United States v. Sawyer ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
14.02 ACRES OF LAND MORE OR
LESS IN FRESNO COUNTY; EDNA E.
STONE; PAUL KRAJIAN; SHRINERS
HOSPITAL FOR CRIPPLED CHILDREN;
DAVID C. WHITLOCK; EDWARD H.
MARSELLA; HENRY SCHAFER, Jr.;
SHARON CECILE PECKINPAH; SHARON
CECILE MARCUS aka Sharon Cecile No. 05-17347
Peckinpah; FERN L. PETER, LOLA
D.C. No.
A. SWANSON; FLORENCE F. CLASS;
CLARENCE E. BERNHAUER, JR.; JANE  CV-03-06019-REC/
WHITLOCK STILES; NORMA B. LJO
GIBBS; JUNE E. LUCAS; IRENE OPINION
MARLEY; HENRY SCHAFER, SR.;
DENVER C. PECKINPAH; SUSAN JANE
PECKINPAH; AGNES H. VIGNOLA;
DONG SHE MAR; BESSIE E.
BERNHAUER; LEONARD P. LEBLANC;
IVONE M. CARLSON; ELVIRA
MOSHER; LORRAINE S.
EICHENBERGER; ELEANOR C. HICKS;
TRUSTEE PETER FRECHOU; KATHRYN
MCAFEE; TRUSTEE JOHN C. RICKSEN
KATHRYN BROWN;

7257
7258 UNITED STATES v. SAWYER
ESTATE OF JOHNNY BELLO; 
ESTATE OF LOUIS BELLO; FRANCIS
BELLO; EDWARD C. BEAUMONT;
PAULINE EICHENBERGER; LORRAINE
C. FORTNOY; FLOREEN L. WALSH;
TRUSTEE MARY FRECHOU ALLEN
MOORE; BEVERLY M. FIELDER; HAL
E. VERBLE; MAY EVYLEN
BERNHARD; GORDON WINANT
HEWES; PAULINE D. HANSON;
ELOISE MITCHELL; LAWRENCE E.
AUSTIN; EVELYN SANTOS; SAMUEL
B. BRECK DAVID BISWELL; STEPHEN
BISWELL; MELISSA BROOK
PECKINPAH; JOAN LEONARD; MAUDE
DAWSON; GERTRUDE PORTERFIELD;
WILLIAM J. MATHOS; JOHN ROBERT

SHORB; CANDACE HAAS; KRISTEN
LOUISE PECHINPAH; MATTHEW
DAVID PECHINPAH; J. DANIEL HARE,
III; BRADLEY B. LEONARD;
SECURITY TITLE INSURANCE; VICKI
TREASURER, FRESNO COUNTY; RUSS
FREEMAN; THOMAS C. HARE,
Defendants,
and
MAXINE H. SAWYER; MARK W.
SAWYER; HARRIET H. LEONARD;
CHARLES A. SAWYER; ANDREW
KLEMM; RAMON ECHEVESTE,
Defendants-Appellants.

UNITED STATES v. SAWYER 7259
Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, District Judge, Presiding
Argued and Submitted
February 14, 2008—San Francisco, California
Filed June 24, 2008
Before: William C. Canby, Jr. and Milan D. Smith, Jr.,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge Canby
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
UNITED STATES v. SAWYER 7261
COUNSEL
Bruce Leichty, Clovis, California, for the defendants-
appellants.
7262 UNITED STATES v. SAWYER
Douglas R. Wright, United States Attorney, Department of
Justice, Environment & Natural Resources Division, Wash-
ington, D.C., for the plaintiff-appellee.
