Le-Ax Water District v. Athens

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Le-Ax Water District v. No. 02-3016

ELECTRONIC CITATION: 2003 FED App. 0365P (6th Cir.) City of Athens, Ohio

File Name: 03a0365p.06

Ohio, Dennis M. O’Toole, Stephen P. Bond,

BAUMGARTNER & O’TOOLE, Elyria, Ohio, for Amici

UNITED STATES COURT OF APPEALS Curiae.

FOR THE SIXTH CIRCUIT MOORE, J., delivered the opinion of the court, in which

_________________ KEITH, J., joined. GIBBONS, J. (pp. 17-20), delivered a

separate dissenting opinion.

LE -AX WATER DISTRICT, X

Plaintiff-Appellee, - _________________

-

- No. 02-3016 OPINION

v. - _________________

>

, KAREN NELSON MOORE, Circuit Judge. The defendant

CITY OF ATHENS, OHIO , -

Defendant-Appellant. - City of Athens, Ohio (“Athens”) appeals the district court’s

grant of summary judgment and of a declaratory judgment to

N the plaintiff Le-Ax Water District (“Le-Ax”), as well as the

Appeal from the United States District Court district court’s denial of Athens’s own motion for summary

for the Southern District of Ohio at Columbus. judgment. University Estates owns 825 acres of property

No. 00-01328—Algenon L. Marbley, District Judge. outside of, but nearby, both Athens and Le-Ax. Both Athens

and Le-Ax wish to supply water to University Estates, which

Argued: June 12, 2003 seeks to develop its property into a golf-course community.

After University Estates made arrangements for Athens to

Decided and Filed: October 10, 2003 supply the necessary water, Le-Ax, a predominantly rural

water district, brought this lawsuit, claiming that Athens’s

Before: KEITH, MOORE, and GIBBONS, Circuit Judges. agreement to provide water service to University Estates

violated Le-Ax’s rights under 7 U.S.C. § 1926(b). For the

_________________ reasons that follow, we REVERSE the district court’s grant

of summary judgment and of a declaratory judgment to Le-

COUNSEL Ax, and we also REVERSE the district court’s denial of

summary judgment to Athens. We REMAND this case to the

ARGUED: Garry E. Hunter, LAW DIRECTOR, Athens, district court so that it may enter judgment in favor of Athens

Ohio, for Appellant. Orla E. Collier III, BENESCH, and dismiss the case.

FRIEDLANDER, COPLAN & ARONOFF, Columbus, Ohio,

for Appellee. ON BRIEF: Garry E. Hunter, LAW

DIRECTOR, Athens, Ohio, for Appellant. Orla E. Collier III,

BENESCH, FRIEDLANDER, COPLAN & ARONOFF,

Columbus, Ohio, for Appellee. Barry M. Byron, Willoughby,

1

No. 02-3016 Le-Ax Water District v. 3 4 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

I. OVERVIEW state court under OHIO REV . CODE ANN . § 6119.051. In

contrast, Athens has begun the process of changing its

A. Factual History boundaries to include University Estates. On October 16,

2000, Athens’s City Council authorized a development

The Le-Ax Water District is a rural water district that was agreement with University Estates, pursuant to which Athens

created by a judicial order upon a petition filed in the Athens would annex University Estates and provide it with water.

County Court of Common Pleas in 1980, pursuant to OHIO J.A. at 117-22 (Ordinance and Development Agreement).

REV . CODE ANN . § 6119.01. Joint Appendix (“J.A.”) at 71-

72. As a water district, Le-Ax is an independent political Standing in Athens’s way, however, is this lawsuit — for

subdivision of the State of Ohio, governed by OHIO REV . Le-Ax also wishes to supply University Estates with water

CODE ANN . § 6119. Le-Ax’s territory was described in the and claims that 7 U.S.C. § 1926(b) vests Le-Ax with the right

petition approved by that court. to serve University Estates. Although Le-Ax does not

currently supply University Estates with water (the property

Le-Ax, as a rural water district, assumed the debt that its as of yet has no access to water from any supplier) and does

predecessor owed to the United States Department of not currently have lines extending into University Estates’s

