In Rockies Express Pipeline LLC v. 4.895 Acres of Land, No. 12-3069 (Aug. 15, 2013), the condemnor was a gas pipeline company delegated the power of eminent domain under a federal certificate of public convenience and necessity, and the property owners were the owners of several coal mines.
They disagreed about the danger posed to a surface pipeline by coal mining. The pipeline company thought there wasn’t a problem, the coal companies thought otherwise. They believed that once the pipeline was operational, the agencies that regulated coal mining would either delay or deny the required coal extraction permits and ultimately drive them out of business, even though under Ohio law the coal companies had a right to subside the surface. So the coal companies accelerated their coal mining, and eventually sought to recover from the condemnor pipeline company the costs associated with doing so.
Applying Ohio law (condemnations under the federal Gas Act, although in federal court, apply state law), the Sixth Circuit held that Ohio law recognizes both compensation (the value of the land taken) and damages (loss of value to remaining land), and damages must be “reasonably foreseeable” in the normal use of the property. The court concluded that the regulatory delays did not qualify because the coal companies did not prove their case:
The [coal] companies only speculate that this course of events would follow; they offer no evidence that could reasonably convince a fact finder to credit the theory. In addition, the theory is built upon a series of contingencies that are, at best, speculative. Although we can accept the premise that the pipeline’s existence “triggered multiple layers of federal and state regulatory oversight” that apparently did not exist before, we cannot accept the conclusion that the additional oversight “diminished [the companies’] property right to subside.”
Slip op. at 10-11. The court held that the trial court did not categorically bar the coal companies from proving that the chances of the regulatory agencies delaying or denying permits, only that the plaintiffs didn’t submit anything but speculative evidence.
Rockies Express Pipeline LLC v. 4.895 Acres of Land, No. 12-3069 (6th Cir. Aug. 15, 2013)