OPINION
CANBY, Circuit Judge:
Pursuant to a 2001 order of the Secretary of Energy, the
Western Area Power Administration (“WAPA”) selected cer-
tain land estates in the western portion of the San Joaquin
Valley in California, where it planned to construct a high-
voltage transmission line. The United States began condemna-
tion proceedings in the district court on behalf of WAPA,
seeking transmission easements on the lands selected by
WAPA. Sawyer and a few other individual owners of con-
demned property (collectively “Sawyer”) challenged the gov-
ernment’s exercise of its power of eminent domain, claiming
that the taking lacked proper congressional authorization, was
not for a “public use” as required by the Takings Clause, and
violated California law. The district court dismissed Sawyer’s
objections and, when the parties reached an agreement on the
compensation amount, entered summary judgment sua sponte.
Sawyer filed this appeal. We affirm.
BACKGROUND
In 2001, in an effort to mitigate California’s electric power
transmission constraints, the Secretary of Energy directed
WAPA to prepare plans to construct the Los Banos-Gates
Transmission Project, or Path 15 Upgrade. The project con-
sists of an additional 84-mile, 500-kilovolt transmission line
along Path 15, which is located in the western portion of the
San Joaquin Valley and connects its northern terminus near
Los Banos, California with its southern terminus at the Gates
Substation near Coalinga, California. See Department of
UNITED STATES v. SAWYER 7263
Energy, Los Banos-Gates Transmission Project: Record of
Decision (hereinafter, “DOE Record of Decision”), 66 Fed.
Reg. 65,699 (Dec. 20, 2001). The Secretary also instructed
WAPA to explore partnership opportunities with private
industry, see id., and delegated authority to WAPA to acquire
and condemn property interests in land to complete the proj-
ect. Department of Energy, Delegation Order No. 00-036.00
(Dec. 6, 2001), available at http://www.directives.doe.gov/
pdfs/sdoa/00-036_00.pdf (last visited May 28, 2008). WAPA
updated plans that it had originally developed in the mid-
1980s and accepted proposals from Trans-Elect and Pacific
Gas and Electric Company to “finance, construct, and co-own
the system additions.” DOE Record of Decision, 66 Fed. Reg.
at 65,699-700. The Federal Energy Regulatory Commission
(“FERC”) approved the proposed upgrade, which provided,
among other things, that “WAPA w[ould] own the new 500
kV transmission line and associated land that is the most sig-
nificant part of the transmission upgrades.” Western Area
Power Administration, FERC Order Accepting Letter Agree-
ment, 99 FERC ¶ 61,306, at 62,278, 2002 WL 1308653(2002), aff’d, Pub. Util. Comm’n. of Cal. v. FERC, 367 F.3d
925 (D.C. Cir. 2004).
In 2003, the United States began condemnation proceed-
ings in the district court on behalf of WAPA to acquire ease-
ments on approximately 14.02 acres of land in western Fresno
County, California. Sawyer filed an answer to the govern-
ment’s complaint and challenged the condemnation by assert-
ing eight affirmative defenses. The government moved to
strike the affirmative defenses or, in the alternative, for judg-
ment on the pleadings as to its authorization to take. The dis-
trict court granted the government’s motion, concluding that
“WAPA was fully authorized by federal law to construct the
Path 15 Project and to condemn the power line transmission
easement[s] for it.” The district court also rejected Sawyer’s
argument that the upgrade did not serve a “public purpose.”
One year later, the parties filed a Joint Pretrial Statement,
in which they agreed that the “value of the property taken is
7264 UNITED STATES v. SAWYER
$7,374.32.” At a later evidentiary hearing, the government
asserted that no viable issue remained for trial because the
district court had previously granted judgment as to the law-
fulness of the taking. Sawyer disagreed. The district court
then requested supplemental briefing.
With the benefit of the parties’ briefing, the district court
concluded that no issue remained for trial and granted sum-
mary judgment sua sponte in favor of the government. The
district court then entered final judgment and apportioned the
stipulated value of the easements, $7,374.32, among the “ap-
proximately 73 ownership entities.” Each entity was assigned
compensation according to its percent ownership interest.
