Western Seafood Co. v. United States ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    October 11, 2006
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    _____________________                     Clerk
    No. 04-41196
    _____________________
    WESTERN SEAFOOD COMPANY,
    Plaintiff - Appellant,
    v.
    UNITED STATES OF AMERICA, ET AL,
    Defendants,
    CITY OF FREEPORT, TEXAS; FREEPORT ECONOMIC DEVELOPMENT
    CORPORATION,
    Defendants - Appellees.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    No. 3:03-CV-811
    _________________________________________________________________
    Before DEMOSS, BENAVIDES, and PRADO, Circuit Judges.
    EDWARD C. PRADO, Circuit Judge:*
    In this takings case, Western Seafood Company (“Western
    Seafood”) appeals the district court’s order granting summary
    judgment in favor of the City of Freeport, Texas (“City”), and
    *
    Pursuant to 5TH CIRCUIT RULE 47.5, the Court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIRCUIT
    RULE 47.5.4.
    1
    the Freeport Economic Development Corporation (“FEDC”).   For the
    reasons that follow, we affirm the order of summary judgment on
    Western Seafood’s claim under the United States Constitution. On
    Western Seafood’s claim under the Texas Constitution, we vacate
    the order of the district court and remand for reconsideration of
    Western Seafood’s claim in light of Texas Government Code §
    2206.001 (“Limitations on the Use of Eminent Domain Act”).
    I. BACKGROUND
    In an effort to foster economic development, the City seeks
    to seize a portion of Western Seafood’s property along the Old
    Brazos River, approximately 0.86 of an acre including about 330
    feet of waterfront. The City intends to transfer the taken
    property to Western Seafood’s neighbor, Freeport Waterfront
    Properties, (“FWP”), a private entity, for the purpose of
    building a private marina.    Western Seafood provides supplies and
    services to commercial shrimp trawlers operating on the Old
    Brazos River.   The contested land includes Western Seafood’s
    docks, which the shrimp trawlers use to offload and deliver their
    shrimp to Western Seafood for processing.
    In September 2001, the City initiated a master planning
    process to develop a revitalization plan.    The resulting report
    described the City’s downtown area as being in serious decline
    and largely vacant.   The master plan argued that the creation of
    2
    a marina was “probably the single most important development that
    can bring significant economic stimulus to the city.”   The City
    planned to finance the marina through low interest loans of
    public money from the City through the FEDC.**   The marina would
    be constructed, owned, and operated by FWP, a company owned by
    Hiram Walker Royall. Mr. Royall is a member of the Blaffer
    family, which is a major landowner in downtown Freeport.   On
    February 2, 2003, the Freeport City Council passed a resolution
    urging the FEDC to take on the marina project.   The FEDC passed a
    resolution adopting the project on February 27, 2003.
    II. PROCEDURAL HISTORY
    On September 25, 2003, when it learned that the City had
    filed for a permit with the United States Army Corps of
    Engineers, Plaintiff Western Seafood filed a complaint for
    injunctive relief, seeking to prevent the United States and the
    City from building marina piers in front of Western Seafood’s
    property.   Western Seafood simultaneously filed a motion for
    preliminary injunction to prevent the City from commencing a
    condemnation suit in state court.    Because the City withdrew its
    permit application, the district court denied the request for
    injunctive relief at a December 5, 2003 hearing.   In addition,
    the district court stayed and administratively closed the case,
    suspending the hearing for settlement discussions.   At a status
    **
    The City incorporated the FEDC pursuant to the Texas
    Development Corporation Act (“TDCA”) of 1979.
    3
    conference on April 8, 2004, the district court granted Western
    Seafood leave to file amended pleadings.     After the parties
    failed to reach a settlement, the case was reopened in April 2004
    and set for trial.
    Western Seafood anticipated that the City would seek
    condemnation in county court during April 2004.     It therefore
    filed another complaint seeking a temporary restraining order.
    At an April 13, 2004 hearing, the City stated that it would not
    proceed with condemnation proceedings in state court because the
    FEDC would be responsible for initiating the matter.***
    Accordingly, the court denied the request for a temporary
    restraining order.     Western Seafood thereafter dismissed the
    United States and added the FEDC as a Defendant.
