## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 26 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CITY OF STILWELL, OKLAHOMA, a municipal corporation, Plaintiff-Appellee,

v. OZARKS RURAL ELECTRIC COOPERATIVE CORPORATION, Defendant-Appellant, and RURAL ELECTRIC COMPANY, United States of America (ex rel.); NATIONAL RURAL UTILITIES COOPERATIVE FINANCE CORPORATION, Defendants. No. 97-7104

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 94-CV-293-S)
Lloyd E. Cole, Jr., Stilwell, Oklahoma, for Plainti ff-Appellee. Patrick D. Shore (John R. Eldridge, III of Burke & Eldridge, P.A., Fayetteville, Arkansas, with him on the briefs) of Derryberry, Qu igley, Solomon & Naifeh, Oklahoma City, Oklahoma, for Defendant-Appellant.-2-

Before BRORBY, BARRETT and EBEL , Circuit Judges.

BRORBY , Circuit Judge.

This appeal involves a dispute over the calculation of just compensation in a condemnation proceeding under Oklahoma law, and w hether the commissioners appointed by the district court and charged with ca lculating damages qualify as “disinterested” parties. Appellee, the City of Sti lwell, 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 pow er distribution cooperative, appeals the district court’s order confirming the C ommissioners’ Report establishing damages the City of Stilwell must pay Ozarks for the condemned facilities. We exercise jurisdiction pursuant to 2 8 U.S.C. § 1291, and affirm.

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 Stilwe ll sought to condemn Ozarks’1 Okla. Stat. tit. 18, § 437.2(k) states if a:

city, town or village ... owns and operates a syste m for the furnishing of electric energy to its inhabitants, the cooperat ive furnishing electric energy in such area shall transfer to such city, town or village, upon its request, the cooperative's electr ic distribution facilities used in furnishing electric energy in sa id area, other than facilities used in furnishing electric energy for r esale or to premises of the cooperative, subject, however, to the follow ing requirement: The city, town or village shall pay to the cooperat ive an amount to compensate the cooperative for the fair value of th e cooperative's facilities to be acquired by the city, town or vill age. If such cooperative and city, town or village cannot agree upon the amount to be paid to the cooperative, the city, town or vi llage is authorized to file a proceeding in the district court of the c ounty in which such city, town or village, or any part thereof, is located, for the acquisition of the cooperative's electric distribut ion facilities used in furnishing electric energy in said area, other than facilities used in furnishing electric energy for resale or to premise s of the cooperative, and the procedure followed and the met hod of ascertaining just compensation to be paid the coope rative will be as provided in Article 2, Section 24, of the Oklahoma Constitution and Sections 53 to 58, inclusive, of Title 66 of the Ok lahoma Statutes.

-3- facilities and commence operation of its municipal electrical utility within the newly-annexed territory. The Oklahoma statute allo ws 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 t he city should pay for Ozarks’ facilities, the City of Stilwell co mmenced this action in Adair County, Oklahoma, for a judicial determination of just compensation. See Okla.2The Rural Electrification Administration is now k nown as the Rural

Utilities Service.

3 The Rural Electrification Administration and Nati onal Rural Utilities Cooperative Finance Corporation provide financing and other services to rural electric cooperatives. Both of these entities are secured creditors of Ozarks, holding mortgage interests in its facilities.

-4- 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 Corpor ation as parties to the lawsuit. 3

Following removal, Ozarks filed a motion for summary judgment. The district court granted the motion, finding federal law preempted the City of Stilwell’s proposed condemnation of Ozarks’ facilit ies 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 findi ng no clear federal preemption of the states’ traditional authority under the police power to regulate utilities. Id.-5-

at 1044.

