# Petitioners Reply Brief — Kaiser Steel Corp. v. W. S. Ranch Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1117%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1968 - **Citation:** 391 U.S. 593 ## Text fas W. &. RANCH COMPANY, ¢ Q. __a New Mexico Corporation, — : | REPLY BRIEF IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI TO THE UNITED . | STATES COURT OF APPEALS FOR | oy. JR, Moprann - Piety * . +): Gonos T: Hanes,Je.° 2. oT ay grea abe tg Joun R. Cooney . “e ‘3 eee . Kennera L. Hagrtcan. ah nw -P. O. Box 2168 , Albuquerque, New Mexico - " Paut A. KASTuza iS P.O, Box 130 os age 6 _ INDEX > iy Aves = all Je * The Court: of Appeals Has Decided a Vital State Constitutional Issue in a Manner Which Is or ~ . May Be.in Conflict with Applicable StateLaw_ 3 . II. The Decision of the Court of Appeals Is in Con- _ flict with Applicable Decisions of This Court... 3 _\V. The: Importance of the Question and the De- ' - parture in the Decision Below from Accepted and Usual Principles Governing the Resolution of Controversies in Our Federal System Call for _ an Exercise of this Court’s Powsr of Supervi- oh ke an , 4 Conclusion ve we: 6 heel Sie _.. CASES Courity of Allegheny v:* Frank Mashuda Co., 360 U. s. 185 (1959) 4,5 eel 7 Lowisiana Power & Light Co. v, City of Thibodaisr, 360 U.S. 25-(1959)- ee TT ~ Maryland Casualty Co: v. Pacific — and. Oil CO... 312 U.S. 270 (1941)- ea 6 National Liberty Insurance Co, of deities v. Silva, 43 N.M. 283, 92 P.2d 161 (1939)... , cai Prince v. Charles Ilfeld S. 72 N.M. 351, 383 P2d 827 7 (1963). 2 Zobel v. Public Service Company, a NM. 22, 399 P2d 922, — : ye 3 | ' STATUTES wee 7 | Mle LNs Sec. 22-9-22 (1953) . _ Supreme Court Rule 24(4), 28 U.S.C. Es eet 2, "28 U.S.C. Sec. 2201 ; pee | — eee Sec. 22-6-1 (1953) ....: : | meee 5 LES NS MRR MA OA NOTE ATT ig AMEE LEAS OTN GR ERO oe - SUPREME COURT 0 THE INTE STATES _ OCTOBER TERM, 1967, No. 1328 ' KAISER STEEL CORPORATION, a Nevad@&Corporation, Petitioner, —— ° eae 7 aa 7 'W. S. RANCH COMPANY, eS New Mexico Corporation, |. Respondent. A My . __ REPLY BRIEF IN SUPPORT OF. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED ‘STATES COURT OF APPEALS FOR THE TENTH ‘CIRCUIT | In accordance with Rule 24(4) of the United -States _ Supreme Court Rules, Rule 24(4), 28 U.S.C., Petitioner will reply only to those arguments first ‘raised: in the Brief in ~ Opposition, to the Petition for a Writ’ of.Certiorari. No reply - thus be made to Points III or IV. we - OE TT GAPE EN oe oe * Respondent characterizes - | itself as a righteous land-' owner whose property has been invaded by Petitioner, as . in-the days of the-Old West when might. made right. .By én excursion outside the record, Respondent asserts that _ Petitioner failed totnegotiate with it prior to constructing the pipeline and well and speculates as to why no-condem- nation action was filed. Although-we deem such matters | ~ 4, . to be irrelevant in determining whether certiorari should — be ‘granted, a response’is invited and jlistified to Place the matters in: proper perspective. ° ' - The uncontroverted affidavi filed by Petitioner helde reveals that the challenged peline and diversion well were constructed entirely within the right of way of the '.. Atchison, Topeka & Santa Fe Railway Company and upon ’ the lands acquired by the railroad through condemnation proceedings in the United States District Court for the Dis- trict of New Mexico (Tr. 2, R. 13),.and not upon’ land in which Respondent held a clear fee simple interest» as it would have this Court infer. By reason of the disposition ; 4 ‘of the condemnation action, the Railway obtained a deter- minable fee’ in the lands: involved herein, and Respondent a left with’a mere possibility: of reverter upon the rail- road’s abandonment of use of: the land for railroad pur- poses. Prince v. Charles Tjeld Co., 72 N.M. 351, 383 P.2d . 827. (1963). : Respondent’s ‘aietelation-vn “to -why Petitioner did not “negotiate with it or condemn the land is obviously mislead- ing since Petitioner was under no duty or: obligation to negotiate with Ranch. Furthermore, New: Mexiro law placed no burden upon Petitioner to institute prior «ondem-- - _nation proceedings since. the inverse condemip=cion statute, ‘Sec. 22-9-22, N.M.S.A. 1953, provides ‘a plain and adequate remedy for the “landowner” in an action to be instituted ° SOO ERIE EERIE 50 BANAT SERS 20 OEE EVO RY HE EET ES < > . | 3 by it, and not by the proposed condemnor. Due to the ef- ' forts of the same attorneys ‘represénting Respondent. here, the New Mexico Supreme Court has unequivocally ruled that inverse condemnation is the landowner’s exclusive - remedy and that a common law action is barred. Zobel v. Ee ads: Service Company, 75 N. M. 22, 399 P.2d 922 (1965). POINT & the Court of Appeals Has Decided a Vital State — - Constitutional Issue in a Manner Which Is or May Be in Conflict with Applicable State Law - An examination of the opinions of the District and Cir- cuit Courts so clearly reveals that the question of state law is unsettled and difficult. of resolution, and that the ‘deci- - sion by the Tenth Circuit will have an adverse economic | effect upon the State, that no further reply is mecessary 1 to Respondent's unsupported contentions to the es . } POINT Il “tthe Decision of the Court of Appeals Is in Confliet with Applicable Decisions of This Court : ‘Reajonihentte thisinterpretation of the law“ governing abstention: i is amply demonstrated by. its citation of Louisi- ana.Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959) in support of its position, that, abstention is ‘com- pletely a matter of discretion. While it is true that there . are certain areas of discretion, that rule does not apply here where the decision by the federal court interferes with sovereign prerogative in the areas of conservation and development of water in an arid state, delegation of the power of eminent, domain, and promotion and protection of economic development. In Thibodaux, this Court recog- nized that under certain circumstances it had: te 4 : a ‘. "pth required District Courts, ‘anil not merely pone tioned an exercise of their discretionary power, to stay _their procéedings pending the submission of the state » law queStion to state | determination.” , Emphasis 2 -’ added) asinine Even.if abstention. sige were wholly a matter of discrétion, failure of the Tenth Circuit Court. of Appeals to abstain under the ‘circumstances of ‘this case, re a clear _ abuse. of such discretion. = ee it-were-not for the fact that Thibodaux and County. ee of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959), - were decided on the same day, one might infer that Re- spondent contends that Thibodau2 is no authority whatso- ever and that it was effectively overruled by Mashuda. As a matter of fact, however, Mashuda involved no constitu- tional question, and the Court’s decision was. premised upon the express grounds that the State law was clear and settled* . and that the only question to be determined was a purely. "factual one of: whether or not the land was taken for a private or public use. Any. similarity between that case - and the questions involved here is purely — To - as Respondent does, that: | ¥! ; . all that is. involved is the availability of an. ease- ment by condemnation of another's lan od isa gross oversimplification 2. : | POINT V - Oe Oke The importance ot the Question, and the B afture in the Decision Below from Accepted Usual * ‘Principles Governing the Resolution of Contro- yersies in Our Federal System. Call for an Exercise , _ of This 's Power, of Supervision a Respondent asserts. that abstention should - be denied beqause “ the — — involved, and because there ~ . C isa ania likelihood that the. New Mexico ; Courts would ‘ refuse to decide the question, even. if abstentign were or- adered. What delay may occur. if abstention is ‘granted _seems clearly to be. overridden by. the serious-effects on a ° multitude of interests if abstention is denied. Refusal to abstain would seriously affect New Mexico’s policies of conserving and Aistributing to. beneficial’ uses its: scarce . . water supply and promoting economic development to the benefit of all its citizens. When the entire economy of a - State-may be alversely, and perhaps uhjustifiably, affected, _ abstention should not be denied because of delay and ex- : pense to one individual. ‘This is not a case where-the party requesting abstention is in ,possession of the property in the sense of Thibodaux or Mashuda. Nor is this a situation -where delay would have a “chilling effect” on a-basic con- . stitutional guarantee such. as- ‘freedom of’ ‘speech; ‘in fact, a refusal to abstain will have a “chillitig effect” upon New -Mexico’s economic development: Respondent has not been. “ousted * ‘from his land by Petitioner; the pipelines, after all, are underneath the ground and are entirely ‘upon property . in which a third party has a fee interest, The proposition that the State Court will refuse to. entertain jurisdiction in fhe declaratory judgment actton is equally untenable. The suit in Colfax County was brought - undér the New Mexico Declexsatory: Judgment Statute, Sec- satién 22-6-1, N.M.S.A. 1953, the provisions of which are sub-- - ‘stantially. identical to the Federal Declaratory Judgment Act, 28°U,S.C., Sectiofi 2201. Sée National:Liberty Insur- . ance Co. of America v. Silva, 43 N.M. 283, 92 P.2d 16) - (1939). ‘While the New Mexico trial courts have -disere- _ tion in entertaining jurisdiction in a declaratory judgment actjon, the State Supreme Court has held that jurisdiction should be entertained and exercised when the judgment ‘will serve'a. useful purpose in. clarifying. and settling the . 2 we Pe Paar Sane g° legal relations in issue and ‘will terminate and afford’ re- lief from the uncertainty, insecurity and controversy giving rise to the proceeding. National Liberty Insurance Co.: of America v. Silva, supra; see also Maryland Casualty Come pany v. Pacific Coal and Oil’Company, 312 U.S. 270. (1941) That such criteria are present here cannot. be seriously questioned. It is incongeivable that the state court would | decline to, exercise jurisdiction to decide such a crucial issue of state law where the federal court in which the-action initially was pending has declined to exercise its jurisdic- tion to allow the state court to rule definitely on the aa i tion. . CONCLUSION du, For the ue fan, and. those a fortipin full in _ the Petition, it is respectfully submitted that ‘the Petition for a Writ of Certiorari should be granted. of ei sted submitted, = 4 J. R. Mopra. a Georce T. Harris, Jr. Fill ph + Jomns R. CoonEy ’ ‘Kennetu L. HARRIGAN P: O. Box 2168 ane - 8th Floor—Public Service Bldg. , . Albuquerque, New. Mexico‘ . -Pavn A. KASTLER mich ma As Box 130 og _ & "> * Raton, New Mexico | Attorneys for Petitioner . - ° ‘ . : e - ~ COLO LIE TELE GOT LE OLA OEE LE . —_ ao 2 a. es 3 rws wa --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1117%3A6. Public record. Not legal advice.