    In both complaints, Western Seafood alleged that
    Defendants’**** proposed taking of its property violated the TDCA,
    TEX. REV. CIV. STAT. art. 5190.6; the takings clause of the Texas
    Constitution,***** TEX. CONST. art. 1, § 17; and the Takings Clause
    ***
    Under state law, the FEDC can exercise the right of
    eminent domain if authorized to do so by the City. TEX. REV. CIV.
    STAT. art. 5190.6, § 4A(g).
    ****
    The City and the FEDC are hereinafter referred to as
    “Defendants” or “Appellees.”
    *****
    The pertinent provision of the state constitution reads:
    No person’s property shall be taken, damaged or destroyed
    for or applied to public use without adequate compensation
    being made, unless by the consent of such person; and, when
    taken, except for the use of the State, such compensation
    shall be first made, or secured by a deposit of money.
    4
    of the United States Constitution,****** U.S. CONST. amend. V.     On
    April 19, 2004, the City filed its summary judgment motion in
    both causes,******* arguing that because the principal purpose of
    the marina project was to revitalize the downtown area and the
    local economy, the project did not violate the takings provisions
    of either the federal or state constitutions.
    On August 5, 2004, the district court granted summary
    judgment to Defendants. Western Seafood Co. v. City of Freeport,
    
    346 F. Supp. 2d 892
    ( S.D. Tex. 2004).      Relying on Hawaii Housing
    Authority v. Midkiff, 
    467 U.S. 229
    (1984), the district court
    held that the City’s proposed condemnation of Western Seafood’s
    property fell within the scope of the Takings Clause. In Midkiff,
    the Supreme Court upheld the Hawaii Land Reform Act of 1967,
    which created a land condemnation scheme whereby property was
    transferred from lessors to lessees in order to reduce the
    concentration of land ownership in Hawaii. 
    Midkiff, 467 U.S. at 233
    . The Supreme Court held that the Land Reform Act was
    constitutional because it did not benefit a particular class of
    individuals but rather served a conceivable public purpose by
    attacking the perceived evils of concentrated property ownership.
    TEX. CONST. art. 1, § 1.
    ******
    The Takings Clause states: “nor shall private property
    be taken for public use, without just compensation.” U.S. CONST.
    amend. 5.
    *******
    On July 9, 2004, the two cases were consolidated.
    5
    
    Id. at 241-42.
    In the instant case, the district court found that the
    City’s use of its eminent domain power to transfer property from
    one private party to another was rationally related to the
    conceivable public purpose of “promot[ing] the public interest in
    a healthy local economy.” Western 
    Seafood, 346 F. Supp. 2d at 901
    . The court stated, “The Supreme Court has made it abundantly
    clear that decisions about the most economically efficient use of
    property are squarely within the proper province of the
    legislature . . . .” 
    Id. at 902.
    The district court also found that the Texas Constitution
    did not protect Western Seafood’s property from the Defendants’
    proposed exercise of eminent domain.       Like its federal
    counterpart, the Texas Constitution allows takings for public use
    where adequate compensation is provided.       The district court
    noted that Texas courts have interpreted the takings clause of
    the Texas Constitution, and in particular the “public use”
    requirement, to “require substantial deference to the
    legislature.” 
    Id. at 899.
    Following this approach, the district
    court looked to the TDCA, which declares that measures authorized
    by it serve the public purpose of economic development.******** 
    Id. ******** The
    court quoted the following provisions:
    (a) It is hereby found, determined, and declared:
    (1) that the present and prospective right to gainful
    employment and general welfare of the people of this state
    6
    Having earlier concluded that the development plan in question
    was authorized by the TDCA, the district court reasoned that “the
    legislature has determined that the project serves the public
    interest in economic development.” 
    Id. at 900.
    The court
    therefore held that the proposed taking of Western Seafood’s
    property did not offend the state constitution.
    Western Seafood timely filed notice of appeal on August 30,
    2004.   It also filed motions in the district court and
    subsequently in this court seeking a stay of judgment and
    injunction pending appeal, both of which were originally denied.
    After the Supreme Court agreed to hear Kelo v. City of New
    London, 
    125 S. Ct. 2655
    (2005), Western Seafood filed a motion
    for reconsideration of the stay and a motion for injunction in
    this court.   This court granted Western Seafood’s motions and
    abated the instant case pending the Kelo decision.   After the
    require as a public purpose the promotion and development of
    new and expanded business enterprises and the promotion and
    development of job training;
    . . .
