Appendix — B. Willis, CPA, Inc. v. Public Service Service Co. of Oklahoma (No. 06-1467)

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APPENDIX A

IN THE SUPREME COURT OF THE

STATE OF OKLAHOMA

No. 101,557

[Filed February 5, 2007]

PUBLIC SERVICE COMPANY

OF OKLAHOMA,

Plaintiff/Appellee,

B. WILLIS, C.P.A., INC.,

)

)

)

)

Vv. )

)

)

Defendant/Appellant. )

)

ORDER DENYING CERTIORARI

AND APPROVING COURT OF CIVIL APPEALS

OPINION FOR PUBLICATION AND ACCORDED

PRECEDENTIAL VALUE

PART I

41 Now before the Court is the Petition for Writ of Certiorari

of Appellees. After review thereof the Petition is denied.

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PART II

q2 The opinion of the Court of Civil Appeals, Division (II),

by John F. Fischer, J., rendered on September 19, 2006,

pursuant to 20 O.S. 2001, § 30.5, is approved for publication

in the official reporter and therefore accorded precedential

value.

DONE BY ORDER OF THE SUPREME COURT IN

CONFERENCE THIS 5™ DAY OF FEBRUARY, 2007

/s/ James E. Edmondson

Vice Chief Justice

{3 WINCHESTER, C.J., EDMONDSON, V.C.J.,

LAVENDER, HARGRAVE, KAUGER, WATT,

TAYLOR and COLBERT, JJ., concur.

q4 OPALA, J., dissents

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APPENDIX B

IN THE COURT OF CIVIL APPEALS

OF OKLAHOMA

DIVISION II

Case Number: 101,557

[Filed September 19, 2006]

PUBLIC SERVICE COMPANY

OF OKLAHOMA,

Plaintiff/Appellee,

B. WILLIS, C.P.A., INC.,

)

)

)

)

VS. )

)

)

Defendant/Appellant. )

)

APPEAL FROM THE DISTRICT COURT OF

ROGERS COUNTY, OKLAHOMA

HONORABLE JAMES D. GOODPASTER,

TRIAL JUDGE

AFFIRMED

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Stratton Taylor

Mark H. Ramsey

Clinton D. Russell

TAYLOR, BURRAGE, FOSTER,

MALLETT, DOWNS & RAMSEY

Claremore, Oklahoma For Plaintiff/Appellee

William T. Dickson,

Tulsa, Oklahoma For Defendant/Appellant.

JOHN F. FISCHER, JUDGE. WISEMAN, P.J., and

GOODMAN, J., concur.

OPINION BY: JOHN F. FISCHER, JUDGE:

q1 Defendant, B. Willis, C.P.A., Inc. (Willis), appeals from

an appealable final order of the Trial Court denying Willis’s

Motion to Dismiss and overruling his Objection and Amended

Objection to the Report of Commissioners in a condemnation

proceeding brought by Public Service Company of Oklahoma

(PSO) to gain an easement to Willis’s property for the

construction of a railroad. Based on our review of the record

on appeal and applicable law, we affirm.

BACKGROUND FACTS

{2 PSO commenced this condemnation proceeding in 1992 to

acquire an easement across property owned by Willis, for the

purpose of building a thirteen-mile railroad spur to transport

coal to its Oologah power plant. In its petition, PSO alleged

that it is a public service corporation duly authorized under 66

O.S. 1991 §§ 51-60 and 27 O.S. 1991 § 7,' to exercise the

' Hereafter, unless otherwise noted, we will cite to the current

version of the statutes.

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power of eminent domain, that its acquisition of Willis’s

property is necessary for a public purpose and that its efforts

to secure the right-of-way by private purchase had been

unsuccessful.

{3 Commissioners were appointed and filed their report

pursuant to 66 O.S. 2001 § 53. PSO paid the award into court

on December 28, 1992, the same day the report was filed.

Willis filed exceptions to the Commissioners’ report as

permitted by section 55, and alleged that the proposed taking

of his property was not for a public use or reasonably

necessary therefor and demanded a jury trial. The Trial Court

held in favor of PSO and Willis commenced the first of

numerous appeals in various state and federal tribunals and,

some of which, continue as of the date of this opinion.

44 In June 1997, the Oklahoma Supreme Court issued an

opinion concluding that Willis was wrongfully denied a fair

opportunity to challenge PSO’s “asserted but unproven right

to take his property as well as the right to conduct discovery,”

and reversed and remanded for further proceedings. Pub.

Serv. Co. of Okla. v. B. Willis, C.P.A., Inc., 1997 OK

78, $21, 941 P.2d 995, 1000 (Willis I). Pursuant to that

direction and after further proceedings and discovery, on

October 14, 2004, the Trial Court conducted a hearing on

Willis’s motion to dismiss and his exception and amended

exception to the Report of the Commissioners. On November

15, 2004, the Trial Court entered its order finding that PSO

had established that its condemnation of Willis’s property was

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for a public use and overruled Willis’s motion to dismiss and

exceptions.” Willis again appeals.

