FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRANSWESTERN PIPELINE COMPANY, 

LLC, a Delaware limited liability

company,

Plaintiff-Appellee,

v.

17.19 ACRES OF PROPERTY LOCATED

IN MARICOPA COUNTY, more of No. 09-16850

less; FIRST NATIONAL BANK OF D.C. No. OLATHE, a Kansas corporation; J.  2:08-cv-00033-JWS LAWRENCE MCCORMLEY; UNKNOWN

OWNERS, OPINION

Defendant,

and

AGUA FRIA INVESTMENTS, LLC, a

Delaware limited liability

company,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

John W. Sedwick, District Judge, Presiding

Submitted November 5, 2010*

San Francisco, California

Filed December 8, 2010

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

19623
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit

Judges, and Edward R. Korman, Senior District Judge.**

Opinion by Judge Ikuta

**The Honorable Edward R. Korman, Senior United States District

Judge for the Eastern District of New York, sitting by designation. 

19624 TRANSWESTERN v. AGUA FRIA
COUNSEL

Steven A. Hirsch, Bryan Cave LLP, Phoenix, Arizona, for

defendant-appellant Agua Fria Investments LLC.

John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix,

Arizona, for plaintiffs-appellees Transwestern Pipeline Co.,

LLC.

OPINION

IKUTA, Circuit Judge:

The Uniform Relocation Assistance and Real Property

Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655

TRANSWESTERN v. AGUA FRIA 19625
(the Act) sets forth procedures for land acquisitions by certain

federal and federally assisted programs. Among other things,

the Act allows a landowner to seek reimbursement of specified costs and fees incurred in connection with a condemnation proceeding instituted by a “Federal agency” (as defined)

if “the [condemnation] proceeding is abandoned by the United

States.” Id. § 4654(a)(2). This case requires us to determine

whether the term “United States,” as used in § 4654(a)(2),

includes a private entity prosecuting a condemnation action

under the authority granted by the Federal Electric Regulatory

Commission (FERC). We hold that it does not, and therefore

affirm the decision of the district court.

I

Transwestern Pipeline Company, LLC (Transwestern)

sought and received permission from FERC to construct a

natural gas pipeline across some 897 properties in central Arizona. The affected properties included land owned by Agua

Fria Investments, LLC (Agua Fria). After a district court held

that Transwestern could not take immediate possession of

Agua Fria’s property under a proposed “quick take” procedure, Transwestern entered into settlement discussions with

Agua Fria. At the same time, Transwestern commenced condemnation proceedings. Agua Fria rejected each of Transwestern’s many purchase offers and litigated aggressively in

opposition to Transwestern’s attempt to condemn its property.

Ultimately, Transwestern determined it could complete the

pipeline more quickly if it changed the proposed route to

avoid Agua Fria’s property. After FERC approved the alteration to the pipeline route, Transwestern moved for a voluntarily dismissal of its condemnation action, and the district

court granted the motion.

Agua Fria then filed a motion seeking reimbursement for

its litigation fees and costs under 42 U.S.C. § 4654(a)(2),

which provides that in a “proceeding instituted by a Federal

19626 TRANSWESTERN v. AGUA FRIA
agency to acquire real property by condemnation,” a district

court “shall award the owner” specified costs and fees “if . . .

(2) the proceeding is abandoned by the United States.”

1

 The

district court denied the motion, and Agua Fria timely

appealed.

II

On appeal, Agua Fria claims it is entitled to costs and fees

under § 4654(a)(2) because Transwestern abandoned its condemnation action against Agua Fria’s property and Transwestern should be deemed to be the “United States” in this

context. In order to establish that Transwestern is equivalent

to the “United States” for purposes of § 4654(a)(2), Agua Fria

makes a three-step argument. First, Agua Fria notes that

§ 4601, which defines terms used in the Act, provides that

“Federal agency” includes “any person who has the authority

to acquire property by eminent domain under Federal law.” 42

U.S.C. § 4601(1).2 Second, Agua Fria argues, because § 4601

1

42 U.S.C. § 4654(a) provides in full: 

(a) Judgment for owner or abandonment of proceedings 

The Federal court having jurisdiction of a proceeding instituted

by a Federal agency to acquire real property by condemnation

shall award the owner of any right, or title to, or interest in, such

real property such sum as will in the opinion of the court reimburse such owner for his reasonable costs, disbursements, and

expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if— 

(1) the final judgment is that the Federal agency cannot

acquire the real property by condemnation; or 

(2) the proceeding is abandoned by the United States. 

2

42 U.S.C. § 4601(1) provides in full: 

As used in this chapter — 

(1) The term “Federal agency” means any department,

agency, or instrumentality in the executive branch of the

Government, any wholly owned Government corporation,

the Architect of the Capitol, the Federal Reserve banks and

branches thereof, and any person who has the authority to

acquire property by eminent domain under Federal law. 

TRANSWESTERN v. AGUA FRIA 19627
does not define “United States,” we must use the plain meaning of this term, which includes federal agencies. Agua Fria

concludes that because the term “United States” includes federal agencies, and the term “Federal agencies” includes private persons, the term “United States” must include private

persons.

[1] We disagree with the last step of Agua Fria’s analysis.