After this court remanded the case, the district co urt continued the condemnation proceedings. It appointed commissione rs and instructed them to determine the amount the City of Stilwell owed to O zarks in damages for the condemnation of its facilities. After completing their analysis, the commissioners filed a report on February 18, 1997, recommending O zarks receive $1,515,000 as just compensation for the taking. This figure incl uded $170,000 for facilities, $1,200,000 in lost revenue, $26,000 for stranded co sts, and $119,000 for reintegration expenses. The commissioners included no amounts for either the value of the territory or the going concern value o f the facilities. Ozarks subsequently filed objections to the Commissioners’ Report, and the district court held an evidentiary hearing on the matter. Followi ng the hearing, the district court issued an order denying Ozarks’ objections an d confirming the Commissioners’ Report. Although Oklahoma law entit led 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 ju ry trial, only the district court’s confirmation of the Commissioners’ Report.

Ozarks argues that in approving and adopting the Co mmissioners’ Report,4In its brief, Ozarks claims the commissioners fai led to follow the

calculation method and manner prescribed by the dis trict court but does not elaborate further. We will not address a conclusory allegation without further support. An issue listed but not argued is waived. See Abercrombie v. City of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990). -6- the district court erred in several ways. First, i t contends the commissioners appointed by the court to calculate just compensati on 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 notutilizing 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 rei ntegration costs because the court should require the City of Stilwell to condem n all Ozarks’ facilities within the city limits. Finally, Ozarks challenges the Co mmissioners’ Report for failing to include the value of future revenue streams, “go ing concern” and lost service territory, and revenue losses of KAMO Electric Coop erative (KAMO) – Ozarks’ power supplier. 4

For purposes of our review, we treat the district c ourt’s order confirming the Commissioners’ Report as we would a judgment su staining a jury verdict. See United States v. Wallace , 201 F.2d 65, 67 (10th Cir. 1952) (finding commissioners appointed under federal law to determ ine just compensation in a5 The City of Stilwell is “authorized to file a pro ceeding in the district

court of the county” for the determination of just compensation under the method and procedures outlined in Okla. Const. Art. II, § 24 and Okla. Stat. tit. 66, §§ 53 through 58. Okla. Stat. tit. 18, § 437.2(k). The constitutional and statutory provisions cross-referenced in § 437.2(k) govern th e appointment of commissioners.

-7- condemnation proceeding, serve the function of a ju ry because the proceeding before the commissioners is quasi-judicial in natur e). In the context of this diversity action, Oklahoma law controls the substantive issues involved. Barrett v. Tallon , 30 F.3d 1296, 1300 (10th Cir. 1994) (ruling feder al courts sitting in diversity should apply the substantive law of the f orum state, including choice of law rules).

Appointment of the Commissioners The district court appointed commissioners to asses s damages for the City of Stilwell’s taking of Ozarks’ electric distributi on facilities because the parties could not agree on a fair price for the transfer. 5 In situations where the parties cannot agree, Oklahoma law calls for a calculation of just compensation by a board of at least three “disinterested freeholders” selected from the regular jury list as prescribed by the legislature. Okla. Const . Art. II, § 24; Okla. Stat. tit. 66, § 53(A). In conformity with the state law procedur es, the district court appointed three commissioners to make the appraisal. Each of the commissioners the court6The term “owner-member” is somewhat misleading inthis instance. On

its face, it implies the owner-member holds some su bstantial interest in the financial success of the cooperative. However, in this case, the term “ownermember” merely designates a customer of the cooperative. As owner-members of Ozarks, the commissioners received no dividend inco me or share of profits.

-8- selected resided in Adair County, received electric service from Ozarks, and was considered an owner-member of Ozarks Electric Cooperative Corporation. 6 Additionally, two of the commissioners also had ind irect ties to the City of Stilwell Electric Utility. One worked as a managerof a bank in the City of Stilwell, which received its electric service from the city, and the other owned rental property in the City of Stilwell, which also received electric service from the City of Stilwell Electric Utility.

