                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 12 2002
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    CITY OF TAHLEQUAH,

               Plaintiff-Appellee,

    v.                                                  No. 00-7038
                                                  (D.C. No. 98-CV-293-S)
    LAKE REGIONAL ELECTRIC                              (E.D. Okla.)
    COOPERATIVE, INC.,

               Defendant-Appellant,

         and

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

               Defendant.


                            ORDER AND JUDGMENT          *




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




*
      This order and judgment is not binding precedent, except under the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 judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       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

1
        The Rural Electrification Administration (now called Rural Utilities
Services) holds a mortgage interest as security for its financing of Lake Region’s
facilities. The United States removed the matter to federal court.
2
      The Oklahoma Supreme Court has set out “[t]he pertinent statutory
language” as follows:

               There is hereby declared a moratorium on all municipal
       condemnation proceedings instituted pursuant to Section 437.2 of
       Title 18 of the Oklahoma Statutes, initiated prior to July 1, 2002.
       The moratorium shall also apply to all municipalities or public trusts
       thereof which attempt to condemn the facilities of electric public
       utilities or rural electric cooperatives for the purpose of utilizing
       such facilities for the delivery of electric power and energy. If full
       consumer choice in the supply of electric power and energy is
       implemented in this state on or before July 1, 2002, the municipal
       condemnation provisions authorizing municipalities with electric
                                                                          (continued...)

                                                 -2-
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?



2
    (...continued)
          utilities to condemn the facilities of rural electric cooperatives
          contained in Section 437.2 of Title 18 of the Oklahoma Statutes is
          hereby repealed. If retail consumer choice is not implemented in this
          state on or before July 1, 2002, this moratorium shall become null
          and void. The moratorium provided for herein shall have
          prospective and retroactive application .

City of Tahlequah v. Lake Region Elec. Coop., Inc.  , No. 95563, 2002 WL 49965,
at *1 (Okla. Jan. 15, 2002). Id. (quoting Okla. Stat. tit. 11, § 21-222 (1998))
(emphasis added by Oklahoma Supreme Court).

                                           -3-
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




3
        The City also argues that its interest in continuing this condemnation
proceeding is an “accrued right” protected by article V, § 54 of the Oklahoma
Constitution, which prohibits the legislature from affecting “any accrued
right . . . or proceedings begun by virtue of [a] repealed statute.” An “‘accrued
right’” within the meaning of § 54 is a “‘matured cause of action or legal
authority to demand redress.’”     Bellah v. Bellah , 986 P.2d 528, 529 (Okla. Ct.
App. 1999) (quoting Barry v. Bd. of Comm’rs of Tulsa County        , 49 P.2d 548, 550
(Okla. 1935)). A condemnation proceeding is “not a cause of action” and is not
“instituted to remedy a wrong.”     City of Tahlequah , 2002 WL 49965, at *3.
“Since the [Oklahoma] Legislature is empowered to authorized municipal
condemnations under prescribed guidelines, it can also impose a stay or
moratorium on an earlier legislatively–granted condemnation right.”        Id. at *2.
The moratorium does not violate § 54.

                                          -4-
      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




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