Agriculture (“USDA”). As a result, Le-Ax has been indebted territory, Le-Ax claims that it could supply University Estates

to the USDA since its inception. Le-Ax subsequently with water almost immediately. Le-Ax refers to an eight-inch

incurred another debt to the USDA when it sold revenue water main that it owns, which is immediately adjacent to the

bonds to the Rural Economic and Community Development University Estates site. Supplemented by two nearby storage

Service (“RECDS”), which was formerly known as the tanks, the eight-inch transmission line, Le-Ax claims, can

Farmers Home Administration (“FmHA”). Bonds were provide water to University Estates at a rate far exceeding the

issued on February 26, 1997, in the principal amount of estimates of University Estates’s expected usage. A pressure-

$6,844,000 (at 4.5% interest), that will expire on February 1, reducing valve, a tap in, and a pumping station will be

2037. J.A. at 309. The loans were not made in order to help necessary to connect the eight-inch main to University

Le-Ax finance the University Estates project and apparently Estates. However, there was unrebutted testimony that the

have no connection in any way to the University Estates valve is an apparently minor and inexpensive addition and the

transaction. tap-ins and the pumping station (as part of the water apparatus

internal to the site) are to be provided by the developer of the

University Estates owns 825 acres of property, all of which property, not the water supplier. J.A. at 553 (Dep. Test. of

is outside the boundaries of both Le-Ax and Athens. John Collins).

University Estates plans to develop this property into a golf

course and approximately 800 homes. The property is close B. Procedural History

to the boundaries of both Le-Ax and Athens; it borders

Athens on Athens’s northern side, and is, at its closest point, On November 16, 2000, Le-Ax filed this lawsuit in the

1400 feet (roughly one third of a mile) from Le-Ax’s United States District Court for the Southern District of Ohio,

boundary. J.A. at 230 (Aff. of Steven Mullaney). Le-Ax has alleging that the proposed water supply arrangement between

taken no formal steps to change its boundaries to include Athens and University Estates would violate 7 U.S.C.

University Estates’s property, such as by filing a petition in § 1926(b). Upon cross-motions for summary judgment and

No. 02-3016 Le-Ax Water District v. 5 6 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

an in-court hearing, the district court granted summary 306(b), now codified at 7 U.S.C. § 1926(b), protected the

judgment to Le-Ax and issued a declaratory judgment that the recipients of such loans from competition, to a certain extent.

provision of water from Athens to University Estates would The text of section 306(b) reads:

violate 7 U.S.C. § 1926(b). This timely appeal followed.

The service provided or made available through any such

II. ANALYSIS association shall not be curtailed or limited by inclusion

of the area served by such association within the

A. Standards of Review boundaries of any municipal corporation or other public

body, or by the granting of any private franchise for

This court reviews a grant of summary judgment de novo. similar service within such area during the term of such

Bukowski v. City of Akron, 326 F.3d 702, 707 (6th Cir. 2003). loan; nor shall the happening of any such event be the

Although the district court’s denial of a motion for summary basis of requiring such association to secure any

judgment is usually treated as a nonappealable interlocutory franchise, license, or permit as a condition to continuing

order, when “an appeal from a denial of summary judgment to serve the area served by the association at the time of

is presented in tandem with a grant of summary judgment, the occurrence of such event.

this court has jurisdiction to review the propriety of the

district court’s denial of summary judgment.” Hamad v. 7 U.S.C. § 1926(b). This provision prevents local

Woodcrest Condo. Ass’n, 328 F.3d 224, 235 (6th Cir. 2003) governments from expanding into a rural water association’s

(quotation omitted). The district court’s denial of summary area and stealing its customers; the legislative history states

judgment based on purely legal grounds is reviewed de novo. that the statutory provision was intended to protect “the

Id. at 235-36. Summary judgment is appropriate where the territory served by such an association facility against [other]

“pleadings, depositions, answers to interrogatories, and competitive facilities” such as local governments, as

admissions on file together with the affidavits, if any, show otherwise rural water service might be threatened by “the

that there is no genuine issue as to any material fact and that expansion of the boundaries of municipal and other public

the moving party is entitled to a judgment as a matter of law.” bodies into an area served by the rural system.” S. Rep. No.

Fed. R. Civ. P. 56(c). 87-566, at 67 (1962), reprinted in 1961 U.S.C.C.A.N. 2243,

2309.