45 In his brief-in-chief, Willis asserts four propositions for

review: (1) His property cannot be valued until PSO

establishes its right to condemn, and the Supreme Court’s

1997 reversal in Willis I established, as a matter of law, that

PSO trespassed when it constructed the railway spur on his

property; (2) The Trial Court was without jurisdiction to enter

the 2004 Order because federal law preempted any exercise of

State law; (3) The condemnation should be set aside because

PSO engaged in fraud, abuse and oppression; and (4) A new

appraisal of the condemned property should be ordered.

STANDARD OF REVIEW

{6 The standard of review for condemnation proceedings is

well established. As noted by the Court in Willis I,

condemnation proceedings involve both factual determinations

and legal rulings. “The necessity, expediency and propriety

of exercising the power of eminent domain are questions of

general public policy and are governed by statute.” Willis at

q20, 941 P.2d at 1000. “Whether it is necessary to take

particular property for the economic and efficient

accomplishment of a lawful public purpose is a question of

fact to be determined from the attendant facts and

? Still pending before the Trial Court at the time of this appeal is

Willis’s demand for jury trial regarding the value of his property

taken by PSO.

* Allegations of error set forth in the petition in error but not

briefed by the appellant are deemed waived. Oklahoma City Urban

Renewal Auth., v. City of Oklahoma City, 2005 OK 2, 110 P.3d

550, n.9, 2005 OK 2, 110 P.3d 550, 554 n.9.

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circumstances developed by the evidence.” /d. at 418, 941

P.2d at 1000.

q7 “Under our constitutional provisions and cases

interpreting them, the issue of whether a proposed taking is

for a ‘public use’ is a judicial question.” /d. at 419, 941 P.2d

at 1000 (citing McCrady v. Western Farmers Elec. Coop.,

1958 OK 43, 323 P.2d 356). See also Sublett v. City of Tulsa,

1965 OK 78, 934, 405 P.2d 185, 196; Arthur v. Bd. of

Comm'rs of Choctaw County, 1914 OK 181, 43 Okla. 174,

141 P. 1.

q8 “A valid declaration of necessity by the appropriate body

will be viewed as conclusive by the courts in the absence of

a showing of actual fraud, bad faith, or an abuse of discretion

by the condemning authority.” Willis at 420, 941 P.2d at

1000, (citing Rueb v. Oklahoma City, 1967 OK 233, 435 P.2d

139)).* “The findings of the trial court on the issue of the

necessity of the taking will not be disturbed on appeal where

there is evidence to support such findings.” /d. at 418, 941

P.2d at 1000, (citing City of Tulsa v. Williams, 1924 OK 136,

100 Okla. 116, 227 P. 876).

DISCUSSION

{9 The power of eminent domain lies dormant with the State

“until such time as the Legislature by specific enactment

delineates the manner and through whom it may be

* The value of the condemned property is also a question of fact

and, at the request of the land owner, may be tried to a jury. Okla.

Const. art. 2, § 24; 66 O.S. 2001 § 55. Willis’s exceptions to the

award of the Commissioners was tried to the Court, and Willis

does not claim in this appeal that he properly requested but was

denied a jury trial on that issue.

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exercised.” City of Tahlequah v. Lake Region Elec. Coop.,

Inc., 2002 OK 2 47, 47 P.3d 467, 471 (footnote omitted). See

also City of Pryor Creek v. Pub. Serv. Co. of Okla., 1975 OK

81 49, 536 P.2d 343, 345-46. Condemnation is a proceeding

strictly controlled by the Constitution and statues prescribed

by the Legislature. Willis at 416, 941 P.2d at 999.

410 Any governmental body subordinate to the State,

which would include PSO (17 O.S. 2001 § 151(c)), may not

exercise a power of eminent domain in the absence of

statutory authority. Bd. of County Comm'rs of Muskogee

County v. Lowery, 2006 OK 31, 410, 136 P.3d 639, 646. The

Legislature has authorized PSO to, and specified the manner

in which PSO may, exercise the power of eminent domain.

Any corporation licensed to do business in Oklahoma to

furnish electricity’ is granted the same power of eminent

domain as that granted to railroads. 27 O.S. 2001 § 7; 66

O.S. 2001 § 57.

{ii | The procedure by which railroads are authorized to

exercise the power of eminent domain has been established by

the Legislature. 66 O.S. 2001 §§ 51-60. Superimposed on this

statutory procedure are the constitutional limitations of

Sections 23 and 24 of Article II of the Oklahoma Constitution,

Allen v. Transok Pipe Line Co., 1976 OK 53, 412, 552 P.2d

375, 379, and the appropriate provisions of the United States

Constitution. Okla. Const. art. 1, § 1.

412 When interpreting the relevant taking authority, we are

guided by the longstanding general rule of strict statutory

> According to the Trial Court’s findings, unchallenged by Willis

in this appeal, PSO is licensed to do business in Oklahoma for the

purpose of generating electricity.

