citing this statutory provision in the Declaration of Taking, then, the Administrator of WAPA, as delegate of the Secretary, evidently made the discretionary finding that the Path 15 Upgrade would facilitate the consolidation of the Pacific Northwest-California market.
Since passage of this 1984 Act, Congress has repeatedly confirmed its authorization and appropriated funds to develop the Path 15 Upgrade. In the Supplemental Appropriations Act of 1985, Congress again authorized construction of transmission lines along the Pacific Northwests California Intertie:
Public Law 98-360 ... authorized the Secretary of Energy to construct or participate in the construction of such project for the benefit of electric consumers of the Pacific Northwest and California. ...
Pub.L. No. 99-88, tit. I, ch. IV, 99 Stat. 293, 321 (1985). In the same provision, Congress further indicated that “sufficient capacity shall be reserved, as recognized in [the] Memorandum, to serve the needs of the Department of Energy laboratories and wildlife refuges in California.” Id. In turn, the Memorandum referenced by Congress committed WAPA to provide “a reasonable and proportionate share of the capital required for increasing the transfer capability between Los Banos and Gates,” i.e., the Path 15 Upgrade. Department of Energy, Memorandum of Understanding for the California-Oregon Transmission Project, 50 Fed.Reg. 421 (Dec. 24, 1984). Thus, we have little doubt that, as early as the mid-1980s, Congress had authorized the Path 15 Upgrade.
Although construction of the Path 15 Upgrade did not progress beyond the planning stages in the 1980s and 1990s, in 2001, the House Appropriations Committee again proposed special funding to “complete the planning and environmental studies to support the proposed 84-mile, *951 500-kilovolt transmission line between Los Banos and Gates (also known as ‘Path 15’) in California.” H.R.Rep. No. 107-102, at 24 (2001). The Conference Committee “provide[d] ... [n]on-reimbursable funding of $1,328,000 ... to complete planning and environmental studies for the Path 15 transmission line,” H.R.Rep. No. 107-148, at 61 (2001) (Conf.Rep.), reprinted, in 2001 U.S.C.C.A.N. 259, 278, and Congress appropriated those funds through the Supplemental Appropriations Act of 2001, Pub.L. No. 107-20, 115 Stat. 155, 174 (2001).
Finally, although no appropriation has specifically mentioned the Path 15 Upgrade since 2001, Congress has implicitly reaffirmed its authorization by funding WAPA through general appropriations “[f]or carrying out the functions authorized by title III, section 302(a)(1)(E) of the Act of August 4, 1977 (42 U.S.C. 7152).” Consolidated Appropriations Resolution, 2003, Pub.L. No. 108-7, 117 Stat. 11, 152 (2003). These functions, in turn, encompass “the construction ... of transmission lines and attendant facilities,” which is the essence of the Path 15 Upgrade. 2 42 U.S.C. § 7152(a)(1)(D). We therefore conclude that WAPA is authorized to carry out the Path 15 Upgrade by acquiring lands by eminent domain.
In reaching this conclusion, we reject Sawyer’s argument that, even if the Path 15 Upgrade has been authorized, WAPA is not at liberty to condemn property interests to realize the project. To the extent that Congress did not spell out the Secretary’s and WAPA’s eminent domain prerogatives in the enactments specifically authorizing the Path 15 Upgrade, we deem such omissions irrelevant. 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.
See, e.g., City of Davenport v. Three-Fifths of an Acre of Land,
Finally, Sawyer generally contends that any authorization contained in these statutes is conditional on a preliminary finding that the Path 15 Upgrade is “necessary.” Whereas a threshold finding of necessity is in fact required under the 1984 authorization, Congress has unequivocally committed that determination to the discretion of the Secretary (which has been delegated to WAPA).
See
16 U.S.C. § 837g-l (auto-
*952
rizing the Secretary of Energy “to construct or participate in the construction of such additional facilities
as he deems necessary
to allow mutually beneficial power sales between the Pacific Northwest and California and to accept funds contributed by non-Federal entities for that purpose.”) (emphasis added). We are therefore not at liberty to review the agency’s determination with respect to the necessity condition.
See United States v. 80.5 Acres of Land,
B. The “Public Use” Requirement Under the Takings Clause
We must next decide whether the Path 15 Upgrade satisfies the “public use” requirement of the Takings Clause even though it is a partnership of public and private entities and the beneficiaries of the project arguably are the customers of privately-owned utilities, as opposed to the public at large. For over a century, the Supreme Court’s “public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”
Kelo v. City of New London,
Applying these principles, we conclude that the Path 15 Upgrade satisfies the “public use” requirement. To begin with, the project hardly entails a private-to-private transfer at all. It is true that WAPA will initially receive only ten percent of the transmission system rights arising from the 500 kV capacity increase. Western Area Power Administration, FERC Order Accepting Letter Agreement,
Moreover, to the limited extent that the project does involve a transfer of property interests among private entities, such transfer poses no constitutional difficulty. In the pursuit of what it perceives as a “public use,” “the Congress and its authorized agencies have made determinations that take into account a wide variety of
*953
values.”
Berman,
C. Federal Preemption of the California Public Utility Commission Review
In a final substantive challenge, Sawyer contends that the condemnation is unlawful because WAPA did not obtain the approval of the California Public Utility Commission for the Path 15 Upgrade as required by California law. See Cal. Pub. UtiLCode §§ 1001-06. We agree with the district court that Sawyer waived this argument by not advancing it in the Answer. Under Rule 71.1, “[a] defendant waives all objections and defenses not stated in its answer. No other pleading or motion asserting an additional objection or defense is allowed.” Fed.R.Civ.P. 71.1(e)(3). Because Sawyer did not raise the federal government’s failure to comply with California law in the Answer, we affirm the district court’s waiver ruling.