    (4) that the means and measures authorized by this Act and
    the assistance provided in this Act, especially with respect
    to financing, are in the public interest and serve a public
    purpose of the state in promoting the welfare of the
    citizens of the state economically by the securing and
    retaining of business enterprises and the resulting
    maintenance of a higher level of employment, economic
    activity, and stability; . . . .
    TEX. REV. CIV. STAT. art. 5190.6, §3(a).
    7
    Supreme Court decided in favor of the City of New London in Kelo,
    this court lifted the abatement on Defendants’ motion and
    reinstated the district court’s order denying the injunction.
    Having received the required authorization from the City under
    TEX. REV. CIV. STAT. art. 5190.6, § 4B(j), the FEDC brought
    condemnation proceedings on August 16, 2004 in state court.*********
    In this appeal, Western Seafood seeks: (1) reversal and
    remand on both federal and state constitutional questions; or (2)
    reversal and remand on the federal constitutional question, in
    light of Kelo, and certification to the Texas Supreme Court of
    constitutionality of the City’s taking under the State
    constitution and its legality under newly enacted state
    legislation placing limits on the government’s eminent domain
    powers, TEX. GOV’T CODE § 2206.001 (“Limitations on the Use of
    Eminent Domain Act”).   In addition, Western Seafood seeks an
    injunction against the state condemnation proceedings.
    III. ANALYSIS
    A. Standard of Review
    *********
    On August 18, 2004, the county court appointed a
    panel of special commissioners to conduct a hearing to determine
    the fair market value of the property. On April 17, 2006, the
    special commissioners conducted an administrative hearing and
    determined the amount of compensation to be paid to Western
    Seafood. On April 27, 2006, Western Seafood filed a pleading
    challenging the county court’s jurisdiction, inter alia, through
    assertion of its state constitutional and statutory claims. On
    May 10, 2006, the FEDC filed it response.
    8
    We review the district court’s grant of summary judgment de
    novo and employ the same standard as did the district court.
    Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 
    289 F.3d 373
    , 376 (5th Cir. 2002); Forsyth v. Barr, 
    19 F.3d 1527
    ,
    1533 (5th Cir. 1994).   We view the summary judgment evidence in
    the light most favorable to Western Seafood, the non-movant.     
    Id. B. Federal
    Constitutional Claim
    The taking at issue does not offend the Fifth Amendment.
    Kelo, 
    125 S. Ct. 2655
    , which was issued after the district
    court’s summary judgment order, is directly on point and supports
    this conclusion.
    The facts in Kelo bear a strong resemblance to the
    circumstances of the instant case. Officials of the City of New
    London and the State of Connecticut recognized that New London
    faced serious economic decline. 
    Id. at 2658.
    In response, New
    London authorized the New London Development Corporation (NLDC),
    with support of a state bond issue, to devise a plan to increase
    local economic activity and bolster tax revenue. 
    Id. at 2659.
    The
    resulting plan focused on the waterfront Fort Trumbull area and
    proposed a comprehensive development containing commercial,
    residential and recreational spaces, the majority to be privately
    owned. 
    Id. This proposal
    was thoroughly analyzed and deliberated
    prior to its adoption by the city council. The city council then
    authorized the NLDC to acquire property by eminent domain in the
    city’s name, relying on a state statute that authorized the use
    9
    of eminent domain for economic development purposes.     
    Id. at 2660.
    In its decision in Kelo, the Court wrote that the “public
    use” requirement of the takings clause of the United States
    Constitution had long been interpreted to require only that a
    governmental taking have a “public purpose.” 
    Id. at 2662.
    In
    turn, the Court found that “public purpose” had been broadly
    defined, with substantial deference to legislative judgments. 
    Id. at 2663.
    Reasoning that “[p]romoting economic development is a
    traditional and long accepted function of government” and that
    there is “no principled way of distinguishing economic
    development from the other public purposes that we have
    recognized,” the Court concluded that economic development
    qualifies as a legitimate “public use” under the United States
    Constitution. 
    Id. at 2665.
    That the proposed taking involved the transfer of property
    from one private party to another, and that it directly
    benefitted a private party, did not invalidate the taking, the
    Court explained in Kelo, since “the government’s pursuit of a
    public purpose will often benefit individual private parties.”
    
    Id. at 2666.
    While a “one-to-one transfer of property, executed
    outside the confines of an integrated development plan” might be
    suspect, such a situation was not present. 
    Id. at 2667.
