City of Stilwell v. Ozarks Rural Electric Cooperative Corp.

166 F.3d 1064, 1999 Colo. J. C.A.R. 1026, 1999 U.S. App. LEXIS 969, 1999 WL 29485
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 26, 1999
Docket97-7104
StatusPublished
Cited by18 cases

This text of 166 F.3d 1064 (City of Stilwell v. Ozarks Rural Electric Cooperative Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Stilwell v. Ozarks Rural Electric Cooperative Corp., 166 F.3d 1064, 1999 Colo. J. C.A.R. 1026, 1999 U.S. App. LEXIS 969, 1999 WL 29485 (10th Cir. 1999).

Opinion

BRORBY, Circuit Judge.

This appeal involves a dispute over the calculation of just compensation in a condemnation proceeding under Oklahoma law, and whether the commissioners appointed by the district court and charged with calculating damages qualify as “disinterested” parties. Appellee, the City of Stilwell, Oklahoma, seeks to condemn certain electric distribution facilities of Appellant, Ozarks Electric Cooperative Corporation (“Ozarks”), located within newly annexed portions of the City of Stilwell. Ozarks, a rural electric power distribution cooperative, appeals the district court’s order confirming the Commissioners’ Report establishing damages the City of Stil-well must pay Ozarks for the condemned facilities. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

city, town or village ... owns and operates a system for the furnishing of electric energy to its inhabitants, the cooperative furnishing electric energy in such area shall transfer to such city, town or village, upon its request, the cooperative’s electric distribution facilities used in furnishing electric energy in said area, other than facilities used in furnishing electric energy for resale or to premises of the cooperative, subject, however, to the following requirement: The city, town or village shall pay to the cooperative an amount to compensate the cooperative for the fair value of the cooperative's facilities to be acquired by the city, town or village. If such cooperative and city, town or village cannot agree upon the amount to be paid to the cooperative, the city, town or village is authorized to file a proceeding in the district court of the county in which such city, town or village, or any part thereof, is located, for the acquisition of the cooperative’s electric distribution facilities used in furnishing electric energy in said area, other tiran facilities used in furnishing electric energy for resale or to premises of the cooperative, and the procedure followed and the method of ascertaining just compensation to be paid the cooperative will be as provided in Article 2, Section 24, of the Oklahoma Constitution and Sections 53 to 58, inclusive, of Title 66 of the Oklahoma Statutes.

BACKGROUND

The City of Stilwell, located in Adair County, Oklahoma, owns and operates a municipal electric utility providing service to customers within and outside the corporate limits. The city recently expanded its corporate limits to encompass territory initially served and developed by Ozarks. Under authority of Okla. Stat. tit. 18, § 437.2(k), the City of Stilwell sought to condemn Ozarks’ facilities and commence operation of its municipal electrical utility within the newly-annexed territory. The Oklahoma statute allows municipalities owning and operating electric service utilities to condemn the facilities of rural electric cooperatives operating within the boundaries of the municipality upon payment of fair value. 1 Since the parties could not agree on the amount the city should pay for Ozarks’ facilities, the City of Stilwell commenced this action in Adair County, Oklahoma, for a judicial determination of just compensation. See Okla. Const., Art. II, § 24; Okla. Stat. tit. 66, §§53 through 58. The case was later removed to the United States District Court for the Eastern District of Oklahoma, after the City of Stilwell joined the Rural Electrification Administration 2 and the National Rural Utilities Cooperative Finance Corporation as parties to the lawsuit. 3

Following removal, Ozarks filed a motion for summary judgment. The district court *1068 granted the motion, finding federal law preempted the City of Stilwell’s proposed condemnation of Ozarks’ facilities because it would frustrate the purpose of the Rural Electrification Act, 7 U.S.C. § 901, et seq. See City of Stilwell v. Ozarks Rural Elec. Coop. Corp., 870 F.Supp. 1025 (E.D.Okla.1994). This court later reversed the district court’s ruling in City of Stilwell v. Ozarks Rural Elec. Coop. Corp., 79 F.3d 1038 (10th Cir.1996), applying a narrow reading to the Rural Electrification Act, and finding no clear federal preemption of the states’ traditional authority under the police power to regulate utilities. Id. at 1044.

After this court remanded the case, the district court continued the condemnation proceedings. It appointed commissioners and instructed them to determine the amount the City of Stilwell owed to Ozarks in damages for the condemnation of its facilities. After completing their analysis, the commissioners filed a report on February 18, 1997, recommending Ozarks receive $1,515,000 as just compensation for the taking. This figure included $170,000 for facilities, $1,200,000 in lost revenue, $26,000 for stranded costs, and $119,000 for reintegration expenses. The commissioners included no amounts for either the value of the territory or the going concern value of the facilities. Ozarks subsequently filed objections to the Commissioners’ Report, and the district court held an evidentiary hearing on the matter. Following the hearing, the district court issued an order denying Ozarks’ objections and confirming the Commissioners’ Report. Although Oklahoma law entitled Ozarks to a jury trial on the issue of damages, the district court denied Ozarks’ request as untimely. However, Ozarks does not contest the denial of a jury trial, only the district court’s confirmation of the Commissioners’ Report.

Ozarks argues that in approving and adopting the Commissioners’ Report, the district court erred in several ways. First, it contends the commissioners appointed by the court to calculate just compensation are not “disinterested” as required under Oklahoma law. See Okla. Const. Art. II, § 24; Okla. Stat. tit. 66, § 53(A). It argues the district court erred in not utilizing the procedures under Rule 71A(k) of the Federal Rules of Civil Procedure calling for election or selection of commissioners. Second, Ozarks alleges the commissioners’ calculation of damages fails to properly assess reintegration costs because the court should require the City of Stilwell to condemn all Ozarks’ facilities within the city limits. Finally, Ozarks challenges the Commissioners’ Report for failing to include the value of future revenue streams, “going concern” and lost service territory, and revenue losses of KAMO Electric Cooperative (KAMO) — Ozarks’ power supplier. 4

For purposes of our review, we treat the district court’s order confirming the Commissioners’ Report as we would a judgment sustaining a jury verdict. See United States v. Wallace, 201 F.2d 65

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Bluebook (online)
166 F.3d 1064, 1999 Colo. J. C.A.R. 1026, 1999 U.S. App. LEXIS 969, 1999 WL 29485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-stilwell-v-ozarks-rural-electric-cooperative-corp-ca10-1999.