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Iowa Trial Court: Pipeline Precondemnation Entry Statute Is Facially Unconstitutional

When a court's opinion (even a trial court's opinion) starts out with the epigram, "'Freedom and property rights are inseparable, you cannot have one without the other.'- George Washington," you know you are in for a ride.

So begins the opinion of the Clay County, Iowa District Court in Navigator Heartland, LLC v. Koenig, No. EQCV034863 (May 3, 2023). The issue was the validity under the Iowa Constitution of Iowa's precondemnation entry statute, which allows pipeline condemnors to enter property for land surveys:

After the informational meeting or after the filing of a petition if no informational meeting is required, a pipeline company may enter upon private land for the purpose of surveying and examining the land to determine direction or depth of pipelines by giving ten days’ written notice by restricted certified mail to the landowner as defined in section 479B.4 and to any person residing on or in possession of the land. The entry for land surveys shall not be deemed a trespass and may be aided by injunction. The pipeline company shall pay the actual damages caused by the entry, survey, and examination.

Navigator wanted to enter Koenig's land to conduct surveys in anticipation of condemnation. Koenig objected, and the court held a trial at which it heard testimony about the scope of the proposed entries. One witness:

identified the four types of surveys typically performed on each affected property; these include a civil survey, a biological/environmental survey, a cultural survey, and a geotechnical survey. Each of the four surveys are completed at separate times, thus at a minimum, surveyors would expect to enter onto the private land on at least four separate occasions. She additionally testified that Navigator typically hires third parties to perform each of the surveys. She conceded that her lay understanding of the Iowa Code §479B.15 does not limit the duration or number of times surveys may occur so long as they are confined to surveying purpose for the proposed pipeline path.

Opn. at 3.

The property owner argued that the statute effects a facial taking by requiring owners to open their properties to third parties without compensation: "Koenig asserts that Iowa Code §479B.15 strips landowners of their right to exclude by statutorily allowing pipeline companies to come onto private land to perform certain surveying operations, which amounts to a per se taking. Additionally, Koenig argues that the statute does not provide for just compensation in accordance with Article I section 18 of the Iowa Constitution." Opn. at 6-7.

The court noted that until recently, Penn Central "had been the leading approach to determine whether a regulatory use restriction amounts to a taking." Opn. at 8. But Cedar Point changed that, according to the court: if there's a physical invasion, that's a taking, after which the question becomes whether the government has provided compensation. 

But, the court also noted, "Cedar Point did not open the door for all government-authorized physical invasions to amount to takings[,]" if those invasions are "consistent with longstanding background restrictions on property rights." Opn. at 9.

Thus, the critical question is: are these private pipeline precondemnation invasions consistent with those background principles? The court held no, they are not. "The Court observes important similarities between the facts of this case and Cedar Point."

Like the private labor organizations in Cedar Point, Navigator presently seeks to repeatedly enter onto privately owned land despite a lack of consent from the landowner. While true the California statute in Cedar Point allowed labor organizations to enter on the property for up to 120 days per year three hours per day whereas Navigator is seeking to enter for no more than four days (ranging from thirty minutes to eight hours at a time); the Court is leery to enter into too much detailed comparison of the intrusive nature of the invasion because, as Cedar Point makes clear, the frequency and duration of the invasion is no longer relevant. Id. at 2074 (“the fact that a right to take access is exercised only from time to time does not make it any less a physical taking” and “the duration of an appropriation—just like the size of an appropriation—bears only on the amount of compensation.”)

Opn. at 10.

The court concluded that although survey access may be a "traditional privilege," the Supreme Court's lack of reference to such access or utility easements "leads to a conclusion." Opn. at 11. And that conclusion? Survey access is more like the union easement in Cedar Point than the background access exceptions also noted in the opinion.

In looking to the language in Iowa Code §479B.15, the Court concludes that the standards established in Cedar Point are applicable. The statute is not a use restriction which can be analyzed under the Penn Central “Takings Test”. Rather, because the statute grants pipeline companies right to physically enter and occupy privately owned land, the statute appropriates a right to invade the landowner’s property. When such appropriation occurs, the Court follows the traditional rule “Because the government appropriated a right to invade, compensation is due.” Cedar Point, 141 S. Ct. at 2076.

The Court finds that Iowa Code section 479B.15 appropriates Koenig’s right to exclude others from his privately owned land. Without Iowa Code §479B.15, Koenig would have had the right under Iowa law to exclude the pipeline company and any third-party surveyors from hi property. Because the statute amounts to a government authorized physical invasion, and additionally appropriates Koenig’s right to exclude, the Court is convinced Iowa Code §479B.15 effects a per se taking for which just compensation is required. 

Opn. at 12.

The court also concluded that the statute does not provide just compensation. Yes, the statute requires the pipeline company entering private property to pay "actual damages" caused by the invasion or occupation, but does not, on its face, require just compensation for the invasion if there's no physical damage resulting:

However, if no physical damage is done to the private property, does Iowa Code §479B.15 still require compensation to the landowner for the government-authorized taking? §479B.15 says no and any other interpretation of such is unreasonable. At the end of trial Navigator argued that the distinction between “actual damages” and per se damage is a distinction without a difference. Navigator’s counsel argued that Koenig’s “actual damage” is any damage that he may claim. The Court does not find such interpretation to be reasonable because the damage has to be “actual” and cannot be subjective. It has to be reasonably ascertainable. The statute requires such.

Opn. at 16 (footnote omitted).

A property owner may not be able to easily ascertain the extent of the economic damages caused by a precondemnation survey entry. The damages caused may be pretty subjective, and similar to pain and suffering in tort law. "Therefore, a clear and common sense reading of Iowa Code §479B.15 is that, if by going onto private property to survey, a pipeline company causes actual damage to the property, compensation is required to cover the damages. However, because non actual damages resulting from the government authorized taking are subjective and not readily ascertainable, the Court cannot interpret the meaning of 'actual damages' within the statute to cover a per se taking in and of itself. To find otherwise would deprive 'actual damages' of all its ordinary meaning." Opn. at 17.

Finally, the court concluded that the usual presumption of constitutionality does not save the statute, because there's no reasonable alternative construction the court might give it.

All we can say is wow.

Trial Ruling on Defendant's Counterclaim re: Constitutionality of Iowa Code § 479B.15, Navigator Heartland...

SCOTUS GVR's Pipeline Cert Petition On Delegation Of Eminent Domain To Private Parties

In this Order, the Supreme Court granted this cert petition which presents these questions:

Whether a facial challenge to Congress’s delegation of eminent domain power to private parties is properly filed in district court, as this Court held in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s overly broad delegation of legislative power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s delegation of eminent domain power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

As the Order notes:

Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Axon Enterprise, Inc. v. FTC, 598 U. S. ___ (2023).

So what is this Axon case the Court refers to? You might want to read some of the amicus briefs filed in the case to find out. All of them are posted on the case's docket here. Or read this summary from the Federalist Society, "Supreme Court Holds That Federal District Courts Have Jurisdiction To Hear Structural Challenges To FTC And SEC."

Or better yet, we refer you to our colleague Michael Realbuto's post on the McKirdy Riskin Olson DellaPelle Condemnation Blog, "SCOTUS Sends Pipeline Eminent Domain Case Back to the District Court." Our read of Axon is that you don't have to ask an agency to pass on the constitutionality of its own actions or the scope of its authority. As Michael writes:

On April 14, 2023, the Court released a unanimous 9-0 decision in Axon holding the district court retains § 1331 jurisdiction over structural separation-of powers challenges because that type of separation-of-powers injury cannot be remedied by the agency itself or the court of appeals. The Court’s April 2023 summary decision in the MVP matter was clearly guided by the holding in Axon and proves to be a victory for the landowners who will now have their day in Court. Notwithstanding the District Court’s ability to hear the MVP case, there are some cases on the books that the landowners must overcome. For example, in Penneast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), the Supreme Court expressly held that the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. While it’s going to be an uphill battle, we are tuned in to see how this fight shapes out.

What do you think will happen on remand? We think we know.

Petition for Writ of Certiorari, Bohon v. Fed. Energy Reg. Comm'n, No. 22-256 (U.S. Sep. 15, 2022)

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers from the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Shades Of Mahon From North Dakota: Fracking Statute "constitutes a per se taking"

Been meaning to post this one for a while.

The plaintiff in Northwest Landowners Ass'n v. North Dakota, No. 20210148 (Aug. 4, 2022), challenged North Dakota's adoption of a statute about "pore space," which is "a cavity or void, whether natural or artificially created, in a subsurface sedimentary stratum." Whoa.

The problematic part of the statute "allows an oil and gas operator to use subsurface port space and denies the surface owner the right to exclude others or to demand compensation for this subsurface use." Slip op. at 2. The statute also amended the definition of "land" to exclude pore space, and barred tort claims for injection or migration of substances into pore space. Frack!

The Association sued, asserting that the statute effected a facial taking because "it strips landowner of their right to possess and use the pore space within their lands and allows the State of North Dakota to directly redistribute that right to others without the consent of or compensation to the landowners." Slip op. at 3. Everyone filed cross-motions saying they should win as a matter of law. The trial court agreed with the Association, and entered summary judgment in its favor. 

After agreeing that the plaintiff's takings claim was a proper facial claim, the North Dakota Supreme Court (applying the Fifth Amendment and the North Dakota Constitution's "overlapping and broader" property protections) held that under North Dakota law's historical treatment of pore space, concluding that it was a recognized private property interest, and additionally, that owners of that property could sue in tort for trespass "for the use of their surface estate that was not 'reasonably necessary' to develop the mineral estate." Slip op. at 8. 

"Thus," the court concluded, "North Dakota law has long established that surface owners have a property interest in pore space." Slip op. at 9. Did the plaintiff establish its members have a protected property interest? Yes.

Next, was this a taking without just compensation? Applying a physical invasion categorical analysis (Cedar Point Nursery and Loretto), the court held that this qualified as a taking of owner's right to exclude, and that "Senate Bill 2344 constitutes a per se taking." Slip op. at 11. "It allows third-party oil and gas operators to physically invade a landowner's property by injecting substances into the landowner's pore space." Id.

Moreover, by prohibiting the payment of compensation, the statute "removes all rights that make ownership or pore space valuable." Id.

The court rejected the State's argument that because the owner of the mineral rights also owns an implied easement to access property to find and develop those mineral rights, there's no taking because that means mineral owners already have a right to access and use the surface owner's pore space. Slip op. at 12.

Not so fast, held the court: "[e]ven when a severance of minerals has created an implied easement permitting use of the surface estate by the owner of the severed minerals, S.B. 2344 constitutes a taking." Slip op. at 13. Check out ¶ 30 on page 13 for the full analysis of why.

Next, the court rejected the State's assertion that because the statute is a valid exercise of police power, it cannot be a taking. Labeling the argument "misplaced," the court held that the takings clause(s) are inherent limitations on the police power. Thus, answering the police power question does not also resolve the takings question: "[w]hen an action is determined to be within the broad scope of the state's police power, the court must still consider whether just compensation is due for a taking or damaging of property." Slip op. at 14. 

Finally, the court rejected the State's related argument that third-party access to pore space was a "background principle" of North Dakota law under Lucas. Again, no succor from the court. Background principles are for Lucas claims only, and don't apply to the physical invasion/appropriation categorical taking category. 

The court affirmed the taking, and concluded that the unconstitutional provisions could be severed from the balance of the statute.

Northwest Landowners Ass'n v. North Dakota, No. 20210148 (N.D. Aug. 4, 2022)

New Takings Cert Petition: Can An Agency Decide Constitutionality Of Delegation Of Federal Eminent Domain Power?