B. Background to 7 U.S.C. § 1926(b)

The concept of economies of scale is an integral part of

Over forty years ago, Congress passed the Agricultural Act § 306(b)’s rationale; by protecting a rural water association’s

of 1961, Pub. L. No. 87-128, 75 Stat. 294, which sought to customer base, the provision allows such associations to

preserve and protect rural farm life in a number of respects. spread their fixed costs over a large group of users. In so

Title III of the Act (which is known as the Consolidated Farm doing, the statute aims to prevent rural water costs from

and Rural Development Act) was concerned largely with becoming prohibitively expensive to any particular user, to

issues of agricultural credit. Title III contained two sections develop a system providing fresh and clean water to rural

that are at issue here, sections 306(a) and 306(b). Section households, and to protect the federal government as insurer

306(a) of the Act, now codified at 7 U.S.C. § 1926(a), made of the loan. Id. (“By including service to other rural residents,

federal loans available to water service associations. Section the cost per user is reduced and the loans are more secure in

No. 02-3016 Le-Ax Water District v. 7 8 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

addition to the community benefits of a safe and adequate this language in a variety of ways. Different circuits use

supply of running household water.”); see also Lexington–S. different factors to determine whether a water association can

Elkhorn Water Dist. v. City of Wilmore, 93 F.3d 230, 233 (6th invoke the protections of § 1926, including whether the water

Cir. 1996) (stating that the Act “safeguard[s] the financial association has the physical ability to serve the area in

viability of rural associations and Farmers Home question, and whether it has a legal duty or legal right to do

Administration loans” and “encourage[s] rural water so.

development by expanding the number of potential users”).

We have stated that this “provision ‘should be given a liberal To determine whether service was made available, many

interpretation that protects rural water associations indebted courts begin with a “pipes in the ground” or “physical ability”

to the FmHA from municipal encroachment.’” Lexington–S. approach that examines whether the water association has the

Elkhorn, 93 F.3d at 235 (citation omitted). physical means presently to serve the area. This inquiry asks

whether the association can demonstrate “‘that it has adequate

In order to state a claim under § 1926(b), a plaintiff must facilities within or adjacent to the area to provide service to

establish “that 1) it is an ‘association’ within the meaning of the area within a reasonable time after a request for service is

the Act; 2) it has a qualifying outstanding FmHA loan made.’” Sequoyah County Rural Water Dist. No. 7 v. Town

obligation; and 3) it has provided or made service available in of Muldrow, 191 F.3d 1192, 1203 (10th Cir. 1999) (citation

the disputed area.” Adams County Reg’l Water Dist. v. Vill. omitted). The Tenth Circuit has adopted this approach but

of Manchester, 226 F.3d 513, 517 (6th Cir. 2000). The first has also required that the water association have the right

two elements are not in dispute here; the parties agree that Le- under state law to serve the area in question. Id. at 1202 n.8.

Ax is an “association” within the meaning of the Act and that The Eighth Circuit applies this same test, requiring that a

Le-Ax has a qualifying outstanding FmHA loan obligation. water association show both that it has the physical means to

The only element in controversy here is whether Le-Ax serve the area and that it has a legal right to do so. Rural

satisfies the third element of the test. Water System #1 v. City of Sioux Center, 202 F.3d 1035, 1037

(8th Cir.), cert. denied, 531 U.S. 820 (2000).

C. The “Has Provided or Made Service Available”

Requirement Neither of those circuits requires that a water association

have a legal duty to serve in order to receive protection under

The key question is whether Le-Ax satisfies the § 1926. That is, however, the approach of the Fourth Circuit,

requirement that the association “has provided or made which apparently requires both a state-law duty to serve and

service available in the disputed area.” Id. at 517. a physical ability to serve. Bell Arthur Water Corp. v.

