Alliance for Property Rights a, et al v. City of Idaho Falls, et al

Filing

FILED OPINION (MARY M. SCHROEDER, SIDNEY R. THOMAS and N. RANDY SMITH) AFFIRMED. Judge: MMS, Judge: SRT , Judge: NRS Authoring. FILED AND ENTERED JUDGMENT. [8920464]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALLIANCE FOR PROPERTY RIGHTS
AND FISCAL RESPONSIBILITY; BRYON
REED; CARL TAYLOR; LINDA
TAYLOR; HAROLD CARLSON; RITA
CARLSON; JEFF WALBOM; JACKIE
WALBOM; TED WHITEHEAD; CAROL
WHITEHEAD; ROBERT JOHNSON; JIM
DIXON; PENNY DIXON; PAMELA
LYON; WAYNE JENSEN; ANN
JENSEN; ELMER CHERRY; SANDRA
CHERRY,
Plaintiffs-Appellees,

No. 12-35800
D.C. No.
4:12-cv-00146BLW

OPINION

v.
CITY OF IDAHO FALLS; IDAHO FALLS
POWER,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
October 1, 2013—University of Idaho Law School
Filed December 31, 2013

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ALLIANCE V. CITY OF IDAHO FALLS
Before: Mary M. Schroeder, Sidney R. Thomas,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith

SUMMARY*

Civil Rights/Eminent Domain
The panel affirmed the district court’s summary judgment
in an action brought by property owners who had objected to
the City of Idaho Falls’ efforts to condemn easements over
their property, located outside of the City’s limits, for the
purpose of constructing electric transmission lines.
The panel held that municipalities in Idaho do not have
the power to exercise eminent domain extraterritorially for
the purpose of constructing electric transmission lines. The
panel held that as a creature of the state, the City has only
those powers either expressly or impliedly granted to it.
Because the power to exercise eminent domain
extraterritorially for the purpose of constructing electric
transmission lines (1) has not been expressly granted to the
City by the state, (2) cannot be fairly implied from the powers
that the City has been given by the state, and (3) is not
essential to accomplishing the City’s objects and purposes,
the City does not have that power. The panel therefore
affirmed the district court’s decision denying Idaho Falls
extraterritorial eminent domain power.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Joshua Evett (argued) and Matthew C. Parks, Elam & Burke,
Boise, Idaho, for Defendants-Appellants.
Brent L. Whiting (argued), Richard A. Hearn, and Eric Lynn
Olsen, Racine Olson Nye Budge & Bailey, Idaho Falls, Idaho,
for Plaintiffs-Appellees.

OPINION
N.R. SMITH, Circuit Judge:
Municipalities in Idaho do not have the power to exercise
eminent domain extraterritorially for the purpose of
constructing electric transmission lines. Neither the Idaho
Constitution nor the Idaho Legislature has expressly or
impliedly given Idaho’s cities that power. Because cities in
Idaho are “creature[s] of the state,” they cannot receive that
power from any other source. Caesar v. State, 610 P.2d 517,
519 (Idaho 1980). Because the City of Idaho Falls need only
provide electric power at its lowest possible cost (whatever
that cost may be), it cannot claim the extraterritorial use of
eminent domain is necessary to accomplish its “declared
objects and purposes.” Black v. Young, 834 P.2d 304, 310
(Idaho 1992). We therefore affirm the district court’s
decision denying Idaho Falls extraterritorial eminent domain
power.

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ALLIANCE V. CITY OF IDAHO FALLS
UNDISPUTED FACTS & PROCEDURAL
BACKGROUND