Ozarks argues the district court improperly appoint ed commissioners from among the residents of Adair County because virtual ly every resident in the county is either an owner-member of Ozarks or a cus tomer of the City of Stilwell Electric Utility with a pecuniary interest in the o utcome of the appraisal. According to Ozarks, this pecuniary interest in the outcome of the damages calculation requires the court to presume bias and disqualify the commissioners.

We agree with Ozarks that bias or prejudice is ofte n an elusive condition-9-

of the mind, and the law sometimes requires a presu mption of partiality – even in the absence of actual proof – if the mere potential for a conflict of interest exists. Nevertheless, the decision to apply this presumptio n remains within the discretion of the court. See Gonzales v. Thomas , 99 F.3d 978, 987 (10th Cir. 1996) (applying this proposition in the context of juror selection), cert. denied , 117 S. Ct. 1342 (1997). We find – in the context of selec ting commissioners – the court’s decision about whether implied bias exists should turn on an objective legal evaluation of the challenged commissioners’ “ experiences and their relation to the case.” Id . (citation omitted). The district court must dete rmine whether the commissioners “may have such a close connection to the circumstances at hand that bias must be presumed.” Id . Accordingly, we will not disturb the court’s appointments absent some evidence of error causing harm to Ozarks.

Our review of the law and the record leaves us unpe rsuaded that the court abused its discretion in appointing the commissione rs. We do not interpret Oklahoma law to require the commissioners to posses s the level of complete and absolute impartiality Ozarks claims. Such an infle xible interpretation of the statute would disqualify virtually every person in Adair County from serving as a commissioner merely because of his or her status as either a customer of the City of Stilwell Electric Utility or owner-member of Ozarks. This is an unnecessary7For the purpose of our discussion of this issue, we assess the

qualifications and competency of the commissioners under the standards applied to jurors because we believe the basic principles g overning the impartiality of jurors are equally applicable to the district court ’s appointment of “disinterested” commissioners.

-10- conclusion. In the context of jury selection, a si tuation analogous to the selection of commissioners, 7we do not automatically exclude a juror simply bec ause he holds an opinion on a particular subject or knows something about the case. See Irvin v. Dowd , 366 U.S. 717, 722-23 (1961) (finding in a world o f “widespread and diverse methods of communication,” courts need not require that jurors be totally ignorant of the facts involved in the case, nor lack preconceived notions about the proper outcome); Brecheen v. Reynolds , 41 F.3d 1343, 1351 (10th Cir. 1994), cert. denied , 515 U.S. 1135 (1995). Instead, the goal of our s ystem is to find a juror who “can lay aside his impression or o pinion and render a verdict based on the evidence presented.” Irvin, 366 U.S. at 723. The court asked the commissioners to perform a task, which they swore an oath to execute “impartially and justly” under Okla. Stat. tit. 66, § 53(C). We assume, absent compelling evidence to the contrary, the commission ers faithfully performed their task and acted without personal bias or improper mo tivation.

Additionally, even if we found the commissioners he ld an “interest” in this-11-

proceeding, it is so tenuous that the district court did not abuse its discretion in refusing to imply any bias. Even reading the recor d most favorably to Ozarks’ position, we find the commissioners’ assessment in the condemnation proceeding will only modestly affect the rates Ozarks and the City of Stilwell charge their customers for electric service. Since Ozarks’ basi s for alleging prejudice is so attenuated, the presumption of bias is unnecessary. See, e.g., Smith v. Phillips , 455 U.S. 209, 221-22 (1982) (O’Connor, J., concurri ng) (finding implied bias appropriate only in extreme and exceptional situati ons where a party is subjected to “manifestly unjust procedures resulting in a miscarriage of justice”); United States v. Bradshaw , 787 F.2d 1385, 1390 (10th Cir. 1986) (finding a j uror’s prior business dealings with a key witness in the trial “ does not compel an imputation of inherent bias to the juror as a matter of law”) (internal quotations omitted). Absent more compelling proof of the commissioners’ pecuniary interest in the outcome of their appraisal, we find Ozarks’ unsubst antiated assertion insufficient to show the district court erred, or that Ozarks su ffered any harm from the court’s decision. See Arkansas Louisiana Gas Co. v. Maggi , 409 P.2d 369, 370-71 (Okla. 1965) (ruling that in condemnation proceedin gs, irregularities connected with the appointment of appraisers must be prejudic ial to the right of a party asserting error to merit reversal).-12-

