May 2019

Here’s one we’ve been waiting to drop for a while, on an issue we wrote about earlier this week.

In Puntenney v. Iowa Utilities Board, No. 17-0423 (May 31, 2019), the Iowa Supreme Court — taking a different view than Kentucky — held that a pipeline which runs through Iowa, but which does not have any “offramps” for oil in Iowa, will nonetheless promote the public convenience and necessity” for the people of Iowa.

The court’s reasoning boils down to this: a pipeline is a “traditional” public use.

The court first adopted Justice O’Connor’s Kelo dissent (along with the reasoning of Hathcock, Norwood, and SWIDA), concluding that economic development alone does not qualify as a public use under the Iowa Constitution:

Like our colleagues in Illinois, Michigan, Ohio, and Oklahoma, we find that Justice O’Connor’s dissent provides a more sound interpretation of the public-use requirement. If…

Continue Reading We Are The World: Iowa SCT Finds Dakota Access Pipeline Will Promote The Public Convenience For Iowa, Even If Iowans Don’t Get Any Of The Pipeline’s Oil

Inverse_excerpt

There’s a lot to digest in the draft workgroup reports of the California Commission on Catastrophic Wildfire Cost and Recovery, which were released yesterday.

But the bottom line stands out: California’s version of inverse condemnation liability — which holds a private utility liable for just compensation and damages if its activity was a cause of the damage or loss caused by a wildfire — has got to go. Or at least be so substantially modified as to lose its salient feature, liability even in the absence of the utility’s negligence, as the excerpt of the draft executive summary above details.

The draft Utility Liability Workgroup Report goes into it a bit more: 

Finding 3. The current application of inverse condemnation imperils the viability of the state’s utilities, customers’ access to affordable energy and clean water, and the state’s climate and clean energy goals and does not equitably socialize the…

Continue Reading (Draft) California Wildfire Commission Report: Inverse Condemnation Has Got To Go

An issue we’ve been tracking for a while — are takings for pipelines for the public’s benefit? — raises another question: how is “the public” defined?

Some courts, like Kentucky’s, define the public as the public which the jurisdiction serves. In the Bluegrass Pipeline case, for example, the court of appeals held that a natural gas pipeline which went through Kentucky, but did not have any offramps for the natural gas in Kentucky — was not “in public service” as required by that state’s eminent domain statutes. A Pennsylvania court adopted a similar rationale (even though it held a private pipeline could exercise eminent domain power because it planned gas offramps in Pennsylvania).

And in City of Oberlin v. FERC, No. 18-1248, the U.S. Court of Appeals for the D.C. Circuit recently heard oral arguments about whether FERC can consider…

Continue Reading Are Pipelines For The Public’s Benefit? If So, What Public?

This morning, the Supreme Court declined to review a case we’ve been following, Like v. Transcontiental Gas Pipe Line Co., No. 18-1206. 

This is the one in which landowners are challenging the district court’s issuance of an injunction in a Natural Gas Act taking which allow a private condemnor to obtain immediate possession of the land being condemned even though the Natural Gas Act does not delegate to pipeline condemnors the quick-take power. We filed this amici brief in support of the property owner. 

The game is still afoot for several reasons, even though this is the second case presenting the same issue that the Court declined to review. First, the issue isn’t going away; there is at least one more case in the petition pipeline, involving the Mountain Valley pipeline. Second, other courts get it, why doesn’t the Supreme Court? And finally, there’s Knick. That…

Continue Reading Cert Denied In Immediate-Possession-By-Injunction Case (But There’s One More In The Pipeline)

In Keeton v. State of Alaska, No. 7366 (May 24, 2019), the Alaska Supreme Court held that a property owner is entitled to interest only on the “amount awarded” — the difference between the quick-take deposit and the eventual final judgment of compensation — and not on that amount plus the statutory attorneys’ fees which the court awarded.

You might have guessed how this one was going to play out, given the usual approach of not including attorneys’ fees and costs within the meaning of just compensation, and the purpose of “interest” being to compensate for the delay in payment of comp (not fees) after the condemnor has actually taken the property. But let’s go through the steps.

