As we just detailed, the Eleventh Circuit joined the Third and Fourth (contra the Seventh) Circuits in concluding that a lack of Congressional delegation of quick take power to private pipeline condemnors in the Natural Gas Act does not stand in the way of a federal district court issuing an injunction to affect immediate pre-title transfer of property.
Read our amicus brief in the Third Circuit en banc process for why this is wrong.
Here is where the Sixth Circuit reveals its fundamental misunderstanding of eminent domain:
On appeal, Landowners do not dispute that Nexus holds a FERC certificate, that the 1.4-acre tract of land is necessary to build and maintain the pipeline, and that the parties have been unable to negotiate a voluntary easement by contract. This case appears to present a question not of whether Nexus has the statutory right to condemn Landowners’ property, but only of when it may exercise that right. While that distinction may be significant in other cases, it is not here. The alleged harms resulting from the district court’s injunction, discussed below, do not depend on the timing of Nexus’s possession. Declining to issue an injunction would serve little purpose other than to delay Nexus’s access to the property and increase the cost of completing the project. The district court properly used its injunctive power to avoid that outcome. See McGirr, 891 F.3d at 614 (“The preliminary injunction serves an important purpose—to allow a victory by [the plaintiffs] to be meaningful.”) (citation and internal quotation marks omitted).
Slip op. at 6 (emphasis original).
Sorry, that is flat-out wrong. Yes, the pipeline has met the three parts of 15 U.S.C. § 717f(h). but that only means that the pipeline is the proper plaintiff. It does not mean that the pipeline will eventually "access the property" (so why not give it to it now), as the opinion asserts.
No, access to the property can only come in straight takings after title transfers. And that can only come after a determination of the final compensation owed, and the plaintiff's exercise of the option to buy at that established price. Which may never happen. What "delays Nexus's access to the property" is the NGA itself.
Why has nearly every court overlooked that fundamental bit of eminent domain law? Has no one read Kirby Forest Industries?
Nexus Gas Transmission, LLC v. City of Green, No. 18-3325 (6th Cir. Dec. 7, 2018) (unpub.)