Examining this case in retrospect, we find perhaps the district court should have gone outside the county to find citizens to se rve as “disinterested” commissioners. However, for the reasons stated abo ve, we hold the court did not abuse its discretion in appointing commissioners fr om Adair County. Any interest in the outcome, based upon the record, wou ld be minuscule.

Challenges to the Commissioners’ Report Ozarks asserts the district court erred in adopting the Commissioners’ Report because it allegedly contained several mistakes in the calculation of just compensation. In order to address these claims, we first examine the process the commissioners used to calculate damages, and then a ddress Ozarks’ arguments in turn. For purposes of our review of damages establ ished in the Commissioners’ Report, we treat the report as a final jury verdict . Accordingly, we will not substitute our judgment for that of the duly appoin ted commissioners, and we are hesitant to disturb their report unless unsupported by competent evidence. City of McAlester v. Delciello , 412 P.2d 623, 627 (Okla. 1966); Eberle v. Dep’t of Highways , 385 P.2d 868, 872 (Okla. 1963).

1. Damages Calculation Before making their damages calculation, the commis sioners toured the-13-

property subject to condemnation in the presence of representatives from both Ozarks and the City of Stilwell, and consulted with experts provided by both parties. After these meetings and presentations, t he commissioners met in private to assign monetary values to various factors as ins tructed by the district court. The commissioners ultimately calculated $1,515,000 as the amount of just compensation for the taking.

In order to calculate the final amount, the commiss ioners first estimated the value of facilities and properties acquired at $170 ,000. The commissioners adopted this figure from a document submitted by th e City of Stilwell containing a detailed listing all of the facilities it plannedto acquire, including the number of poles, transformers, meters, and wire. In this document, the City of Stilwell set the value of the condemned facilities and prope rty at $295,000. The commissioners reduced this figure by forty-three pe rcent to reflect the applicable depreciation and arrive at the final amount of $170 ,000.

Next, the commissioners calculated lost revenue at $1,200,000. The commissioners arrived at this figure by examining the revenue history Ozarks provided for the years 1993-1996, and computing an average annual gross revenue amount based on that data. The commissione rs reduced the gross8The 5.35 percent discount rate reflects Ozarks’ average cost of

borrowing. The commissioners used a two percent gr owth rate based on figures provided by the City of Stilwell, even though Ozark s experienced a decline in revenue through the years 1993-1996. The commissio ners assumed, for the purposes of their calculation, Ozarks was entitled to the same growth rate as the City of Stilwell.

-14- revenue figure by seventy percent to reflect the co st of power and by an additional fifteen percent to reflect the average r ate of return for utilities in Oklahoma. This left fifteen percent of the average annual income figure as net revenue. The commissioners then computed the prese nt value of the average net revenue to arrive at $83,550. They used this amoun t to calculate the present value of a twenty-year income stream, assuming a gr owth rate of two percent and a discount rate of 5.35 percent, 8 to reach $1,200,000.

Next, the commissioners assigned a value of $26,000 for stranded costs. This amount reflects the cost to Ozarks to reconfig ure its distribution facilities to provide electric service to areas left without serv ice after the City of Stilwell’s proposed expropriation of Ozarks’ existing faciliti es. The commissioners toured the area with representatives from both the City of Stilwell and Ozarks, and found only two small areas left stranded. The comm issioners adopted the $26,000 figure from the City of Stilwell’s expert.-15-

The commissioners then assigned a cost of $119,000 for reintegration. The reintegration cost reflects Ozarks’ estimated cost to reconfigure their system to provide service to remaining customers around the C ity of Stilwell. The commissioners accepted Ozarks’ estimate of this cos t.