(Id.) Ownership interests were computed on the basis of the
title information supplied by the government. As of final
judgment, neither Sawyer nor any other condemnation defen-
dant had disputed such information.1 (Id.) Sawyer filed this
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
I. Authorization and Lawfulness of the Taking
Where, as here, the parties do not dispute the amount of
compensation, “[t]he only [substantive] question for judicial
review in a condemnation proceeding is whether the purpose
for which the property was taken is for a Congressionally
authorized public use.” United States v. 0.95 Acres of Land,
994 F.2d 696, 698 (9th Cir. 1993) (internal quotation marks
and citation omitted). “Once the question of the public pur-
pose has been decided, the amount and character of land to be
taken for the project and the need for a particular tract to com-
plete the integrated plan rests in the discretion of the legisla-
1
To the extent that other unnamed interest owners or their successors
are not specifically mentioned in the district court’s order, they remain
entitled to claim their share of the award by presenting appropriate docu-
mentation to the district court. 28 U.S.C. § 2042.
UNITED STATES v. SAWYER 7265
tive branch.” Berman v. Parker, 348 U.S. 26, 36-37 (1954).
In addressing Sawyer’s challenges, we must assess both
prongs of the “public purpose” inquiry set forth in our prece-
dent. First, we must satisfy ourselves that the Secretary of
Energy and the Administrator of WAPA enjoy statutory
authorization to condemn property interests to construct the
Path 15 Upgrade. Second, we must decide whether the Path
15 Upgrade qualifies as a “public use” under the Takings
Clause of the Fifth Amendment.
A. Statutory Authority
There is no dispute that, if any federal agency is authorized
to acquire land by eminent domain for the purpose of con-
structing the Path 15 Upgrade, that agency is WAPA. See 42
U.S.C. § 7152(a)(1)(D) (“There are transferred to, and vested
in, the Secretary [of Energy] all functions [previously] of the
Secretary of the Interior . . . with respect to . . . the power
marketing functions of the Bureau of Reclamation, including
the construction, operation, and maintenance of transmission
lines and attendant facilities.”); Department of Energy, Dele-
gation Order No. 00-036.00 (Dec. 6, 2001), available at
http://www.directives.doe.gov/pdfs/sdoa/00-036_00.pdf (last
visited May 28, 2008). The operative question before us, then,
is whether Congress ever authorized the construction of the
Path 15 Upgrade at all.
[1] Numerous congressional enactments convince us that it
did. In 1984, Congress enacted the Energy and Water Devel-
opment Appropriations Act. The Act generally authorized
the Secretary of Energy . . . to construct or partici-
pate in the construction of such additional facilities
as he deems necessary to allow mutually beneficial
power sales between the Pacific Northwest and Cali-
fornia and to accept funds contributed by non-
Federal entities for that purpose.
7266 UNITED STATES v. SAWYER
Pub. L. No. 98-360, tit. III, 98 Stat. 403, 416 (1984) (codified
at 16 U.S.C. § 837g-1). This enactment clearly conferred dis-
cretion on the Secretary of Energy to construct power lines in
the area where the Path 15 Upgrade is located. By citing this
statutory provision in the Declaration of Taking, then, the
Administrator of WAPA, as delegate of the Secretary, evi-
dently made the discretionary finding that the Path 15
Upgrade would facilitate the consolidation of the Pacific
Northwest-California market.
[2] Since passage of this 1984 Act, Congress has repeatedly
confirmed its authorization and appropriated funds to develop
the Path 15 Upgrade. In the Supplemental Appropriations Act
of 1985, Congress again authorized construction of transmis-
sion lines along the Pacific Northwest-California Intertie:
Public Law 98-360 . . . authorized the Secretary of
Energy to construct or participate in the construction
of such project for the benefit of electric consumers
of the Pacific Northwest and California. . . .