Here's a recently-filed cert petition in a pipeline case. This one asks whether an agency -- here, FERC -- has primary administrative jurisdiction over a facial challenge to Congress' delegation of federal eminent domain authority to a private party. 

Here are the Questions Presented:

Whether a facial challenge to Congress’s delegation of eminent domain power to private parties is properly filed in district court, as this Court held in PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s overly broad delegation of legislative power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

Whether a facial challenge to Congress’s delegation of eminent domain power to FERC is properly filed in district court or with FERC, which has admitted it has no jurisdiction to adjudicate the constitutionality of this delegation.

We shall follow along, naturally. Or you can shadow the docket.

Petition for Writ of Certiorari, Bohon v. Fed. Energy Reg. Comm'n, No. 22-256 (Sep. 19, 2022)

Still Time To Join Us (In-Person Or Remote) For The 19th Annual Brigham-Kanner Property Rights Conference

One last reminder that there' still time to register for the upcoming Brigham-Kanner Property Rights Conference at the William and Mary Law School in Williamsburg, Virginia, September 29-30, 2022. If you can't make it to the historic campus, there's an option to attend remotely.

In our opinion, the Conference is the best of its kind because it brings together legal scholars and the practicing bar to talk dirt law theory and practice. We also a have a full supplemental program for law students, that covers property law and careers in eminent domain law, a recruiting session, a program on international property rights, and a program on land use law.

Registration for the Conference is ongoing, and you can sign up here.

Here is the full agenda. (We'll be speaking on Panel #2, "Reshaping the Framework Protecting Property Under the Roberts Court.")

Come on, join us!

 

CA11 Oral Arguments In Pipeline Taking: If Florida Law Says The Owner Gets Compensation Plus A Car, Does A Federal Court Have To Recognize That?

Here's the latest in a case we've been following. The U.S. Court of Appeals recently heard oral arguments in a case where a private Natural Gas Act condemnor (the Sabal Trail pipeline) exercised the delegated federal power of eminent domain to take the property of a Florida owner.

As we reported here, the issue is whether federal or state law applies in these cases. The big reason why the question of whose law applies is that under the Fifth Amendment, "just compensation" does not include attorneys' and other fees, while under the Florida Constitution's "full compensation" provision (which we noted here), a property owner may recover fees and costs. The District Court held that Florida law, not federal, applied, and Sabal Trail appealed to the Eleventh Circuit.

The arguments are worth listening to. Is this a question of "choice of law?" Or does it go to how the "property interest" is defined in these takings (by state law). Or do the federal standard of "just compensation" govern? In our opinion, the most interesting part of the arguments starts at the 20:48 mark, where one of the judges asks the property owner's lawyer (our colleague Thor Hearne):

Let me give you what I think is a tough hypothetical for you. Maybe you'll be able to distinguish it. Florida decides in its wisdom that when any government decides to take property for eminent domain, whether it's permanent or an easement, or something like that, not only do you get just compensation as that term is commonly understood, you get attorneys fees and costs, and you get a brand new car. So a federal court has a case under the Gas Act and the question is: do you get the car?

(Note: we think the answer is "Yes, you get the car because Florida law defines the property interest being taken, and Florida law has included attorneys fees and costs and a car as part and parcel of an owner's rights when their land is taken.")

More on the arguments here: "11th Circ. Wary Of Axing Atty Fees In Pipeline Easement Cases."

Links From CRE's "Supreme Court Update: Is This Property's Moment?"

Here are the links to the cases and other materials that we mentioned (and some we didn't) earlier today at the Counselors of Real Estate's program on "Supreme Court Update: Is This Property's Moment?" Thank you to our colleagues at CRE for including us in the program.

I.  The evolving ground rules

• Takings cases can go to federal court:
  • Condemnation: PennEast Pipeline Co. v. New Jersey (eminent domain and the 11th Amendment)
  • Inverse and regulatory: Knick v. Township of Scott (opening back up federal courts to takings claims).
• How you define the “property” taken is key:
  • Murr v. Wisconsin (the larger parcel issue, applied in regulatory takings cases).
  • Koontz (money as property ... and exactions).
  • Brandt (easements, vel non)
• The exclusion “stick” is really important:
  • Any distinction between “permanent” and “temporary” takings is a matter of valuation, not liability: Cedar Point Nursery v. Hassid. 
  • Horne v. USDA (II) (California raisins and physical invasions)
  • Arkansas Game (physical invasions, again).
•  Remedies:
  • The remedy for a “taking” isn’t limited to just compensation: Horne v. USDA (I).
  • Winter v. Natural Resources Defense Council, Inc. (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).

 II.  Issues on the horizon

• Compensation and timing:
  • what to do when the condemnor doesn’t promptly pay up?
  • what is the date of valuation?
• Ability of condemnor to define the taken property:
  • Is there an obligation to value severance damages?
  • Fee take vs easement.
  • Temporary vs permanent.
• Does the Constitution protect property’s use, or value? Police power or takings?
• Whither Yee and the future of the physical occupation rule.
• Are eviction moratoria “takings?”
• Can you really get to federal court and stay there?
• The undivided fee rule ... constitutional?

DC Circuit OK's Pipeline That's Already Built

Here's the latest in a case we've been following.

In City of Oberlin v. FERC, No. 20-1492 (July 8, 2022), the U.S. Court of Appeals for the D.C. Circuit held FERC adequately explained why, in granting a certificate of public convenience, it relied in part on evidence that some of the natural gas in the pipeline was slated to go to Canada. 

Earlier, the court held FERC had not explained why well enough (or at all), and sent the case back down to give FERC the chance to do so. The handwriting was on the wall in the remand order because the court pointedly did not vacate FERC's order granting the certificate: "we remand without vacatur, because we find it plausible that the Commission will be able to supply the explanations required, and vacatur of the Commission's orders would be quite disruptive, as the Nexus pipeline is currently operational."

If you build it, they will approve.

So full steam ahead, pipeline, while FERC gets its ducks in a row.

This is one of those Natural Gas Act pipeline cases, involving FERC's approval of a certificate of public convenience. That, as you know, is the trigger to a private pipeline exercising the NGA's delegated power of eminent domain, because it effectively settles the question of whether the takings are for a public use or purpose. Also, as you know, an agency's decision is, generally speaking, subject to a highly deferential judicial standard of review under the Admin Procedures Act, and a certificate may only be set aside if it is arbitrary and capricious.

Here, the city argued that FERC didn't do it right, and the certificate should be set aside. FERC concluded that the agreements the pipeline company already had made to distribute the gas to be transported was sufficient to support a determination of public use or purpose. But, the owners argued, a large percentage of that (42%) would be going to -- the horror! -- Canada, and FERC never reached any conclusion whether the remaining gas for distribution in the U.S. would support a finding of public use.

Perhaps not surprisingly in light of the D.C. Circuit's remand order, FERC "elaborated on its reasoning for considering the export precedent agreements in its decision to grant the certificate." Slip op. at 8. Even though some of the gas was headed to the Great White North, some gas was still in U.S. interstate commerce and not within a single state.

Was this "arbitrary and capricious" or "contrary to law" as the standard of review commanded? We'll give you one guess (no). See slip op. at 11-3. 

Let's skip to the Public Use analysis. "[T[he City maintains that FERC's crediting export precedent agreements as a benefit runs afoul of the Takings Clause because a pipeline shipping gas for export 'does not serve a public use.'" Slip op. at 15. Given the court's answer to the earlier question of whether FERC's reasons for granting the certificate of public convenience was not arbitrary and capricious, what do you think the court's answer was to the public use question?

The court upheld the taking, concluded that FERC's reasons were adequate, even if the evidence about exports was excluded. The pipeline "was needed to alleviate a bottleneck from the Appalachian Basin and to increase supply to Midwestern markets." Slip op. at 17-18. "FERC also explained that building a pipeline with excess capacity would enhance the pipeline grid for the future." Slip op. at 18.

The court rejected the city's other public use objections:

The City launches a few objections at FERC’s analysis, but none render the decision arbitrary and capricious. First, the City contends that FERC did not identify which pipelines FERC considered in determining that existing pipelines did not have enough capacity to transport the gas the Nexus Pipeline would move. But FERC identified the pipelines on remand in precisely the same manner it did in its initial order—by looking at “other pipeline compan[ies’] electronic bulletin boards.” Compare Remand Order P 27, with Certificate Order P 40 n.29. Even assuming that is insufficient, the City did not challenge this aspect of FERC’s order in Oberlin I and therefore cannot do so now. Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) (“It is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.”).

Second, the City complains FERC did not analyze a hypothetical pipeline specifically sized to transport 42% of the Nexus Project’s capacity. But given that FERC had analyzed a pipeline sized to transport 59% of the Nexus Project’s capacity, there was no need for FERC to start its analysis anew. FERC had already found that shrinking the project would barely reduce the amount of land that the project would require, and that excess capacity could reduce the costs and disruption from constructing additional pipelines in the future. Certificate Order PP 42–45. FERC’s determination that this reasoning applied to a pipeline sized for 42% of the Nexus Project’s capacity was reasonable.

Slip op. at 18 (footnote omitted).

City of Oberlin v. Fed. Energy Reg. Comm'n, No. 20-1492 (D.C. Cir. July 8, 2022)

Here's The Full Speaker And Topic List For The Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

By now, you know that the 19th Brigham-Kanner Property Rights Conference is set for September 29-30, 2022, at the William and Mary Law School in Williamsburg, Virginia (register here - space is limited - fee ranges from free to $195 - a bargain!). And you know that our colleague Jim Burling is this year's B-K Prize winner.

But now you know who is speaking at the Conference, and the topics: here's the full agenda. The list of speakers is too long to list here but check out these topics:

• Panel 1: The Importance of Property Rights: A Tribute to James S. Burling
• Panel 2: Reshaping the Framework Protecting Property Under the Roberts Court (that's the panel we're speaking on)
  
• Roundtable: Emerging Issues in Takings and Property Rights Litigation
• Panel 3: Choosing A Property Regime
• Panel 4: Property Rights in Times of Scarcity and Crisis

Who can resist these subjects? Plan on joining join us in September.

2022 Brigham-Kanner Property Rights Conference Speaker Panels

Texas: At Least One Customer Is Served So Pipeline Is A Public Purpose, But Let's Loosen Valuation Rules For Energy Corridors

On one hand, there's nothing terribly surprising about the Texas Supreme Court's opinion in Hlavinka v. HSC Pipeline Partnership, LLC, No. 20-0567 (May 27, 2022) holding that yes, "polymer-grade propylene" qualifies as an "oil product" under Texas statutes that allow a private pipeline company to take property to transport oil products, and that yes, a private pipeline counts as a public use. After all, the first sentence of the opinion sets the context for those of you who may not realize how important the energy industry is to that state:

Recognizing the important role that pipeline development plays in meeting our state's manufacturing and energy needs, the Legislature grants common carriers the right to condemn private property for the construction of pipelines that transport certain products.

Slip op. at 1.

But on the other hand, the very last portion of the opinion gives a hint that maybe the court is loosening up the rules about proving valuation in pipeline and other energy corridor takings.

We won't spend a lot of time on the statutory analysis ("oil product" includes polymer-grade propylene), or even on the public use issue (where the court applied precedent to conclude that as long a single member of the public is served by a private pipeline, the taking by a private common carrier is a public use), because there's not a lot new there, as we see it. You can read the court's analysis there if you are interested.

But we'd recommend reading the opinion from page 20, at least. There, the court dives into the valuation issue. Here, the owner testifed that he purchased the property to develop it as a pipeline. The land was pretty good for pipeline use (it is "directly between" two refining hubs), at least one pipeline already ran across the land at the time of the purchase, and by the time of trial, "closer to 25" pipelines criss-crossed the land. The owner sought to introduce evidence of his negotiations with other pipeline companies in the time immediately before the taking as comps.

