Larson v. Sinclair Transportation Co.

Justice EID,

dissenting.

81 For a number of reasons identified by Justice Hobbs, I dissent from the majority's opinion. See Larson v. Sinclair Transp. Co., No. 2012 CO 36, 284 P.3d 42 (Hobbs, J., dissenting). I write separately to *58express my view that the language of section 38-5-105 cannot be read as the majority reads it. Because, in my view, respondent is a "pipeline company" falling squarely within the language of section 38-5-105, I would affirm the court of appeals on that ground. See City of Colo. Springs v. Powell, 156 P.3d 461, 468 (Colo.2007) (Eid, J., concurring in part and specially concurring in part) (urging that the case be decided on plain language grounds alone).

£82 Section 88-5-105 vests eminent domain authority in "[sluch ... electric light power, gas, or pipeline company ...." (Emphasis added.) The majority interprets "pipeline company" to mean only pipelines associated with providing "electric light power" (or, as it terms it, "electric power infrastructure"). E.g. Maj. op. at 45-46. But that interpretation simply cannot be squared with the statutory text. The statutory language at issue here names three kinds of companies-"electric light power" companies, "gas" companies, and "pipeline" companies. In other words, the phrase "electric light power" modifies "company," not "pipeline." "Electric light power" cannot modify "pipeline," as the majority claims, because the phrase is followed by a comma and the words "gas, or," which prevents the implied insertion of "electric light power" before "pipeline." The majority suggests it is unable to "tell whether 'electric light' modifies 'pipeline'" Maj. op. at 45. A straightforward reading of the language demonstrates that "electric light" does not modify "pipeline."

83 Petitioners acknowledge the reading they propose, adopted by the majority, is a stretch, and blame the legislature's 1968 amendment to the statute, which, among other things, added the word "gas." The original 1907 language applied to "electric light power or pipe line companlies]." Under this original language, petitioners argue, the seetion applied to "electric light companies," "electric power companies," and "electric pipe line companies." The amendment, however, changed the statutory language to what it is today-that is, to "electric light power, gas, or pipeline company." Petitioners call the 1963 amendment "inartful" and "awkward." Opening Br. at 25. They urge us to read the term "pipeline" as limited to "electric light pipelines" as it was under their reading of the original language. But compare Larson, No. 09SC966, 2012 CO 36, 1 72, 284 P.3d 42, 56 (Hobbs, J., dissenting) (reading "pipe line" reference in original 1907 statute to include petroleum pipelines). But as noted above, petitioners' proposed interpretation is flatly inconsistent with the language as amended in 1963. However "inartful" and "awkward" petitioners may feel the language is, it is the language that governs this case.

84 The majority finds ambiguity in seetion 38-5-105 by looking to other sections of the statute. Maj. op. at 45. But these other sections do not create ambiguity; instead, they simply reaffirm the plain language reading of section 38-5-105 described above. Indeed, the very sections upon which the majority relies, sections 88-5-101 and -102, repeat the language contained in section 38-5-105 as amended in 1968. See § 38-5-101 (permitting "[alny domestic or foreign electric light power, gas, or pipeline company " to construct "pipeline[s]" "along, across, upon, and under any public highway in this state") (emphasis added); § 88-5-102 (giving "[alny domestic or foreign electric light power, gas, or pipeline company" the right to construct "pipeline[s] and obtain permanent right-of-way therefor over ... public lands") {emphasis added). Those sections permit the "pipeline company" to construct "pipeline[s]" on state highways and to obtain rights-of-way over state land for such construction-powers that parallel the condemnation authority contained in section 38-5-105. The sections in no way limit the meaning of "pipeline" to electric infrastructure, as the majority suggests.

1 85 The majority warns that if "pipeline" is not limited to electric infrastructure, the statute "would appear to grant authority to any pipeline company to condemn rights of way for a pipeline conveying any substance." Maj. op. at 45 (emphasis in original). But the majority's concern over a parade of infinite (yet unspecified) horribles is misplaced. As pointed out by the court of appeals in this case, the phrase "pipeline company" has a well-defined meaning in energy law-that is, *59a company that uses pipeline to transport petroleum and related products. Sinclair Transp. Co. v. Sandberg, 228 P.3d 198, 204 (Colo.App.2009) (citing numerous cases and statutes from other jurisdictions). Here, respondent's proposed pipeline would carry liquid petroleum, and therefore fits comfortably into this definition.1

[86 Most importantly, condemnation by "pipeline companylies]" under section 88-5-105 is further limited by the constitutional public use requirement. See Colo. Const. art. II, § 15; Dep't. of Transp. v.. Stapleton, 97 P.3d 938, 946 (Colo.2004) (Coats, J., concurring in the judgment only) (citing Buck v. District Court, 199 Colo. 344, 346, 608 P.2d 350, 351 (1980), for the proposition that legislative grant of condemnation authority is limited by constitutional public use requirement). Thus, the specter posed by the majority-that section 88-5-105 could be applied to any pipeline of any kind for any purpose-is simply not raised in this case.2

T87 I agree with the majority that we should not lightly infer the grant of condemnation authority in this, or any, condemnation case. Maj. op. at 45; cf. Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161, 172 (Colo.2008) (Eid, J., dissenting) (urging caution in interpreting extraterritorial condemnation authority held by municipalities). But the fact that condemnation authority should not be lightly inferred does not give the court license to nullify statutory language that grants condemnation authority. Because the majority's interpretation is contrary to the language at issue in this case, I respectfully dissent from its opinion.

. Contrary to the majority's assertion, maj. op. at 45, reliance on caselaw from other jurisdictions to interpret the phrase "pipeline company' is not proof that condemnation authority must be inferred from "doubtful language" in this case, but merely a reflection of the fact that no Colorado court, until now, has taken on this particular interpretative task. See e.g., Zab, Inc. v. Berenergy Corp., 136 P.3d 252, 262 (Eid, J., specially concurring) (noting that caselaw from other jurisdictions can be "instructive" because other courts have interpreted statutory language similar to that adopted in Colorado and have come to a conclusion about its plain meaning).

. In this case, the issue of whether respondent's proposed condemnation was supported by a public use was considered at length by the court of appeals, which determined that the public use requirement was satisfied. See Sinclair, 228 P.3d at 206-07. Because we did not grant cer-tiorari on this issue, the court of appeals' ruling stands; I therefore do not address the issue further.