The commissioners decided to assign no amount for e ither the value of the territory, or the value of the going concern. The record indicates they assumed the value of the territory was included in their as sessment of lost revenue and the presumed growth rate, and the commissioners deemed the going concern value inappropriate for the ultimate calculation because the City of Stilwell planned to acquire only a portion of Ozarks’ facilities – not the entire service area.

2. Errors Alleged a. Reintegration Costs and Value of Facilities Acq uired Ozarks disputes the accuracy of the Commissioners’ Report for a variety of reasons. First, it argues the Commissioners’ Report drastically underestimates the reintegration costs and the value of facilities and property acquired because it does not contemplate the City of Stilwell’s obligat ion under Okla. Stat. tit. 18, § 437.2(k) to condemn all Ozarks’ facilities within the corporate limits – not just the facilities it wants or needs. Specifically, Oz arks contends the City of Stilwell9Ozarks’ expert estimated the reintegration cost at $959,000 if the City of

Stilwell took the feeder lines, compared to the com missioners’ $119,000 calculation which did not include the added reinteg ration costs associated with the loss of the feeder lines.

-16- must pay for two three-phase feeder lines running w ithin the corporate limits of the city. Ozarks used these feeder lines to servic e customers in the newlyannexed areas of the City of Stilwell prior to the city’s decision to take over the territory, and it continues to use the lines to service its customers outside the corporate limits of the City of Stilwell. The Cityof Stilwell does not want to condemn the feeder lines, because it already mainta ins parallel distribution lines running in the same area and does not need to utili ze Ozarks’ feeder lines to provide service to city customers. If we find Oklahoma law requires the City of Stilwell to condemn these feeder lines, the cost of reconfiguring Ozarks’ power distribution facilities would rise drastically and significantly affect the calculation of damages. 9

We disagree with Ozarks’ construction of Oklahoma l aw and arguments on this point, and find nothing in the language of Okl a. Stat. tit. 18, § 437.2(k) affirmatively requiring the City of Stilwell to tak e all of the electric distribution facilities within the annexed area. The statute on ly requires the City of Stilwell to pay Ozarks “fair value ... for the acquisition o f the cooperative’s electric10We emphasize, however, if the condemnation by the City of Stilwell had

rendered the feeder lines worthless or virtually wo rthless to Ozarks, the City of Stilwell could not have avoided paying the damages associated with taking the feeder lines by arguing it did not want or need the m. Such an argument would contravene traditional principles of eminent domain . The City of Stilwell would have to compensate Ozarks for the loss. We disting uish this present case on its facts, however, because the City of Stilwell did no t actually take the feeder lines, and Ozarks is left with substantial, valuable use o f the facilities.

-17- distribution facilities used in furnishing electric energy in [the annexed] area .” Okla. Stat. tit. 18 §, 437.2(k) (emphasis added). Although we realize this provision of the statute is open to conflicting int erpretations, common sense and equity compel us to construe it to require the cityto pay only for the facilities it takes from the cooperative and uses to provide electric service in the condemned area. Since the City of Stilwell already maintains parallel lines to service customers in the newly-annexed area and does not need to use Ozarks’ feeder lines, we see no reason to interpret the statute to force the City of Stilwell to condemn and pay for the unneeded lines – especially when we consider Ozarks continues to retain substantial, valuable use of th e feeder lines in servicing its rural customers outside the City of Stilwell. 10

We also agree with the district court that general principles of eminent domain law permit the City of Stilwell to select th e facilities it determines are necessary for public use. City of Cushing v. Gillespie , 256 P.2d 418, 420 (Okla.-18-

1953) (allowing a condemnor to voluntarily restrictitself to as much or as little of the property owner’s interest as the public need requires); see also United States v. 20.53 Acres of Land , 478 F.2d 484, 487 (10th Cir. 1973) (stating how much or how little property the condemnor elects to take is a legislative, not a judicial, question and a judicial order should not expand the extent of the taking). The City of Stilwell neither needs the feeder lines to service its customers nor denies Ozarks the right to continue to use the feed er line to serve its customers outside the city limits. Therefore, we are reluctant to require the City of Stilwell to condemn and pay for the facilities.