The condemnor objected, asserting that the project rule (value resulting from the condemnation itself can't be used) meant this testimony was not admissible. The court rejected the argument, concluding that this was different - the testimony was to show the value of the property because of the condemnor's project, but because "purchasers other than HSC also value the easement's geographic qualities." Slip op. at 24. 

Such a valuation is not based on value HSC created by its interest, but instead is based on the value of the easement were the Hlavinkas to sell it to another ready and willing market participant. The multitude of pipelines crossing the tract, including those parallel and adjacent to HSC’s pipeline—and the prices paid to secure those easements—is some evidence that the land is valuable to other pipeline carriers for its intrinsic qualities, notwithstanding HSC’s decision to condemn it.

Id.

The court distinguished "the ordinary condemnation case" in which there is no evidence of an existing market for the property interest being taken. Slip op. at 25 ("In the ordinary condemnation case, there is no credible evidence to suggest that, if the land had not been condemned, a pipeline easement could be sold to another."). But "[t]his is no ordinary condemnation case" because there are other pipeline projects (apparently this place is Pipeline Central - 25 pipelines already on the land!) and thus, a reasonable factfinder "could conclude that the [owners] could have sold to another the easement that they instead were compelled to sell to HSC." Slip op. at 25.

In light of what appears to be the frequency of pipelines criss-crossing Texas, we'd expect that -- despite the court's noting this case isn't "usual" -- that our Texas colleagues are going to be seeing more of this argument.

Hlavinka v. HSC Pipeline P'ship, LLC, No. 20-0567 (Tex. May 27, 2022)

2022 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Scottsdale: You Should Have Been There!

After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.

Approximately 200 lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals gathered in-person--yes, in-person--at the Scottsdale (Arizona) Resort at McCormick Ranch, to get reacquainted, learn stuff, and renew ties last made in-person in Nashville in 2020. In addition to the live attendance, we also welcomed about 50 remote colleagues, who joined the live webstream.

This was the 39th edition of the Conference, one of the most-established and successful conferences in the ALI-CLE stable of programs.

To those who joined us - thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year...

Our 2022 Proof of Life Photo.

Every year, as we open the program, I take to the lectern for what I call my "proof of life" photo. Our Conference ends up in some really fun, exciting places. Nashville. Palm Springs. San Diego. Austin. San Francisco. Charleston. And I want to prove to the folks back in the office that yes, we really are in the room, learning stuff. And not out enjoying all that our venues have to offer (we save that for after-hours).

In this photo, we're in the room, spread out (the Resort put us in its massive ballroom, so we had room to spare).

Thank you to our sponsors. Without your generosity, the Conference would not be as good as it is.

Lawprof Karen Bradshaw presented our keynote address on Friday, "Do Animals Have Property Rights?" with more from her recent book "Wildlife as Property Owners." Her talk was followed by a book signing, too. Interesting stuff for sure.

Our main room was nicely filled for every program. A real testament to the subjects discussed, and the quality of the faculty.

The program includes a mix of practice and substantive topics. Here, Virginia's Steve Clarke in one of the breakout rooms (also nicely filled), presenting on "Federal Court and the Daubert Challenge – How To Prepare."

But it wasn't all eminent domain, property, and CLE credits. Naturally, with the beautiful Arizona winter weather, we found time to get out-of-doors and do things. Like this intra-firm golf tournament.

Which firm prevailed? You'll have to ask them who has the bragging rights.

What was especially nice was that our sponsor tables and the ALI-CLE registration table could be outside of the presentation rooms. Love that AZ weather.

New Jersey's Tony Della Pelle and Connecticut's Dwight Merriam on "COVID-19 Takings."

Our faculty includes not only lawyers and law professors. We also have other industry professionals come and present. Here, Washington's Martyn Daniel, Texas' Kristen Bennett, and (lawyer) Alan Ackerman from Michigan speaking about "Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness."

Ah, ethics. A tough subject to cover. Especially at 8am. But Georgia's Ivy Cadle (with the obligatory "go dawgs!"), Michigan's Darius Dynkowski, and (off-screen) Virginia's Kelly Sheeran and Texas' Justin Hodge filled the room with "Ethics Jeopardy! Live."

Yeah, Justin really did go for the end zone for his role as Ethics Jeopardy! host.

We understood the situation. Our faculty, staff, and attendees came to Arizona from around the nation. Some places have opened up, others are still getting there. We minimized any risks. Spread out in a huge room, and everyone was pretty cool with the modest requirements from ALI-CLE. What was especially good was that nearly every event but the actual programming were outside. 

Another featured panel was on the Supreme Court's big decision in Cedar Point Nursery. We brought together three expert perspectives on the case and what it means for the future. "Did the Supreme Court Signal a New Direction for Property Rights in Cedar Point Nursery?" featured California's Joshua Thompson (prevailing counsel in the case), U. Virginia lawprof Julia Mahoney, and (off-camera, since he remoted in) Maryland's Matthew Littleton, who filed a government-side amicus brief in the case.

Also pictured: the moderator, some guy who writes a blog.

Colorado's Katie Gray and Nebraska's Bill Blake on "Project Abandonment: How to Position Your Client for the Fallout When Projects Don't Get Built." Really useful.

Tag swag (aka badge flair) courtesy of our Platinum sponsor.

Our two fave tags.

Outdoors at night - really nice under the lights by the fire, after a long day of CLE programming.

Hawaii's Mark Murakami teamed with Wisconsin's Smitha Chintamaneni for "Why Jurisdictional Offers Must Include an Assessment of Severance Damages."

Even our final programs each day attracted a substantial crowd, often tough to do after long days of sitting in class. A testament to the strength of the faculty and the topics. Here's the audience for "Defending the Appraisal in the Courtroom - The Insider's View."

We put speakers with competing views on these panels, to get the blood pumping and keep everyone's attention.

Saturday morning, after two full days of (great) programming, is still a tough spot for a speaker, because they have to keep us focused, and interested.

That's why we always reserve these spots for two old hands, who will keep us zeroed in. Above is California's Jim Burling, with a tour-de-force solo hour on "What Are the Top 20 Ways to Increase the Cost of Housing? The Answer May Surprise You!"

Below, Michael Berger (looking a bit like Big Brother, admittedly), who remoted in from California with his annual "Regulatory Takings Update."

Feral cats and property rights had us smiling (ask Michael about what this refers to).

Michael Berger is Watching You.

A group photo of the William and Mary Law School contingent at the Conference (minus two other WM Law colleagues who could not be there for the photo). Recent and long-time alumni, current law students, a law prof, and (fourth from left) Jim Burling who later this year will be awarded WM Law's Brigham-Kanner Property Rights Prize at the B-K Conference in September 2022.

A pretty good showing for the alma mater.

There was a whole lot of podcasting going on. Thanks, Infrastructure Junkies and Eminent Domain Podcast. Can't wait for the episodes you recorded.

Again, thank you sponsors!

What about next year? Usually, on the last day of a Conference, we announce the dates and the venue for the following year. This year, due to some slowdowns, ALI-CLE couldn't quite get all the requirements in place to make a formal, official announcement. As soon as we know the venue, we'll go loud here.

As for the date: same date as usual - last week of January or first week of February, depending on the football schedule (which we're trying to avoid).

Stay tuned.

 

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights, And Land Use Courses

If you ever get the opportunity to teach in a law school -- either as a full-time legal scholar, or part-time as an expert adjunct practitioner -- take it if you can. You might think you know a lot about a particular subject, but there's nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you "professor" can evoke a smile.

But if there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use -- where we're dealing with some very high-level stuff and the quality of the students is uniformly high -- that makes for some hard choices at this time of year. Despite these challenges, we've wrapped up grading for the Fall 2021 Semester, and have submitted the official scores.

Although I cannot share with you the students' final papers in these classes, I don't think they would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about property, property rights, takings, land use, and environmental law (inter alia). 

Check out these titles:

• The Many Saints of Land Use Law
• The Past, Present, and Future of Richmond Affordable Housing
• What's on the Menu? - The Future of Outdoor Dining and the Tension Between Land Use and Public Health
• Could Monetary Compensation Fully Indemnify Property Owners for Idiosyncratic Values in Takings Cases?
• The Lingering Effects of the Dawes Act on Tribal Land Use
• The Dawn of Debt and Everything Else: An Examination of the Works of Michael Graeber and the Role of Eminent Domain and Property Rights
• Inflation for Land Use Control
• Agritourism in Wine Country: Analysis of Accessory Uses in Napa Valley
• Judicial Exaction of Euclidean Deference Under Koontz
• A Review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America
• What’s on the Inside Counts: Why Historical Preservation Regulations Should be Allowed to Regulate Interior Landmarks and the Issue of Public Access
• Through the Buchanan Lens: Reframing Virginia Land Use Laws
• The Case for Equal Application of RLUIPA’s Equal Terms Provision
• The Government Giveth, and the Government Taketh Away: Retroactive Application of Inter Partes Review Under the Takings Clause
• The Right to Share: Is Virginia Beach’s Regulation of Short Term Rentals a Taking under the Takings Clause of the Fifth Amendment?
• The laws of nature do not recognize property rights, complicating the Commonwealth of Virginia’s adaptation to climate change
• Looking at Viniculture Through the Glass of Historic Preservation Law, or
  A Brief Wine Advocate
• Is the New York State Canal Corporation the Onceler of Upstate New York?: An Analysis of Town of Pittsford v. Power Authority of New York
• Law and Ownership as Evolving Stories: A Review of Mine!
• Incentive Zoning in New York
• The Tide is High but Norfolk's Holding on: An Analysis of Norfolk's Climate Change Adaptation Strategies and a Review of the Potential Claims in Response
• Flipping the Play: How Localities Can Use the Power of Eminent Domain to Seize Sports Franchises and Finally Stick it to Bob Irsay
• Land Use Control – Is it Important to the Average Joe?
• Re-Evaluating Bennis and Civil Forfeitures Under the Takings Clause
• The Guardian of Every Other Right - A Constitutional History of Property Rights and a Discussion on Tariffs, Redistributionism, and Capitalist Liberty
• Pipelines and Eminent Domain: A Constitutional and Environmental Analysis of Energy Takings
• Paradise Stolen: An Ethical Reexamination of Property Deprivation and the Plight of the Atakapa-Ishak Peoples of Louisiana’s Grand Bayou Indian Village
• A Flood of Pollutants: The Promises and Perils of a Regulatory-Takings Approach to the Right to a Clean Environment

And this is only a sampling.

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication.

Pennsylvania: To Be Liable For Inverse Condemnation, Taker Need Not Have Eminent Domain Power

Here's how the Pennsylvania Supreme Court stated the issue in Hughes v. UGI Storage Co., No.J-69A-2021 (Nov. 29, 2021):

In these consolidated appeals, we consider the Commonwealth Court’s holding that, to be held liable for damages under Pennsylvania’s inverse condemnation statute, an entity must be clothed with the power of eminent domain – not only in a general sense, in that it must be a governmental or quasi-public entity to which condemnation powers may be delegated – but also, the entity must be invested with eminent domain authority specific to the property in issue.

Slip op. at 1.

If all you need to know is "what did the court answer?" you can stop right here: the court held that UGI Storage did not need to have been delegated the power of eminent domain, nor must it be delegated the power to take the property at issue, in order to be (potentially) liable for inverse condemnation under Pennsylvania law.