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construction applicable to eminent domain statutes. City of

Cushing v. Gillespie, 1953 OK 121, 208 Okla. 359, 256 P.2d

418. In addition, we generally construe our state

constitutional eminent domain provisions strictly, in favor of

the owner and against the condemning party. Stinchcomb v.

Oklahoma City, 1921 OK 154, 40, 81 Okla. 250, 198 P. 508,

508 (Syllabus 1 by the Court). The issues raised by Willis in

this appeal are to be resolved within the framework of these

legal principles.

PROPOSITION I

413 In Proposition I, Willis challenges the Trial Court’s

November 2004 Order, principally because he contends the

“date of take” used for the valuation of his property was in

error. He comes to this conclusion by arguing that although

his property was valued as of December 28, 1992, the date

the Commissioners filed their Report, PSO’s right to condemn

was not established until November 15, 2004, when the Trial

Court entered the order that is the subject of this appeal. From

this, he concludes not only that the date of valuation was six

years premature, but also that until PSO’s right to condemn

was established, PSO was a trespasser on his property when

it constructed the rail spur.° Willis misinterprets the effect of

the Supreme Court’s ruling in Willis I.

414 Following the filing of PSO’s 1992 Petition for

Condemnation, the Trial Court appointed commissioners

® Willis extends this argument to support his claim of ownership of

the portion of the rail spur crossing his property but has neither

sought nor preserved for appeal any ruling of the Trial Court

addressing this issue. Therefore, we are not required to consider

this argument. Okla. Sup. Ct. R. 1.26, 12 0.S. 2001, ch. 15, app.

He

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pursuant to 66 O.S. 2001 § 53 to value the portion of Willis’s

property that PSO was seeking to condemn. The

Commissioners’ Report was filed with the Trial Court on

December 28, 1992 and PSO paid the amount of the award to

the Court Clerk on that date. The payment of that award

authorized PSO to enter onto Willis’s property to construct its

rail spur regardless of Willis’s subsequent appeal. 66 O.S.

2001 § 56. Payment to the Court Clerk in lieu of payment to

the owner is a procedure authorized not only by statute, but

also by the Oklahoma Constitution. Okla. Const. art. 2, § 24.

The Trial Court held a hearing on January 27, 1994, to

determine PSO’s right to take Willis’s property in light of his

exceptions to the Commissioners’ Report. Some twelve years

later, that issue remains before this Court.

415 The Oklahoma Supreme Court’s decision in Willis I

established only that Willis had been “denied an opportunity

to challenge PSO’s asserted but unproven right to take his

property” in the 1994 hearing. Willis at (21, 941 P.2d at

1000. Pursuant to the direction of the Oklahoma Supreme

Court, the Trial Court provided Willis that opportunity. In

this appeal, Willis does not contend that the Trial Court failed

to provide the relief ordered in Willis 1. He argues only that

the Trial Court reached the wrong result.

416 In its order of November 15, 2004, the Trial Court

found that PSO had established its right to condemn Willis’s

property. Consequently, the right to condemn Willis’s

property first “asserted” by PSO in its 1992 petition was

ultimately “proven” to the satisfaction of the Trial Court at

the hearing on October 14, 2004. “The findings of the trial

court on the issue of necessity of the taking will not be

disturbed on appeal where there is evidence to support such

findings.” /d. at 418, 941 P.2d at 1000.

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417 There is nothing in the Oklahoma Constitution, the

applicable condemnation statutes or Willis’s submissions in

this appeal that precludes the establishment of the right to

condemn at a date subsequent to the date the condemned

property is valued. That is, in fact, the required procedure.

Within thirty days after a commissioners’ report is filed, an

aggrieved party may file exceptions to the report and/or

within sixty days request a jury trial on the amount of the

award. 66 O.S. 2001 § 55. This procedure offers Willis an

opportunity to challenge both PSO’s righi to take his property

and the value of his condemned property as determined by the

Commissioners.

q18 Further, we note that Willis has obtained a

determination from the United States Court of Appeals for the

Tenth Circuit that the United States Constitution does not

require pre-taking compensation. B. Willis, C.P.A., Inc. v.