Unfortunately, the statute and the legislative history provide Greenville Utils. Comm’n, 173 F.3d 517, 525-26 (4th Cir.

no help in explaining this phrase, which is derived from the 1999).1 The Fifth Circuit has adopted a far looser approach,

statute itself. See Scott Hounsel, Note: Water Associations

and Federal Protection Under 7 U.S.C. § 1926(b): A

Proposal to Repeal Monopoly Status, 80 TEX . L. REV . 155, 1

159 (2001) (noting that the statute does not define “provided The Fourth Circuit in Bell Arthu r reports that we also have adopted

or made available”). Without any guidance from Congress or this approach. See Bell Arthur Water Corp. v. Greenville Utils. Comm’n,

173 F.3d 517 , 526 (4th Cir. 1999). As we explain below, however, the

the Supreme Court, federal appellate courts have interpreted Bell Arthur court was apparently misreading our decision in Lexington–S.

No. 02-3016 Le-Ax Water District v. 9 10 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

apparently holding that service is made available through to serve the area. As even Athens seems to acknowledge,

either a state-law duty to serve or a physical ability to serve. Ohio law permits water districts “[t]o supply water to users

N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d within and without the district.” OHIO REV . CODE ANN .

910, 916 (5th Cir.), cert. denied, 519 U.S. 1029 (1996). § 6119.01(A) (emphasis added). Under the plain text of this

statute, which Athens has not even attempted to distinguish,

As the above analysis makes clear, the circuits are in Le-Ax has the right to provide service outside its boundaries.

conflict as to what they require. In Lexington–S. Elkhorn, we Second, Le-Ax has the physical ability to serve University

adopted the same two-part approach that the Eighth and Tenth Estates within the meaning of our “pipes in the ground” test.

Circuits have taken. The first requirement under It is undisputed that Le-Ax has water lines “within or adjacent

Lexington–S. Elkhorn is the “pipes in the ground” to” the relevant property that could meet University Estates’s

requirement. In Lexington–S. Elkhorn, we plainly stated that needs. Le-Ax currently has an eight-inch line immediately

“[i]f an association does not already have service in existence, adjacent to University Estates, and also has water storage

water lines must either be within or adjacent to the property tanks that augment the system. Athens’s only argument is

claimed to be protected by Section 1926(b) prior to the time that some additional work would have to be done before Le-

an allegedly encroaching association begins providing service Ax could supply University Estates with water. Athens points

in order to be eligible for Section 1926(b) protection.” out that Le-Ax’s own expert testified that Le-Ax would need

Lexington–S. Elkhorn, 93 F.3d at 237 (emphasis added). The a pressure-reducing valve, some tap-ins, and a pumping

second requirement of Lexington–S. Elkhorn is that the water station in order to supply University Estates with water. The

district must have the legal right under state law to serve the pressure-reducing valve is apparently a minimal addition that

area in question. Id. at 235-36 (noting that “Lexington-South costs roughly $2,000, and the tap-ins and pumping station

Elkhorn admits that it has not obtained . . . from the Kentucky would be provided by University Estates, regardless of

Public Service Commission [the right] to construct facilities whether Athens or Le-Ax supplied the water. To argue, as

or to serve customers within portions of the disputed areas,” Athens does, that water service must be available immediately

which “distinguish[es] this case from other cases in which (evidently in the sense that someone at University Estates

courts have upheld water districts’ rights to Section 1926(b) must be able to go over to the faucet and turn on the water),

protection”). Because neither of these requirements was met, would be to ignore our statement in Lexington–S. Elkhorn that

we dismissed the water district’s claim under § 1926(b). Id. the “made available” requirement is satisfied not only when

at 238 (stating that because the plaintiff “has not established the pipes are “within,” but also when they are merely

its authorization to serve the disputed properties or its ability “adjacent to” the property. The evidence here admits of only

to provide the service,” it cannot be said to have “made one conclusion, that Le-Ax “has adequate facilities within or

service available”). adjacent to the area to provide service to the area within a

reasonable time after a request for service is made.”

In this case, Le-Ax has clearly satisfied both of these Sequoyah County, 191 F.3d at 1203 (quotation omitted); cf.

requirements. First, under state law, Le-Ax has a legal right Bell Arthur, 173 F.3d at 526 (holding that service was not

made available when the water district only had a six-inch

pipeline running near the disputed area and a fourteen-inch

Elkho rn. W e have only required (like the Tenth Circuit) a state-law right pipeline was necessary to serve the area); Glenpool Util.