    The Court
    found that “[t]he City has carefully formulated an economic
    development plan it believes will provide appreciable benefits to
    10
    the community . . .” and concluded that the “plan unquestionably
    serves a public purpose.” 
    Id. at 2665.
    As in Kelo, the City of Freeport seeks to develop its
    waterfront to revitalize a flagging local economy. The proposed
    taking of Western Seafood’s property is the result of a carefully
    considered development plan. It followed a commissioned study
    that reported on the economically depressed downtown area and
    suggested strategies for its revival. Appellees submitted
    approximately 240 pages of evidence for summary judgment that
    describe plans for the marina and related public improvement as
    part of an integrated redevelopment scheme created as the result
    of the study. The record does not suggest that the City is
    seeking an end other than economic development.   Therefore, we
    hold that the City’s exercise of eminent domain does not violate
    the Takings Clause of the United States Constitution.
    Western Seafood argues that Kelo is distinguishable because
    in the New London case the beneficiaries of the transfer of
    property were not identified prior to New London’s exercise of
    eminent domain.   Western Seafood cites Kelo’s warning that “the
    City [would not] be allowed to take property under the mere
    pretext of a public purpose, when its actual purpose was to
    bestow a private benefit.” 
    Kelo, 124 S. Ct. at 2661
    . Western
    Seafood maintains that in its own case, the beneficiary FWP was
    identified prior to or at the earliest stages of the City’s
    11
    planning process. Relying on Justice Kennedy’s concurrence in
    Kelo, Western Seafood argues that these facts warrant a stricter
    standard of scrutiny than rational basis.     While acknowledging
    that a rational basis standard may be appropriate for many
    takings cases, Justice Kennedy argued in Kelo that a heightened
    standard, even a presumption of invalidity, was warranted for
    “private transfers in which the risk of undetected impermissible
    favoritism of private parties is [] acute. . . .” 
    Id. at 2670.
    We decline to address whether a heightened standard is
    necessary in certain cases because the facts in the instant case
    do not warrant it.   Western Seafood offers three pieces of
    evidence in support of its claim that the City exhibited
    favoritism towards the FWP and the Blaffer family.**********   But
    because the Blaffer estate heirs own acres of property along the
    river where the marina is to be built, the City’s interest in
    their collaboration is logical.    The evidence provided by Western
    Seafood does not support the inference that the City exhibited
    **********
    First, at the December 5, 2003 hearing for
    preliminary injunction, the City’s counsel stated, “[the
    Blaffers] were the ones who came forward and said, Hey, we’d like
    to do this project for you.” Second, at the April 8, 2004 status
    conference, Defendants’ counsel replied to the district court’s
    inquiry regarding the participation of the developer Royall by
    saying, “Mr. Royall is the principal, the, I guess, person in
    charge.” Third, Western Seafood cites to the master plan
    document dated October 2002 to demonstrate that the marina
    project had been proposed by the Blaffers before the development
    plan was drafted. The document says, “Building a state-of-the-
    art marina right on the riverfront as proposed by the Intermedics
    property owners . . . .” Western Seafood points out that the
    Blaffer heirs owned the Intermedics property.
    12
    favoritism or has a purpose other than to promote economic
    development in Freeport.
    C. State Constitutional Claim
    The district court decided Western Seafood’s claims under
    the Texas Constitution before the enactment of Texas Government
    Code § 2206.001, the Limitations on Use of Eminent Domain Act
    (“Act”),*********** which went into effect on August 10, 2005.
    Because the Texas Courts have interpreted the “public use”
    language of the Texas Constitution with an eye to legislative
    declarations, and because the Act can be construed as a recent
    statement of the legislature’s view of what constitutes “public
    use,” we believe that the Act should be considered when assessing
    Western Seafood’s claims under the Texas Constitution.
    Article I, Section 17 of the Texas Constitution provides,
    “No person’s property shall be taken, damaged, or destroyed for
    ***********
    The Act states, in pertinent part:
    (b) A governmental or private entity may not take private
    property through the use of eminent domain if the taking:
    (1) confers a private benefit on a particular private party
    through the use of property;
    (2) is for a public use that is merely a pretext to confer a
    private benefit on a particular private party; or
    (3) is for economic development purposes, unless the
    economic development is a secondary purpose resulting from
    municipal community development or municipal urban renewal
    activities to eliminate an existing affirmative harm on
    society from slum or blighted areas . . . .
