Kern River Gas Transmission Co. v. 18.91 Acres of Land, More or Less

809 F. Supp. 72, 1992 WL 387584
CourtDistrict Court, D. Nevada
DecidedAugust 18, 1992
DocketNo. CV-S-90-638-PMP (RJJ)
StatusPublished
Cited by1 cases

This text of 809 F. Supp. 72 (Kern River Gas Transmission Co. v. 18.91 Acres of Land, More or Less) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kern River Gas Transmission Co. v. 18.91 Acres of Land, More or Less, 809 F. Supp. 72, 1992 WL 387584 (D. Nev. 1992).

Opinion

ORDER

PRO, District Judge.

Before the Court is Plaintiff’s Motion for Summary Judgment (# 109) and Plaintiff’s Statement of Undisputed Facts in Support of Motion for Summary Judgment (# 110), filed on June 25, 1992. On July 17, 1992, Oppositions were filed on behalf of Defendants Clark County, Clark County Sanitation District, and the Las Vegas Valley Water District (# 118); the City of Las Vegas (# 119); and the City of North Las Vegas (# 120). Also on that date, the City of North Las Vegas filed Objections to Plaintiff’s Statement of Undisputed Facts (# 121). On July 27, 1992, Plaintiff filed its Reply (# 123).

I. Kern River’s Compliance with Deep Burial Order.

On January 17, 1991, this Court granted Kern River immediate occupancy over private and public lands on which to construct a natural gas pipeline. Order (# 38). In that Order, the Court (1) required the parties to coordinate the vertical alignment of the pipeline, (2) required the Defendants to provide Kern River with in[74]*74formation concerning proposed future facilities to justify points of deep burial, and (3) compelled Kern River to comply with a deep burial requirement. Additionally, Kern River claims that it voluntarily elected to construct its pipeline at deep burial depths both on dedicated public rights-of-way and on non-dedicated private lands. Kern River asserts that it incurred several million dollars of additional costs making this accommodation.

Kern River now moves the Court to bar Defendants from seeking damages relating to utility infrastructure conflicts. Kern River argues that because it complied with the Order of Immediate Occupancy’s (# 38) deep burial requirement, which was designed “to insure against the destruction of the existing and proposed public uses of the rights-of-way subject to Kern River’s pipeline easement,” it should now be insulated from damages for interference with other public uses of the rights-of-way.

Kern River is correct that the Court’s deep burial requirement was designed to minimize infrastructure conflicts. However, in attempting to minimize the conflicts, the Court did not rule or imply that damages would be altogether barred. The Court was determining whether Kern River’s condemnation would be tantamount to a destruction of an existing public use under eminent domain law. Whether or not infrastructure conflicts remain after the deep burial is an issue for the jury to decide. To the extent that Kern River has eliminated such conflicts, the damage award set by the jury will no doubt be commensurately lower. Summary judgment is precluded on this issue because material issues of fact remain.

II. Substitution Damages.

Kern River also moves the Court to bar Defendants from seeking substitution damages. Defendants claim that substitution damages are the appropriate measure of “just compensation” required by the Takings Clause of the Fifth Amendment. Although the Fifth Amendment refers only to compensation for “private property,” the Supreme Court recently held that the Takings Clause encompasses the property of state and local governments when it is condemned by the United States. United States v. 50 Acres of Land (Duncanville), 469 U.S. 24, 31, 105 S.Ct. 451, 455, 83 L.Ed.2d 376 (1984).

Defendants define substitution damages as the cost of supplying whatever substitute facilities are reasonably necessary to enable a local community to provide public facilities to its residents in as adequate a manner as it would had the condemnation not occurred. Opposition (# 118) at 11 (citing City of Fort Worth v. United States, 188 F.2d 217, 222 (5th Cir.1951); United States v. Arkansas, 164 F.2d 943 (8th Cir.1947)).

The Supreme Court rejected substitution as a proper measure of damages for private condemnees in United States v. 564.54 Acres of Land (Lutheran Synod), 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979). In Lutheran Synod, the Supreme Court considered whether a church’s camp facilities which were being condemned should be valued by a fair market value or a substitution standard. The Court held that because there was a market for camps, albeit a slow one, fair market value was a proper method of computing “just compensation” for Fifth Amendment purposes. 441 U.S. at 517, 99 S.Ct. at 1860.

The Supreme Court extended the Lutheran Synod holding to apply to public condemnees in Duncanville, 469 U.S. 24, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984). Thus, where readily ascertainable, fair market value is the proper measure of damages for public condemnees. In Duncanville, the Supreme Court held that the Constitution only required the federal government to pay fair market value for its condemnation of a municipal sanitary landfill when that figure was easy to calculate. The city claimed that it should be paid for the reasonable cost of a substitute facility. The Court noted that expert testimony had established that there was a fairly robust market for sanitary landfill property, making it relatively easy to determine fair market value.

[75]*75Some of the language in Lutheran Synod suggests that the Supreme Court anticipated that substitution damages would apply to the condemnation of some types of public facilities:

The instances in which market value is too difficult to ascertain generally involve property of a type so infrequently traded that we cannot predict whether the prices previously paid, assuming there have been prior sales, would be repeated in a sale of the condemned property. See United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S. 396, 402 [70 S.Ct. 217, 221, 94 L.Ed. 195] (1949); cf. United States v. Miller, 317 U.S. 369, 374-75 [63 S.Ct. 276, 280-81, 87 L.Ed. 336] (1943). This might be the case, for example, with respect to public facilities such as roads or sewers.

441 U.S. at 513, 99 S.Ct. at 1858 (emphasis added) (quoted with approval in Duncanville, 469 U.S. at 30 n. 12, 105 S.Ct. at 455 n. 12).

Applying these Supreme Court decisions to the facts of this case, there remains a genuine issue as to whether the fair market value of the condemned pipeline easement can be readily ascertained. Kern River’s appraiser, William G. Kimmel, has calculated a figure which he will testify represents the fair market value of Kern River’s easement. Motion (# 109) at 13. Defendants have argued that Kern River’s entire argument is premature; appraisers must testify at trial whether one method or a combination of methods is a more appropriate way to value the condemned property interest. Opposition (# 118) at 17.

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Bluebook (online)
809 F. Supp. 72, 1992 WL 387584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kern-river-gas-transmission-co-v-1891-acres-of-land-more-or-less-nvd-1992.