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 No. 05-17347

HOSPITAL FOR CRIPPLED CHILDREN; D.C. No.

DAVID C. WHITLOCK; EDWARD H. CV-03-06019-REC/

MARSELLA; HENRY SCHAFER, Jr.; LJO

SHARON CECILE PECKINPAH; SHARON ORDER CECILE MARCUS aka Sharon Cecile AMENDING Peckinpah; FERN L. PETER, LOLA OPINION AND A. SWANSON; FLORENCE F. CLASS;

 DENYING THE CLARENCE E. BERNHAUER, JR.; JANE PETITION FOR WHITLOCK STILES; NORMA B. PANEL GIBBS; JUNE E. LUCAS; IRENE REHEARING AND MARLEY; HENRY SCHAFER, SR.; PETITION FOR DENVER C. PECKINPAH; SUSAN JANE REHEARING PECKINPAH; AGNES H. VIGNOLA;

EN BANC AND DONG SHE MAR; BESSIE E. AMENDED BERNHAUER; LEONARD P. LEBLANC;

OPINION IVONE M. CARLSON; ELVIRA

MOSHER; LORRAINE S.

EICHENBERGER; ELEANOR C. HICKS;

TRUSTEE PETER FRECHOU; KATHRYN

MCAFEE; TRUSTEE JOHN C. RICKSEN

KATHRYN BROWN; 

14889
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. 

14890 UNITED STATES v. SAWYER
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

Amended October 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 14891
COUNSEL

Bruce Leichty, Clovis, California, for the defendantsappellants.

Douglas R. Wright, United States Attorney, Department of

Justice, Environment & Natural Resources Division, Washington, D.C., for the plaintiff-appellee. 

UNITED STATES v. SAWYER 14893
ORDER

The opinion filed June 24, 2008, slip op. 7271, and appearing at 530 F.3d 883 (9th Cir. 2008), is amended as follows:

At slip op. at 7271, delete the full paragraph (beginning “In

any event . . .”) and its accompanying footnote 3, and substitute therefor the following two paragraphs: 

In any event, the Supremacy Clause, Article VI,

clause 2, of the United States Constitution forecloses

Sawyer’s noncompliance argument. Because WAPA

is an agency of the federal government, its activities

“in connection with the construction and operation

of the transmission line in question, are wholly

immune from local control, unless it can be established that Congress has directed that [WAPA] subjects itself thereto.” Maun v. United States, 347 F.2d

970, 974 (9th Cir. 1965). We have accordingly

required federal agencies seeking to condemn easements to construct power transmission lines to comply with state and local siting requirements where

the Congress’ authorization expressly required such

compliance. See id. at 975 (requiring Atomic Energy

Commission to comply with local ordinances in constructing overhead transmission line where the

authorizing statute mandated that “[n]othing in [the

relevant] chapter shall be construed to affect the

authority or regulations of any Federal, State, or

local agency with respect to the generation, sale, or

transmission of electric power produced through the

use of nuclear facilities licensed by the Commission”); cf. Columbia Basin Land Protection Ass’n v.

Schlesinger, 643 F.2d 585, 603 (9th Cir. 1981)

(requiring the Bonneville Power Administration to

comply with the substantive standards of Washington State’s siting act—but not its procedural hurdles

14894 UNITED STATES v. SAWYER
—where an applicable statute expressly required

“compliance with State standards”). 

In this case, however, Sawyer has not pointed to

a comparable unequivocal pronouncement by Congress to overcome the presumption of preemption—

and we could find none. None of the authorizing

statutes discussed earlier in this opinion mandate

compliance with state law. Indeed, the only statutory

provision cited by Sawyer in support of its noncompliance argument is the Reclamation Act of 1902. 43

U.S.C. § 383. Although the Reclamation Act of 1902

does disclaim preemption of state law, it is irrelevant

to this case, for it applies only to the “control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder.” Id.

(emphases added). We therefore conclude that California law is preempted and WAPA is not required

to comply therewith in constructing the

congressionally-authorized Path 15 Upgrade. 