For more details on why, we recommend you read the entire 26-page opinion, even though the way the inverse claim arose is a bit convoluted. The short story: UGI was going to acquire underground natural gas storage fields, and made known what appeared to be its intention to obtain the necessary private property. It obtained FERC certification. There seems to be some question of whether it really intended to, or how much it accomplished, but eventually the actual owners of these properties sued UGI for inverse condemnation in a Pennsylvania court, alleging that UGI's "securing of FERC certification ... constituted a de facto taking of Plaintiff's oil, gas, and mineral rights." Slip op. at 10.

The trial court agreed that a taking had occurred, and continued with the valuation process. But UGI objected, asserting that it was not authorized by FERC to use the plaintiffs' property to store natural gas. UGI also argued that it does not possess the power to condemn, and therefore cannot be liable for inverse condemnation. The trial court agreed. Slip op. at 14. The intermediate appeals court split, and remanded the case to gather further evidence on the scope of the property allegedly acquired. On remand, the trial court doubled-down on its earlier no-eminent-domain-power-means-no-inverse ruling, and back up to the court of appeals they all went.

The divided appeals court affirmed that to be liable in inverse, a defendant must have the property-specific power of eminent domain. No inverse, but hey, try tort! Slip op. at 19 ("The majority concluded with a comment that the landowner might not be without a remedy, as they could perhaps pursue causes of action in tort.").

The Pennsylvania Supreme Court's analysis starts at page 21. The court focused on the definition in the eminent domain code of three terms. First, "condemn," which the court noted means "to 'take, injure or destroy property by authority of law for a public purpose.'" Slip op. at 22. Second, the court looked at the definition of "acquiring agency," and concluded that no part of the definition relates exercise of the power of such an agency to specific property. Finally, the court concluded that the statute references inverse condemnation as a "condemnation," which the legislature described as the taking, injuring, or destroying property by authority of law for a public purposes. In doing so, the court noted, the legislature "said nothing about a power of eminent domain." Slip op. at 23. All the inversely condemning authority needs is the authority of law and a public purpose:

The plain terms of the enactment, therefore, support Appellants’ position, or in other words, the statute simply does not signify a requirement of a property-specific power of eminent domain.

Slip op. at 23. The court also noted decisions such as Nollan, where "the Supreme Court hasn't parsed through whether or not each offending agency has a power of eminent domain." Slip op. at 24. The court concluded:

we do not presently discern a constitutional requirement that a quasi-public entity alleged to have invoked governmental power to deprive landowners of the use and enjoyment of their property for a public purpose must be invested with a power of eminent domain in order to be held to account for a de facto condemnation.

The Eminent Domain Code says so, of course, of both public and quasi-public entities, see 26 Pa.C.S. §103 (definitions of “condemn” and “acquiring agency”), and this case does not call for us to resolve any incongruities between the Legislature’s prescription that the statute provides an exclusive procedure to secure a remedy and federal constitutional takings jurisprudence. Rather, for present purposes, we merely adopt a plain-meaning interpretation of the Eminent Domain Code – which, as between the competing positions before us, is the one most consonant with constitutional norms – and we hold that a public or quasi-public entity need not possess a property-specific power of eminent domain in order to implicate inverse condemnation principles.

Slip op. at 25 (footnote omitted).

The entire opinion is worth a read.

Hughes v. UGI Storage Co., No. J-69A-2021 (Pa. Nov. 29, 2021)

Registration Open Now: ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022, Scottsdale

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Keynote: Do Animals Have Property Rights?
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• Maximizing Relocation Benefits: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Property Rights as Civil Rights
• Eminent Domain National Update
• Federal Court and the Daubert Challenge: How to Prepare
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

New L Rev Article: "Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split" (Tex. A. & M. J. Prop. L.)

Programming note: as we noted here, we've recently moved our email subscribers to a new service. If you are already subscribed to our email updates you should not need to do anything, except look for the emails coming from Feedblitz, not Feedburner. If you want to sign up for email updates anew, go here. If you experience technical issues, or receive duplicate email notifications, please let me know.

Now back to your regularly scheduled programming...

Be sure to take a read of an article we've had in our queue to read for a while: Karen Adlay, Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split, 7 Tex. A. & M. J. Prop. L. 137 (2021).

Several federal courts of appeals -- including the Fourth Circuit in Givens -- have upheld giving prejudgment possession of property to a private pipeline condemnor once a district has ruled in favor of the pipeline that it qualifies under the three predicates to condemn private property under the Natural Gas Act, 15 U.S.C. § 717f(h). These courts conclude that summary judgment on the power to take grants a pipeline a "substantive" right, and therefore there's no reason to not give it possession now by granting a Rule 65 injunction even though in the NGA, Congress did not expressly delegate to private condemnors the "quick take" power. 

A close read of the language of section 717f(h) shows it is only about whether a private pipeline company may institute an eminent domain lawsuit to take property. In other words, whether it has standing. Summary judgment on the three statutory factors doesn't grant a "substantive" right in these type of condemnations. Rather, the substantive right in a "slow" take is ownership of the property, which will not be finally determined until after a final adjudication of compensation and payment of that compensation. Only then does title (and possession) pass to the taker. The courts' faulty reasoning is highlighted by their conclusion that summary judgment was an "order of condemnation," when as we old hands know, and order of condemnation is the final order transferring title after adjudication and payment of compensation.

This is an issue we've been following along with for a while (see here, for example). We even filed an amici brief in an earlier case presenting the same issue. The article is a good summary of the state of affairs, and makes what we think is a solid argument that the Supreme Court needs to do something about it.

From the Abstract:

The natural gas industry is central to the United States economy. However, due to vague regulations and judicial leniency, natural gas pipeline companies have almost zero restraint in exercising eminent domain. Their current operations mirror that of the federal government’s authority to exercise immediate possession. Recently, landowners have contested the pipeline industry’s authority to exercise eminent domain, which has developed into a circuit split. The Fourth Circuit, and the six other circuits that have followed suit, hold that pipeline companies have the substantive right to immediate entry and are entitled to a preliminary injunction before a trial on just compensation. The Seventh Circuit holds that the courts do not have the authority to grant immediate entry, and the pipeline company must complete the entire standard condemnation process before entering the property. In 2019, there were two attempts to bring this issue before the Supreme Court, and both attempts failed. This Note evaluates the most recent attempt in Givens v. Mountain Valley Pipeline, LLC and argues that the Supreme Court should address this issue and adopt the Seventh Circuit approach.

Check it out.

SCOTUS: Eminent Domain Is Eminent Over Everything, Even A State's 11th Amendment Immunity

Another takings opinion from the Supreme Court, this time in a (putatively) eminent domain case we've been following.

In PennEast Pipeline Co., LLC v. New Jersey, No. 19-1039 (June 20, 2021), the majority (Roberts, CJ, joined by an unusual, cross-aisle lineup of Justices Breyer, Alito, Sotomayor, and Kavanaugh) concluded that a private pipeline which has been delegated the federal power of eminent domain in the Natural Gas Act, may, in a federal court lawsuit, condemn property owned by the State of New Jersey. 

The case asked whether New Jersey - not some mere private landowner - can be haled into a federal court as a defendant in a NGA private pipeline taking. The issue isn't the same as a typical NGA pipeline case in which a private landowner can't assert Eleventh Amendment immunity. As a consequence, here we witnessed a much different result in the way the lower courts treated the condemnee. Unlike virtually all other NGA cases in which the private pipeline condemnor pulled the usual "quick-take-by-preliminary-injunction" trick to get immediate possession of the property (even though the NGA doesn't delegate the federal government's quick take power), the Third Circuit invalidated the PI.

Thus, because of the 11th Amendment focus, we had lowered expectations that this case would produce much in the way of anything helpful on the property rights or eminent domain front. See lawprof Ilya Somin's summary of the case for more: "Eminent Domain Prevails Over Sovereign Immunity in Supreme Court Case Both Sides Deserved to Lose." What worried us most was the mischief that might result if the Court made any wayward assumptions about eminent domain law. Thankfully, we didn't see any glaring problems in the opinion, especially something we harped on during oral arguments about eminent domain being an "in rem" action. See, e.g., Tr. at 5 ("Second, the proceedings here are in rem and can only augment the state treasury. This Court has recognized that in rem proceedings pose a lesser threat to state sovereignty."). About the only thing that might give us pause is everyone's assumption that when delegating eminent domain to private parties, those parties may exercise the same power as does the federal government. Maybe that's true as a matter of the NGA, even if it is not correct as a general matter.

Because Professor Somin covers the arguments and three separate opinions better than we can, we're just going to suggest you go read his summary:

Despite the majority's grandiose references to "[t]he plan of the Convention," they cite no evidence that anyone at the Constitutional Convention (or at the later state ratifying conventions) ever actually said that the federal government would have a general power to use eminent domain within the states (as opposed to federal territories)—much less that it would have the power to condemn state-owned land specifically. If there was such a plan, it must have been a very carefully kept secret!

As co-blogger Will Baude demonstrated in a pathbreaking 2013 Yale Law Journal article (cited by the dissenters), the dominant view at the time of the Founding and for many years thereafter was that the federal government did not have a general power to use eminent domain within the states. The "plan" referred to by Roberts simply did not exist.

This one turned more on classic federal courts topics than eminent domain (although please do read the majority opinion from pages 7 to 9 for the Chief's summary of how we got from the Bible and Grotius to delegations of the federal eminent domain power to private entities).

Consequently, we probably won't have much to say about this case, other than we're relieved that it didn't screw up eminent domain law as it had the potential to do.Check it out and see if you agree.

PennEast Pipeline Co., LLC v. New Jersey, No. 19-1039 (U.S. June 20, 2021)

Links From Today's Oregon Eminent Domain Conference

Earlier today, I presented the "National Takings Update" at The Seminar Group's Eminent Domain in Oregon conference. It was good to see old friends and colleagues again, even though on-screen and not in-person. Hopefully next time we'll all be able to join together.

Here are the links to the cases we discussed that are not in your written materials (mostly because they were issued after I submitted my materials):

• Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• California Trial Court: No Greater Public Interest In Town Seizing Private Water Company To Operate It Itself (Generic "Vision Statements" Don't Count)
• Listen (Or Read) As SCOTUS Hears Arguments In A (Sorta) Eminent Domain Case
• What If A Court Invalidates A Taking, But They've Already Taken It?
• How "Res Judicata" Is A Failed Condemnation?
• Sixth Circuit Says No To Res Judicata As The Latest Williamson County Workaround
• New Law Review Article (Ours) - "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)

Until next time!

Mark Your Calendars: 2021 Brigham-Kanner Property Rights Conference, Williamsburg, Virginia, Sept 30-Oct 1 (in-person)

Mark your calendars for September 30 - October 1, 2021, and join us at the William and Mary Law School in Williamsburg, Virginia for the 18th Annual Brigham-Kanner Property Rights Conference. It's planned to be in-person, so when we mean "join us" we really mean join us.

This year the Conference will recognize the lifetime work of Professor Vicki Been (NYU Law) with the Brigham--Kanner Property Rights Prize. As noted in the Law School's press release:

The Brigham-Kanner Property Rights Prize is named in honor of the lifetime contributions to property rights of Toby Prince Brigham, founding partner of Brigham Moore, LLP, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles. Brigham died earlier this month in Miami. A true legend in the law, he was esteemed by colleagues for the invaluable counsel, knowledge and skills he possessed and shared so generously. The prize is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

Been is the Judge Edward Weinfeld Professor of Law at NYU School of Law, an Affiliated Professor of Public Policy of the NYU Wagner Graduate School of Public Service, and Faculty Director of NYU’s Furman Center for Real Estate and Urban Policy. Her scholarship focuses on the interplay of land use, urban policy and housing. She is currently on leave from NYU, serving as Deputy Mayor for Housing and Economic Development for the City of New York. 

