Eminent Domain | Condemnation

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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

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

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)

Rowlettmap

Here’s one we’ve been waiting to drop. In KMS Retail Rowlett, LP v. City of Rowlett, No. 17-0850 (May 17, 2019), a deeply divided Texas Supreme Court held that a statute — adopted in response to Kelo — which seems to limit eminent domain power, also contains a massive hole: according to the court, it doesn’t apply to “transportation projects.” 

The statute — Texas Gov’t Code § 2206.001 — bars four kinds of takings:

  • if the taking confers a private benefit on a specific private party
  • if the taking is pretextual, and although it purports to be for public use, is actually for private benefit
  • economic development takings
  • if the taking “is not for a public use”

But the statute also provides, “[t]his section does not affect the authority of an entity authorized by law to take private property through the use of eminent domain for: (1) transportation projects, including…

Continue Reading Texas: Transportation Projects Exempt From Post-Kelo Limitations On Eminent Domain Power

Here’s what we’re reading today, in between real work:

Continue Reading Friday Reading: Pipeline Injunctions, Justifying Kelo, And Maui Groundwater Case

Yesterday, on behalf of our Owners’ Counsel of America colleagues, we filed this request asking the U.S. Court of Appeals to consider our amicus brief in support of the property owners in a natural gas act pipeline case.

The issue is what evidence the trier of fact in a compensation trial may consider about “stigma” damages resulting from a natural gas pipeline being located next to the remainder parcel. 

Rather than paraphrase the brief, here’s the summary of the argument: 

UGI Sunbury, LLC (“UGI”) condemned portions of privately-owned land to build its natural gas pipeline. Natural gas pipelines have made headlines nationwide recently due to safety concerns. In takings such as these, where only a portion of a parcel is condemned, severance damages are a fundamental component of just compensation, awarded for the injury posed to the remainder of the landowner’s property as a result of the taking of a…

Continue Reading CA3 Amicus Brief: “Paired Sales” Isn’t Only Way To Prove Market Stigma Damages

The Arizona Court of Appeals’ opinion in Arizona Electrical Power Cooperative v. DJL 2007 LLC, No. 1 CA-CV 16-0097 (May 9, 2019), is about the date of valuation in eminent domain, but beyond that is interesting to us because it sheds light on a case we’ve been following about natural gas pipelines and the use of the federal courts’ injunction power to effect immediate possession. 

In the Arizona case, the owner purchased land from the BLM subject to the private electric company’s 30-year easement on which it had installed high-voltage transmission lines. The grant of easement expired in 2011, but the electric company did not remove the lines. In 2014, it instituted an eminent domain action to condemn the easement. 

The trial court rejected the utility’s request for immediate possession. Instead, it granted a preliminary injunction allowing the utility to continue to operate and maintain the transmission lines.…

Continue Reading AZ App: Private Utility Does Not Effect A Taking “until after trial and payment”

Here’s what’s on the reading list for today:

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Continue Reading Tuesday Takings And Property Round-Up