We are similarly unpersuaded that the City of Stilw ell’s decision to take Ozarks’ facilities and customers within the city li mits will affect Ozarks’ continuing legal authority to use the feeder lines to provide service to its customers. We do not read Oklahoma law to abrogate a rural electric cooperative’s right to use city streets and right-o f-ways for electric distribution purposes after condemnation. The City of Stilwell’ s decision to condemn only selected facilities inside the corporate limits of the city does not, and need not, impact Ozarks’ continuing right to use the remainin g feeder lines to serve its customers outside the City of Stilwell.-19-

Because the condemnation leaves Ozarks undisturbed in its right to use the feeder lines, and Oklahoma law does not require the City of Stilwell to condemn unneeded facilities, we hold the district court didnot err in adopting that portion of the Commissioners’ Report pertaining to reintegr ation costs and the value of facilities taken.

b. KAMO’s Revenue Losses Ozarks also claims the commissioners’ damage calcul ation is flawed because they failed to consider and include an amou nt for the revenue losses suffered by KAMO (Ozarks’ power supplier) as a resu lt of the condemnation. We disagree. Ozarks may not seek compensation on KAMO’s behalf because KAMO is not a party to this action, and even if it was a party, it lacks a compensable interest to assert.

Ozarks’ argument misapplies our prior ruling in City of Stilwell v. Ozarks Rural Elec. Coop. Corp ., 79 F.3d at 1042-43, where we affirmed the distri ct court’s denial of KAMO’s request to intervene. We based our decision in that case on our finding that KAMO held only a contingen t interest in the subject of the City of Stilwell’s condemnation proceedings. A s Ozarks’ power supplier, KAMO stands to “benefit financially if Ozarks is al lowed to continue to service11 The only reason the commissioners considered busi ness revenue at all –

even for the damages payable to Ozarks – was for th e limited purpose of establishing the value of the facilities and territ ory the City of Stilwell condemned, not as an independent compensable intere st.

-20- its customers in Stilwell.” Id . at 1042. However, KAMO’s contingent interest in lost revenue is only a collateral economic harm andnot ordinarily a compensable property interest under general principles of condemnation law. See State Dep’t of Highways v. Bowles , 472 P.2d 896 (Okla. 1970) (affirming the general rule that just compensation does not include damages for loss of business profits); see also United States v. 99.66 Acres of Land , 970 F.2d 651, 658 (9th Cir. 1992) (stating generally, only persons with ownership int erests at the time of taking are entitled to compensation for a taking). 11 Since KAMO is not a party to these proceedings and has no compensable property interes t at stake, we find no error in the Commissioners’ Report excluding any consider ation of lost revenue for purposes of calculating just compensation.

c. Value of Lost Territory and Going Concern Finally, Ozarks argues the district court erred in approving the calculation contained in the Commissioners’ Report because it d id not contain any value for loss of territory or going concern. Although it is difficult to ascertain from its brief, we assume Ozarks is treating these factors a s interrelated and subsumed in-21-

the return on investment factor the commissioners d educted from their calculations. Accordingly, we consider them togeth er.

