Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa County

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TRANSWESTERN PIPELINE COMPANY, 
LLC, a Delaware limited liability
company,
Plaintiff-Appellee,
v.
17.19 ACRES OF PROPERTY LOCATED
IN MARICOPA COUNTY, more of No. 09-16850
less; FIRST NATIONAL BANK OF
OLATHE, a Kansas corporation; J.  D.C. No.
2:08-cv-00033-JWS
LAWRENCE MCCORMLEY; UNKNOWN
OWNERS, OPINION
Defendant,
and
AGUA FRIA INVESTMENTS, LLC, a
Delaware limited liability
company,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding

Submitted November 5, 2010*
San Francisco, California

Filed December 8, 2010

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

19623
19624 TRANSWESTERN v. AGUA FRIA
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and Edward R. Korman, Senior District Judge.**

Opinion by Judge Ikuta

**The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
 TRANSWESTERN v. AGUA FRIA 19625

COUNSEL

Steven A. Hirsch, Bryan Cave LLP, Phoenix, Arizona, for
defendant-appellant Agua Fria Investments LLC.

John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix,
Arizona, for plaintiffs-appellees Transwestern Pipeline Co.,
LLC.

OPINION

IKUTA, Circuit Judge:

The Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655
19626 TRANSWESTERN v. AGUA FRIA
(the Act) sets forth procedures for land acquisitions by certain
federal and federally assisted programs. Among other things,
the Act allows a landowner to seek reimbursement of speci-
fied costs and fees incurred in connection with a condemna-
tion proceeding instituted by a “Federal agency” (as defined)
if “the [condemnation] proceeding is abandoned by the United
States.” Id. § 4654(a)(2). This case requires us to determine
whether the term “United States,” as used in § 4654(a)(2),
includes a private entity prosecuting a condemnation action
under the authority granted by the Federal Electric Regulatory
Commission (FERC). We hold that it does not, and therefore
affirm the decision of the district court.

I

Transwestern Pipeline Company, LLC (Transwestern)
sought and received permission from FERC to construct a
natural gas pipeline across some 897 properties in central Ari-
zona. The affected properties included land owned by Agua
Fria Investments, LLC (Agua Fria). After a district court held
that Transwestern could not take immediate possession of
Agua Fria’s property under a proposed “quick take” proce-
dure, Transwestern entered into settlement discussions with
Agua Fria. At the same time, Transwestern commenced con-
demnation proceedings. Agua Fria rejected each of Transwes-
tern’s many purchase offers and litigated aggressively in
opposition to Transwestern’s attempt to condemn its property.

Ultimately, Transwestern determined it could complete the
pipeline more quickly if it changed the proposed route to
avoid Agua Fria’s property. After FERC approved the alter-
ation to the pipeline route, Transwestern moved for a volun-
tarily dismissal of its condemnation action, and the district
court granted the motion.

Agua Fria then filed a motion seeking reimbursement for
its litigation fees and costs under 42 U.S.C. § 4654(a)(2),
which provides that in a “proceeding instituted by a Federal
 TRANSWESTERN v. AGUA FRIA 19627
agency to acquire real property by condemnation,” a district
court “shall award the owner” specified costs and fees “if . . .
(2) the proceeding is abandoned by the United States.”1 The
district court denied the motion, and Agua Fria timely
appealed.

II

On appeal, Agua Fria claims it is entitled to costs and fees
under § 4654(a)(2) because Transwestern abandoned its con-
demnation action against Agua Fria’s property and Transwes-
tern should be deemed to be the “United States” in this
context. In order to establish that Transwestern is equivalent
to the “United States” for purposes of § 4654(a)(2), Agua Fria
makes a three-step argument. First, Agua Fria notes that
§ 4601, which defines terms used in the Act, provides that
“Federal agency” includes “any person who has the authority
to acquire property by eminent domain under Federal law.” 42
U.S.C. § 4601(1).2 Second, Agua Fria argues, because § 4601
1
42 U.S.C. § 4654(a) provides in full:
(a) Judgment for owner or abandonment of proceedings
The Federal court having jurisdiction of a proceeding instituted
by a Federal agency to acquire real property by condemnation
shall award the owner of any right, or title to, or interest in, such
real property such sum as will in the opinion of the court reim-
burse such owner for his reasonable costs, disbursements, and
expenses, including reasonable attorney, appraisal, and engineer-
ing fees, actually incurred because of the condemnation proceed-
ings, if—
(1) the final judgment is that the Federal agency cannot
acquire the real property by condemnation; or
(2) the proceeding is abandoned by the United States.
2
42 U.S.C. § 4601(1) provides in full:
As used in this chapter —
(1) The term “Federal agency” means any department,
agency, or instrumentality in the executive branch of the
Government, any wholly owned Government corporation,
the Architect of the Capitol, the Federal Reserve banks and
branches thereof, and any person who has the authority to
acquire property by eminent domain under Federal law.
19628 TRANSWESTERN v. AGUA FRIA
does not define “United States,” we must use the plain mean-
ing of this term, which includes federal agencies. Agua Fria
concludes that because the term “United States” includes fed-
eral agencies, and the term “Federal agencies” includes pri-
vate persons, the term “United States” must include private
persons.

