A quick one since we’re in transit, and don’t really have time to post much. But that doesn’t mean that the Fifth Circuit’s opinion in Boerschig v. Trans-Pecos Pipeline, L.L.C. , No.  16-50931 (Oct. 3, 2017), isn’t worth your time to read in-depth. 

Here’s the setup:

Texas law allows a natural gas utility to condemn land for “public use.” Tex. Util Code § 181.004; Tex. Const. art. I, § 17(a). Trans-Pecos Pipeline, LLC exercised that authority and initiated a condemnation proceeding to obtain a 50-foot wide permanent right-of-way and easement on John Boerschig’s ranch. The ranch is along the route of a 148-mile pipeline Trans-Pecos is constructing in west Texas that terminates at the Mexican border in the middle of the Rio Grande.

Boerschig contends that by ceding condemnation power to a private company, Texas eminent domain law offends due process. His argument principally relies on the private nondelegation doctrine, a nook of Fourteenth Amendment law long recognized but seldom invoked. The strength of this constitutional challenge is the central question we must decide in reviewing whether a federal court should enjoin the ongoing state condemnation process.

Slip op. at 1-2. 

Short answer from the Fifth Circuit: no, Texas didn’t violate the private nondelegation doctrine. Because the property owner/plaintiff was objecting to an ongoing state eminent domain action, the first issue the Fifth Circuit dealt with was the Anti-Injunction Act, ultimately concluding that it didn’t prevent the federal court from exercising jurisdiction. The court also rejected the argument that because the district court refused to enjoin the state condemnation process and the pipeline was built, the issue was now moot. It also rejected a Younger abstention argument. 

Where the plaintiff’s argument failed — this was an appeal from the district court’s denial of a preliminary injunction — was on the “likelihood of success on the merits” prong of the injunction standard. The court concluded that the plaintiff’s chances were “a longshot at best” because the dark little “nook” of Due Process law didn’t really support his claim. The plaintiff had two main arguments.

First, he asserted the quick take process was bad because there isn’t a hearing before a quick take. So what held the court, quick takes are pretty well established in Texas and a lot of other places. No predeprivation hearing necessary.

Second, the plaintiff asserted the delegation of eminent domain authority to the private pipeline, a doctrine the court noted has been “largely dormant” for a while. You zoning and land use mavens know of this principle from the Supreme Court cases which struck down schemes which allowed neighbors to veto a landowner’s uses, or determine a lot setback. Those are decisions which should be made by political entity, not selected private citizens. See slip op. at 10. The court didn’t find the analogy to these cases particularly applicable: 

The Texas scheme allowing gas pipelines to condemn property does not appear to suffer from either of the twin ills that doomed these zoning and wage-setting laws. It imposes a standard to guide the pipeline companies—that the taking is necessary for “public use”—and provides judicial review of that determination that prevents the company from having the final say. In contrast to the “public use” determination that the board of a pipeline company must render before a condemnation proceeds, no standard existed to guide whether the neighbors should limit the construction in Eubank or Roberge. The existence of a standard like the one Texas has for exercising eminent domain has prevented courts from finding that a delegation to private parties involves the unfettered discretion that violates due process.

Slip op. at 11 (footnote omitted). 

Besides, the assertion of public use by the pipeline is subject to judicial review, even if that review is “seemingly feeble.” [Barista’s note: “seemingly?”] Texas review of public use claims is strong enough, the court concluded, to pass muster.

Texas lawyers – what do you say?

Boerschig v. Trans-Pecos Pipeline, L.L.C., No. 16-50931 (5th Cir. Oct. 3, 2017).