Amicus Brief: In Straight Takings, No Possession By Injunction Until Title Transfers

Here's the amicus motion and proposed brief we filed yesterday in a Third Circuit case we've been following, and which we wrote about recently.

In the few short days since that post, the owners are now also represented by the Institute for Justice, and have filed a petition for rehearing and rehearing en banc. We thought that was a good opportunity to chime in to point out the panel's fundamental misunderstanding of eminent domain. 

The issue presented by the petition is whether a private condemnor exercising the delegated eminent domain power under the Natural Gas Act may obtain prejudgment possession of the property to be condemned by way of a preliminary injunction, when Congress has not delegated the ability to obtain prejudgment possession. This is an issue of pressing national importance, on which the panel decision conflicts not only with established Supreme Court doctrine, but the ruling of at least one other federal court of appeals.  

Our brief argues: 

The panel’s focus on the district court’s summary judgment order as the dispositive action misconstrued the nature and effect of that ruling. The panel erroneously concluded that obtaining summary judgment on the three predicates which a private pipeline company must satisfy in order to institute an eminent domain action in federal court under 15 U.S.C. § 717f(h), gave Transco a “substantive” right to the properties.[1] Panel op. at 19 (the dispositive fact was that Transco had “established its substantive right to the property by filing for [and obtaining] summary judgment”). Thus, the panel concluded, because Transco’s condemnation was all but inevitable, it was entitled to possession before payment of compensation and title transfer.

The panel’s rationale not only violates the well-worn rule of statutory interpretation of eminent domain statutes (they must be liberally read in favor of the property owner, and strictly construed against the condemnor), but also reflects a fundamental misunderstanding of the eminent domain power, and process. Federal statutory takings become inevitable only when title transfers. And only then can the condemnor get possession. Here, by contrast, the panel acknowledged that title would not transfer until the end of the case, but nonetheless allowed possession. Panel op. at 20 (“Here, unlike a ‘quick take’ action, Transcontinental does not yet have title but will receive it once final compensation is determined and paid.”).

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1.  The NGA has a three-part requirement for a private pipeline to institute an eminent domain action in federal court: (1) it first obtain a certificate of public convenience from FERC; (2) it cannot acquire the property by voluntary purchase; and (3) the amount claimed by the owner is more than $3,000. 15 U.S.C. § 717f(h). In these circumstances, a private condemnor “may acquire the [right-of-way] by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located[.]” Id.

Br. at 2-3.

We will keep you posted as this develops. 

Motion and Brief Amicus Curiae of Owners' Counsel of America, Transcontinental Gas Pipeline Co., LLC v.