Here's the motion and proposed amicus brief we filed earlier this week, in a case we've been following about natural gas pipelines, eminent domain, and immediate possession.
As we noted here, a panel of the U.S. Court of Appeals for the Fourth Circuit recently concluded that a private condemnor under the Natural Gas Act could obtain immediate possession of property it is in the process of condemning, even though the NGA does not delegate the quick take power. All three judges concluded that this case is "on all fours" with the Fourth Circuit's earlier decision in East Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004), which held that even though Congress did not delegate the quick take power in the NGA, a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure could achieve the same result, and thus there was no running room.
The property owners asked for rehearing or rehearing en banc, and we thought this would be a good opportunity for us to chime in and point out some of the fundamental misunderstanding which the Fourth Circuit panel was under (they are not alone: most, but not all, federal circuits which have considered the issue have gone down the same erroneous path).
The crux of these courts' analysis is that once a private pipeline condemnor secures summary judgment on the three predicates in 15 U.S.C. § 717f(h), it has a "substantive" right, and therefore there's no reason to give it possession now by granting a Rule 65 injunction.
But check out the language of section 717f(h), which in our view talks only about whether a private pipeline company may institute an eminent domain lawsuit to take property. In other words, has standing:
When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same 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, or in the State courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated: Provided, That the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.
But the court held, in short, that because the condemnation of the property becomes inevitable upon the granting of summary judgment, why wait until final compensation is calculated and paid to transfer possession, even though Congress did not delegate the quick take power in the statute?
But is the condemnation inevitable? After all, everyone agrees that in the NGA, Congress delegated only the straight taking power to pipeline companies. Which means that under the process envisioned by the statute, possession should not pass to the condemnor until title passes. And that doesn't happen in straight takings until the court establishes the amount of compensation that is to be paid, and that compensation is actually paid.
Our brief argues that the "substantive" right in these type of condemnations is the passing of title to the condemnor, not the granting of summary judgment on the issue of whether the plaintiff has standing to bring the condemnation lawsuit:
There are several fundamental problems with the panel’s analysis. Most critically, the district courts’ summary judgment orders did not confer a substantive right on MVP. The courts merely determined MVP could be a straight taking plaintiff-condemnor. The substantive rights in all federal takings are the transfer of title. Only then, and after the owner either is provided with compensation or has an irrevocably vested right to obtain it, may the condemnor obtain possession. Any protections in the preliminary injunction process are pale substitutes for these constitutional safeguards.
So now we wait. More, as this case progresses, and the issue develops.
Motion for Leave to File Brief Amicus Curiae in Support of Appellant's Motion for Rehearing and Rehearing