(not duty) to serve the area to invoke § 1926. Servs. Auth. v. Creek Cty. Rural Water Dist., 861 F.2d 1211,

No. 02-3016 Le-Ax Water District v. 11 12 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

1213 (10th Cir. 1988) (holding that service was made determined by the state, we hold that a rural water district

available when the water district had a water line that ran cannot use § 1926(b) as a sword to force new customers who

within fifty feet of the property), cert. denied, 490 U.S. 1067 are outside that geographic area to receive water service

(1989). through the rural water district.

D. Offensive and Defensive Uses of Section 1926 We begin with the text and legislative history of 7 U.S.C.

§ 1926(b). The text of the statute states that “[t]he service

Having established the physical ability to serve University provided or made available through any such association shall

Estates and a legal right to do so under state law, Le-Ax not be curtailed or limited by inclusion of the area served by

argues that it is therefore entitled to summary judgment. We, such association within the boundaries of any municipal

however, believe that Le-Ax cannot properly invoke the corporation.” 7 U.S.C. § 1926(b). The statute’s use of

protections of 7 U.S.C. § 1926(b). Central to our conclusion phrases like “curtailed” and “limited” to describe the

is the fact that Le-Ax is not seeking to use the statute to municipality’s interference with the rural water association

protect its users or territory from municipal incursion in this suggests that a rural water association must already be

case. It instead is seeking to use the statute to foist an providing service to an area before the protections of

incursion of its own on users outside of its boundary that it § 1926(b) apply. The statute’s language provides no support

has never served or made agreements to serve. To grant Le- for Le-Ax’s claim that it has a right to curtail or limit

Ax what is essentially monopoly status over property that it Athens’s own service to University Estates. See Hounsel,

has never served (or contracted to serve), and that is outside supra, 80 TEX . L. REV . at 159 (arguing that the statutory text

of its boundary, we believe, would be wholly inconsistent suggests “that it is the existing customers of the association

with the statute’s text and legislative history, as well as our that are off-limits to competing municipalities”).

case law. Ultimately, we agree with Athens that § 1926(b)

can be used only as a shield to defend against invasion rather The legislative history also makes it clear that the statute

than as a sword to wage one. was only meant to protect rural water associations from the

outside threat of local governments taking their customers —

This case presents unique facts. Le-Ax has brought this not as a weapon for water associations to use to recruit new

lawsuit under 7 U.S.C. § 1926(b), claiming that Athens has users outside of their boundaries. The legislative history

improperly curtailed or limited Le-Ax’s activities by states that the section was “added to assist in protecting the

contracting to provide University Estates with water. Athens, territory served by such an association facility against

however, is not attempting to serve users within Le-Ax’s competitive facilities, which might otherwise be developed

boundary. Nor is Athens attempting to steal Le-Ax’s with the expansion of the boundaries of municipal and other

customers that may be outside of Le-Ax’s boundary. Instead, public bodies into an area served by the rural system.” S.

Athens is merely seeking to persuade unserved users to sign Rep. No. 87-566, at 67 (1962), reprinted in 1961

up with Athens (rather than Le-Ax) for water service. U.S.C.C.A.N. 2243, 2309. The legislative history casts the

Believing Athens’s action to be outside of the statute’s statute’s purpose in a defensive light. It plainly suggests that

intended prohibition, we hold today that a claim under the goal of the statute is only to protect territory already

§ 1926(b) has not been established under these circumstances. served by a rural water association from municipal expansion

When a rural water district’s boundaries are geographically into the rural water association’s area; it does not give

No. 02-3016 Le-Ax Water District v. 13 14 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

credence to Le-Ax’s hypothesis that the statute can be used to Our conception of § 1926(b) is also consistent with the

recruit unwilling new users outside of the rural water results in cases both in this circuit and in other circuits.

association’s boundary. Cf. Hounsel, 80 TEX . L. REV . at 159- Virtually all of the cases involving § 1926(b) involve

60 (“[T]he claim that an indebted association could extend its competitors who attempt to serve customers within the rural

federal protection beyond its actual or operative service area water district’s state-law authorized boundaries, which is

has no support in the legislative history.”). simply not the case here. See Lexington–S. Elkhorn, 93 F.3d

at 232 (holding that although Lexington–S. Elkhorn was

The distinction between “offensive” and “defensive” uses “offering to provide water service to customers located within

of the statute is also embedded, although somewhat the Water District’s boundaries,” it did not violate the statute

implicitly, in our cases. Even our broad statements about because the water district was neither licensed to reach those