The City of Idaho Falls (the “City”) owns and operates
Idaho Falls Power (“IFP”), an electrical utility supplying
power to approximately 22,350 residential and 3,680
commercial customers within the City. IFP’s generation,
transmission, and distribution systems are currently located
both inside and outside the City’s geographical boundary.
This litigation arose from the City’s recent efforts to
complete its power system expansion plan first conceived in
1972 and re-affirmed in 2007. IFP seeks to finalize the plan
by (1) constructing a new substation to be located north of the
City and (2) constructing transmission lines outside the City’s
limits to connect two existing substations. This appeal
concerns only the construction of the transmission lines. The
proposed route for the new lines forms a semicircle, running
from the Westside Substation (located southwest of the City)
around the City’s north end then down to the Sugarmill
Substation (located on the City’s east side). The entire
transmission line route travels outside the City’s limits.
To construct the transmission lines along the proposed
route, IFP must obtain easements for power lines over the real
property of individuals residing outside of the City’s limits.
IFP first sought to obtain these easements by offering to
purchase them from the owners of the property over which
the proposed lines would travel. Some of those owners
(members of the Alliance for Property Rights and Fiscal
Responsibility (the “Alliance”)) rejected those offers.
On March 12, 2012, the Alliance sought declaratory and
injunctive relief in Idaho state court. Essentially, the Alliance

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alleged that the City had threatened to condemn the
easements if the members of the Alliance would not sell
them. The Alliance sought declaratory and injunctive relief,
arguing that the City lacked the power to condemn property
outside its boundaries for the purpose of building electric
transmission lines. The Alliance also alleged that, because
the City lacked the condemnation power, any taking pursuant
to that power would violate the Fourteenth Amendment Due
Process Clause.
On March 22, 2012, the City removed the case to federal
court. The Alliance’s Fourteenth Amendment claim provided
the federal district court with subject matter jurisdiction.
28 U.S.C. §§ 1331, 1441(a). On September 7, 2012, the
district court entered summary judgment in favor of the
Alliance, finding that Idaho law did not grant the City (or, by
extension, IFP) the power to condemn property outside its
corporate limits for the purpose of constructing electric
transmission lines. The City appealed.
STANDARD OF REVIEW
“We review de novo the district court’s grant of summary
judgment.” Oswalt v. Resolute Indus., Inc., 642 F.3d 856,
859 (9th Cir. 2011). We also review a district court’s
interpretation of Idaho law de novo. See Arizona Elec. Power
Co-op., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995). In
doing so, we are bound by the decisions of the Idaho Supreme
Court. Id. “When the state’s highest court has not squarely
addressed an issue, we must predict how the highest state
court would decide the issue using intermediate appellate
court decisions, decisions from other jurisdictions, statutes,
treatises and restatements for guidance.” Glendale Assocs,

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ALLIANCE V. CITY OF IDAHO FALLS

Ltd. v. N.L.R.B., 347 F.3d 1145, 1154 (9th Cir. 2003) (internal
quotation marks omitted).
DISCUSSION
I. Eminent Domain
In this appeal, we must determine whether the City (and,
by extension, IFP) may exercise the right of eminent domain
to condemn easements located outside of its boundaries for
the purpose of constructing electric transmission lines.
“Idaho has long recognized the proposition that a municipal
corporation, as a creature of the state, possesses and exercises
only those powers either expressly or impliedly granted to it.”
Caesar, 610 P.2d at 519. Accordingly, we must review Idaho
law1 to determine whether the City has that power.
1
The City argues that Article 1 § 14 of the Idaho Constitution grants it
extraterritorial eminent domain power because this provision is selfexecuting. However, Idaho Supreme Court precedent does not support
this argument. Article 1 § 14 requires that there be a “public use” for
private land to be condemned. The Alliance does not dispute that Article
1 § 14 “to the extent of establishing the nature of the use required has been
held to be self-executing.” Bassett v. Swenson, 5 P.2d 722, 725 (Idaho
1931). Thus, when a court must determine whether a prospective use of
land can be considered a “public use,” “the nature of such use is not in any
wise affected by an affirmative or negative declaration of the Legislature,
or by its silence.” Blackwell Lumber Co. v. Empire Mill Co., 155 P. 680,
684 (Idaho 1916). The Alliance does not dispute the general proposition
that the construction of electric transmission lines is a public use.

