UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CITY OF TAHLEQUAH,

Plaintiff-Appellee,

v.

LAKE REGIONAL ELECTRIC COOPERATIVE, INC.,

Defendant-Appellant,

and

UNITED STATES OF AMERICA, ex rel. Rural Electrification Administration,

Defendant.

No. 00-7038

(D.C. No. 98-CV-293-S)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Defendant-appellant Lake Region Electric Cooperative, Inc. (Lake Region), a rural electric power distribution cooperative in northeast Oklahoma, appeals the district court's denial of its motion to dismiss this eminent domain proceeding filed by plaintiff-appellee City of Tahlequah (the City) to acquire part of Lake Region's electric distribution facilities.1 Lake Region's motion to dismiss was based on a legislatively-imposed moratorium on this type of municipal acquisition by condemnation.2 The district court denied the motion, holding that a retroactive application of the moratorium violated article V, section 52 of the Oklahoma Constitution which provides that "[a]fter suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action." Thus, the matter was allowed to proceed to a jury assessment of just compensation for the property. This appeal followed.

Because the case presented an important question of undecided Oklahoma law, and because resolution of the question was determinative of this appeal, we certified the following question to the Oklahoma Supreme Court:

Senate Bill 888 [Okla. Stat. tit. 11 § 21-222 (1998)] declares a "prospective and retroactive" moratorium on certain municipal condemnations of facilities of rural electric cooperatives and electric utilities. The Oklahoma Constitution, article V section 52, provides that the legislature lacks "power to take away [a] cause of action" after commencement of a "suit." In light of statements in Oklahoma case law that condemnation matters are special proceedings, not actions at law or suits in equity, does the moratorium affect a condemnation proceeding filed before the enactment of Senate Bill 888?

City of Tahlequah v. Lake Region Elec. Coop., Inc., No. 00-7038, 2000 WL 1828398, at *1 (10th Cir. Nov. 21, 2000).

The Oklahoma Supreme Court has answered the certified question in the affirmative. It has held that a condemnation proceeding "is not a 'cause of action'" and, therefore, "a legislatively-effected stay of such proceedings would neither implicate nor violate art. V, § 52's circumscription of legislative power to take away a cause of action–regardless of when the condemnation was instituted." City of Tahlequah v. Lake Region Elec. Coop., Inc., No. 95563, 2002 WL 49965, at *3 (Okla. Jan. 15, 2002). Consequently, the district court's denial of Lake Region's motion to dismiss is contrary to Oklahoma law.3

The judgment of the district court is REVERSED, and the case is REMANDED with instructions to vacate the jury assessment of just compensation.

Entered for the Court

Wade Brorby

Senior Circuit Judge