Under Oklahoma law, “the extent of the range of inq uiry to be permitted regarding the value of property taken or damaged in eminent domain proceedings, is largely in the discretion of the trial court.” Oklahoma Turnpike Auth. v. Williams , 257 P.2d 1052, 1054 (Okla. 1953). Accordingly, w e will set aside an award only if the commissioners fail to co nsider an element of damage for which the law entitles Ozarks to be compensated , or if we find the commissioners’ appraisal is so excessive or inadequ ate that it shocks our sense of justice. However, we will not ordinarily substitut e our judgment for that of the commissioners or set aside an award merely because it is different from the amount we would have given. If substantial evidenc e supports the amount of just compensation the commissioners found, and their con clusion did not result from a mistaken view of law, we will affirm the districtcourt’s adoption of the Commissioners’ Report. See Rose v. Bd. of County Comm’rs , 241 P.2d 399 (Okla. 1952) (holding in a condemnation case if the evidence reasonably supports the verdict of the jury it will not be disturbed on appeal).

However, because the issues of the value of lost te rritory and going12The district court’s order addressed only: (1) w hether the

commissioners’ appointments met the requirements of Oklahoma law, (2) whether KAMO was entitled to compensation for lost revenue, and (3) whether the commissioners assessed sufficient reintegration cos ts.

-22- concern were not raised below or properly preserved for appeal, we decline to reach the merits of Ozarks’ claim. After a thoroug h examination of the record, we are unable to find where Ozarks made its argumen t regarding lost territory, going concern value, or return on investment in any of the proceedings before the district court. Ozarks’ objections to the Commissi oners’ Report contain no direct claim of error with regard to these issues, nor can we find anywhere in the transcript where Ozarks argued these claims during the evidentiary hearing. In its objections to the Commissioners’ Report, Ozarks included only broad, sweeping claims that the commissioners did not comp ly with the directions of the trial court, and that the commissioners did not con sider the value of the lost territory. Such an undefined, nebulous approach to objections does not allow the district court to adequately address the parties’ c ontentions. Indeed, the district court order confirming the Commissioners’ Report co ntains no reference to any of the arguments Ozarks now raises on appeal, 12 presumably because Ozarks failed to articulate any answerable claim with regard to them. In light of Ozarks’ apparent failure to raise these issues in its objec tions to the Commissioners’ Report, we will not conduct a de novo review to consider them for the first time13 Ozarks discussed this issue during oral argument. However, an issue not

adequately briefed will not be considered even thou gh a party attempts to assert the claim during oral argument. Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1547 (10th Cir. 1995).

-23- on appeal. See, e.g., Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (refusing to consider an issue on appeal not raised below); Rademacher v. Colorado Ass’n of Soil Conservation D ists. Medical Benefits Plan , 11 F.3d 1567, 1571 (10th Cir. 1993) (finding issu es raised, but not argued to the district court, “ordinarily will not be cons idered on appeal” (citations omitted). 13

Even if we give Ozarks the benefit of the doubt, co nstrue its arguments broadly, and assume it properly argued and preserve d the issues for appeal, we find insufficient evidence on which to base any obj ection or change to the Commissioners’ Report. Ozarks simply argues the co mmissioners failed to consider certain compensable interests. We find th ese unsupported claims insufficient to allow us to make an informed assess ment regarding the propriety of the Commissioners’ Report. Ozarks asks us to re verse and remand for further proceedings but gives us no basis on which to deter mine whether the commissioners actually committed some reversible error. We will not indulge in speculation, second-guess the report of the commiss ioners, or reverse the district-24-

court, absent citation to record evidence, persuasi ve authority, or compelling argument demonstrating how or why the Commissioners ’ Report undercompensated Ozarks for its facilities. See Deines v. Vermeer Mfg., Co. , 969 F.2d 977, 979-80 (10th Cir. 1992) (if the evidentiary re cord is insufficient to permit assessment of appellant’s claims of error, the court must affirm). Accordingly, we find the district court did not err in approving the Commissioners’ Report as it pertained to the issues of lost territory and go ing concern values.

CONCLUSION For the foregoing reasons, we AFFIRM the district court’s confirmation of the Commissioners’ Report.