Among other topics, Been has examined inclusionary zoning, historic preservation, affordable housing, gentrification, mortgage foreclosure, racial and economic integration, community benefit agreements, and the effects of supportive housing developments on neighbors. She often uses the City of New York as her laboratory.

Been also writes about the Fifth Amendment prohibition against the taking of property without just compensation, environmental justice, and international protections for property owners. She is a co-author of a leading land use casebook, Land Use Controls.

Save the date, plan on joining us (Williamsburg is great in the fall), and stay tuned for the full agenda and speaker list, as well as how to register.

Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)

A private pipeline did what pipelines often do: it started negotiating with property owners for the property needed, but at the same time pressed forward. It reached agreement with some owners, others not. It filed "expropriation" lawsuits (for it is in Louisiana that our scene lies). It started to build, even before judgments of expropriation.

Aaslestad, owner of 38.00 acres (more or less) sued the pipeline to enjoin further construction. He also asserted in the expropriation case a counterclaim for due process and trespass (again, this is Louisiana, so they call that a "reconventional demand). Trial followed.

The trial court issued a judgment of expropriation and concluded the takings were for a public purpose. But it also upheld the property owner's trespass counterclaim. The owner's interest was pretty minor, so the total award was a whopping $150. Seventy five bucks for the expropriation and the same amount for the trespass. No attorneys' fees.

As we noted in this post ("Louisiana Court Slaps Down Pipeline for Just Going Ahead And Building Before Actually Taking Property"), the Court of Appeal was not too pleased with the pipeline. It upheld the expropriation but also held that occupying and starting the build on the property prior to a judgment of expropriation violated the owner's due process rights. It didn't matter that the interest was very small. The court entered a $10,000 judgment for the owner, and sent the case back down for a calculation of attorneys' fees.

Not so fast, the pipeline argued in a writ petition to the Louisiana Supreme Court. We're a pipeline, and the attorneys' fees statute only applies to the government and its agencies. And besides, this case, while it involved takings, was not a compensation proceeding.

The Supreme Court agreed that the statute did not cover this situation: "By its plain language, La. R.S. 13:5111 does not allow for an award of attorney fees in this case, as it involves expropriation by a private entity. Specifically, we find that BBP is not an 'agency' of the state." Slip op. at 5. Things looking up for the pipeline!

But hold on: maybe the statute doesn't require a private condemnor to provide attorneys' fees; but the Louisiana Constitution does.

The Louisiana Constitution of 1974 requires that landowners be compensated “to the full extent” of their loss, which “shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation.” La. Const. Art. I, § IV(B)(5).This article applies to both public and private entities and was amended in the Constitution of 1974 in order to encompass costs of litigation and attorney fees.

Slip op. at 5.

The constitution requires that all condemnors (not just public condemnors) make full and just compensation, which means attorneys' fees. The court also held that the "specific procedural posture of the case" didn't matter. Thus, the court also rejected the pipeline's argument that the award of fees was in the owner's inverse counterclaim, and not in the expropriation claim.

So check this out. We think the Louisiana Supreme Court got it right when it held:

While this Court has generally acknowledged that attorney fee awards are governed by statute or contract, we have also noted that there are exceptions to this rule. See e.g., Hernandez v. Harson, 237 La. 389, 409, 111 So.2d 320, 327 (1958) (discussing exceptions to the jurisprudential rule that attorney fees are not allowed except where authorized by statute or contract). Additionally, we note that “the constitution is the supreme law of this state, to which all legislative acts must yield.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 22 (La. 7/1/08), 998 So.2d 16, 32(citations omitted). We agree with defendants that Rivet is inapplicable because it does not address the fundamental question presented herein: whether the Louisiana Constitution permits any award of attorney fees and litigation costs separate from any statutory authority explicitly authorizing an award of attorney fees and costs. We find that it does. Thus, under the specific facts of this case, we find sufficient support in the Louisiana Constitution to uphold the awards of attorney fees and costs.

Slip op. at 9-10.

We just wish more courts would see it the same way.

Bayou Bridge Pipeline, LLC v. 38.00 Acres, More or Less, No. 20-1017 (La. May 13, 2021)

Listen (Or Read) As SCOTUS Hears Arguments In A (Sorta) Eminent Domain Case

What's up with that (sorta) snarky headline, you ask? After all, isn't the PennEast v. New Jersey case, heard yesterday by the Supreme Court, a real honest-to-goodness eminent domain case about a pipeline?

Doesn't the transcript show terms like "in rem," "takings," "eminent" and "eminent domain" were used a whole lot? Aren't a lot of the media reports saying this is a big eminent domain case (see here and here for example)?

But read the transcript or a listen to the recording (stream above or download the mp3 here) and see what you think, eminent domain mavens.

If you are like us, you understand that the case isn't going to tell us a lot about eminent domain generally, or about valuation, or the power to take (except in very limited circumstances). After all, the case asks whether the State of New Jersey - not some mere private landowner - can be haled into a federal court as a defendant in a Natural Gas Act private pipeline taking, and the issue isn't the same as a typical NGA pipeline case in which a private landowner can't assert Eleventh Amendment immunity.

As a consequence, here we witnessed a much different result in the way the lower courts treated the condemnee. Unlike virtually all other NGA cases in which the private pipeline condemnor pulled the usual "quick-take-by-preliminary-injunction" trick to get immediate possession of the property (even though the NGA doesn't delegate the federal government's quick take power), the Third Circuit invalidated the PI.

So we had lowered expectations that yesterday's arguments would tell us anything truly worthwhile about this issue or any other eminent domain-ey things. It didn't, but here's what we thought were the most interesting points:

• There was a lot of mention of how eminent domain is an "in rem" action. See, e.g., Tr. at 5 ("Second, the proceedings here are in rem and can only augment the state treasury. This Court has recognized that in rem proceedings pose a lesser threat to state sovereignty."). An action against the property and not against the owner. That seemed to be an assumption that everyone was operating under. But as Justice Gorsuch noted (and only Justice G) noted the "in rem" shorthand really doesn't help much. Tr. at 83 ("I remember Upper Skagit. I may be the only person who does, but I do having gotten saddled with that one, but it was a delightful assignment. But that -- that has to do with property outside the state. What about inside the state?"). The "Upper Skagit" case he refers to is this one, which we thought reflected the notion that the "in rem" vs. "in personam" distinction is not terribly helpful in eminent domain. But we'll hold off on that one here, because one of PennEast's key arguments is that it wasn't really suing New Jersey qua New Jersey, but rather land that just happens to be owned by New Jersey.
• It was kind schadenfreudey to hear New Jersey complain about how unfair and harsh eminent domain can be. Welcome to the world of typical condemnees, New Jersey!
• The main point of PennEast's argument was that PennEast really isn't a private actor, and it isn't simply exercising a delegated federal power. Instead, it has effectively been "deputized" as a federal agent, and this is really just like the feds are suing New Jersey. If the Court buys that, we think it is all over for New Jersey.
• Finally, this: PennEast emphasized what we've always thought was a point worth repeating: eminent domain is not a typical civil action: "And of all in rem actions, eminent-domain proceedings pose the least concerns. They allege no wrongdoing, they impose no liability, and they cannot be brought without federal authorization. The whole point of the proceeding is to ensure just compensation for a taking."). Tr. at 6. If the Court picks this up, the opinion might be more interesting.

A clear consensus was not obvious among the Justices. To be honest, we're kind of ambivalent about the outcome in this one because the Court didn't even think about the quick-take-by-PI issue that we believe remains a festering problem, and the Court deciding whether a state can be subject to the unfair and unconstitutional regime that private owners have to suffer under leaves us lukewarm (same as it ever was).

Transcript, Penneast Pipeline Co., LLC v. New Jersey, No. 19-1039 (U.S. April 28, 2021)

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you "get" this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

Always wanted to join in, but didn't like the travel? Here's your chance to try us out with reduced tuition. A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

Law Students: Register Free For The 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, 2021)

Are you a law student interested in takings, eminent domain, land use, environmental, and other dirt-lawyering related topics? If so, good news: thanks to the generosity of ALI-CLE, you can register gratis (free!) for the upcoming 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics, risk-free. 

To register or to find out more, email me.

Eminent Domain Podcast's Preview Of The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Our thanks to Clint Schumacher for having us on his program to talk about the upcoming Conference. We're "remote" this year, but that means a different approach to our presentations (and a very modest tuition!).

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," "Evaluating Lockdown, Moratorium, and Emergency Claims," and more (including Ethics for those of you in MCLE jurisdictions). We'll have a post with more details. 

Register now!

Brigham-Kanner Property Rights Conference Videos Now Available

In case you missed any part of it: the recordings of the recent 2020 Brigham-Kanner Property Rights Conference are now available.

Go here for the descriptions of the panels, speakers, and links to the recorded sessions.

This year’s conference, held on October 1-2, opened with the Brigham-Kanner Property Rights Prize being awarded to Professor Henry E. Smith of Harvard Law School. The prize is named in honor of the lifetime contributions of Toby Prince Brigham, founding partner of Brigham Moore, LLP, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles, and is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

Topics covered: "Where Theory Meets Practice: A Tribute to Henry E. Smith," "The Housing Crisis," "Emerging Issues in Takings and Eminent Domain Law," "The Reach of Government’s Confiscatory Powers over Exigencies and Emergencies," and "The Risk of Unjust Compensation."

Check it out.

Your 2020 Brigham-Kanner Property Rights Conference Bingo Card

There's Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)

Although it is set to launch this Friday, October 2, 2020, there's still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn't limited by the classroom size (this year's registrations are at record levels), you don't need to travel to Williamsburg, and the Conference is free if you don't want Virginia CLE credit for attending. What a deal.

In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.

Here are the panel topics (complete program agenda here):

• Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
• The Housing Crisis
• Roundtable: Emerging Issues in Takings and Eminent Domain Law
• The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
• The Risk of Unjust Compensation

Speakers include Professor Smith and past Prize winners, prominent members of the practicing property bar, and property scholars. The complete list is posted here.

Come, join us without even leaving home (or the office)! Register here. Did we mention the tuition is FREE?

Breaking: News About The 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan. 28-29, 2021)

News just in: we've just received confirmation that the Conference will not be in-person in Scottsdale in January 2021, and we're going online.

Not a big surprise, but still a bit disappointing, and it's a shame that the circumstances won’t allow us to meet in-person to talk shop and to renew our friendships like we do every year. 

But rest assured we're making lemonade out of these lemons, and we'd appreciate everyone holding the dates on your calendars to join your colleagues from across the nation for the online Conference. And no, we're not going to do two-and-a-half-days remotely, we're paring down the agenda and will be focusing on hot topics, and great presenters. The remote format has some advantages, and we’re taking advantage of the circumstances to plan a conference more interactive and a bit different than usual.

This will also be a great program for first-time Conference participants. If you haven't taken the dive and joined us in the past because you could not spend the time away or the costs of attending in-person kept you away, this will be your chance to see what we're all about and get a taste of what you've been missing, so you can join us when we reconvene in-person in 2022. 

Stay tuned for more details, to be released shortly! 

New Ag Law In The Field Podcast Ep: Jim Spivey On Eminent Domain & Just Compensation

Tiffany Lashment's "Ag Law in the Field" podcast is one of those you really should follow. Every episode is worthwhile in our opinion. The latest episode is a chat with Texas property owner lawyer Jim Spivey. From the show notes:

Eminent domain is one of the most popular topics we cover. Today, we are focusing on the important issue of compensation when property is being condemned. San Antonio-based attorney, Jim Spivey, joins us to talk us through many helpful concepts related to compensation, and offers important tips to Texas landowners dealing with eminent domain.