Instead, the Alliance contends that municipalities do not have the
power to exercise eminent domain extraterritorially. Article 1 § 14 is
silent on this point. Therefore, we must look to Idaho statutes. See Cohen
v. Larson, 867 P.2d 956, 958 (Idaho 1993) (finding Article 1 § 14
“leav[es] to the legislature . . . the task of providing the procedure for
implementation”); Blackwell Lumber, 155 P. at 686 (“After the people in

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“When interpreting state law, federal courts are bound by
decisions of the state’s highest court.” Berkeley, 59 F.3d at
991. However, the Idaho Supreme Court has not specifically
addressed this question in the context of the relevant statutory
provisions. But it has articulated principles that guide the
construction of these relevant statutes. The Idaho Supreme
Court mandates that “municipal corporations have three
sources of power and no others: [(1)] [p]owers granted in
express words; [(2)] [p]owers fairly implied in or incident to
those powers expressly granted; and [(3)] [p]owers essential
to the accomplishment of the declared objects and purposes
of the corporation.” Black, 834 P.2d at 310. Reviewing each
of these sources of power in turn, not one confers upon the
City the power of extraterritorial eminent domain for the
purpose of constructing electric transmission lines.
A. Express Words
The City argues that two statutes expressly grant it the
power of extraterritorial eminent domain: (1) Idaho’s general
eminent domain statutes, and (2) Idaho’s Revenue Bond Act.
1. Idaho’s General Eminent Domain Statutes
Idaho’s general eminent domain statutes do not expressly
grant the City the power to exercise eminent domain
extraterritorially for any purpose. Instead, under those
statutes, “[a]ny municipality at its option may exercise the

their Constitution had declared what are public uses, it then devolved upon
the Legislature to provide a procedure for exercising the right of eminent
domain or subjecting lands to such public uses.”); Potlatch Lumber Co. v.
Peterson, 88 P. 426, 432 (Idaho 1906) (“Thus by legislative enactment
[Article 1 § 14] of the Constitution is made effective.”).

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right of eminent domain . . . for any of the uses and purposes
mentioned in section 7-701.” Idaho Code § 7-720.2 Section
7-701, in turn, specifies eleven different “public uses.” See
§ 7-701(1)–(11). Relevant here, paragraph (11) authorizes
the use of eminent domain for “[e]lectric distribution and
transmission lines for the delivery, furnishing, distribution,
and transmission of electric current for power, lighting,
heating or other purposes; and structures, facilities and
equipment for the production, generation, and manufacture of
electric current for power, lighting, heating or other
purposes.” § 7-701(11). Significantly, neither § 7-720 nor
§ 7-701(11) outlines where municipalities may use their
eminent domain power.
Certainly, § 7-720 does not contain any language limiting
the exercise of the eminent domain power to within the
geographic limits of a municipality. But in the eminent
domain context, the absence of such a limitation in a general
grant of eminent domain power normally is not construed as
an authorization to exercise the power extraterritorially. See
11 McQuillin The Law of Municipal Corporations § 32:76
(3d ed. 2013) (“[A] municipality cannot condemn lands
within the state but outside its own corporate limits unless the
power has been delegated by the legislature or granted by the
state constitution. The legislature may delegate such power,
as frequently has been done in express terms.” (footnotes
omitted) (emphasis added)); see also 26 Am. Jur. 2d Eminent
Domain § 27 (2013) (“It may be provided for by statute that
municipalities may condemn land beyond their limits.
However, it has been held that a grant of power to municipal
corporations to condemn ‘any’ land for ‘any’ municipal or
2

Except where otherwise noted, all citations and references to “section”
or “§” are citations or references to provisions of the Idaho Code.

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public purpose does not include land outside the city limits.”
(footnotes omitted)). Consistent with these authorities, the
Idaho Supreme Court requires that “statutes conferring the
power [of eminent domain] must be strictly construed.”
McKenney v. Anselmo, 416 P.2d 509, 514 (Idaho 1966).
Moreover, the Idaho Legislature has expressly granted
cities extraterritorial eminent domain power for purposes
other than constructing electric transmission lines. For
example, § 50-320(A) grants cities the power to “exercise the
right of eminent domain under the provisions of [Chapter 7]”
to acquire “lands not exceeding [80] acres in [1] body outside
of the corporate limits” for the purpose of constructing a
cemetery. (emphasis added). Likewise, § 21-401 authorizes
municipalities to “acquire by . . . condemnation . . . lands
either wholly or partly within or without the boundaries or
corporate limits of” the municipality “for the purpose of
constructing and maintaining aviation fields, airports, hangars
and other air navigation facilities.” (emphasis added). These
express grants of extraterritorial eminent domain power
evidence that (1) the Idaho Legislature knows how to grant
extraterritorial eminent domain power to the cities of Idaho
and (2) does so expressly and for a specific purpose when it
intends that the cities have that power. Therefore, the
absence of an express grant of extraterritorial eminent domain
power in §§ 7-720 and 7-701(11) evidences that the Idaho
legislature did not grant such power in the general eminent
domain statutes.
2. Idaho’s Revenue Bond Act
Next, the City argues that Idaho’s Revenue Bond Act
(“RBA”) grants it extraterritorial eminent domain power for