When determining statutory meaning, we look first to the

plain meaning of the text. Paul Revere Ins. Grp. v. United

States, 500 F.3d 957, 962 (9th Cir. 2007). “[U]nless otherwise

defined, words will be interpreted as taking their ordinary,

contemporary, common meaning.” Perrin v. United States,

444 U.S. 37, 42 (1979). “When determining the plain meaning of language, we may consult dictionary definitions.” AfCap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080,

1088 (9th Cir. 2007). Taking its ordinary, common meaning,

the term “United States” means our nation, located primarily

in North America, which acts through our federal form of

government. The dictionary definitions are consistent with

this common understanding. See, e.g., 19 Oxford English Dictionary 79-80 (J.A. Simpson & E.S.C. Weiner eds., 2d ed.

1989) (definition 1b: “The Republic of North America”);

Black’s Law Dictionary 1675 (9th ed. 2009) (“A federal

republic . . . made up of 48 coterminous states, plus the state

of Alaska and the District of Columbia in North America,

plus the state of Hawaii in the Pacific.”).3

[2] The Act does not define the term “United States” and

does not indicate that we are to read the special definition of

“Federal agency” from § 4601(1) into the term “United

States.” Accordingly, we decline to do so, and adhere instead

to the common understanding of the term “United States.”

3We may rely on Black’s Law Dictionary “to determine the common

sense meaning of statutory language.” Ariz. Health Care Cost Containment Sys. v. McClellan, 508 F.3d 1243, 1250 n.9 (9th Cir. 2007) (internal

quotation marks omitted). 

19628 TRANSWESTERN v. AGUA FRIA
Given our interpretation of the term, the landowner’s right to

costs and fees is triggered only when the federal government

abandons a condemnation proceeding, not when a private

entity such as Transwestern does so, even if that private entity

is exercising federally granted condemnation power.4

Agua Fria contends that Tennessee Gas Pipeline Co. v. 104

Acres of Land, 828 F. Supp. 123 (D.R.I. 1993), aff’d in part

and vacated in part on other grounds, 32 F.3d 632 (1st Cir.

1994), supports its contention that the term “United States”

includes Transwestern for purposes of § 4654(a)(2). We disagree. In Tennessee Gas, a private gas company, acting under

FERC’s authority to acquire property for a pipeline, dismissed

a condemnation proceedings it had brought against a landowner after FERC approved a change in the pipeline’s route.

Id. at 124-25. The district court held that, under these circumstances, it would deem FERC to have abandoned the proceedings for purposes of § 4654(a)(2). Id. at 128. The court

therefore concluded that the landowner was entitled to litigation costs and fees under § 4654(a)(2) “whether or not Tennessee Gas is an entity within the term ‘United States’ as used

in the statute.” Id. In other words, Tennessee Gas avoided the

very point Agua Fria claims it supports.5

“If the plain meaning of the statute is unambiguous, that

meaning is controlling and we need not examine legislative

history as an aid to interpretation unless the legislative history

clearly indicates that Congress meant something other than

what it said.” Greenwood v. CompuCredit Corp., 615 F.3d

1204, 1207 (9th Cir. 2010) (quoting Carson Harbor Vill., Ltd.

4Given our holding that Transwestern is not the “United States” for purposes of § 4654(a)(2), we need not reach Agua Fria’s argument that a district court lacks discretion to deny an award of litigation costs and fees to

a landowner that meets the criteria of § 4654(a). 

5Agua Fria does not argue here that FERC should be deemed to be the

party that abandoned the condemnation proceedings, so we do not address

this issue. 

TRANSWESTERN v. AGUA FRIA 19629
v. Unocal Corp., 270 F.3d 863, 877 (9th Cir. 2001) (en banc))

(internal quotation marks omitted). Agua Fria has not pointed

to any legislative history that contradicts the plain language of

the statute. Rather, the House Report on which Agua Fria

relies indicates that § 4654(a) was intended to reimburse

property owners for fees and costs incurred “where (1) the

court determines that a condemnation was unauthorized, [or]

(2) the government abandons a condemnation.” H.R. Rep. No.

91-1656, 91st Cong. 2d Sess., reprinted in 1970

U.S.C.C.A.N. 5850, 5874-75 (emphasis added). This interpretation is consistent with the plain language of the statute and

does not suggest that Congress intended to make fees and

costs available when a private party abandons a proceeding.

Further, Congress made no changes to the term “United

States” in § 4654(a)(2) when it changed the definition of

“Federal agency” to include private persons. See Uniform

Relocation Act Amendments of 1987, Pub. L. No. 100-17,

§ 402, 101 Stat. 132, 246. Had Congress wished to include

private persons in the meaning of the term “United States,” it

clearly knew how to do so. See Landgraf v. USI Film Prods.,

511 U.S. 244, 255-56 (1994). 

Because we adhere to the plain meaning of the term

“United States” in § 4654(a)(2), and that term does not

include private entities, we affirm the district court’s denial of

Agua Fria’s motion for litigation costs and fees.6

AFFIRMED.

6For the first time on appeal, Agua Fria argues that it is entitled to

recovery under 42 U.S.C. § 4654(a)(1), which authorizes a fee award to

a landowner in cases where “the final judgment is that the Federal agency

cannot acquire the real property by condemnation.” Id. It did not raise this

argument in the district court, however, and we therefore decline to consider it here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); In

re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989). 

19630 TRANSWESTERN v. AGUA FRIA