Pub. Serv. Co. of Okla., No. 97-5107, 182 F.3d 931 (Table),

1999 WL 335207 (10th Cir. May 27, 1999), cert. denied, 528

U.S. 1003, 120 S. Ct. 496 (1999).’ As in this case, Willis

7 In resolving the federal issue, the Tenth Circuit, in an

unpublished opinion, determined that the United States Constitution

does not require pre-taking compensation if the State provides a

reasonable and adequate provision for obtaining compensation after

the taking. Citing Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 195,

105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), and Biddison v. City of

Chicago, 921 F.2d 724, 727 n.4 (7th Cir. 1991), the Tenth Circuit

found that Oklahoma’s eminent domain procedures are not

“complete” until (1) the condemnor’s right to take is finally

resolved and (2) the amount of the condemnation award is

determined. Because determination of the award generally occurs

after the condemnor has taken possession, any failure by the State

to provide adequate compensation can only be determined after the

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argued to the Tenth Circuit that PSO was not entitled to

possession of his property until its right to condemnation had

been finally determined, citing Zown of Ames v. Wybrant,

1950 OK 197, 203 Okla. 307, 220 P.2d 693, to support that

argument. The Tenth Circuit did not find Wybrant to be

inconsistent with other Oklahoma Supreme Court cases

uniformly accepting the pre-taking procedure authorized by

section 53(C). We come to the same conclusion as the federal

court. Wybrant does not hold that section 53(C) is

unconstitutional.

419 Oklahoma’s eminent domain statutes are consistent and

coherent. They provide Willis a right to appeal the

condemnation before final determination of all the issues that

may be raised in the Trial Court without the requirement of

posting a bond.* The same statutes provide PSO a right to take

at least temporary possession’ of the condemned property on

payment of the condemnation award. This legislative program

ensures that public works on condemned property can

continue”’ subject to judicial review and without prejudice to

taking and only at that point would any federal issue be ripe for

review. B. Willis, C.P.A., Inc. v. Pub. Serv. Co. of Okla., No. 97-

5107, slip op. at 3, 182 F.3d 931 (Table), 1999 WL 335207 (10th

Cir. May 27, 1999), cert. denied, 528 U.S. 1003, 120 S. Ct. 496

(1999).

® Okla. Const. art. 2, § 24.

® As discussed in Proposition IV, a condemnor who takes

possession of condemned prop rty proceeds at its own risk until a

final non-appealable judgment confirming its right to condemn the

property has been entered. The statutory system in this State

permits the condemnor to take that risk if it so chooses.

66 0.S. 2001 § 56.

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the condemnee’s right to raise any issue in that review. This

system is not inconsistent with the Oklahoma Constitution,

and, as noted by the Tenth Circuit, it is permitted by the

United States Constitution.

q20 We find that there is sufficient evidence to support the

Trial Court’s finding that PSO was entitled to take Willis’s

property for the purpose of constructing a rail spur and that

the Trial Court’s ruling that this constituted a public use

justifying condemnation is correct as a matter of law. Willis’s

argument that the value of his property must be determined as

of the date of the Trial Court’s order determining PSO’s right

to take that property is not supported by law.

q21 Just as the necessity of taking under eminent domain

must be “determined by conditions existing at the time of the

taking,” Willis at (18, 941 P.2d at 1000, so also the value of

the taken property can only be determined as of the time of

the taking. Willis confuses PSO’s taking of his property with

the confirmation of that right by the Trial Court. The Trial

Court correctly determined, as a matter of law, that Willis’s

property should be valued as of the date the Commissioners

completed their valuation, and the Court Clerk properly filed

and recorded their Report. 66 O.S. 2001 § 53(C). Based on

this valuation, the date PSO took Willis’s property 1s

determined by the date PSO paid the Commissioner’s award.

State ex rel. Dept. of Transp. v. Post, 2005 OK 69, 125 P.3d

1183.

PROPOSITION II

422 Willis next argues that the Trial Court was without

jurisdiction to enter its November 2004 Order because federal

regulation of railroads preempts any assertion of State

authority over the rail spur constructed by PSO. This

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argument is precluded by an adverse ruling Willis obtained

from the Surface Transportation Board (STB).

423. On February 15, 2001, Willis filed a Petition for

Declaratory Order with the STB asking it to declare that

PSO’s rail spur had been improperly constructed because PSO

had not first obtained authority from the STB to construct that

spur. Willis’s Petition was denied by Order dated October 1,

2001, in which the STB found that, while it had jurisdiction

Over transportation by a rail carrier, PSO was not a rail

carrier. The STB concluded that in its construction and

operation of the spur, PSO was not subject to the STB’s

jurisdiction because the spur was a private track. B. Willis,

C.P.A., Inc. Petition for Declaratory Order, 2001 WL

1168090 (S.T.B. Oct. 16, 2001) (No. 34013).

{24 Willis sought to reopen this decision in June of 2002.

The STB concluded that the “new” evidence Willis sought to

introduce was neither new nor previously unavailable to

Willis and that, regardless, the newly proffered evidence did

not lead to any different conclusion than the STB had reached

in October of 2001:

Thus, as the October 2001 decision correctly

concluded (at 4), where, as here, “a shipper does not

hold out to provide common carrier railroad service

over a line it constructs and maintains to serve its own

facility, and no other shippers are served by the line,

then neither that construction, nor a railroad’s

operation over that track to reach the shipper’s

facility, requires ICC or Board authorization or

approval.”

_ B. Willis, C.P.A., Inc. - Petition for Declaratory Order, 2002

WL 1730018 (S.T.B. July 23, 2002) (No. 34013).