Check it out.

CA11: In Eminent Domain, There's A "Low Bar" For An Owner To Testify About The Value Of His Own Property

A short one from the U.S. Court of Appeals for the Eleventh Circuit. In Sabal Trail Transmission, LLC v. 18.27 Acres, No. 19-10705 (Aug. 3, 2020) (unpub.), the court concluded that the trial court did not abuse its discretion when it allowed the property owner to testify about the value of his property. 

This is a ruling that should not be a surprise, given the same court's earlier published opinion holding the same thing in a case by the same pipeline condemnor against different property owners. Here, the court noted the "low bar" an owner must satisfy to testify (having "some basis" for the testimony).

One owner had some training as an appraiser. The other had experience buying and selling property in the relevant market:

Lee and Ryan Thomas satisfied the low bar of providing some basis for their valuation testimony. Lee trained as a land appraiser early in his career. Both men bought and sold property in Levy County over the years and knew what prospective purchasers would be looking for in a piece of property. And they explained the negative impact of the pipeline on their farming operations and residential life. Although Lee and Ryan provided little explanation for the specific values they testified to, we cannot say their testimony was purely speculative or that the district court abused its considerable discretion in admitting it.

Slip op. at 8.

And the beat goes on.

Sabal Trail Transmission, LLC v. 18.27 Acres, No. 19-10705 (11th Cir. Aug. 3, 2020) (unpub.)

Louisiana Court Slaps Down Pipeline for Just Going Ahead And Building Before Actually Taking Property

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)

NY Takes Eminent Domain Law From Worse To Worse* - Conditional FERC Certificate Only Prohibits Construction, Not Eminent Domain

A private pipeline company obtained a certificate of public convenience from FERC. Under the Natural Gas Act, FERC may issue such certificates conditioned on the applicant meeting the Clean Water Act's requirement of obtaining state environmental check off on the project. The pipeline needed an easement across Schuecker's land, and began the condemnation process under New York law. It attached to its condemnation petition the conditional FERC certificate. 

Schuecker objected, asserting that the FERC certificate was no good, because the pipeline had not met the condition: it had not certified to FERC that it had received all state approvals (as required by the federal Natural Gas Act). Indeed, the New York Department of Environmental Conservation had denied the pipeline's water quality certification. The pipeline responded that it was seeking reconsideration with FERC, and that the NYDEC could not deny water quality certification because it was too late to do so. The trial court agreed with the pipeline, but the appellate department reversed. While the case was pending in the appellate department, FERC concluded that NYDEC had waited more than a year to respond to the pipeline's application, and had thus waived authority to grant or deny it.

Up to the New York Court of Appeals (dun-dun) they went.

In National Fuel Gas Supply Corp. v. Schueckler, No. 29 (June 25, 2020), the court's majority agreed with the pipeline, and concluded that the FERC certificate was good enough, and the pipeline fulfilled the requirements of New York's eminent domain statute. That statute exempts a condemnor from making findings about public use and environmental impact of the taking if it obtains a certificate of public convenience from a federal or state agency considering "factors similar" to these. The court of appeals concluded:

FERC prepared a 199-page environmental assessment as part of its review, which involved consideration of public comments and of various potential modifications of the proposal, and which took into account how the project might affect—among other things—local “geology, soils, water resources, wetlands, vegetation, fisheries, wildlife, threatened and endangered species, land use, recreation, visual resources, cultural resources, socioeconomics, air quality, noise, [and] safety.” FERC concluded that the project did “not constitute a major federal action significantly affecting the quality of the human environment” and, thus, an environmental impact statement was not required under the National Environmental Policy Act.6 Following its lengthy review, FERC determined that the public benefits of the pipeline project outweighed any adverse impacts and, accordingly, issued a certificate of public convenience and necessity to National Fuel. This certificate was incontrovertibly premised upon a meaningful review of substantial information, alternatives, and viewpoints of various stakeholders, and FERC’s analysis focused largely on the factors delineated in EDPL 204 (B). Given that FERC made a reasoned determination regarding the public benefit to be served, as envisioned by EDPL 204 (B), the certificate satisfied the plain language of EDPL 206 (A).

Slip op. at 12-13 (footnote omitted).

Yeah, the FERC certificate was conditional, but it really wasn't "conditional" in a way that would interfere with the processing of an eminent domain case. See slip op. at 13. The pipeline can't actually build anything, but it can take property. 

The majority paid lip service to the idea that eminent domain requires fairness to property owners, but ultimately conceded that the fundamental purpose of New York's eminent domain statute is to make sure that public projects get built:

To be sure, the Appellate Division’s concern that the power of eminent domain should be exercised only for viable projects is legitimate; both our state and federal constitutions permit the taking of property by eminent domain only for public use (see NY Constitution art I, § 7; US Constitution, Fifth Amendment)9 and any exercise of eminent domain involves a careful balancing of the interests of property owners, the community, and the public use to be served (see EDPL 101). However, in enacting the statutory exemption set forth in EDPL 206 (A), the legislature recognized that eminent domain is, at its core, intended to advance public works and that, in connection with such public projects, government agencies may often render determinations of public use that typically need not be replicated. Where, as here, a state or federal agency has determined that a project serves a public use, duplicative and exacting review of that determination would contravene the statutory framework prioritizing efficient resolution of condemnation claims for the greater public good (see EDPL 206 [A]).

Slip op. at 15.

Bottom line: "In sum, where, as here, a gas company holds a valid certificate of public convenience or necessity from FERC for the proposed construction of a pipeline and that certificate places no relevant conditions on the eminent domain power and has not been stayed or revoked by FERC or a federal court properly reviewing its issuance, compliance with article 2 is excused under EDPL 206 (A)." Slip op. at 19.

We guess we shouldn't be surprised at this ruling. New York eminent domain law was already among the worst in the nation at protecting property owners. As our New York colleague wrote when we asked if the latest decision made thing worse, "[m]ore like worse to worse." [* Hat tip for giving us the title to this post.]  He also wrote:

This is par for the course, sadly, and entirely unsurprising.   There is literally nothing that cannot be condemned in NY and the Judiciary has completely abdicated any role in overseeing eminent domain actions. 

As one New York appellate judge described that state's law, "there is no longer any judicial oversight of eminent domain proceedings." Uptown Holdings v. City of New York, 908 N.Y.S.2d 657 (App. Div. 2010) (Catterson, J., concurring).

Before you file this latest opinion away as just another in a long train of abuses and usurpations, check out the detailed dissent by Judge Rivera:

In concluding that the Corporation may rely on a Federal Energy Regulatory Commission certificate to satisfy its burden under the EDPL, even though the certificate expressly conditions the project on completion of additional federal and state mandatory assessments with the potential to stop the project, the majority measures the certificate by its title, the equivalent of “judging a book by its cover.” Metaphorically, and as a matter of law, no good can come from this. Indeed, the majority misinterprets the federal regulatory process and the EDPL condemnation framework, and in so doing sanctions the condemnation of private property for development projects that may never gain final approval. I do not see how the public benefits from the premature taking of private land, and therefore I dissent.

Dissent at 2-3. Judge Rivera suggested that the legislature step in and right the wrong. See Dissent at 19. We recommend you read her entire opinion.

Nat. Fuel Gas Supply Corp. v. Schueckler, No. 29 (N.Y. June 25, 2020)

Should Takings Mavens Follow The Latest Eminent Domain Case At SCOTUS?

Short answer: yes, with a caveat. For why there's an asterisk on this one, take a look at the Supreme Court's electronic docket for PennEast Pipeline Co., LLC v. New Jersey, No. 19-1039 (cert. petition Feb. 20, 2020) (a case we've been following), and tell me whether you think there's anything unusual about the list of parties, amici, and their counsel.

SCOTUS Überlawyers? Check. Big well-funded parties? Check. Heavy-hitter amici? Check.

But the one thing missing, we noticed, was the property owners' bar. No Mike Berger, neither of the Ilyas (Somin or Shapiro), no PLF, no IJ, no Carolyn Elefant, no Chris Johns, no NFIB, none of the other individuals or groups who often weigh in on property questions on either side (and yes, no Owners' Counsel). This might strike you as odd, in a case where the Question Presented is about eminent domain:

Whether the NGA delegates to FERC certificate holders the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.

The issue is one we've dealt with repeatedly here, the question of the authority of private pipeline companies to preemptively seize property under the Natural Gas Act, even though the NGA does not delegate to these companies the quick take power. A situation that one D.C. Circuit judge noted was "kafkaesque."

We don't get that many opportunities to ask the Court to take a look at eminent domain issues, so why are all the pros sitting on the sidelines on this one?

As we pointed out in this post (about the Third Circuit's opinion), this case involves a special property owner on the target end of eminent domain, the government. In this case, the State of New Jersey. Federal courts (including the Third Circuit) have pretty much blown off any private property owner that has challenged the extra-statutory take-now-decide-whether-to-pay-later scheme.

But now that it is government property -- big deal! You know where this is heading: Eleventh Amendment immunity. You can't sue a state in federal court to take its property, private condemnor, argues New Jersey, you can only sue us in our own courts! (And we know how that one will go, don't we.)

In short, this case is a fight between two condemnors. This is the caveat that we noted at the start of this post. If granted, don't expect big things from the Court, and it will not likely do anything to fix the faux-quick-take regime, other than maybe a passing remark saying "good issue, but not now." Could the Court muddy the waters up even more (like the Third Circuit sorta did in its discussion of orders of condemnation)? Yes, for sure.

So follow along, but don't expect the needle to move much while the "big leaguers" slug it out over which court can determine that private property owners have little procedural or substantive opportunity to object to NGA pipeline takings.

But all snark aside, yes, we shall continue to follow this case. More here ("New Jersey Says High Court Should Reject Pipeline Builder's Case") and here ("NJ tells high court not to bite on 'overstated' impacts in pitch from PennEast").

OK: Private Pipeline Company Is Like A Government: It Cannot Contract Away Its Right Of Eminent Domain

In Natural Gas Pipeline Co. of America LLC v. Foster OK Resources LP, No. 118,185 (May 5, 2020), the Oklahoma Supreme Court upheld the necessity of a taking of an easement across private property by a private pipeline company that possessed a FERC certificate of public convenience. Nothing too surprising there. The bar for whether a taking is necessary to fulfill the stated public use is set about as low as a bar can be set in the law. Nearly total judicial deference (some might say "abdication," but that's a debate for another day). No different here.

But what really grabbed our attention was the court's blithe conclusion that the private natural gas pipeline company could not contract away the federally-delegated power of eminent domain. You know this thread of argument: the government always retains its governmental power, and even where it expressly agrees to not exercise its power (or only exercise it in a certain way), the current government cannot so bind a future government, and we end up with the concept that private agreements that limit future exercises of government power are not enforceable. There may be a few limited exceptions, but for the most part the current city council cannot, for example, agree to never take a certain piece of property in the future.

Here, decades ago, the property owner and the pipeline entered into private agreements for two easements that granted the company the right to install and maintain the pipeline. Flash forward to the present, and the company now wants to take these easements (and other property not covered by the agreements). The owner objected, arguing that there's no need to obtain by condemnation that which the company already possessed by virtue of the granted easements.  

The court rejected out-of-hand the owner's argument that in the private easement agreements, the pipeline company had contracted away its power of eminent domain. More precisely, that the company had agreed to not exercise its delegated eminent domain power. The court held that the "right of eminent domain is inalienable" (sounds like certain rights), relying on a case where the court rejected the argument about a city. Slip op. at 6 ("We apply Burke and hold NGPL cannot surrender, alienate, contract away, or waive its right of eminent domain.").