Pub. L. No. 99-88, tit. I, ch. IV, 99 Stat. 293, 321 (1985). In
the same provision, Congress further indicated that “sufficient
capacity shall be reserved, as recognized in [the] Memoran-
dum, to serve the needs of the Department of Energy labora-
tories and wildlife refuges in California.” Id. In turn, the
Memorandum referenced by Congress committed WAPA to
provide “a reasonable and proportionate share of the capital
required for increasing the transfer capability between Los
Banos and Gates,” i.e., the Path 15 Upgrade. Department of
Energy, Memorandum of Understanding for the California-
Oregon Transmission Project, 50 Fed. Reg. 421 (Dec. 24,
1984). Thus, we have little doubt that, as early as the mid-
1980s, Congress had authorized the Path 15 Upgrade.
Although construction of the Path 15 Upgrade did not prog-
ress beyond the planning stages in the 1980s and 1990s, in
2001, the House Appropriations Committee again proposed
UNITED STATES v. SAWYER 7267
special funding to “complete the planning and environmental
studies to support the proposed 84-mile, 500-kilovolt trans-
mission line between Los Banos and Gates (also known as
‘Path 15’) in California.” H.R. Rep. No. 107-102, at 24
(2001). The Conference Committee “provide[d] . . . [n]on-
reimbursable funding of $1,328,000 . . . to complete planning
and environmental studies for the Path 15 transmission line,”
H.R. Rep. No. 107-148, at 61 (2001) (Conf. Rep.), reprinted
in 2001 U.S.C.C.A.N. 259, 278, and Congress appropriated
those funds through the Supplemental Appropriations Act of
2001, Pub. L. No. 107-20, 115 Stat. 155, 174 (2001).
[3] Finally, although no appropriation has specifically men-
tioned the Path 15 Upgrade since 2001, Congress has implic-
itly reaffirmed its authorization by funding WAPA through
general appropriations “[f]or carrying out the functions autho-
rized by title III, section 302(a)(1)(E) of the Act of August 4,
1977 (42 U.S.C. 7152).” Consolidated Appropriations Resolu-
tion, 2003, Pub. L. No. 108-7, 117 Stat. 11, 152 (2003). These
functions, in turn, encompass “the construction . . . of trans-
mission lines and attendant facilities,” which is the essence of
the Path 15 Upgrade.2 42 U.S.C. § 7152(a)(1)(D). We there-
2
Sawyer’s discussion of the Flood Control Act of 1944 and its restric-
tion on the construction of new transmission lines is unavailing. The Act
applies only to “[e]lectric power and energy generated at reservoir projects
under the control of the Department of the Army and in the opinion of the
Secretary of the Army not required in the operation of such projects.” Pub.
L. No. 78-534, § 5, 58 Stat. 887, 890 (1944) (codified at 16 U.S.C.
§ 825s). Nothing suggests that the Path 15 Upgrade was ever under the
control of the Department of the Army.
Similarly, it is true that the Reclamation Project Act of 1939 confers on
the Secretary only limited authority to condemn land in connection with
the construction of new transmission lines: “The Secretary is authorized,
in connection with the construction or operation and maintenance of any
project . . . to purchase or condemn suitable lands or interests in lands for
relocation of . . . electric transmission lines . . . , the relocation of which
in the judgment of the Secretary is necessitated by said construction or
operation and maintenance.” 43 U.S.C. § 389. But the “relocation”
condition—to the extent it is judicially reviewable at all—does not curtail
the Secretary’s authorization to condemn land stemming from the other
enactments to which we already have referred.
7268 UNITED STATES v. SAWYER
fore conclude that WAPA is authorized to carry out the Path
15 Upgrade by acquiring lands by eminent domain.
In reaching this conclusion, we reject Sawyer’s argument
that, even if the Path 15 Upgrade has been authorized, WAPA
is not at liberty to condemn property interests to realize the
project. To the extent that Congress did not spell out the Sec-
retary’s and WAPA’s eminent domain prerogatives in the
enactments specifically authorizing the Path 15 Upgrade, we
deem such omissions irrelevant. When Congress mandates the
construction of a new high-voltage transmission line and
appropriates funds to carry it out, it implies, by necessity if
not common sense, the authority on the part of the executing
agency to acquire land on which the transmission line may be
constructed. See, e.g., City of Davenport v. Three-Fifths of an
Acre of Land, 252 F.2d 354, 356 (7th Cir. 1958) (rule of
implied necessity authorizes eminent domain for the construc-
tion of duly authorized bridge, where condemnation is
required to realize the project).