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{25 Unsatisfied, Willis appealed the STB’s decision to the

United States Court of Appeals for the D.C. Circuit, which

affirmed in an unpublished opinion finding that the STB did

not have jurisdiction over the Willis/PSO dispute. B. Willis,

C.P.A., v. Surface Transp. Bd., 51 Fed. Appx. 321, 51

F.App’x 321 (D.C. Cir. 2002). The D.C. Circuit denied

Willis’s petition for rehearing and petition for rehearing en

banc and the United States Supreme Court denied certiorari.

B. Willis, C.P.A., Inc., v. Surface Transp. Bd., 540 U.S.

811, 124 S. Ct. 51, 157 L. Ed. 2d 23 (2003). Willis has had

his day in court on this issue. He may not be satisfied with the

result, but he is, nonetheless, bound thereby and may not re-

litigate the findings of the STB in the courts of Oklahoma.

Constant v. U.S., 929 F.2d 654, 657 (Fed. Cir. 1991); Nat’l

Diversified Bus. Servs., Inc. v. Corp. Fin. Opportunities,

Inc., 1997 OK 36, 946 P.2d 662. Absent federal jurisdiction

over PSO in its construction and operation of this rail spur,

there is no basis for federal preemption of the proceedings in

the Trial Court.

PROPOSITION III

{26 Willis next argues that the Trial Court should have

found that PSO had engaged in fraud and abuse and

oppression, and should have refused to confirm PSO’s

exercise of its eminent domain power on that basis. To

advance this argument, Willis asserts that PSO did not have

authority as a public utility to cross a public road, street or

highway. Willis does not argue that any “public road, street

or highway” crossed by PSO is located on his property. The

issue before the Trial Court, and in this appeal, is PSO’s right

to condemn Willis’s property. The Trial Court’s

determination that, as a matter of law, PSO had the power of

eminent domain to condemn Willis’s property is correct. 27

O.S. 2001 § 7; 66 O.S. 2001 § 57; Tuttle v. Jefferson Power

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& Improvement Co., 1912 OK 232, 31 Okla. 710, 122 P.

1102. Willis has pointed to no representation by PSO that

fraudulently enabled it to use the power of eminent domain

granted to it by the Legislature.

{27 Willis’s assertion of oppression by PSO is equally

unpersuasive. Although it took, as Willis notes, seven years

and an appeal to the Oklahoma Supreme Court, Willis

recognizes, in his brief-in-chief, that he was permitted to

conduct discovery and “afforded a hearing [on] October 14,

2004.” He points to no defect in that proceeding that affected

his constitutional right to challenge PSO’s condemnation of

his property. As noted above, there is ample evidence in the

record to support the Trial Court’s conclusion that PSO had

lawfully exercised its power of eminent domain in

condemning Willis’s property. Consequently, we are required

to leave that decision undisturbed on appeal. Willis at 418,

941 P.2d at 1000.

PROPOSITION IV

428 Willis includes five separate arguments in support of

his final proposition that a new appraisal should be ordered:

(1) The Commissioners in this case were selected by PSO and

not the Trial Court as required by 66 O.S. 2001 § 53; (2) The

instructions to the Commissioners wrongfully precluded them

from considering information from the landowners; (3) The

Commissioners failed to value only the easement being

condemned by PSO; (4) The Commissioners failed to consider

the value of coal, limestone and topsoil removed from Willis’s

property by PSO during construction of its rail spur; and (5)

The Commissioners’ Report fails to consider the value of the

rail spur bridge constructed on Willis’s property, which he

claims ownership of by virtue of Willis I.

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{29 The Trial Court considered Willis’s challenge to the

manner in which the Commissioners were appointed and

rejected Willis’s argument in its Order of November 14,

2004. There is sufficient evidence in the record to support the

Trial Court’s finding on this issue and it will not, therefore,

be disturbed on appeal. Willis at 18, 941 P.2d at 1000.

q30 As PSOcorrectly points out, the issue before the Trial

Court at the October 2004 hearing was PSO’s right to

condemn Willis’s property, not the value of the property

condemned. Based on the record before this Court, the Trial

Court has yet to reach the second issue. Consequently, at the

time of this appeal, there was no judgment or appealable order

that would be relevant concerning arguments two through four

of Willis’s Proposition IV. Those arguments were premature

in the Trial Court proceedings from which this appeal was

taken and need not be considered here.

{31 Willis’s final argument in Proposition [V is a variation

of the argument asserted in Proposition I and dependent on his

misinterpretation of the effect of Willis 1. The Trial Court’s

1992 Order was a final, appealable order. 12 O.S. 2001

§ 953. Willis was entitled to appeal from that Order and could

have stayed the effect of that Order by posting a bond, 12

O.S. 2001 § 990.4, but he was not required to do so. Okla.

Const. art. 2, § 24; 66 O.S. 2001 § 56. Nonetheless, Willis’s

appeal, without posting a bond, did not “delay the prosecution

of the work.” 66 O.S. 2001 § 56.