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the purpose of constructing electric transmission lines.3
According to the City, because § 50-1030(a) (“paragraph
(a)”) authorizes it to acquire land to construct transmission
lines outside the City,4 and § 50-1030(c) (“paragraph (c)”)
authorizes it to employ eminent domain “for any of the
works, purposes or uses provided by this act,” it may use
eminent domain to acquire the property rights it seeks in this
case.
The text of the statute forecloses this argument.
Paragraph (c) only permits cities to exercise the power of
eminent domain “in like manner and to the same extent as
provided in section 7-720.” (emphasis added). These words
of limitation indicate that the legislature did not intend
paragraph (c) to augment the scope of the eminent domain
power beyond what § 7-720 already permitted. As discussed,
§ 7-720 does not grant cities extraterritorial eminent domain
power, so the language in paragraph (c) precludes the RBA
from granting the City that power.
Additional statutory text also forecloses the argument.
Paragraph (a) lists specific means of acquiring property rights
3

The RBA includes §§ 50-1027 to -1042. See § 50-1027. The City may
exercise the powers granted in the RBA, even if the City is not issuing
bonds. See Viking Const., Inc. v. Hayden Lake Irr. Dist., 233 P.3d 118,
123 (Idaho 2010) (concluding, based on similar language, that analogous
revenue bond act is “not limited to a district issuing bonds”), abrogated
on other grounds by Verska v. Saint Alphonsus Reg’l Med. Ctr., 265 P.3d
502, 508–09 (Idaho 2011).
4
Paragraph (a) grants cities the power to “acquire by gift or purchase . . .
rights in lands . . . in connection [with]” the construction of “works within
or without the city.” These “works” include electric transmission lines.
See § 50-1029(a) (defining “works” as including “electric systems”);
§ 50-1029(h) (defining “electric system” to include “transmission lines”).

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related to the works it describes. Namely, it authorizes cities
to “acquire by gift or purchase lands or rights in lands.”
(emphasis added). However, acquisition by “condemnation”
is not listed in paragraph (a). Therefore, Idaho precedent
suggests that we must assume that the legislature excluded
“condemnation” from this list deliberately. Idaho Press Club,
Inc. v. State Legislature of Idaho, 132 P.3d 397, 399 (Idaho
2006) (“[W]here a constitution or statute specifies certain
things, the designation of such things excludes all others.”)
(quoting Local 1494 of Int’l Ass’n of Firefighters v. City of
Coeur d’Alene, 586 P.2d 1346, 1355 (Idaho 1978)).
Supporting this determination, in previous versions of the
RBA, paragraph (a) did expressly list “eminent domain” as a
means by which municipalities could acquire property outside
of its boundaries. See 1965 Idaho Sess. Laws 795. The
legislature’s subsequent deletion of the term from the list
forecloses the conclusion that § 50-1030 expands the scope
of cities’ eminent domain power.
Lastly, finding a grant of extraterritorial eminent domain
power in the RBA would render redundant the (clearer) grant
of such power in at least one other statutory section. Section
21-401 expressly grants Idaho municipalities the power to
acquire “lands either wholly or partly within or without
[their] boundaries” by “condemnation” “for the purpose of
constructing and maintaining aviation fields, airports, hangars
and other air navigation facilities.” Similarly, the RBA
identifies “airport facilities and air navigation facilities” as
“works” for which paragraph (c) authorizes the use of
eminent domain. See § 50-1029(a). If paragraph (c) grants
extraterritorial eminent domain power to acquire air
navigation facilities, then § 21-401 becomes a redundant
grant of the same power. Idaho courts avoid such
constructions. See Verska, 265 P.3d at 510 (“When