Finally, Sawyer generally contends that any authorization
contained in these statutes is conditional on a preliminary
finding that the Path 15 Upgrade is “necessary.” Whereas a
threshold finding of necessity is in fact required under the
1984 authorization, Congress has unequivocally committed
that determination to the discretion of the Secretary (which
has been delegated to WAPA). See 16 U.S.C. § 837g-1
(authorizing the Secretary of Energy “to construct or partici-
pate in the construction of such additional facilities as he
deems necessary to allow mutually beneficial power sales
between the Pacific Northwest and California and to accept
funds contributed by non-Federal entities for that purpose.”)
(emphasis added). We are therefore not at liberty to review
the agency’s determination with respect to the necessity con-
dition. See United States v. 80.5 Acres of Land, 448 F.2d 980,
983 (9th Cir. 1971) (“[T]he necessity of taking or appropriat-
ing private property for public use is legislative in nature and
one over which the courts lack jurisdiction.”).
UNITED STATES v. SAWYER 7269
B. The “Public Use” Requirement Under the Takings
Clause
[4] We must next decide whether the Path 15 Upgrade sat-
isfies the “public use” requirement of the Takings Clause
even though it is a partnership of public and private entities
and the beneficiaries of the project arguably are the customers
of privately-owned utilities, as opposed to the public at large.
For over a century, the Supreme Court’s “public use jurispru-
dence has wisely eschewed rigid formulas and intrusive scru-
tiny in favor of affording legislatures broad latitude in
determining what public needs justify the use of the takings
power.” Kelo v. City of New London, 545 U.S. 469, 483
(2005). It remains true, of course, that “the sovereign may not
take the property of A for the sole purpose of transferring it
to another private party B, even though A is paid just compen-
sation.” Id. at 477. At the same time, the Court has long aban-
doned any “use by the public” test for private-to-private
transfers by eminent domain. See id. at 479-81 & nn.7, 9, 10
(collecting cases). “ ‘It is only the taking’s purpose, and not
its mechanics’ . . . that matters in determining public use,” id.
at 482 (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229,
244 (1984)), and we do “not substitute [our] judgment for a
legislature’s judgment as to what constitutes a public use
‘unless the use be palpably without reasonable foundation.’ ”
Midkiff, 467 U.S. at 241 (quoting United States v. Gettysburg
Elec. Ry. Co., 160 U.S. 668, 680 (1896)).
[5] Applying these principles, we conclude that the Path 15
Upgrade satisfies the “public use” requirement. To begin
with, the project hardly entails a private-to-private transfer at
all. It is true that WAPA will initially receive only ten percent
of the transmission system rights arising from the 500 kV
capacity increase. Western Area Power Administration, FERC
Order Accepting Letter Agreement, 99 FERC ¶ 61,306, at
62,278, 2002 WL 1308653 (June 12, 2002). However,
“WAPA will own the new 500 kV transmission line and asso-
ciated land that is the most significant part of the transmission
7270 UNITED STATES v. SAWYER
upgrades.” Id. Further, in its 1985 appropriations and mandate
to the Secretary of Energy to expand the Pacific Northwest-
California Intertie, Congress specified that “sufficient capac-
ity shall be reserved . . . to serve the needs of the Department
of Energy laboratories and wildlife refuges in California.”
Pub. L. No. 99-88, tit. I, ch. IV, 99 Stat. 293, 321 (1985). In
short, it is clear that Congress’ purpose in authorizing the con-
demnation envisioned a continued proprietary and operational
presence of the federal government.