432 PSO was entitled to rely on the Trial Court’s Order

and construct its rail spur. Until reversed on appeal, the Order

of the Trial Court was presumed correct. Hamid v. Sew

Original, 1982 OK 46, 496-7, 645 P.2d 496, 497. And

Willis’s appeal did not stay or suspend the effectiveness of

that Order, particularly in light of the authority to proceed

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with the work granted in section 56. Davis v. Rowland, 1952

OK 144, 45, 207 Okla. 19, 246 P.2d 376, 377. PSO could

have proceeded with the work at its own risk until its

“asserted” right to condemn was “proven” to the satisfaction

of the Trial Court and recorded in a final non-appealable

judgment. The authorities cited by Willis clearly support his

argument on this point. Just as clearly, however, PSO was not

prevented by law from taking that risk. The Trial Court has

now confirmed PSO’s right to condemn Willis’s property and

construct a rail spur with any necessary bridges. We affirm

that ruling.

CONCLUSION

{33 There is sufficient evidence in the record to support

the Trial Court’s finding that PSO’s taking was for a public

purpose as well as for its refusal to set aside that finding based

on Willis’s claims of fraud, abuse and oppression, and

irregularity in the appointment of the Commissioners. The

exercise of jurisdiction by the Trial Court was not preempted

by federal law. The Trial Court’s confirmation of PSO’s

exercise of its power of eminent domain was correct as a

matter of law, and we affirm.

434 AFFIRMED.

WISEMAN, P.J., and GOODMAN, J., concur.

September 19, 2006

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 97-5107

(D.C. No. 96-CV-59-E)

‘ (N.D. Okla.)

[Filed May 27, 1999]

B. WILLIS, C.P.A., INC., *

Plaintiff-Appellant,

V.

PUBLIC SERVICE COMPANY OF

OKLAHOMA, AN OKLAHOMA

CORPORATION; BURLINGTON

NORTHERN AND SANTA FE

RAILWAY COMPANY,

A FOREIGN CORPORATION,

Defendants-Appeilees.

ee eo a a a ee ee ee

ORDER AND JUDGMENT’

* This order and judgment is not binding precedent, except under

the doctrines of law of the case, res judicata, and collateral

‘estoppel. The court generally disfavors the citation of orders and

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Before TACHA and BALDOCK, Circuit Judges, and

GREENE,” Senior District Judge.

The panel previously abated this appeal in deference to

related state court eminent domain proceedings which might

have obviated or perhaps clarified some of the issues raised in

the case. However, timely resolution of the state action has

not ensued. After making its way through the Oklahoma

appellate courts, that proceeding is now back in the trial court

awaiting redetermination.

Upon further review of the record on appeal, the briefs,

and the parties’ subsequent submissions, the panel concludes

that preper grounds for immediate disposition of the appeal

are present but have been obscured by the presence of many

overlapping/redundant claims which are not ripe for

adjudication. For reasons explained below, we affirm the

decision of the district court, though we clarify that the

dismissal of the buik of this case, which is dictated by

constitutional constraints on subject matter jurisdiction, is

without prejudice.

Background

Oklahoma’s statutory scheme for eminent domain, Okla.

Stat. Ann. tit 66, §§ 51-66, authorizes railroad corporations

(and utilities, see Okla. Stat. Ann. tit 27, § 7) to take real

property by condemnation, The procedure may be outlined in

pertinent part by the following steps: (1) the condemnor

judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

** Honorable J. Thomas Greene, Senior District Judge, United

States District Court for the District of Utah, sitting by designation.

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corporation applies to the district judge, with notice to the

landowner, for selection of a three-person commission; (2) the

commissioners inspect the property, assess just compensation

for the injury involved, and file a report with the clerk of the

court, which is promptly forwarded to interested parties; (3)

if the condemnor pays the assessed sum, it may take

immediate possession consistent with its proposed use, though

all parties retain the right to challenge the commission’s

report; (4) review may be sought in the district court by filing

written exceptions to the report or a demand for jury trial; (5)

the district court’s final judgment (approving compensation or

denying condemnation) is subject to appeal, but such review

shall not delay the condemnor’s use of the Property if

approved, so long as the assessed compensation has been

paid.

Defendant Public Service Company of Oklahoma (PSO)

commenced an eminent domain proceeding to condemn and

acquire an easement over plaintiff's property to build a

railroad spur for transporting coal to one of its power plants.

After the first three steps of the process were concluded,

plaintiff sought review in state court both by exception and

jury demand, alleging that the proposed taking was not for a

public use nor reasonably necessary for the use claimed.

Plaintiff also challenged the amount of compensation assessed.

The trial court ruled in favor of PSO, and plaintiff appealed.