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determining the plain meaning of a statute, effect must be
given to all the words of the statute if possible, so that none
will be void, superfluous, or redundant.” (emphasis added)
(internal quotation marks omitted)).
Appellants argue that paragraph (c) itself is superfluous
if it does not add to the eminent domain powers that § 7-720
already grants. However, this argument incorrectly assumes
that paragraph (c) could serve no purpose except for
expanding the scope of the eminent domain power. Instead,
paragraph (c) makes clear that eminent domain is one means
of acquiring “works,” and that cities may finance such
acquisitions by issuing revenue bonds. See § 50-1030(c), (e).
Without that specific authorization and with the explicit
grants of power to acquire by other means in paragraph (a)
(namely, by gift or purchase), there would be ambiguity as to
whether the RBA authorized cities to finance eminent domain
acquisitions by issuing revenue bonds. Thus, paragraph (c)
is not superfluous.5
B. Powers Fairly Implied or Incident to Express
Powers
Even though Idaho statutes do not grant the City the
express power of extraterritorial eminent domain to construct
transmission lines, that power may be “fairly implied in or
incident to those powers expressly granted.” Black, 834 P.2d

5

We also reject the City’s reliance on the “in pari materia” canon of
construction. See Gooding Cnty. v. Wybenga, 46 P.3d 18, 21 (Idaho 2002)
(“Statutes are in pari materia if they relate to the same subject. Such
statutes are construed together to effect legislative intent.” (citation
omitted)). Given the foregoing analysis, construing these three statutes
“together” does not produce a construction favorable to the City.

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at 310. In determining whether statutes imply this power,
“fair, reasonable, substantial doubt[s] as to the existence of a
[municipal] power” must be resolved against the City. City
of Grangeville v. Haskin, 777 P.2d 1208, 1211 (Idaho 1989).
The City argues that its extraterritorial power of eminent
domain arises by implication from (1) its general power to
own property outside city limits, and (2) the powers expressly
granted to it under the RBA to acquire property rights for the
purpose of constructing electric utilities outside city limits.6
We disagree.
1. General Power to Acquire and Use Land
The City’s general power to acquire and use “lands
outside [its] corporate limits” does not fairly imply that the
City can use the power of eminent domain to acquire
easements there. § 50-220. The City cites no authority to
support the proposition that the power to acquire and use real
property through voluntary means implies the power of
eminent domain. The absence of any authority for the City’s
position gives rise to a “fair, reasonable, substantial doubt”
that this power can be implied from § 50-220. City of
Grangeville, 777 P.2d at 1211. Thus, we must conclude that

6

The City also argues that the extraterritorial eminent domain power can
be traced to statutes authorizing the City to buy and sell excess electrical
power. However, there is, at best, a tangential connection between (1) the
authorization to sell excess electrical power and (2) the authority to
exercise the power of eminent domain to construct power lines to facilitate
the transmission of that power within the City’s system for the purpose of
supplying its customers. The former does not “fairly impl[y]” the latter.
Black, 834 P.2d at 310. Moreover, the City does not argue that it seeks to
build the North Loop lines for the purpose of buying and selling power
from other sources.

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§ 50-220 does not grant extraterritorial eminent domain
power to the City.
2. Power Granted under the RBA
The City also argues that its extraterritorial eminent
domain power can be “fairly implied” from the power the
RBA grants it to acquire “by gift or purchase lands or rights
in lands” outside the City’s boundaries “in connection with”
the construction of transmission lines and other parts of the
municipal electrical system. See § 50-1030(a). The City’s
argument appears to be that, if the City has the express power
to acquire and own property outside its borders for the
purpose of constructing components of its municipal
electrical system, then it must also be able to use the power
of eminent domain (when necessary) to make use of those
extraterritorially located components. However, in context,
extraterritorial eminent domain power cannot be fairly
implied from this grant of power.
As discussed, the plain text of the statute reflects a
deliberate choice by the legislature not to expand the power
of eminent domain beyond the borders of a municipality in
the RBA. It would contradict this intent to permit the City to
make an end-run around the statutory text by acquiring
property outside of its boundaries, then implying the power
to use eminent domain to facilitate the City’s desired use of
that property. Implication of such power under these
circumstances could not be considered “fair[].” Black,
834 P.2d at 310.