Moreover, to the limited extent that the project does
involve a transfer of property interests among private entities,
such transfer poses no constitutional difficulty. In the pursuit
of what it perceives as a “public use,” “the Congress and its
authorized agencies have made determinations that take into
account a wide variety of values.” Berman, 348 U.S. at 33.
Therefore, “It is not for [the courts] to reappraise them.” Id.In its 1984 authorization, Congress unambiguously expressed
its intent to “allow mutually beneficial power sales between
the Pacific Northwest and California.” 16 U.S.C. § 837g-1. In
so doing, it spoke to the value it intended to pursue—i.e.,
facilitating the consolidation of the western electricity market.
It would therefore be impermissible for us to engage, as Saw-
yer asks us to do, in “empirical debates over the wisdom” of
increased access to electricity or the effectiveness of the Path
15 Upgrade. See Midkiff, 467 U.S. at 242-43.
C. Federal Preemption of the California Public Utility
Commission Review
In a final substantive challenge, Sawyer contends that the
condemnation is unlawful because WAPA did not obtain the
approval of the California Public Utility Commission for the
Path 15 Upgrade as required by California law. See Cal. Pub.
Util. Code §§ 1001-06. We agree with the district court that
Sawyer waived this argument by not advancing it in the
Answer. Under Rule 71.1, “[a] defendant waives all objec-
tions and defenses not stated in its answer. No other pleading
UNITED STATES v. SAWYER 7271
or motion asserting an additional objection or defense is
allowed.” Fed. R. Civ. P. 71.1(e)(3). Because Sawyer did not
raise the federal government’s failure to comply with Califor-
nia law in the Answer, we affirm the district court’s waiver
ruling.
[6] In any event, the Supremacy Clause, Article VI, clause
2, of the United States Constitution forecloses Sawyer’s non-
compliance argument. Preemption of state law “is compelled
whether Congress’ command is explicitly stated in the stat-
ute’s language or implicitly contained in its structure and pur-
pose.” Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
With respect to the regulation of electric power transmission
networks, “Part II of the Federal Power Act, codified at 16
U.S.C. §§ 824-824m, delegates to the Federal Energy Com-
mission ‘exclusive authority to regulate the transmission and
sale at wholesale of electric energy in interstate commerce.’ ”
Transmission Ag. of N. Cal. v. Sierra Pac. Power Co., 295
F.3d 918, 928 (9th Cir. 2002) (quoting New Eng. Power Co.
v. New Hampshire, 455 U.S. 331, 340 (1982)). Because the
statute expressly commands exclusive federal regulation and
Sawyer has not pointed to an unequivocal pronouncement by
Congress to overcome the resulting presumption of preemp-
tion, California law is preempted and WAPA is not required
to comply therewith in constructing the Path 15 Upgrade.3
II. Procedural Challenges
Sawyer also advances a number of procedural challenges
that, he contends, require us to reverse the judgment of the
3
In a gas pipeline case, the Seventh Circuit has similarly held that a state
commission may not interfere with an interconnection of interstate pipe-
lines once that interconnection has been approved by FERC. Midwestern
Gas Transmission Co. v. McCarty, 270 F.3d 536, 539-40 (7th Cir. 2001).
This conclusion is particularly instructive because decisions under the
Natural Gas Act and Federal Power Act are interchangeable. See Ark. La.
Gas Co. v. Hall, 453 U.S. 571, 577 n.7 (1981).
7272 UNITED STATES v. SAWYER
district court and remand this case for further proceedings.
We review each challenge in turn.