He also sought interim equitable relief from the Oklahoma

Supreme Court, which denied his requests. While the appeal

was pending, PSO completed the railroad spur and put it in

use (particularly by defendant Burlington Northern Railroad

Company (BN), as PSO’s licensee). When plaintiff threatened

to interfere with the operation, PSO obtained an injunction

against him. Ultimately, the Oklahoma Supreme Court

reversed the judgment of condemnation, holding that the trial

court had erroneously relieved PSO of the initial burden of

22a

proof and compounded that error by denying plaintiff

discovery of pertinent materials. See Public Serv. Co, v. B.

Willis, C.P.A., Inc., 941 P.2d 995 (Okla. 1997). On remand,

the state trial court refused to dissolve the existing injunction

against plaintiff's interference with PSO’s operation, and the

Oklahoma appellate courts have affirmed that ruling.

However, the trial court has yet to issue any final decision on

the merits of the condemnation.

In the meantime, plaintiff filed these proceedings in

federal district court, alleging numerous Constitutional claims

against PSC under 42 U.S.C. § 1983 and a trespass claim

against BN. The district court identified the crux of the case

to be plaintiff's assertion that he was constitutionally entitled

to a final judicial determination on condemnation before PSO

could take possession of the easement over his property. In

the district court’s view, no federal right was implicated under

the circumstances and, consequently, PSO’s current

possession, and BN’s licensed use, was not actionable.

On this appeal, plaintiff continues to argue that the state

condemnation proceedings are constitutionally invalid,

violating his rights to due process, equal protection, access to

the courts, and free speech. He also claims that, as PSO could

not have acquired a valid right to possession through such

proceedings, BN has no derivative licensee defense to the

trespass Claim. Finally, he contends that the state court order,

enjoining his interference with PSO’s operations violates his

First Amendment right of free speech. We conclude that most

of these claims are not ripe for adjudication, and the

remainder lack merit. Accordingly, we affirm the district

court’s decision dismissing, the case.

23a

Ripeness

Virtually all of plaintiff's complaints derive, in one way

or another, from the eminent domain proceeding prosecuted

by PSO. As outlined above, that proceeding affords plaintiff

the right to challenge both the justification of PSO’s taking

and the adequacy of any resulting compensation. See

generally Okla. Stat. Ann. tit 66, §§ 51-57. Thus, until that

proceeding is concluded, any objections he may have

cognizable under the most directly pertinent provision of the

federal Constitution--the Just Compensation Clause (JCC)--are

not ripe for adjudication and must be dismissed for lack of

subject matter jurisdiction under Williamson County Regional

Planning Comm’n v. Humilton Bank of Johnson City, 473

U.S. 172, 186-96 (1985). More to the point here, this

ripeness rule encompasses other constitutional claims which

fall squarely within the primary purview of the JCC in this

context, such as the due process, equal protection, and access-

to-courts infirmities plaintiff alleges with respect to the state

eminent domain proceeding. See Bateman v. City of West

Bountiful, 89 F.3d 704, 709 (10th Cir. 1996) (collecting

numerous Tenth Circuit cases). Thus, pursuit of such closely-

related objections must await the ripening of the predominant

JCC claim. /d.

However, one condemnation-related claim here clearly

falls outside the Williamson bar. In addition to the objections

to his own proceeding, plain*‘ff appears to raise a generalized

facial challenge to the state eminent domain scheme itself, for

permitting any condemnor to take immediate possession upon

payment of an administratively-determined compensation

before final judicial resolution of the landowner’s objections,

see Okla. Stat. Ann. tit 66, § 53(C). While an objection to the

taking “as applied to [plaintiff's] property would be unripe

funder Williamson],” such a “facial challenge to the [statutory

24a

scheme]” is immediately adjudicable. See Yee v. City of

Escondido, 503 U.S. 519, 533-34 (1992).

This evidently was, in fact, the claim addressed by the

district court, which held that predeprivation hearings are not

constitutionally required in the eminent domain context. We

agree. In addition to the authorities the district court

discussed, we note the Supreme Court specifically stated in

Williamson that “[uJnlike the Due Process Clause... the Just

Compensation Clause has never been held to require pretaking

process or compensation.” Williamson, 473 U.S. at 195 n. 14

(citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016

(1984)); see also J. B. Ranch, Inc. v. Grand County, 958

F.2d 306, 309 & n.4 (10th Cir. 1992) (quoting Williamson

and rejecting due process Claim based on asserted need for

pretaking hearing in this context as “impos[ing] new and

potentially inconsistent obligations” beyond those required by

JCC), Indeed, this was a premise for the Williamson Court’s

ripeness analysis: “[B]ecause the Constitution does not require

pretaking compensation, and is instead satisfied by a

reasonable and adequate provision for obtaining compensation

after the taking, the State’s action here is not ‘complete’ until

the State fails to provide adequate compensation for the

taking,” Williamson, 473 U.S. at 195; see also Biddison v.

City of Chicago, 921 F.2d 724, 727 n.4 (7th Cir, 1991).