    TEX. GOV’T CODE § 2206.001(b) (emphases added). The statute lists
    in subsection (c) those “traditional” public use projects that
    remain unaffected by the statute’s limitations.
    13
    or applied to public use without adequate compensation being made
    ....” Tex. Const. Art. I §17. Texas courts have held that the
    scope of “public use” in the above clause should be ascertained
    in part by reference to legislative determinations of public use.
    In Housing Authority of Dallas v. Higginbotham, 
    143 S.W.2d 79
    , 83
    (Tex. 1940), the Texas Supreme Court declared, “The question of
    what is a public use is a question for the determination of the
    courts; however, where the legislature has declared a certain
    thing to be for public use, such declaration of the legislature
    must be given weight be the courts.” See also West v. Whitehead,
    
    238 S.W. 976
    , 978 (Tex. Civ. App.–-San Antonio 1922, writ ref’d).
    In Atwood v. Willacy County Navigation District, 
    271 S.W.2d 137
    , 140 (Tex. Civ. App.–-San Antonio 1954, writ ref’d n.r.e.),
    the Texas Court of Civil Appeals strongly endorsed this
    deferential approach, writing “[t]he declaration of the
    Legislature upon the subject . . . is entitled to great weight
    and respect in arriving at a final decision of the question.”. In
    that port-development case, the court further noted that “the
    Legislative branch through its use of committees and other fact
    finding methods may perhaps occupy a more favorable position than
    a judicial body in determining what is necessary to a successful
    operation of a municipal enterprise such as a port.” 
    Id. at 141.
    It concluded, “Consequently, the implied declaration by the
    legislative branch of government, that a taking under a right of
    eminent domain was for the public use, will be given deference by
    14
    the courts, until it is shown to involve an impossibility.” 
    Id. at 143.
    In Davis v. City of Lubbock, 
    326 S.W.2d 699
    (Tex. 1959),
    while citing Higginbotham approvingly, the Texas Supreme Court
    undertook a more traditional judicial approach to interpreting
    public use. Higginbotham, Atwood, and Davis, while not recent
    cases, are the most recent cases on point.
    The Act places new limitations on the use of eminent domain
    for economic development purposes, or where the taking confers a
    benefit on a particular private party. Tex. Govt. Code § 2206.001
    (b). If the Act is construed as a legislative effort to narrow or
    redefine “public use,” then, in light of the above-cited Texas
    caselaw, the Act may implicate Western Seafood’s claims under the
    Texas Constitution. The Act does not hold itself out explicitly
    as narrowing or redefining public use, but the language of §
    2206.001 (b) addresses the uses to which the taken property will
    be put.   Moreover, the Act was passed in response to Kelo, which
    turned on the interpretation of the public use clause in the
    United States Constitution. Following West, Higginbotham, Atwood,
    and to a lesser extent Davis, therefore, a Texas court
    interpreting the Constitutional provision might look to the Act
    as recent legislative declaration regarding the scope of the
    public use provision. For these reasons, we remand Western
    Seafood’s claim under the Texas Constitution to the district
    15
    court for reconsideration of in light of the Act.************
    D. STATE STATUTORY CLAIM
    Western Seafood also makes a direct challenge to the taking
    of its property under the Act.      Because Western Seafood did not
    raise its state statutory claim before the district court, we
    decline to address it on appeal.*************   Tex. Commercial Energy
    v. TXU Energy, Inc., 
    413 F.3d 503
    , 510 (5th Cir. 2005), cert.
    denied, 
    126 S. Ct. 1033
    (2006).
    E. INJUNCTION
    Finally, Western Seafood challenges the district court’s
    denial of its request for a temporary and a permanent injunction.
    Because the state court proceedings are already underway, and
    because none of the exceptions to the Anti-Injunction Act apply,
    see 28 U.S.C. § 2283, we affirm.
    IV. CONCLUSION
    Accordingly, we AFFIRM on federal constitutional and VACATE
    and REMAND on state constitutional grounds.
    ************
    As noted,    a parallel proceeding involving this
    matter is under way in    the Texas court system. It may be wisest
    for the district court    to abstain and allow the Texas courts to
    address the effect, if    any, of the Act on the Texas Constitution.
    *************
    We note that it was impossible for Western Seafood
    to have raised this issue in the district court, and that Western
    Seafood has properly brought this issue before the state court in
    pending condemnation proceedings.
    16
    17