[1] We disagree with the last step of Agua Fria’s analysis.
When determining statutory meaning, we look first to the
plain meaning of the text. Paul Revere Ins. Grp. v. United
States, 500 F.3d 957, 962 (9th Cir. 2007). “[U]nless otherwise
defined, words will be interpreted as taking their ordinary,
contemporary, common meaning.” Perrin v. United States,
444 U.S. 37, 42 (1979). “When determining the plain mean-
ing of language, we may consult dictionary definitions.” Af-
Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080,
1088 (9th Cir. 2007). Taking its ordinary, common meaning,
the term “United States” means our nation, located primarily
in North America, which acts through our federal form of
government. The dictionary definitions are consistent with
this common understanding. See, e.g., 19 Oxford English Dic-
tionary 79-80 (J.A. Simpson & E.S.C. Weiner eds., 2d ed.
1989) (definition 1b: “The Republic of North America”);
Black’s Law Dictionary 1675 (9th ed. 2009) (“A federal
republic . . . made up of 48 coterminous states, plus the state
of Alaska and the District of Columbia in North America,
plus the state of Hawaii in the Pacific.”).3

[2] The Act does not define the term “United States” and
does not indicate that we are to read the special definition of
“Federal agency” from § 4601(1) into the term “United
States.” Accordingly, we decline to do so, and adhere instead
to the common understanding of the term “United States.”
3
We may rely on Black’s Law Dictionary “to determine the common
sense meaning of statutory language.” Ariz. Health Care Cost Contain-
ment Sys. v. McClellan, 508 F.3d 1243, 1250 n.9 (9th Cir. 2007) (internal
quotation marks omitted).
 TRANSWESTERN v. AGUA FRIA 19629
Given our interpretation of the term, the landowner’s right to
costs and fees is triggered only when the federal government
abandons a condemnation proceeding, not when a private
entity such as Transwestern does so, even if that private entity
is exercising federally granted condemnation power.4

Agua Fria contends that Tennessee Gas Pipeline Co. v. 104
Acres of Land, 828 F. Supp. 123 (D.R.I. 1993), aff’d in part
and vacated in part on other grounds, 32 F.3d 632 (1st Cir.
1994), supports its contention that the term “United States”
includes Transwestern for purposes of § 4654(a)(2). We dis-
agree. In Tennessee Gas, a private gas company, acting under
FERC’s authority to acquire property for a pipeline, dismissed
a condemnation proceedings it had brought against a land-
owner after FERC approved a change in the pipeline’s route.
Id. at 124-25. The district court held that, under these circum-
stances, it would deem FERC to have abandoned the proceed-
ings for purposes of § 4654(a)(2). Id. at 128. The court
therefore concluded that the landowner was entitled to litiga-
tion costs and fees under § 4654(a)(2) “whether or not Ten-
nessee Gas is an entity within the term ‘United States’ as used
in the statute.” Id. In other words, Tennessee Gas avoided the
very point Agua Fria claims it supports.5

“If the plain meaning of the statute is unambiguous, that
meaning is controlling and we need not examine legislative
history as an aid to interpretation unless the legislative history
clearly indicates that Congress meant something other than
what it said.” Greenwood v. CompuCredit Corp., 615 F.3d
1204, 1207 (9th Cir. 2010) (quoting Carson Harbor Vill., Ltd.
4
Given our holding that Transwestern is not the “United States” for pur-
poses of § 4654(a)(2), we need not reach Agua Fria’s argument that a dis-
trict court lacks discretion to deny an award of litigation costs and fees to
a landowner that meets the criteria of § 4654(a).
5
Agua Fria does not argue here that FERC should be deemed to be the
party that abandoned the condemnation proceedings, so we do not address
this issue.
19630 TRANSWESTERN v. AGUA FRIA
v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001) (en banc))
(internal quotation marks omitted). Agua Fria has not pointed
to any legislative history that contradicts the plain language of
the statute. Rather, the House Report on which Agua Fria
relies indicates that § 4654(a) was intended to reimburse
property owners for fees and costs incurred “where (1) the
court determines that a condemnation was unauthorized, [or]
(2) the government abandons a condemnation.” H.R. Rep. No.
91-1656, 91st Cong. 2d Sess., reprinted in 1970
U.S.C.C.A.N. 5850, 5874-75 (emphasis added). This interpre-
tation is consistent with the plain language of the statute and
does not suggest that Congress intended to make fees and
costs available when a private party abandons a proceeding.
Further, Congress made no changes to the term “United
States” in § 4654(a)(2) when it changed the definition of
“Federal agency” to include private persons. See Uniform
Relocation Act Amendments of 1987, Pub. L. No. 100-17,
§ 402, 101 Stat. 132, 246. Had Congress wished to include
private persons in the meaning of the term “United States,” it
clearly knew how to do so. See Landgraf v. USI Film Prods.,
511 U.S. 244, 255-56 (1994).

Because we adhere to the plain meaning of the term
“United States” in § 4654(a)(2), and that term does not
include private entities, we affirm the district court’s denial of
Agua Fria’s motion for litigation costs and fees.6

AFFIRMED.

6
For the first time on appeal, Agua Fria argues that it is entitled to
recovery under 42 U.S.C. § 4654(a)(1), which authorizes a fee award to
a landowner in cases where “the final judgment is that the Federal agency
cannot acquire the real property by condemnation.” Id. It did not raise this
argument in the district court, however, and we therefore decline to con-
sider it here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); In
re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989).