This point is obscured somewhat by decisions of the

Oklahoma Supreme Court which, while not holding the

eminent domain scheme (particularly the immediate-

possession provision of § 53(C)) invalid, have broadly stated

that “the establishment of the right to condemn is a

prerequisite to any right of possession by the Condemnor.”

Town of Ames v. Wybrant, 220 P.2d 693,695 (Okla. 1950)

(citing Watkins v. Board of Comm’rs, 174 P. 523,525 (Okla.

1918)). However, a wider view of the case law harmonizes

25a

the supreme court’s language with its evident acceptance of

§ 53(C). Thus, the legislative authorization of immediate

possession is permissible in that such possession remains

subject to review and potential restraint through the courts’

equitable power: “According to Wybrant; and Watkins, a

public body having the power of condemnation can be

enjoined from appropriating private property for public use

until it has initiated condemnation proceedings and had its

right to condemn the property finally determined.” City of

Bartlesville v. Ambler, 499 P.2d 433, 436 (Okla. 1971)

(emphasis added); See Wybrant, 220 P.2d at 696 (noting that

“upon proper application and showing [by the landowner]”

the trial court “could make an order temporarily restraining

the condemnor from taking possession of the land pending

final determination of the right to condemn” (emphasis

added)); Wrightsman v. Southwestern Natural Gas Co., 46

P.2d 925,933 (Okla. 1935) (same). Indeed, plaintiff has taken

the opportunity to seek equitable relief in the state

proceedings; he has just not persuaded the Oklahoma courts

that it is warranted in his case. Thus, the state courts’

construction and assessment of the eminent domain scheme is

consistent with applicable federal precedent, and neither of

these bodies of authority support plaintiff's position that the

Scheme is invalid.

Freedom of Speech

Plaintiff's First Amendment claim, which challenges a

collateral order on a basis substantively independent of the

condemnation process itself, appears also to fall outside the

Williamson ripeness bar. Compare Landmark Land Co. of

Okla., Inc, v, Buchanan, 874 F.2d 717, 723 (10th Cir. 1989)

(holding intangible due process right that was substantively

distinct from JCC protections was not subsumed under

Williamson ripeness rule), with J. B. Ranch. Inc., 958 F.2d

26a

at 309 (holding Williamson applicable to due process claim

that fell squarely within compass of JCC protections).

However, we hold that dismissal of the claim was warranted

in any event.

The target of the claim is the state trial court’s order

enjoining plaintiff “from directly or indirectly interfering in

any manner with the construction, maintenance and operation

of [PSO’s] railroad spur.” Appellants’ Supp. App. at 21.

There is nothing facially speech-sensitive about this order, nor

does plaintiff cite any authority that would support such a

claim. Actually, plaintiff is primarily concerned with a

contempt proceeding brought to enforce the injunction after

this appeal was filed. In that proceeding, which has not been

concluded, PSO seeks to hold plaintiff in contempt for

sending a letter to BN admonishing that, in light of the

Oklahoma Supreme Court’s reversal of PSO’s condemnation

order, plaintiff “is restoring [his] fence line around [the

disputed easement] and posting ‘NO TRESPASSING’ signs.”

Id. at 22. Whether plaintiff has a cognizable claim under the

First Amendment on this basis is not a question properly

before this panel.

Trespass

The district court explained that its reiection of plaintiff's

constitutional challenges to the eminent domain proceedings

mooted any remaining claims and, accordingly, dismissed the

entire case. As plaintiff recognizes, his claim against BN for

trespass obviously stands or falls with the legitimacy of the

eminent domain proceeding from which the railroad derives

its status as licensee. Since any further challenges to that

proceeding are not currently ripe for adjudication, the district

court’s dismissal of the action should be affirmed.

27a

State Proceedings - Status Reports

Status reports submitted by plaintiff reflect some

unfavorable rulings issued in the ongoing eminent domain

proceedings. In particular, plaintiff complains of the

Oklahoma Supreme Court’s March 22, 1999 denial of his

mandamus petition seeking to disqualify the state trial judge,

and the May 4, 1999 denial of certiorari in his interlocutory

appeal from the trial court’s refusal to dissolve the order

enjoining interference with PSO’s operations. For the same

reasons expressed above in connection with plaintiff's

challenge to the eminent domain proceeding as a whole, these

particular objections to specific rulings therein are not ripe for

consideration. Further, if a particular ruling were somehow

sufficient to give rise to a distinct, immediately actionable

constitutional wrong, at this point such a claim would most

appropriately be brought in district court, not interjected into

this pre-existing appeal.

Conclusion

Accordingly, we affirm the district court’s dismissal of

this action. We clarify, however, that the disposition of

plaintiff's numerous unripe claims, based on the lack of

subject matter jurisdiction, is without prejudice. See Bateman,

89 F.3d at 706.

The judgment of the United States District Court for the

Northern District of Oklahoma is AFFIRMED. All pending

motions are denied as moot.

Entered for the Court

Deanell Reece Tacha

Circuit Judge

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