A pipeline needed private property. Did it wait until it had actually taken the property before it started to build the pipeline? No.
In Bayou Bridge Pipeline, LLC v. 38.00 Acres, No. CA 19-0565 (July 2020), the Louisiana Court of Appeal addressed a host of challenges:
- A broad facial challenge to Louisiana's expropriation system. The landowners asserted that allowing private entities to exercise the sovereign power violated due process, primarily because the delegation lacks concrete standards. The court rejected the argument, concluding that the state delegating the power to a common carrier pipeline and including a process that includes a predeprivation hearing to determine public use and necessity, is not a problem. Louisiana's law "sets out appropriate standards to guide expropriating authorities and the courts, as well as providing for judicial review. Those standards are clearly set out in La.Const. art. 1, § 4, which requires that any taking be for a public and necessary purpose." Slip op. at 15. This isn't a quick take, and the expropriation only comes after judicial review.
- Necessity. The court rejected the owners' claim that the lower court should not have admitted evidence about economic development. Louisiana trial courts are "vested with vast discretion in connection with the admissibility of evidence." Slip op. at 18. The owners either waived challenges by failure to object, or the evidence was relevant. Besides this is Louisiana, and "[g]iven the long line of cases finding a public and necessary purpose for oil pipelines ... 'any allocation to a use resulting in advantages to the public at large will suffice to constitute a public purpose.'" Slip op. at 21 (quoting ExxonMobil Pipeline Co. v. Union Pac. R. Co., 35 So.3d 192, 199 (La. 2010).
- The owners had much more success with their argument that the pipeline just going ahead and building violated the owners' rights: "When BBP consciously ordered construction to begin on this property prior to obtaining a judicial determination of the public and necessary purpose for that taking, it not only trampled Defendants’ due process rights as landowners, it eviscerated the constitutional protections laid out to specifically protect those property rights. Therefore, we find the trial court committed legal error when it failed to compensate Defendants when BBP tread upon those constitutionally recognized rights." Slip op. at 25-26 (footnote omitted).
- The court rejected the pipeline's argument that the owners were "out-of-state residents who had an incredibly minor ownership interest in the property; they had no contact with the land at all, save for one visit by two of the three Defendants to see the land just prior to trial and one Defendant had still never been to the land at issue at trial; and Defendants never paid taxes or tried to posses or maintain the property in any fashion." Slip op. at 27. Sorry no, the court held: "As co-owners, Defendants’ due process rights were individually viable and as against BBP, a third-party, each were entitled to be recognized regardless of their co-ownership interest or residence." Slip op. at 28. [Barista's note: Residence? Really, pipeline?]
- Even though the individuals' interests were minor, the court was not pleased:
When the government physically invades (or authorizes third parties to invade) real estate, a taking occurs even if the financial impact is minimal.”). Thus, regardless of BBP’s assertions of limitation, each Defendant was entitled to assert their constitutionally guaranteed due process rights against BBP’s expropriation action and contest BBP’s right to such an expropriation. As such, the due process rights established and specifically recognized in La.Const. art. 1, § 4 existed to protect Defendants’ property ownership rights, and BBP willfully, wantonly, and recklessly17 violated those rights. Id.The court sent the case back down for a determination of the attorneys' fees owed to the owners.
Bayou Bridge Pipeline, LLC v. 38.00 Acres, No. CA 19-0565 (La. App. July 2020)