A. Joinder of Owners of Fractional Property Interests
[7] The district court did not err in allowing the action to
proceed without requiring the government to join all owners
of fractional interests in the condemned property. Rule 71.1(c)
provides:
When the action commences, the plaintiff need join
as defendants only those persons who have or claim
an interest in the property and whose names are then
known. But before any hearing on compensation, the
plaintiff must add as defendants all those persons
who have or claim an interest and whose names have
become known or can be found by a reasonably dili-
gent search of the records, considering both the
property’s character and value and the interests to be
acquired. All others may be made defendants under
the designation “Unknown Owners.”
Fed. R. Civ. P. 71.1(c)(3) (emphases added). Here, WAPA
and the Assistant U.S. Attorney investigated the title history
and current interests in the condemned land, enrolled the ser-
vices of an outside title investigator and, in the end, even
attempted to cooperate with the defendants in an effort to
identify all interest owners. We conclude that the government
has easily met the burden imposed by Rule 71.1(c).4
4
To the extent that Sawyer relies on our 1952 decision in United States
v. Adamant Co., 197 F.2d 1, 4 (9th Cir. 1952) to establish a due process
requirement to join “all persons having any interest in the property,” his
reliance is misplaced. Adamant was a post-condemnation case dealing
with the apportionment of a compensation award among former interest
holders, not a challenge to a condemnation. Id. at 3-5. Accordingly, the
“universal joinder” principle it endorses is limited to “proceedings . . . to
apportion the award[, in which] the condemnor has no interest.” Id. at 5.
UNITED STATES v. SAWYER 7273
B. Service On Non-Objecting Defendants
[8] Sawyer contends that Rule 5 of the Federal Rules of
Civil Procedure, required the government to serve its motion
for judgment on the pleadings on those defendants who had
neither objected to the condemnation nor filed a notice of
appearance. But Rule 71.1 governs condemnation proceedings
“except as this rule provides otherwise.” Fed. R. Civ. P.
71.1(a). With regard to notice, Rule 71.1 provides that
[a] defendant that has no objection or defense to the
taking of its property may serve a notice of appear-
ance designating the property in which it claims an
interest. The defendant must then be given notice of
all later proceedings affecting the defendant.
Fed. R. Civ. P. 71.1(e)(1). The only way to give effect to Rule
71.1(e)(1) is to interpret it as overriding the default require-
ment laid out in Rule 5, which mandates that “a pleading filed
after the original complaint” be served on “every party.” Fed.
R. Civ. P. 5(a)(1)(B). Otherwise, the Rule 71.1(e)(1) option
for non-objecting defendants to remain abreast of the case by
filing a “notice of appearance” would be surplusage, for these
defendants would be entitled to receive full service under
Rule 5(a)(1)(B). Applying Rule 71.1(e)(1), therefore, the gov-
ernment was not required to serve non-objecting defendants
who did not file a notice of appearance with its motion for
judgment on the pleadings.
C. Deference to Sawyer’s Factual Allegations
[9] The district court did not err in refusing to defer to Saw-
yer’s contentions pertaining to the “conditions and predicates”
that confine WAPA’s authority to take property. It is true that,
in deciding a Rule 12 motion, the district court must “take all
allegations of material fact as true and construe them in the
light most favorable to the nonmoving party.” Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
7274 UNITED STATES v. SAWYER
But the “conditions and predicates” to which Sawyer alludes
are not “allegations of fact.” Id. They are either nonreview-
able discretionary determinations—as in the case of the “ne-
cessity” determination, see supra Section I.A—or pure
questions of law—as in the case of the “public use” inquiry,
see supra Section I.B. The district court properly declined to
accord Sawyer’s positions any deference.
D. Consideration of Documents Outside the Pleading
[10] The district court also did not abuse its discretion in
taking judicial notice of the Department of Energy National
Transmission Grid Study (May 2002) (“DOE Study”), which
was not included in the pleadings, and referring to it as back-
ground material in its order granting the government’s motion
for judgment on the pleadings. See Ritter v. Hughes Aircraft
Co., 58 F.3d 454, 458 (9th Cir. 1995) (“An appellate court
reviews the district court’s decision to take judicial notice
under Rule 201 for an abuse of discretion.”). Although, as a
general rule, a district court may not consider materials not
originally included in the pleadings in deciding a Rule 12
motion, Fed. R. Civ. P. 12(d), it “may take judicial notice of
matters of public record” and consider them without convert-
ing a Rule 12 motion into one for summary judgment. Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (inter-
nal quotation marks and citation omitted). Judicial notice is
appropriate for records and “reports of administrative bodies.”
