Here's the Eleventh Circuit's opinion in a case that adds to a circuit split (CA7 vs others) about whether a private condemnor, exercising the delegated federal power of eminent domain for a pipeline corridor under the Natural Gas Act, can obtain pre-judgment possession of the property, even though the NGA does not delegate the power to do so.
The Eleventh Circuit, like the Third and Fourth Circuits, concludes that the lack of delegation from Congress isn't a problem, because, hey, Congress didn't say that federal courts couldn't exercise their "equitable" powers under Fed. R. Civ. P. 65, and issue injunctions to reach the same result.
We won't go into the detail of the panel opinion (it pretty much tracks the other federal courts which have, for decades, been approaching this the wrong way). Nor shall we go into detail about why these courts are wrong, because we did so, in part, in our recent amicus brief in the Third Circuit.
As we wrote, these injunctions are all based on the false notion that a straight condemnation, once instituted, is inevitable. The Achilles' Heel of the Eleventh Circuit's analysis (and that of other courts which adopt the same rationale) is that a determination that a pipeline company can exercise eminent domain power under the NGA (aka the "right to condemn") means that the pipeline is going to "win" so why not give it possession now:
... once a pipeline company’s right to condemn a particular piece of property has been finally determined, a preliminary injunction is an appropriate vehicle to grant “some or all of the substantive relief sought in the complaint,”)...
Slip op. at 43.
Wrong! A determination that a pipeline has met the three-part test in 15 U.S.C. § 717f(h) merely means that it has standing as a plaintiff to institute a straight taking, and may exercise the delegated power to condemn. It emphatically does not mean that it can front-load the "substantive" right sought by the complaint: acquisition of the defendant's property for just compensation. Because these are acknowledged straight takings, the acquisition (title transfer) can only come after a final determination of just compensation, followed by the pipeline company's determination that it wants to pay that price whatever it might be, followed in turn by actual payment. Only then does the "substantive" right -- title to the property -- transfer from the defendant to the pipeline company. No sooner.
We think this is as plain as day, and for the life of us cannot figure out why most federal courts don't want to get that. Maybe it is because they think -- like many judges -- that eminent domain cases are all but over once they are started, and that since the land will be taken anyway, why wait.
But that overlooks the central point: that there's nothing that presently guarantees that the land will be taken.
Stay tuned, there will be more.
Transcontinental Gas Pipe Line Co., LLC v. 6.04 Acres, No. 16-17503 (11th Cir. Dec. 6, 2018)