Quick take, deposit $15k. Final award of compensation, $24k. Fees of $47k, and costs of $32k awarded to the owner by statute. Also by statute, the court awarded prejudgment interest “on…

Continue Reading Alaska: You Only Get Interest On Compensation, Not On Attorneys’ Fees

With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we’re guessing the opinion will be by Chief Justice Roberts, by the way), hold on: we’re about to get super nerdy here. Impossibly nerdy. Yes, we’re revisiting the Star Trek analogies. We’ve been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform. 

The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state’s judiciary is part of the state’s compensation system. If the majority of the justices conclude that it is, then don’t expect an out-and-out overruling of Williamson County, only a modest trim…

Continue Reading Shaka, When The Walls Fell: Yes, Knick Will Be About Takings, But It Will Be More About Federalism

Chicago wants to know where the food trucks it licenses to operate on city streets are. So it conditions the approval of a license on the operator installing a GPS device on the vehicle. 

In LMP Services, Inc. v. City of Chicago, No. 123123 (May 23, 2019), a case decided by the Illinois Supreme Court, the “[p]laintiff contends that the requirement that it install a GPS unit in its food truck and transmit its location to a service provider constitutes a warrantless search in violation of the Illinois Constitution.” Slip op. at 11. 

The court disagreed: food trucks are a highly-regulated business, and the government has a “substantial interest” in the ability to know where they are. You have to know where they are in order to inspect them, just like “brick and mortar” restaurants.

What about that case in which the U.S. Supreme Court held it was a…

Continue Reading It’s Not A Physical Intrusion On Property Rights To Condition Roach Coach License On GPS Installation

In City of Dublin v. RiverPark Group, LLC, No. 18AP-607 (May 9, 2019), the Ohio Court of Appeals (Tenth District), the city exercised eminent domain — via Ohio’s version of “quick take” (immediate possession, not title) — to take an easement “for the purposes of constructing roadway improvements … and a shared-use path adjacent to River Drive.” Slip op. at 2.

The owner answered, but did not deny the city’s taking power or the necessity of the taking. But later, a different entity which claimed an interest in the property intervened, asserting in its proposed answer that the city lacked the power to do a quick take because the taking was not for roadway purposes. The new party sought to eject the city from the land, which it had already occupied. The Ohio quick take statute limits a municipality’s quick take power to “making or repairing roads.” But the…

Continue Reading Ohio App: Owner Can’t Object To An Illegal Quick Take, Except By Filing A Trespass Action, And Obtaining An Injunction

Short answer: no.

But the longer answer which lawprof Ilya Somin discusses in this short podcast is worth listening to. Check it out. 

Here’s the summary:

Over the last few years, taxi companies in several cities have brought lawsuits claiming that legalizing ride-share services such as Uber and Lyft violates the Takings Clause of the Fifth Amendment, because it expropriates their supposed property right to a monopoly of the taxi business. Courts have so far rejected these arguments. But they raise broader issues about the nature of property rights, and what kinds of government actions qualify as a taking. Confusion about these matters goes well beyond this specific set of cases. Could treating government-created monopoly privileges as property rights imperil valuable innovations and reforms in many parts of the economy?

We follow the issue, mostly from an academic standpoint (we’ve yet to take on one of these cases, but find…

Continue Reading Lawprof: “Does Legalizing Uber and Lyft ‘Take’ The Property Of Taxi Companies?”

North Dakota, as you might expect, can be cold in the winter. So cold that railroad switches need to be heated, else they get… frozen. The railroad uses refillable propane tanks, but these need to be refilled from time to time. And North Dakota is so cold in the winter that sometimes, the propane trucks can’t get to the tanks to refill them. Frozen switches. 

Enter MDU, the Montana-Dakota Utilities Company. The railroad asked MDU to install a natural gas pipeline, “believing that natural gas by pipeline would increase reliability and decrease the cost associated with heating the switch.” The cheapest and most practical place to locate this pipeline was on Behm’s land: “MDU claimed that other routes for the pipeline would be too expensive or might in the future require modification or removal of the pipeline. 

Behm didn’t see it that way. He objected, asserting the taking was not…

Continue Reading Frozen: “Necessity” In Eminent Domain Can Mean Mere Convenience (Or Anything Else The Condemnor Says)