Here’s the Reply Brief in a case which we’ve been following (and in which we filed this amici brief). This is the one in which landowners are challenging the district court’s issuance of an injunction in a Natural Gas Act taking which allow a private condemnor to obtain immediate possession of the land being condemned even though the Natural Gas Act does not delegate to pipeline condemnors the quick-take power.
The Reply responds to the Brief in Opposition, and argues:
These decisions conflict with the basic structure of eminent domain, which grants condemnors the power to buy land by force—not occupy it by federal injunction. The decisions let pipeline companies exercise a formidable power that Congress has not given them. And for landowners in the path of pipeline projects, the decisions create grave burdens to which no other federal condemnee is subjected. Because only this Court can correct the circuit courts’ mistaken course, the petition should be granted.
The Reply echoes a point we’ve been making about the nature of eminent domain actions — that no “merits” determination is possible until the court adjudicates final compensation:
As described in the petition, the final judgment in a condemnation action is not an order transferring property from A to BA to purchase (or acknowledging that A has purchased) property from B. Pet. 15–16. While it is common to refer to condemnations as “takings,” a straight-condemnation action does not let the condemnor “take” anything. Instead, the action creates an “option to buy the property at the adjudicated price.” Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 4 (1984).
Reply Br. at 3. As our amici brief put it: “in straight-takings cases like these, the merits question is whether the condemnor has title, which can only happen here once Transcontinental exercises its option to buy. That, in turn, can only come after the court finally determines the amount of compensation. And that has not yet happened.” Amici Br. at 12.
Yes, compensation need not be provided at the same time as the taking (an issue which is going to be the critical component of the Supreme Court’s regulatory takings decision in the Knick case) but there’s a huge difference between the taking which the Natural Gas Act authorizes (title transfer upon payment of compensation), and district courts using their Rule 65 injunction power to give private pipelines possession now.
This is the final brief at the petition stage, so now we wait.