With these amendments, the panel has voted to deny the

appellants’ petition for panel rehearing. Judge Smith has

voted to deny appellants’ petition for en banc rehearing, and

Judges Canby and Larson have so recommended. 

The full court has been advised of the above amendments

and of appellants’ petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35. 

Appellants’ petition for panel rehearing and petition for

rehearing en banc are denied. There are no other pending petitions for panel or en banc rehearing. No further petitions for

panel or en banc rehearing will be entertained. 

UNITED STATES v. SAWYER 14895
OPINION

CANBY, Circuit Judge: 

Pursuant to a 2001 order of the Secretary of Energy, the

Western Area Power Administration (“WAPA”) selected certain land estates in the western portion of the San Joaquin

Valley in California, where it planned to construct a highvoltage transmission line. The United States began condemnation 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 condemned property (collectively “Sawyer”) challenged the government’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 consists 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

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 proj14896 UNITED STATES v. SAWYER
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 mid1980s 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 significant part of the transmission upgrades.” Western Area

Power Administration, FERC Order Accepting Letter Agreement, 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 proceedings in the district court on behalf of WAPA to acquire easements on approximately 14.02 acres of land in western Fresno

County, California. Sawyer filed an answer to the government’s complaint and challenged the condemnation by asserting eight affirmative defenses. The government moved to

strike the affirmative defenses or, in the alternative, for judgment on the pleadings as to its authorization to take. The district 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

$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 lawfulness of the taking. Sawyer disagreed. The district court

then requested supplemental briefing. 

UNITED STATES v. SAWYER 14897
With the benefit of the parties’ briefing, the district court

concluded that no issue remained for trial and granted summary 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 “approximately 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 defendant 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 purpose has been decided, the amount and character of land to be

taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative 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 precedent. 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

1To 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 documentation to the district court. 28 U.S.C. § 2042. 

14898 UNITED STATES v. SAWYER
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 constructing 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, 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). 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 Development Appropriations Act. The Act generally authorized 

the Secretary of Energy . . . to construct or participate 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 nonFederal entities for that purpose. 

Pub. L. No. 98-360, tit. III, 98 Stat. 403, 416 (1984) (codified

at 16 U.S.C. § 837g-1). This enactment clearly conferred discretion 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, eviUNITED STATES v. SAWYER 14899
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 transmission 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] Memorandum, to serve the needs of the Department of Energy laboratories 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 CaliforniaOregon Transmission Project, 50 Fed. Reg. 421 (Dec. 24,

1984). Thus, we have little doubt that, as early as the mid1980s, Congress had authorized the Path 15 Upgrade. 

Although construction of the Path 15 Upgrade did not progress beyond the planning stages in the 1980s and 1990s, in

2001, the House Appropriations Committee again proposed

special funding to “complete the planning and environmental

studies to support the proposed 84-mile, 500-kilovolt transmission 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]onreimbursable funding of $1,328,000 . . . to complete planning

14900 UNITED STATES v. SAWYER
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 mentioned the Path 15 Upgrade since 2001, Congress has implicitly reaffirmed its authorization by funding WAPA through

general appropriations “[f]or carrying out the functions authorized by title III, section 302(a)(1)(E) of the Act of August 4,

1977 (42 U.S.C. 7152).” Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, 117 Stat. 11, 152 (2003). These

functions, in turn, encompass “the construction . . . of transmission lines and attendant facilities,” which is the essence of

the Path 15 Upgrade.2 42 U.S.C. § 7152(a)(1)(D). We therefore 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

2Sawyer’s discussion of the Flood Control Act of 1944 and its restriction 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. 

UNITED STATES v. SAWYER 14901
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 Secretary’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 construction 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 participate 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 condition. See United States v. 80.5 Acres of Land, 448 F.2d 980,

983 (9th Cir. 1971) (“[T]he necessity of taking or appropriating private property for public use is legislative in nature and

one over which the courts lack jurisdiction.”). 