That argument makes some sense when the government itself is the party claimed to have bargained away its sovereign powers. Government always retains sovereignty. But does it make sense when the party is, as here, a private non-governmental, non-sovereign corporate entity? Why can't it agree to not exercise delegated power? The court doesn't explain.

Natural Gas Pipeline Co. of America LLC v. Foster OK Resources LP, No. 118,185 (Okla. May 5, 2020)

Three New Property And Takings Articles From William & Mary Law Review

Looking for some property and takings scholarly reading while you cool your heels at home? Well, the William and Mary Law Review has recently published no less than three worthy pieces, all available for download.

• Charles D. Wallace, When (and Why) the Levee Breaks: A Suggested Causation Framework for Takings Claims That Arise From Government-Induced Flooding, 61 Wm. & Mary L. Rev. 603 (2019). An article authored by a (recently) former student of ours about takings liability for flooding, focusing on the "MR/GO" case and related issues. (The author is so modest, he didn't tell me his note was published!)
• Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019). The latest on exactions, focusing on whether the third part of the trilogy -- Koontz v. St. Johns River Water Management District -- has provided "momentum for a more significant expansion of [heightened judicial] scrutiny in takings cases[.]" The article contends "that Koontz's footprint thus far is rather light."
• Lee Anne Fennell, Property Beyond Exclusion, 61 Wm. & Mary L. Rev. 521 (2019). We all talk about the right to exclude being among the most fundamental sticks in the property rights bundle. Has that right to exclude become a "less useful, less necessary, and more expensive way of regulating access to resources[?]" Read the article and find out how Professor Fennell thinks about this intriguing question. 

Check them all out.

DC Cir (En Banc) Hears 3.5 Hours Of Oral Argument In Pipeline Public Use Challenge To FERC's "Waiting for Godot" Process

If you missed the three-and-a-half hours (!) of this morning's teleconferenced oral argument of the en banc U.S. Court of Appeals for the D.C. Circuit in a case we've been following (along with a related case), well, you are in luck. There are multiple ways to listen in. You can stream it from YouTube above. you can stream it below, or you can download the mp3 from the court's website. Whatever way you choose, you should do so. 

This is the case that reminded us of Samuel Beckett's classic absurdist play, Waiting for Godot. Two guys spend the entire time waiting for another guy (you know who) to show up, but he never does. There are nearly endless interpretations of its meaning (if any), but everyone pretty much agrees that it is at least about the nature of life and its existential meaningless, while both characters and the audience all wait for something that we know will never happen.

You are by now familiar with the background of the panel decision of how private pipelines are have been delegated the federal eminent domain power in the Natural Gas Act. The pipeline seeks a certificate of public convenience and necessity from the Federal Energy Regulatory Commission. Administrative review leads to FERC approval for construction, and under the NGA the pipeline may exercise eminent domain if the three criteria set out in 15 U.S.C. § 717f(h) are met (as we argued in our amicus brief in a recent case, meeting these three criteria merely recognize a pipeline's standing to prosecute a straight-taking case).  

Objectors may challenge the certificate via FERC's administrative process, and "[u]ntil the Commission disposes of that rehearing petition, the agency action is not final for purposes of judicial review." FERC has 30 days to act, or the administrative review petition is deemed denied. Environmental laws must also be complied with. 

Transco obtained a certificate. The challengers timely filed a review petition and asked for a stay of construction. FERC granted rehearing within the required 30-days, but that rehearing was limited to "further consideration." So it wasn't a substantive win for the objectors, merely a further delay.

In the meantime, a district court granted a preliminary injunction allowing Transco to enter private property and start to build. Readers of this blog understand that this is an ongoing issue, one subject to three recent cert petitions, most recently this one. Then, before FERC dealt with the administrative review petition, it "issued an order authorizing Transco to begin construction of the Project." Slip op. at 5. The objectors filed a review petition of that order, and like the prior approval, FERC beat the 30-day deadline and "granted" it for the limited purpose of further consideration. More than nine months later, FERC denied the initial review petitions. 

But by then, construction was already underway and had been for more than three months. And then three months later, FERC denied the challenge to the order authorizing construction (more than six months after the construction had actually started). Fait accompli.

You know the rest of the story. The D.C. Circuit reviews administrative appeals with a highly deferential standard, and the panel decision was no different. Read pages 7 through 10 if you want the details.

The panel also rejected a due process argument, which asserted that FERC's authorization of construction while the challengers' initial petitions were pending denied them property. The panel concluded that there is no property interest in an Environmental Assessment, the Pennsylvania Constitution, or the NGA's review procedures. (Compare M.A.K. Inv. Grp., LLC v. City of Glendale, 889 F.3d 1173 (10th Cir 2018) (city's blight designation deprived plaintiff of property right in judicial review)).  

But even if there is a property right at stake, the Waiting for FERC process does not violate due process under circuit precedent which holds that "as long as FERC's public-convenience-and-necessity determination is not legally deficient, it necessarily satisfies the Fifth Amendment's public-use requirement." Slip op. at 12 (citing Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960 973 (D.C. Cir. 2000)). 

Game, set, but not quite match. As we predicted, the D.C. Circuit granted en banc review, a very rare occurrence. 

Pay particular attention to the points in the arguments when D.C. Circuit Judge Millett questions the advocates, because she wrote a very tart concurring opinion that contains all sorts of evocative language, 

As for the Homeowners’ due-process claim, I recognize that circuit precedent ties my hands. But the Commission has twisted our precedent into a Kafkaesque regime. Under it, the Commission can keep homeowners in seemingly endless administrative limbo while energy companies plow ahead seizing land and constructing the very pipeline that the procedurally handcuffed homeowners seek to stop. The Commission does so by casting aside the time limit on rehearing that Congress ordered—treating its decision as final-enough for the pipeline companies to go forward with their construction plans, but not final for the injured landowners to obtain judicial review. This case starkly illustrates why that is not right.

Concurring op. at 1. The property owners didn't get a hearing, they got played: 

The upshot of the Commission’s self-help was that its continued inaction on rehearing—the non-finality of the Certificate Order—jurisdictionally locked the Homeowners out of federal court.

Concurring op. at 3. Even though the FERC order was not enough to trigger judicial review, it was enough for Transco to run over to district court and obtain a preliminary injunction to enter the land and start building. Id. ("While non-final for the Erbs and Hoffmans, the Commission’s order was still final enough for Transco to prevail in an eminent domain action in a Pennsylvania federal district court and to acquire the needed easements over the Erbs’ and Hoffmans’ land.").

The objectors could do nothing but wait. "What chumps!" in Chief Justice Roberts would say. 

There's a lot more which is why we suggest you read it all. FERC issues the tolling orders as "boilerplate," as Judge Millett noted, and she described the process as "a bureaucratic nightmare only Dante could love." Concurring op. at 17. There's also a strong statement about why property rights and due process were ignored here. 

So please check it out. There are worse ways to use the long hours of work-at-home while we are Waiting for FERC. This one isn't over by a long shot.   

Unboxing The 2021 (Scottsdale) ALI-CLE Eminent Domain Conference Swag: Get Yours Today!

Missed out on the 2021 ALI-CLE Eminent Domain and Land Valuation Litigation Conference swag?

Well fear not: here's your chance to get your high-class reminder -- a kit of road warrior essentials -- to save the Conference date on your calendar. We're already underway with planning the agenda and faculty, so it's never too soon to block it off (January 28-30, 2021, at the 4-Diamond DoubleTree Resort, Scottsdale, Arizona). 

If you were not able to get your swag in Nashville, send us a note ([email protected]) and we shall gladly drop one or two in the mail to you.

While supplies last!  

Cases And Materials From Today's WM Law ACS Talk: "Pipelines at the Intersection of Environmental, Administrative, and Property Law: How Divergent Interests Joined Forces To Challenge Big Energy"

We just completed a fun hour-long talk with the students in the William and Mary Law School's American Constitution Society, the Native American Law Society, and the Society on Environmental and Animal Law about the various pipeline cases that are ongoing nationwide. (If our tech worked, we shall post the audio recording in a future post.)

The theme of our talk was that these cases are an excellent illustration of the need for lawyers to think outside their usual lanes when it comes to addressing and solving their clients' problems, because they present a smorgasbord of legal issues that range from property and eminent domain law, to administrative law, constitutional law, state and local government law, environmental law, federal courts, and civil procedure. 

The lawyers who are litigating these cases have done a good job of not being bound by convention and thinking creatively. They are thankfully analyzing the cases holistically. We used today's talk to emphasize to our young colleagues that despite taking law school courses segregated into discrete areas of law, practicing law and solving people's problems often requires you to wear multiple hats, as in these pipeline cases, and to think about cases in a more general way. 

Here are the links to the decisions we spoke about, and a couple others we could not fit in the time allotted:

• SCOTUS Transcript, U.S. Forest Svc. v. Cowpasture River Preservation Ass'n, No. 18-1584 (lawyers in an "enviro" case had to put on their Roman and English law property hats) 
• The "quick take by injunction" cases, in which the Supreme Court denied cert three times last Term.  Read about our amicus brief on the issue: "New SCOTUS Amici Brief (OCA, NJ Prop Owners, IJ, Cato): Quick-Take-By-Injunction Scheme Shows Complete Lack Of Respect For The Law"
• The Third Circuit case on the same issue, where one of the property owners (the State of New Jersey) actually won, by dusting off their Federal Courts and Con Law treatises, about the Eleventh Amendment. "What A Difference The Defendant Makes: The Federal Courts Finally Locate A Natural Gas Act Preliminary Injunction They Don't Like."
• FERC's pushback on the Eleventh Amendment issue on Chevron deference grounds (Admin Law alert!) "FERC Invokes Chevron Deference, Rules That Under NGA, Private Condemnors May Take State-Owned Land."
• Civil Procedure and Erie: "In Federal Natural Gas Act Takings By Private Condemnors, Just Compensation Is Determined By State Law (Incorporated Into Federal Common Law)."
• "Is Land Only Partly Owned By A Tribe Immune From Eminent Domain?"
• Admin Law Purgatory: "Waiting For FERC: DC Circuit OK's Pipeline Approval, Over Salty Concurring Opinion."

Thanks to the students for asking me to speak today. I had a great time. 

Less Meaningful Than The Iowa Caucuses: FERC Invokes Chevron Deference, Rules That Under NGA, Private Condemnors May Take State-Owned Land

Recall that recent Third Circuit decision which held that a private condemnor exercising federal eminent domain authority pursuant to the Natural Gas Act could not sue the State of New Jersey in federal court to take the state's property for a pipeline? The court based its conclusion on the Eleventh Amendment immunity states enjoy. 

That ruling, however, was no impediment to this recent Order by FERC (Federal Energy Regulatory Commission) which -- at least on its face -- seems to address the very same question. In the Order, a 2-1 FERC majority concluded that the NGA permits a private condemnor to sue a state in federal court to take its property. For more details on the FERC Order, see "Divided FERC Finds Pipeline Companies Can Seize State-Owned Interests," by Addisah Sherwood

And what about the earlier ruling by the Third Circuit? Not a problem, according to a majority of the agency members. Here's the logic: 

1.  The Third Circuit decision wasn't based on the statute itself. Order at 11. Rather, it was a ruling about the Eleventh Amendment. That doesn't prevent us, the agency, from interpreting the statute. 

2.  In the Order, FERC isn't making a constitutional ruling (that would be outside of our agency authority, and a violation of separation of powers); we're merely making a ruling about how a statute that we administer should be interpreted. Order at 10-11. 