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3. Policy Reasons Not to Imply Extraterritorial
Eminent Domain Power
The Idaho Supreme Court adheres to the policy that all
“fair, reasonable, substantial doubt[s] as to the existence of a
[municipal] power” must be resolved against the City. City
of Grangeville, 777 P.2d at 1211. Even if the foregoing
analysis does not compel the conclusion that Idaho statutes do
not grant the City the power it seeks, it at least raises such a
doubt. And, under City of Grangeville, the existence of that
doubt compels the conclusion that the City must be denied the
power.
If the City has no other option for providing sufficient
electricity to its growing population, then it should ask the
legislature—not the courts—to expand its eminent domain
power to accommodate that growth. See Farber v. Idaho
State Ins. Fund, 208 P.3d 289, 295 (Idaho 2009) (“The
arguments . . . provided to this Court would be better targeted
at the Legislature, which is empowered to change existing
law.”), abrogated on other grounds by Verska, 265 P.3d 502.
C. Powers Essential to Corporation’s Declared
Objects & Purposes
Finally, the City’s extraterritorial power of eminent
domain may be implied if having that power is “essential to
the accomplishment of the declared objects and purposes of
the [City].” Black, 834 P.2d at 310. The City argues that
power to condemn easements outside of city limits is
essential to accomplishing the statutory mandate to provide
electrical power at the “lowest possible cost.” See § 50-1028.

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There is no basis for the City’s implicit argument that the
legislature intended this “lowest possible cost” mandate to
effect an expansion of municipal power. In fact, the opposite
is true. Use of the term “possible” implies that the City
should do all within the powers it has been granted elsewhere
to accomplish the objective of providing low-cost power. See
Webster’s Third New International Dictionary 1771 (1993)
(defining “possible” as “falling or lying within the powers (as
of performance, attainment, or conception) of an agent or
activity expressed or implied”). It does not imply that the
City may exceed its powers already granted in order to
provide power at lower cost, or that new powers may be
generated in pursuit of that objective.
The City relies on Big Sky Paramedics, LLC v. Sagle Fire
District, 95 P.3d 53 (Idaho 2004), to support its argument;
Big Sky is distinguishable. In Big Sky, the court started with
the premise that § 31-1401 “grants fire districts power for
‘[t]he protection of property against fire and the preservation
of life . . . .’” Id. at 54. Relying on the trial court’s finding
that the Sagle Fire Protection District (“SFPD”) provided a
quicker ambulance response to emergencies than a private
competitor, the court concluded that SFPD’s provision of its
own ambulance services was “indispensable” to its purpose
of providing for “the preservation of life.” See id. at 55.
By contrast here, the district court did not find, as a matter
of fact, that completion of the North Loop in its current
configuration will enable IFP to provide power at the “lowest
possible cost.” Furthermore, there is nothing in the record to
support that proposition. Thus, unlike in Big Sky, there is no
factual basis for concluding that the exercise of eminent
domain is “essential” to accomplishing the City’s objective.

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Additionally, the City relies on § 50-1028’s broad
mandate to provide electricity at the “lowest possible cost” to
circumvent other statutory provisions that would deny the
City the power it seeks. In Big Sky, granting the SFPD the
power to operate an ambulance service did not create such
tension with other statutes. Ultimately, we must reject the
City’s attempt to find in this broad mandate additional powers
the legislature has not granted it elsewhere.
II. Certification to the Idaho Supreme Court
After having lost at the district court level, the City now
asks us to certify the dispositive question in this appeal to the
Idaho Supreme Court. We deny the request. See
Micomonaco v. Washington, 45 F.3d 316, 322 (9th Cir. 1995)
(“Use of the certification procedure in any given case rests in
the sound discretion of the federal court.” (internal quotation
marks omitted)). “There is a presumption against certifying
a question to a state supreme court after the federal district
court has issued a decision. A party should not be allowed a
second chance at victory through certification by the appeals
court after an adverse district court ruling.” Thompson v.
Paul, 547 F.3d 1055, 1065 (9th Cir. 2008) (internal quotation
marks omitted). To overcome that presumption, the City
must demonstrate “particularly compelling reasons” why it
should “be allowed a second chance at victory.” In re
Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1984).
The City fails to identify such “particularly compelling
reasons” in this case. The City argues that the same reasons
that prompted us to certify a question in Peter-Palican v.
Northern Mariana Islands, 673 F.3d 1013 (9th Cir. 2012),
should prompt certification of the question presented in this