§ 1926(b)’s applicability have always involved an element of customers nor had the facilities to do so); Sequoyah County,

actual encroachment on a water association’s existing area or 191 F.3d at 1201 n.7, 1204 (holding that there was a genuine

users. See Lexington–S. Elkhorn, 93 F.3d at 235 (stating the issue for trial on whether the water district could adequately

section “‘indicates a congressional mandate that local supply the water to the disputed territories, but “assum[ing]

governments not encroach upon the services provided by that the disputed customers are within Plaintiff’s territory as

such associations, be that encroachment in the form of it is defined by state law”); N. Alamo, 90 F.3d at 913

competing franchises, new or additional permit requirements, (involving users and property that “lie within the Utility’s

or similar means’”) (citation omitted) (emphasis added); Certificated Area”); Rural Water Dist. No. 1, Ellsworth

Adams County, 226 F.3d at 519 (stating “‘that the statute County v. City of Wilson, 243 F.3d 1263, 1267 (10th Cir.

should not be construed narrowly to prohibit municipal 2001) (involving properties within the water district’s state-

encroachment only if technically by annexation or grant of law boundary).

franchise, but should be applied broadly to protect rural water

associations indebted to FmHA from competition from Le-Ax argues that § 1926(b) should apply whenever a rural

expanding municipal systems’”) (citation omitted) (emphasis water association has the capability of serving users that could

changed). We, in fact, presumed the element of also be served by some other entity. This vision of § 1926(b)

encroachment in our version of the “pipes in the ground” test, is expansive indeed. It would essentially give Le-Ax

where we stated that “water lines must either be within or monopoly status not only within its boundaries and among its

adjacent to the property claimed to be protected by Section current users, but also would extend that status to wherever

1926(b) prior to the time an allegedly encroaching Le-Ax could provide service. When questioned by the panel

association begins providing service in order to be eligible for at oral argument, Le-Ax did not dispute that, under its view of

Section 1926(b) protection.” Lexington–S. Elkhorn, 93 F.3d § 1926(b), it was entitled by federal law to the exclusive right

at 237 (emphasis added). The repeated use of the term to provide service to any unincorporated area that it could

“encroachment” suggests that the statute is only invoked physically serve. Were we to uphold Le-Ax’s claim in this

properly when the municipality is attempting to provide water case, we would be holding that this federal law, originally

service to a rural water association’s users or within its meant to protect water associations from undue intrusion,

boundary. somehow gives them this sort of roving monopoly status.

Without support in the statute’s text, the legislative history, or

No. 02-3016 Le-Ax Water District v. 15 16 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

in relevant precedent, we are reluctant to take such a broad We hasten to point out that we are not leaving Le-Ax in a

step. difficult position. The current users and service area of Le-

Ax are still sacrosanct under § 1926(b). Le-Ax still can

Considering the statute’s text and history as well as our attempt to persuade University Estates to become its customer

own precedents, we must conclude that Le-Ax has not using normal competitive means. Le-Ax also has the option

presented a claim under § 1926(b). We hold that when a rural of changing its boundaries pursuant to the procedures

water district’s boundaries are geographically determined by specified in OHIO REV . CODE ANN . § 6119.051, which allows

the state, a rural water district cannot use § 1926(b) to obtain a water district, in some circumstances, to seek to expand its

new customers outside that geographic area. boundaries by filing a petition in the court of common pleas.

We simply hold that federal law does not compel University

Because the distinction between offensive and defensive Estates to be served by Le-Ax. Finding this to be the

uses can be difficult to delineate, we take care to limit the inexorable conclusion of our analysis of the statute’s text,

scope of our holding. This is not a case where a defendant history, and interpretative case precedent, we dismiss Le-Ax’s

has intruded on a water association’s actual or operative claim.

service area; the evidence is clear that University Estates was

never a customer of Le-Ax, University Estates never arranged III. CONCLUSION

to have water provided by Le-Ax, and no part of University

Estates was ever within Le-Ax’s state-law service boundary. For the foregoing reasons, we REVERSE the district

Moreover, no state law requires University Estates to be court’s grant of summary judgment and of a declaratory

served only by Le-Ax or requires Le-Ax to serve University judgment to the plaintiff, and REVERSE the district court’s

Estates. We also take care to point out that Le-Ax’s denial of summary judgment to the defendant. We

boundaries are clearly defined by state law; we do not REMAND this case to the district court so that it may enter

consider here a case where the state has not defined the judgment in favor of Athens and dismiss the case.

boundaries of its water districts or associations.2

2

A few states (including at least one in our o wn circuit) app arently

do not create boundaries for their water districts. See Sco tt Hounsel,

Note: Water A ssociations a nd F ederal Protection Und er 7 U.S.C.

