Shell Oil Company, a Delaware Corp., Plaintiff-Appellant-Cross-Appellee v. City of Santa Monica, a Municipal Corp., Defendant-Appellee-Cross-Appellant

concurring separately:

I concur in the court’s opinion, but believe that some of its unintended effects could have been resolved by a clear finding *1067 that Shell’s pipeline is in interstate commerce.

For the purposes of resolving the issues raised by Shell’s commerce clause arguments, the court necessarily assumes that the pipeline is operating in an interstate fashion. This was for reviewing the summary judgment against Shell. But for the purposes of resolving Santa Monica’s preemption arguments, we had to assume that the pipeline was in mirastate commerce.

What I take issue with is the court’s conclusion that the record is unclear on the pipeline’s status as a part of interstate or intrastate commerce. I have no doubts that, as a matter of law, it is interstate and that the Hazardous Liquids Pipeline Safety Act (HLPSA), 49 U.S.C.A. §§ 2001-2014 (Supp.1987), preempts Santa Monica’s safety regulations.

That the pipeline originates from the outer continental shelf (OCS) should be enough to validate this conclusion. See 49 C.F.R. pt. 195, app. A & ex. 7 (1986). The fact that the pipeline connects with other pipelines which terminate in other states seems to me also to be…

Shell Oil Company appeals from a grant of summary judgment holding (1) that the City of Santa Monica is exempt from the dormant commerce clause under the market participant doctrine in its setting of a franchise fee for an oil pipeline traversing the city and (2) that the state constitution does not bar the fee. Santa Monica cross-appeals from a grant of summary judgment holding that the Hazardous Liquid Pipeline Safety Act, 49 U.S.C.A. §§ 2001-2014 (Supp.1987), preempts Santa Monica from imposing any safety standards in an intrastate pipeline franchise agreement. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982). We affirm in part and vacate and remand in part.

BACKGROUND

In 1941, the City of Santa Monica and a predecessor of Shell Oil Company entered into a forty-year franchise agreement to operate an oil pipeline underneath city streets. Santa Monica does not hold a fee interest in the streets; it holds an easement in the streets for street purposes. The 1941 franchise granted Shell’s predecessor an exclusive subsurface easement in, under, along, and across certain public streets. It provided that the grantee would comply with all ordinances, rules, or regulations then…

830 F.2d 1052 56 USLW 2271 SHELL OIL COMPANY, a Delaware corp., Plaintiff-Appellant-Cross-Appellee, v. CITY OF SANTA MONICA, a municipal corp., Defendant-Appellee-Cross-Appellant. Nos. 86-6103, 86-6206. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1987. Decided Oct. 21, 1987. Edward S. Renwick, Los Angeles, Cal., for plaintiff-appellant-cross-appellee. Mary H. Strobel, Santa Monica, Cal., for defendant-appellee-cross-appellant. Appeal from the United States District Court for the Central District of California. Before PREGERSON, NELSON and WIGGINS, Circuit Judges. NELSON, Circuit Judge: 1 Shell Oil Company appeals from a grant of summary judgment holding (1) that the City of Santa Monica is exempt from the dormant commerce clause under the market participant doctrine in its setting of a franchise fee for an oil pipeline traversing the city and (2) that the state constitution does not bar the fee. Santa Monica cross-appeals from a grant of summary judgment holding that the Hazardous Liquid Pipeline Safety Act, 49 U.S.C.A. Secs. 2001-2014 (Supp.1987), preempts Santa Monica from imposing any safety standards in an intrastate pipeline franchise agreement.…