An unpublished opinion from the U.S. Court of Appeals for the Fourth Circuit in a pipeline case from Virginia. But even though it is not precedent, we’re covering it anyway because it raises important issues.
In Columbia Gas Transmission, LLC v. 76 Acres, No. 15-2547 (July 13, 2017), Columbia possessed the delegated power of eminent domain. After obtaining the green light from the Federal Energy Regulatory Commission, Columbia instituted an action in federal court under the Natural Gas Act to take easements from several Virginia landowners for a pipeline. Columbia obtained immediate possession of the property (even though there is no provision in the Natural Gas Act for immediate possession, prior to the payment of compensation).
At trial, the property owners over Columbia’s objection, presented evidence to the jury that what Columbia did on the ground wasn’t the same as what it had formally condemned:
Columbia sought to exclude claims made by some of the Landowners that the size of the temporary easements that Columbia actually took were larger than the easements described in the district court’s order granting immediate possession. The district court denied this motion as well, finding that the sizes of the temporary easements were triable issues of fact.
Slip op. at 7. The jury returned a verdict which awarded compensation for Columbia’s having actually taken more property than it condemned. Columbia appealed, arguing that what we said we’re taking (not the actual taking) is the only measure of just compensation in a federal eminent domain case.
The Fourth Circuit agreed, concluding that the district court had no power to “modify the size of the taking.”
Columbia asserts that by permitting the Boyces to testify that the temporary easements Columbia took were larger than the easements described in the order granting immediate possession, the district court rendered the size of the temporary easements a factual question for the jury to decide. In support, Columbia draws our attention to the damages awarded for the temporary easement on the Boyces’ property — which was much larger relative to the jury’s other damages awards— attributing this discrepancy to the district court’s decision to permit the jury to determine the size of the temporary easement.
Slip op. at 10.
If this was in state court, this probably wouldn’t be a big deal: if a condemnor exceeds the size and scope of the taking and actually invades land property that is outside the area or interests taken, the owner can (in my jurisdiction) bring a counterclaim for inverse condemnation, and the claims get tried together. Which is what, in effect, happened here.
But this is federal court, and in taking cases, you know what that means: the Tucker Act Shuffle. The Fourth Circuit held that district courts have no jurisdiction to consider any claim for compensation beyond what the condemnor describes, and that if “the condemnor ‘has taken more than formally condemned and paid for, the landowner may recover under the Tucker Act for the additional take.'” Slip op. at 11 (quoting United States v. 21.54 Acres of Land, 491 F.2d 301, 304 (4th Cir. 1973)). So go sue for inverse in the Court of Federal Claims or in a separate action in the district court (if the amount is small). Where you don’t get a jury, by the way (as the Sixth Circuit recently held).
The other interesting issue which the Fourth Circuit considered is one that has bothered us for a long time. The Natural Gas Act doesn’t contain a provision allowing immediate possession or quick take after a deposit of estimated just compensation. In other words, Congress has not authorized quick takes in these cases. Yet, the federal courts have mostly allowed condemnors like Columbia to do quick takes in these cases. How, you ask? They don’t call it “quick take” or the deposit a “deposit,” they call them “preliminary injunction” and “bond.”
In E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004), we held that although the Natural Gas Act does not provide for immediate possession, a “district court can use its equitable power to order immediate possession in a condemnation case.” Id. at 820, 828. We explained that once a district court has found that a condemnor has a substantive right under the Natural Gas Act to an easement over a landowner’s property, the district court can award a preliminary injunction granting immediate possession of that easement. Id. at 824. Here, after determining that Columbia had a substantive right to the easements it sought, the district court relied on Sage in granting the preliminary injunction.
Slip op. at 20-21. The landowners challenged this process as unconstitutional.
But the court didn’t resolve the challenges, because the issue was mooted by the trial for compensation. This issue was not “capable of repetition, yet evading review” because there was no thought that these landowners would have their land taken again. Even if the argument wasn’t moot, it is “meritless” because Sage, which held the preliminary injunction process valid, is binding circuit precedent. Slip op. at 22 n.7. Save that one for another day, or for rehearing en banc.
Columbia Gas Transmission, LLC v. 76 Acres, No. 15-2547 (4th Cir. July 13, 2017) (unpublished)