Interstate Natural Gas Co. v. S. Cal. Gas Co., 209 F.2d 380,
385 (9th Cir. 1954). The district court considered the DOE
Study, which is clearly a “report[ ] of [an] administrative
bod[y].” Id. Further, it referred to the report only as back-
ground material, without relying on it to resolve any factual
dispute. We therefore conclude that the district court did not
abuse its discretion in taking judicial notice of the DOE Study
for the limited purpose for which the court considered it.
UNITED STATES v. SAWYER 7275
E. The District Court’s Sua Sponte Summary
Judgment
[11] The district court did not err in granting summary
judgment sua sponte. “Sua sponte grants of summary judg-
ment are only appropriate if the losing party has ‘reasonable
notice that the sufficiency of his or her claim will be in
issue.’ ” Greene v. Solano County Jail, 513 F.3d 982, 990 (9th
Cir. 2008) (quoting Buckingham v. United States, 998 F.2d
735, 742 (9th Cir. 1993)). “Notice need not be explicit. . . .
A party is ‘fairly appraised’ that the court will in fact be
deciding a summary judgement [sic] motion if that party sub-
mits matters outside the pleadings to the judge and invites
consideration of them.” In re Rothery, 143 F.3d 546, 549 (9th
Cir. 1998) (internal citations omitted). Sawyer met this condi-
tion by submitting two declarations outside the pleadings in
support of his opposition to the government’s motion, and he
had a fair opportunity to contest the issues decided in the
motion. See id. More fundamentally, with the exception of
just compensation, Sawyer never raised any issue that
required resolution of any question of fact. See supra. As a
consequence, when Sawyer eventually entered into a stipula-
tion with the government with respect to compensation, he
effectively removed the only factual issue before the court.
The district court did not err in granting summary judgment
sua sponte.5
5
We also reject Sawyer’s contention that the court’s ability to enter
judgment on the pleadings was necessarily confined to Sawyer’s affirma-
tive defenses and could not reach his denial of the allegations contained
in the complaint. The government moved for—and the district court
granted—“judgment on the pleadings on the issue of the government’s
right to take in this action.” (emphasis added). Thus, the government’s
motion encompassed both affirmative defenses and the allegations in the
Answer.
7276 UNITED STATES v. SAWYER
F. Apportionment of Just Compensation
[12] Finally, the district court did not abuse its discretion
in apportioning the total compensation by accepting at face
value the ownership information provided by the government.
See United States v. 1.377 Acres of Land, 352 F.3d 1259,
1269 (9th Cir. 2003) (“[T]he apportionment is left to either
the discretion of the court, or the allocation agreed upon by
the parties in a contract.”). “The ‘undivided fee rule’ essen-
tially operates by permitting the governmental authority to
condemn property by providing just compensation, then
allowing the respective interest holders to apportion the award
among themselves, either by contract or judicial interven-
tion.” Id. In the absence of a contractual agreement among the
property owners, it was proper for the district court to appor-
tion the total amount of compensation by “judicial interven-
tion.” Id. Nor do we find an abuse of discretion in the district
court’s deference to the ownership information provided by
the government where, as here: (1) no defendant objected to
the court’s apportionment or presented conflicting ownership
data, and (2) the court has provided an opportunity for
unknown fractional owners to obtain their share of the award
at a later time.
CONCLUSION
The district court did not err in granting summary judgment
in favor of the United States or apportioning the compensa-
tion among the defendants. The judgment of the district court
is
AFFIRMED.