In any event, the Supremacy Clause, Article VI, clause 2, of the United States Constitution forecloses Sawyer’s non-compliance 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,
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 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 *954 preempted and WAPA is not required to comply therewith in constructing the con-gressionally-authorized Path 15 Upgrade.
II. Procedural Challenges
Sawyer also advances a number of procedural challenges that, he contends, require us to reverse the judgment of the district court and remand this case for further proceedings. We review each challenge in turn.
A. Joinder of Owners of Fractional Property Interests
The district court did not err in allowing the action to proceed without requiring the government to join all owners of fractional interests in the condemned property. Rule 71.1(c) provides:
When the action commences, the plaintiff need join as defendants only those persons who have or claim an interest in the property and whose names are then known. But before any hearing on compensation, the plaintiff must add as defendants all those persons who have or claim an interest and whose names have become known or can be found by a reasonably diligent search of the records, considering both the property’s character and value and the interests to be acquired. All others may be made defendants under the designation “Unknown Owners.”
Fed.R.Civ.P. 71.1(c)(3) (emphases added). Here, WAPA and the Assistant U.S. Attorney investigated the title history and current interests in the condemned land, enrolled the services of an outside title investigator and, in the end, even attempted to cooperate with the defendants in an effort to identify all interest owners. We conclude that the government has easily met the burden imposed by Rule 71.1(c). 3
B. Service On Non-Objecting Defendants
Sawyer contends that Rule 5 of the Federal Rules of Civil Procedure, required the government to serve its motion for judgment on the pleadings on those defendants who had neither objected to the condemnation nor filed a notice of appearance. But Rule 71.1 governs condemnation proceedings “except as this rule provides otherwise.” Fed.R.Civ.P. 71.1(a). With regard to notice, Rule 71.1 provides that
[a] defendant that has no objection or defense to the taking of its property may serve a notice of appearance designating the property in which it claims an interest. The defendant must then be given notice of all later proceedings affecting the defendant.
Fed.R.Civ.P. 71.1(e)(1). The only way to give effect to Rule 71.1(e)(1) is to interpret it as overriding the default requirement laid out in Rule 5, which mandates that “a pleading filed after the original complaint” be served on “every party.” Fed.R.Civ.P. 5(a)(1)(B). Otherwise, the Rule 71.1(e)(1) option for non-objecting defendants to remain abreast of the case by filing a “notice of appearance” would be surplusage, for these defendants would be entitled to receive full service under Rule 5(a)(1)(B). Applying Rule 71.1(e)(1), therefore, the government was not required to serve non-objecting defendants who did not file a *955 notice of appearance with its motion for judgment on the pleadings.
C. Deference to Sawyer’s Factual Allegations
The district court did not err in refusing to defer to Sawyer’s contentions pertaining to the “conditions and predicates” that confine WAPA’s authority to take property. It is true that, in deciding a Rule 12 motion, the district court must “take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party.”
Parks Sch. of Bus., Inc. v. Symington,
D. Consideration of Documents Outside the Pleading
The district court also did not abuse its discretion in taking judicial notice of the
Department of Energy National Transmission Grid Study
(May 2002) (“DOE Study”), which was not included in the pleadings, and referring to it as background material in its order granting the government’s motion for judgment on the pleadings.
See Ritter v. Hughes Aircraft Co.,
E.The District Court’s Sua Sponte Summary Judgment
The district court did not err in granting summary judgment
sua sponte. “Sua sponte
grants of summary judgment are only appropriate if the losing party has ‘reasonable notice that the sufficiency of his or her claim will be in issue.’ ”
Greene v. Solano County Jail,
F. Apportionment of Just Compensation
Finally, the district court did not abuse its discretion in apportioning the total compensation by accepting at face value the ownership information provided by the government.
See United States v. 1.377 Acres of Land,
CONCLUSION
The district court did not err in granting summary judgment in favor of the United States or apportioning the compensation among the defendants. The judgment of the district court is
AFFIRMED.
Notes
. To the extent that other unnamed interest owners or their successors are not specifically mentioned in the district court's order, they remain entitled to claim their share of the award by presenting appropriate documentation to the district court. 28 U.S.C. § 2042.
. Sawyer’s discussion of the Flood Control Act of 1944 and its restriction on the construction of new transmission lines is unavailing. The Act applies only to "[e]lectric power and energy generated at reservoir projects under the control of the Department of the Army and in the opinion of the Secretary of the Army not required in the operation of such projects.” Pub.L. No. 78-534, § 5, 58 Stat. 887, 890 (1944) (codified at 16 U.S.C. § 825s). Nothing suggests that the Path 15 Upgrade was ever under the control of the Department of the Army.
Similarly, it is true that the Reclamation Project Act of 1939 confers on the, Secretary only limited authority to condemn land in connection with the construction of new transmission lines: "The Secretary is authorized, in connection with the construction or operation and maintenance of any project ... to purchase or condemn suitable lands or interests in lands for relocation of ... electric transmission lines ..., the relocation of which in the judgment of the Secretary is necessitated by said ' construction or operation and maintenance.” 43 U.S.C. § 389. But the "relocation” condition — to the extent it is judicially reviewable at all — does not curtail the Secretary's authorization to condemn land stemming from the other enactments to which we already have referred.
. To the extent that Sawyer relies on our 1952 decision in
United States v. Adamant Co.,
. We also reject Sawyer’s contention that the court's ability to enter judgment on the pleadings was necessarily confined to Sawyer's affirmative defenses and could not reach his denial of the allegations contained in the complaint. The government moved for — and the district court granted — ’"judgment 0n the pleadings on the issue of the government’s right to take in this action.” (emphasis added). Thus, the government’s motion encompassed both affirmative defenses and the allegations in the Answer.