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case. However, this case differs from Peter-Palican in
meaningful ways.
In Peter-Palican, an ex-government official sued the
Commonwealth of the Northern Mariana Islands after she
was discharged from her cabinet-level position as Special
Assistant to the Governor for Women’s Affairs. Id. at 1015.
The position of Special Assistant was created by the
Commonwealth’s constitution, which specified that the
official holding that position “may be removed only for
cause.” Id. Thus, the case presented the question whether the
“for cause” limit on removal barred the Special Assistant’s
removal indefinitely, i.e., even after the end of the term of the
governor who appointed her. Id. at 1018–19. We certified
that question to the Commonwealth’s Supreme Court, citing
both “the importance of territorial sovereignty in matters of
territorial governance and the lack of clear answers in
Commonwealth law” as compelling reasons warranting
certification. Id. at 1018. Taking these principles in reverse
order, neither presents itself here.
The Peter-Palican court concluded that Commonwealth
law gave unclear answers, because there was more than one
“rational construction” of the disputed constitutional
provision. See id. at 1019. We acknowledge that one might
also argue that there could be more than one possible
construction of the statutes in this case. However, faithful
application of the statutory canons of the Idaho Supreme
Court compels only one conclusion—the City has not been
granted extraterritorial eminent domain power for the purpose
of constructing electric transmission lines.
Further, this case does not implicate Idaho state
sovereignty to the same extent as the constitutional provision

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at issue in Peter-Palican implicated the Commonwealth’s
territorial sovereignty. In Peter-Palican, we were asked to
determine the meaning of a provision in the Commonwealth’s
constitution concerning a high-ranking government office.
Because the ambiguity of the constitution could not be
resolved by resorting to standard rules of construction, it
would invariably require making a policy choice involving
the operation of the Commonwealth’s government.
Moreover, whatever construction we adopted would be
ossified in the territory’s founding charter.
The disputed question in this case can be distinguished on
both points. First, the issue involves statutory construction
regarding the power of Idaho’s cities to exercise their power
of eminent domain. Although important, this provision does
not affect the governance structure of the state. Second, we
are interpreting state statutes, not the Idaho Constitution. As
a result, the Idaho Legislature may change the statutes if it
disagrees with our decision. Unlike in Peter-Palican, our
holding here will not be ossified in the state constitution,
requiring amendment to change or avoid. Thus, this case
does not present the same compelling justifications for
certification that were present in Peter-Palican.
Therefore, in our discretion, we deny the City’s request.
We can decide this case by applying principles of statutory
construction that the Idaho Supreme Court has clearly
enunciated. Thus, the fact that there is no Idaho Supreme
Court decision directly “on point” does not constrain us.
Further, the City moved this case to federal court. There,
the district court gave the City the opportunity to seek
certification and noted that the likely result of the district
court’s decision would be an appeal to the Ninth Circuit. The

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City declined the district court’s invitation; it did not request
certification below. Having made the choice to “cast its lot”
in the federal district court, the City—having lost there—is
not entitled to “a second chance at victory” through
certification. Thompson, 547 F.3d at 1065.
CONCLUSION
As a “creature of the state,” the City has only those
powers “either expressly or impliedly granted to it.” Caesar,
610 P.2d at 519. Because the power to exercise eminent
domain extraterritorially for the purpose of constructing
electric transmission lines (1) has not been expressly granted
to the City by the state, (2) cannot be fairly implied from the
powers that the City has been given by the state, and (3) is not
essential to accomplishing the City’s objects and purposes,
the City does not have that power. See Black 834 P.2d at 310.
The judgment of the district court is AFFIRMED.7

7

On March 5, 2013, the City filed an Amended Notice of Appeal to
include an appeal from the district court’s order awarding attorney fees.
However, the City has forfeited that issue by failing to argue the issue in
any of its briefs. See Indep. Towers of Wash. v. Washington, 350 F.3d
925, 930 (9th Cir. 2003) (noting that the failure to properly brief an issue
waives the argument).

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