3.  We're the definitive authority on what a statute we administer says. Order at 11 ("Moreover, our interpretation of NGA section 7(h) merits deference."). See Chevron.  

The majority expressly disclaimed making a constitutional ruling: "[w]hile we decline to reach the constitutional validity of Congress’s delegation of eminent domain to condemn state land under NGA section 7(h), the implications of the Third Circuit’s opinion merit discussion here." Order at 42. (Barista's note: no kidding, FERC; agencies -- even those acting in their "quasi-judicial" function -- have no authority to make decisions about what the Constitution does or doesn't allow.)

And the Third Circuit ruling sort of jumped over the statutory question, resolving the case as one of constitutional law. Like us, the dissenting FERC member didn't see what the FERC ruling accomplishes. See Dissent at 1 ("There is no need for the Commission to insert itself into what is primarily a constitutional question that is being litigated where those questions belong: The federal courts."). If the Eleventh Amendment truly prohibits these takings actions in federal court, what does it matter what the NGA says. And especially what does it matter what the agency charged with administering the statute thinks it says? 

Given that, why would FERC plunge in anyway? 

The Third Circuit acknowledged that its holding “may disrupt how the natural gas industry, which has used the NGA to construct interstate pipelines over State-owned land for the past eighty years, operates.” That is correct. If the Third Circuit’s opinion stands, we believe it would have profoundly adverse impacts on the development of the nation’s interstate natural gas transportation system, and will significantly undermine how the natural gas transportation industry has operated for decades.

Order at 42 (footnotes omitted). In short, the way we read this is the agency thinks the Third Circuit result was wrong, and will screw up the well-oiled mechanism for taking land for private NGA pipelines. If there is any doubt about the FERC majority's motive, check out the final paragraph in the Order: 

66.    In enacting the NGA, Congress established a carefully crafted comprehensive scheme in which the Commission was charged with vindicating the public interest inherent in the transportation and sale of natural gas in interstate and foreign commerce, in significant part through the issuance of certificates of public convenience and necessity for interstate gas pipelines. A key aspect of this scheme was the remit to natural gas companies of the ability to exercise, where necessary, the power of eminent domain to acquire lands needed for projects authorized by the Commission. We here confirm our strong belief that NGA section 7(h) empowers natural gas companies, and not the Commission, to exercise eminent domain and that this authority applies to lands in which states hold interest. A contrary finding would be flatly inconsistent with Congressional intent, as expressed in the text of NGA section 7(h), which is also supported by the legislative history.

Order at 49. 

Finally, we leave you with this. Recall that the courts regularly conclude that the decision about whether a particular taking is "for public use" under the Fifth Amendment in these cases is one to be made by FERC, without any meaningful judicial interference. Recall also that one of the primary justifications for judicial deference to questions of Public Use is that it is a legislative question, to be decided by legislatures and legislators. 

So remind us again who elected these FERC guys?  

Order on Petition for Declaratory Order (PennEast Pipeline Co., LLC), No. RP 20-41-000, 170 FERC 61,064 (Ja... 

CA11: Owner May Provide Opinion Of Value, Including Severance Damages

As we briefly mentioned in the "National Eminent Domain Update" at the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, the U.S. Court of Appeals for the Eleventh Circuit in Sabal Trail Transmission, LLC v. 3.921 Acres, No.18-11836 (Jan. 22, 2020), recently held that it isn't an abuse of discretion for a trial court to allow a property owner to testify about value if she meets the standards in Federal Rule of Evidence 701.

Two interesting aspects to this case:

1.    The owner's opinion of value was higher than the owner's appraiser's opinion of value. 

2. The owner testified about severance damages. 

The district court allowed the testimony because the property owner had direct experience with the property and sales of other parcels the company owned, even though she lacked experience with the particular use for which this parcel was taken (a natural gas pipeline). As the court of appeals held: 

Sunderman testified that the pipeline had reduced the value of the parcel. When she was asked to opine about how the pipeline had reduced the value, Sabal Trail objected, arguing that the question called for speculation. The court allowed her to answer. Sunderman testified that the pipeline had thwarted her plan to subdivide the parcel into three lots. She explained that if she subdivided the property as planned, the pipeline would run diagonally across the two 10 acre lots. With the pipeline’s presence, she opined, these two lots would be “definitely undesirable” for rural residential development and could be used only for agriculture. Doc. 130 at 100. As agricultural land, she testified, each lot was worth $35,000 or $3,500 per acre, meaning the two lots had decreased in value by more than 80%.

She testified the pipeline reduced the value of the third planned lot as well. If she subdivided the property as planned, the pipeline would run across only a small corner of this lot. She opined that it would have been possible to sell this lot for residential development. But given the presence of the pipeline, the land would have to be sold at a reduced price because a buyer would be willing to pay only $70,000 for the lot, meaning that the lot was worth approximately $10,769 per upland acre and its value had decreased by approximately 35% due to the pipeline.

Slip op. at 9-10 (footnote omitted). The Eleventh Circuit concluded:

Although she had no prior experience selling property encumbered by a pipeline, her opinions about what purchasers were looking for were drawn from her experience selling 25 similar lots for rural residential development. Based on her interactions with prospective purchasers, she understood that a purchaser who was buying a rural residential lot wanted to enjoy nature, have privacy, and be free from restrictions governing what she could do with her land. She applied this experience to opine that if she proceeded with the plan to subdivide the parcel into three lots, two of the lots would be unmarketable for residential development. She explained that a purchaser looking to build a house in a rural area would not buy either lot given that the pipeline cut diagonally across each lot, the permanent easement restricted how the landowner could use the area covered by the permanent easement, and Sabal Trail retained the right to enter each lot to access the pipeline. Because Sunderman’s opinion was based on her personal experience and knowledge, we conclude that the district court did not abuse its discretion in allowing her to testify.

Slip op. at 15-16. 

Check it out. 

We filed an amicus brief in the case (on the attorneys' fees question), an issue the court did not address, concluding instead it was premature and the court lacked appellate jurisdiction (the pipeline appealed after the district court ruled that the owner was entitled to attorneys' fees, but before the district court actually awarded a specific amount of attorneys' fees). 

Sabal Trail Transmission, LLC v. 3.921 Acres, No. 18-11836 (11th Cir. Jan. 22, 2020) 

Record Attendance (But There's Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Picture 1: how normal people see pie.

Picture 2: how you see pie if you're coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there's still room for those of you still not committed. Register here. Don't miss out. There will be pie. 

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights Course

If there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve.

In an upper-division course like "Eminent Domain and Property Rights Law," where we're dealing with some very high-level stuff and the quality of the students is uniformly excellent, that makes for some hard choices at this time of year. But we've wrapped up grading, and have submitted the official scores.

Although I cannot share with you all the papers themselves, I don't think my students would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about this area of law: 

• One Man's Castle is Another Man's Parking Lot: A Homeowner's Theory of Eminent Domain
• Native Title: Concept and Compensation
• May the Forest Be With You: John Does in Trees Fight Pipelines Using the Right to Include
• Apportioning "A Chicken Which Is Really Not Big Enough to Go Around": Why Courts Should Abandon the Undivided Fee Rule for the Aggregate of Interests Approach
• Madisonian Musings on Judicial Takings
• Why Knick v. Township of Scott Returned Takings Jurisprudence to the Values Behind the Fourteenth Amendment
• In the Aftermath of Arkansas Game & Fish Commission and Livingston v. Virginia Department of Transportation: Virginia Localities Need to Plan for Great Liability Risks From Flooding
• The Veterans of Foreign Wars Case and the Undivided Fee Rule: Just Compensation for More Than One Owner
• Up-Zoning: A New American Dream and Shifting Property Paradigm
• I Believe I Can (Maybe) Fly: A Survey of Proper Law Interaction With Drones
• EPA's Takings Liability for Climate Change Inaction
• Are Pipelines Public Uses? 
• In States We Trust: The Limits, and Lack Thereof, on the States' Power to Modify the Public Trust Doctrine
• The Public Use Requirement: Changes Over Time

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication somewhere. 

Finally, I can't resist cutting and pasting from one of the paper's footnotes: "For more on 'exclusionary vibes' and the power of eminent domain, see The Castle (Debra Choate 1997)." 

Obi-Wan has taught you well. 

New Cert Petition: It's Not Enough For A Condemnor To Invoke A "Classic" Public Use

Here's the latest in a case (and issue) we've been following. 

In Puntenney v. Iowa Utilities Board, 928 N.W.2d 829 (Iowa 2019), the Iowa Supreme Court answered a question that has been making its way around: what "public" does the "public use" requirement cover? For the Iowa Constitution, for example, does a taking have to be of direct benefit to the people of Iowa?

The court there addressed the issue by not answering the the question directly, but by concluding that the Iowa public is indirectly served by the taking of private property for a pipeline, even though there are no "onramps" or "offramps" for the oil in Iowa. The taking would have the other, usual, butterfly effect Iowa benefits: some jobs, cheaper gas, and the like. Kentucky and West Virginia courts have reached the opposite conclusion (the taking must directly serve the people of the state), but Ohio and Illinois go the other way. 

The property owners have filed a cert petition, which asks the U.S. Supreme Court to address these Questions Presented:

Does a state’s exercise of eminent domain satisfy the “public use” requirement of the Fifth Amendment’s Takings Clause if the only benefits experienced within that state are incidental?

Can a state satisfy the “public use” requirement of the Fifth Amendment’s Takings Clause merely by labeling the taking with a traditional category of public use, without engaging in the “public purpose” analysis outlined by Kelo v. City of New London, 545 U.S. 469 (2005)?

The petition points out the lower courts' disarray about when a taking violates the Public Use requirement, especially after Kelo. 

The Iowa Utilities Board did not file an opposition, but the pipeline recently did, arguing that the lower court split is about "pretext," and this isn't a pretext case. While the latter assertion is true (the property owners are not claiming that the stated reason for the taking is one thing, but the real reason for the taking is something else), the lower courts' inability to settle on any consistent public use standards involves more than just the rules for pretext (see this recent brief for examples), but also includes questions about direct vs indirect benefits, and as we note above, what "public" is served by the taking (a question that is really a "denominator" problem - how can you measure whether a taking has only incidental public benefits if you don't know which public you are looking at?). And, is it enough to overcome overwhelming private benefit as long as there is a smidgen of incidental public benefits, however "public" is defined? 

In the end, the Iowa Supreme Court fell back on the idea that this was really a common carrier taking and thus just fine, because this is a "classic" public use. For several lower courts, the mere invocation of a classic public use isn't enough (others, it is), and they read Kelo (esp the concurring opinion) to require a more in-depth review of the public and private benefits before reaching a conclusion on the constitutionality of a taking. 

Will this case be the one to strike lightning on that issue? We shall see.   

Petition for Writ of Certiorari, Puntenney v. Iowa Utilities Board, No. 19-447 (Sep. 30, 2019)

(Nearly) Last Chance To Join Us In Nashville For ALI-CLE's Eminent Domain Conference

You can also fly, drive, or bike to the upcoming 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. in Nashville. Limited space still available, so don't delay further and register now. We're on track to record attendance, so you don't want to miss the best nationally-focused three-day program on our area of law.

Takings, Knick, compensation, appraisals ... and a bit of fun thrown in. We have many new attendees, and many new speakers, too.  

Space Still Available For ALI-CLE Eminent Domain Conference, Nashville Jan 23-25, 2020

If you get this, you need to attend the 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, January 23-25, 2020, in Nashville.

And if you don't get this, you need to attend more. 

Register here. 

What's At 712 4th Street, S.W., Washington DC? Your Invite To The 2020 ALI-CLE Eminent Domain Conference (Jan 23-25, Nashville)