§ 1926(b): A Proposal to Repeal Monopoly Status, 80 T EX . L. R EV . 155,

163 (2001) (explaining that “[t]oday, the ability to determine the service

area of any water supplier is further complicated by state statutes, which

may or may not attach geographical boundaries when authorizing a utility

to provide water under state regulations”). Kentucky, for example,

evide ntly does not prescribe boundaries for its water districts; as a result, delineate North Shelby’s territory” and not ad dressing the m atter); see

the bounda ries of a water district or association cannot defined by state also Ho unsel, supra, 80 T EX . L. R EV . at 163 n.39 (contrasting Mississippi,

law but on ly by practice. See N. Shelby Water Co. v. Shelbyville Mun . which does prescribe geographical bo unda ries with K entuck y, which does

Water & Sewer Com m’n, 803 F. Supp. 15, 21 -22 (E.D. Ky. 1992 ) (noting not). Because Ohio in this case has prescribed the boundaries of the Le-

that an administrative officer of the state had testified that “[t]here is no Ax water d istrict, we do not consid er here the ram ifications of an

operative definition under Kentucky law of the phrase ‘service area’ to unbounded water district for purposes of § 192 6(b).

No. 02-3016 Le-Ax Water District v. 17 18 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

_______________ association does not already have service in existence,

water lines must either be within or adjacent to the

DISSENT property claimed to be protected by Section 1926(b)

_______________ prior to the time an allegedly encroaching association

begins providing service in order to be eligible for

JULIA SMITH GIBBONS, Circuit Judge, dissenting. I Section 1926(b) protection.

agree with the majority’s well-reasoned analysis contained in

sections II.A. through II.C. of its opinion. Based upon this 93 F.3d 230, 237 (6th Cir. 1996). In addition to the

analysis, I would affirm the district court’s judgment. While requirement that the association have “pipes in the ground”

the arguments contained in section II.D. of the majority’s within or adjacent to the area in question, the association must

opinion may be sound policy, in my view, the result reached also have the legal right under state law to serve the area in

by the majority is inconsistent with the statute’s language as question to benefit from the monopoly power afforded by

interpreted by this court’s binding precedent. § 1926(b). Id. at 235-36.

The majority is correct when it says in section II.D. that Le-Ax, as the majority holds, “has clearly satisfied both of

“§ 1926(b) can be used only as a shield to defend against these requirements” as to the disputed area in this case.

invasion rather than as a sword to wage one.” (Majority Op. (Majority Op. at 9.) First, Le-Ax has a water line

at 11.) The majority errs, however, in defining the area that immediately adjacent to the University Estates development.

§ 1926(b) protects from invasion. (Majority Op. at 10.) The uncontradicted evidence is that this

line has been in place since Le-Ax’s creation over twenty

As the majority correctly explains in section II.B. of its years ago. (JA at 66-67.) Moreover, the uncontradicted

opinion, § 1926(b) protects the area where the association evidence demonstrates that this line was designed with

“has provided or made service available.” (Majority Op. at 7, surplus capacity to serve future growth throughout the area,

quoting Adams County Reg’l Water Dist. v. Vill. of including the area encompassing the University Estates

Manchester, 226 F.3d 513, 517 (6th Cir. 2000).) It is development. (JA at 69.) As the district court found in its

relatively easy to determine the area where the association has thorough and well-reasoned opinion, “Plaintiff’s distribution

provided service, but it is not obvious what the statute means lines that make service available to the UE development are

by “service . . . made available.” 7 U.S.C. § 1926(b). As the already in place, and have been in place since the Plaintiff’s

majority correctly explains in section II.C. of its opinion, creation over twenty years ago – long before the City of

however, this difficult issue has already been addressed by Athens was interested in the right to distribute water to the

our court. region in question.” (JA at 21.) Second, as the majority

explains, Ohio law permits Le-Ax to serve the University

In Lexington–S. Elkhorn Water District v. City of Wilmore, Estates development. (Majority Op. at 10.)