B. The “Public Use” Requirement Under the Takings

Clause

[4] We must next decide whether the Path 15 Upgrade satisfies the “public use” requirement of the Takings Clause

14902 UNITED STATES v. SAWYER
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 jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny 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 compensation.” Id. at 477. At the same time, the Court has long abandoned 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 associated land that is the most significant part of the transmission

upgrades.” Id. Further, in its 1985 appropriations and mandate

to the Secretary of Energy to expand the Pacific NorthwestCalifornia Intertie, Congress specified that “sufficient capacity shall be reserved . . . to serve the needs of the Department

of Energy laboratories and wildlife refuges in California.”

UNITED STATES v. SAWYER 14903
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 condemnation 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 Sawyer 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 objections and defenses not stated in its answer. No other pleading

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 California law in the Answer, we affirm the district court’s waiver

ruling. 

14904 UNITED STATES v. SAWYER
In any event, the Supremacy Clause, Article VI, clause 2,

of the United States Constitution forecloses Sawyer’s noncompliance argument. Because WAPA is an agency of the

federal government, its activities “in connection with the construction and operation of the transmission line in question,

are wholly immune from local control, unless it can be established that Congress has directed that [WAPA] subjects itself

thereto.” Maun v. United States, 347 F.2d 970, 974 (9th Cir.

1965). We have accordingly required federal agencies seeking

to condemn easements to construct power transmission lines

to comply with state and local siting requirements where the

Congress’ authorization expressly required such compliance.

See id. at 975 (requiring Atomic Energy Commission to comply with local ordinances in constructing overhead transmission line where the authorizing statute mandated that

“[n]othing in [the relevant] chapter shall be construed to

affect the authority or regulations of any Federal, State, or

local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear

facilities licensed by the Commission”); cf. Columbia Basin

Land Protection Ass’n v. Schlesinger, 643 F.2d 585, 603 (9th

Cir. 1981) (requiring the Bonneville Power Administration to

comply with the substantive standards of Washington State’s

siting act—but not its procedural hurdles—where an applicable statute expressly required “compliance with State standards”). 

[6] In this case, however, Sawyer has not pointed to a comparable unequivocal pronouncement by Congress to overcome

the presumption of preemption—and we could find none.

None of the authorizing statutes discussed earlier in this opinion mandate compliance with state law. Indeed, the only statutory provision cited by Sawyer in support of its

noncompliance argument is the Reclamation Act of 1902. 43

U.S.C. § 383. Although the Reclamation Act of 1902 does

disclaim preemption of state law, it is irrelevant to this case,

for it applies only to the “control, appropriation, use, or distribution of water used in irrigation, or any vested right

UNITED STATES v. SAWYER 14905
acquired thereunder.” Id. (emphases added). We therefore

conclude that California law is preempted and WAPA is not

required to comply therewith in constructing the

congressionally-authorized Path 15 Upgrade. 

II. Procedural Challenges 

Sawyer also advances a number of procedural challenges

that, he contends, require us to reverse the judgment of the

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 diligent 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 services of an outside title investigator and, in the end, even

attempted to cooperate with the defendants in an effort to

14906 UNITED STATES v. SAWYER
identify all interest owners. We conclude that the government

has easily met the burden imposed by Rule 71.1(c).3

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 appearance 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 requirement 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 government was not required to serve non-objecting defendants

3To 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 14907
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 Sawyer’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).

But the “conditions and predicates” to which Sawyer alludes

are not “allegations of fact.” Id. They are either nonreviewable discretionary determinations—as in the case of the “necessity” 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 background 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 converting a Rule 12 motion into one for summary judgment. Lee v.

City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks and citation omitted). Judicial notice is

14908 UNITED STATES v. SAWYER
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 background 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. 

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 judgment 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 submits 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 condition 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 stipulation 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.

4

4We also reject Sawyer’s contention that the court’s ability to enter

judgment on the pleadings was necessarily confined to Sawyer’s affirmaUNITED STATES v. SAWYER 14909
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’ essentially 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 intervention.” Id. In the absence of a contractual agreement among the

property owners, it was proper for the district court to apportion the total amount of compensation by “judicial intervention.” 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 compensative 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. 

14910 UNITED STATES v. SAWYER
tion among the defendants. The judgment of the district court

is 

AFFIRMED.

UNITED STATES v. SAWYER 14911