Kentucky, we held that:

Because Le-Ax maintains a water line with excess capacity

whether an association has made service available is immediately adjacent to the University Estates development

determined based on the existence of facilities on, or in (and has done so for over twenty years, anticipating future

the proximity of, the location to be served. If an growth) and because Le-Ax has the right under state law to

No. 02-3016 Le-Ax Water District v. 19 20 Le-Ax Water District v. No. 02-3016

City of Athens, Ohio City of Athens, Ohio

serve the University Estates development, the University In Lexington–S. Elkhorn, we rejected the argument that an

Estates development is within Le-Ax’s service area that is association’s state-defined political boundary is relevant to

protected from invasion by § 1926(b), as interpreted by our determining the area protected by § 1926(b). In Lexington–S.

holding in Lexington–S. Elkhorn. Therefore, Le-Ax is using Elkhorn, the City of Wilmore, Kentucky, did not dispute that

§ 1926(b) in this case as a shield to protect an area where it it extended its water lines into part of the plaintiff water

has made service available for over twenty years. district’s territorial area. 93 F.3d at 232. The water district,

Nevertheless, the majority withholds protection under Lexington–S. Elkhorn, claimed that § 1926(b) protects its

§ 1926(b) because the University Estates development is not territorial area from invasion by the city’s water lines. Id. at

within Le-Ax’s state-defined political boundary. 234. The district court ruled in favor of the city, rejecting the

water district’s argument that its territorial boundary was

The majority, however, fails to explain why it matters relevant to § 1926(b). Id. We affirmed, holding that

where state law places Le-Ax’s boundaries for purposes other § 1926(b) protects only that area where the water district has

than providing service. The flaw in the majority’s analysis is provided service or made service available by maintaining

that it conflates an association’s political boundary with an water lines nearby. Id. at 237. We found the water district’s

association’s service boundary. Because state law grants Le- state-defined political boundaries to be irrelevant. Id. at 238

Ax the legal right to serve the University Estates (looking to state law only to determine if the water district

development, University Estates is within Le-Ax’s state- had the legal right to serve the area and finding it unnecessary

defined service boundary. Moreover, because Le-Ax has to decide whether the disputed area was within the water

made service available to the University Estates development district’s state-defined boundaries).

via a water line with excess capacity immediately adjacent to

the development, Le-Ax is entitled to the protection of The majority criticizes Le-Ax’s “expansive” vision of

§ 1926(b) under our holding in Lexington–S. Elkhorn. The § 1926(d), which, according to the majority, would give an

majority has not cited any case where a court found that a association “monopoly status” to serve any area where it

water district’s political boundary, as opposed to its service could provide service. (Majority Op. at 14.) The majority’s

boundary, is relevant to defining the area protected by criticism is more appropriately directed toward Congress,

§ 1926(b).1 Congress could have limited the protection because § 1926(d) by its plain terms grants an eligible

offered by § 1926(b) to an association’s state-defined political association monopoly status to serve any area where service

boundary; instead, Congress chose to limit the statute’s is “made available” by the association. 7 U.S.C. § 1926(b).

protection to where the association has provided service or This court’s binding precedent holds that service is “made

made service available. available” under § 1926(d) wherever the association has the

legal right to serve and the present ability to serve because it

has sufficient pipes in the ground within or adjacent to the

area. Lexington–S. Elkhorn, 93 F.3d at 237. Because there is

1

no basis in the statute or our precedent for the majority’s

In the absence of any autho rity, the majority seems to b ase its addition of an additional element to a plaintiff’s claim under

analysis upon a student law re view no te that ad vocates the repeal of § 1926(b), I dissent.

§ 192 6(b). (M ajority Op . at 12, citing Sco tt Hounsel, N ote: Water

Associations and Fede ral P rotection Under 7 U .S.C. §1926(b): A

Proposal to Repeal Monopoly Status, 80 Tex. L. Rev. 155 (2 001).)