Eminent Domain | Condemnation

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Here’s the latest in an issue we’ve been following closely. In the Natural Gas Act, Congress has not delegated to private pipeline companies the quick-take power. To get around that, to get immediate possession of properties which they are taking, pipeline companies use a procedural mechanism — a preliminary injunction under Fed. R. Civ. P. 65 — to get the same result. 

A preliminary injunction in these case looks like quick take, quacks like quick take (there’s a deposit, just like in quick take), and walks like quick take (the effect is the same). But it’s not really quick take because Congress has never actually approved of quick take in NGA takings. 

Of course, by the time a court gets to the actual merits of the validity of the taking — if it ever does — the pipeline is in place, and the whole thing a “done deal.” Fait accompli…

Continue Reading 4th Cir Judge In Pipeline Arguments: “Condemnation is one of those monarchy things” – Is Immediate Possession Unconstitutional When Congress Has Not Delegated That Power To A Pipeline?

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Come join us for one of the best conferences on property rights and property law at the 2018 Brigham-Kanner Property Rights Conference, October 4-5, 2018 at the William and Mary Law School in Williamsburg, Virginia.

Register here. 

We’ve attended and presented at the Conference in past years, including when it went international in Beijing and at the World Court in The Hague. This year it is back home, and will focus on the work of the 2018 B-K Prize winner, Professor Stewart Sterk of Cardozo Law School. 

The B-K Prize is awarded to a legal scholar, judge, or practicing lawyer who “has advanced the cause of property rights and has contributed to the overall awareness of the important role property rights occupy in the broader scheme of individual liberty.” The list of past prize winners is a pantheon of property law greats. 

We will be speaking…

Continue Reading 2018 Brigham-Kanner Property Rights Conference: Williamsburg, Oct. 4-5, 2018

An interesting and thought-provoking new article from Professor Donald Kochan that is definitely worth your time: The [Takings] Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights, 45 Fla. State U. L. Rev. ___ (forthcoming 2018). 

As the title suggests, Professor Kochan doesn’t quite care for the phrase the “Takings Clause” when it comes to that part of the Fifth Amendment we like so much. Instead, he prefers “Keepings Clause” because that term better embodies the right protected, and does not focus on the governmental power being exercised. 

Best tidbit: the phrase “takings clause” isn’t of ancient origin. Indeed, it is pretty modern. (Count us among those who didn’t know that.) From the article’s Introduction:

It will probably surprise most people that the label “takings clause” is a moniker of modern invention. In fact, the provisions in the U.S. Constitution’s Fifth Amendment that identify the rights and obligations…

Continue Reading New Article: The [Takings] Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights

After a short hiatus to allow Clint to set up at his new firm, the Eminent Domain Podcast is back. 

Clint was kind enough to ask me to be his first second-time guest, and we had a wide-ranging discussion: everything from this semester’s teaching assignment at the William & Mary Law School, the will-they-or-won’t-they-overturn-Williamson-County case to be argued in early October Knick v. Township of Scott, to the upcoming Brigham-Kanner Conference, the ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs, Elvis, and … Kevin Bacon (again).  

Adhering to the same format, including the fun “lightning round” style Cross-Examination, the podcast is a great (and easy) way to keep up on the issues. And at just under an hour, its the perfect length for your commute, also.

We look forward to Clint’s lineup of interesting and insightful guests and topicsContinue Reading Clint Schumacher’s Eminent Domain Podcast Is Back – Six Degrees Of Williamson County Ripeness … And Elvis

Here’s the video of the oral arguments held earlier today in the Iowa Supreme Court in a high-profile pipeline case. In Puntenney v. Iowa Utilities Board, the court is considering a case at the intersection of the law of public utilities, and condemnation law. The basic question the court is trying to solve is whether a finding by the IUB that the pipeline serves a “public convenience and necessity” makes a determination of the public use supporting the resulting condemnations unnecessary? 

Here’s a description of the issues from the court’s web site:

The district court denied petitions for judicial review of the Iowa Utilities Board’s (IUB) decision to grant a permit to Dakota Access, LLC, for the construction of a hazardous liquid pipeline pursuant to Iowa Code ch. 479B. On appeal, the petitioners argue the district court erred in affording the IUB the authority to define the term “public…

Continue Reading Iowa Supreme Court Oral Argument Video: Does A Finding Of Public Necessity And Convenience For A Pipeline Also Solve The Question Of Public Use In Eminent Domain?

Before last week’s Judiciary Committee hearings on the nomination of Brent Kavanaugh to be an Associate Justice of the Supreme Court, we wrote that the issue of property rights and eminent domain may come up during the hearing, even though Judge Kavanaugh’s actual judicial record on that topic is pretty thin. 

We were busy during most of the hearings, and the portions we viewed did not focus on Kelo, but rather on a host of important other topics. But thanks to the efforts of our colleague Elaine Mittleman (the lawyer who argued and won the sole opinion in Judge Kavanaugh’s Public Use and Eminent Domain repertoire, Rumber v. District of Columbia, 487 F.2d 941 (D.C. Cir. 2007)), who sent us the video from the key portion of the hearings, we now have Judge Kavanaugh talking a bit about Kelo and property rights, and related (sort of) topics.  

Senator…

Continue Reading Your Kelo Moments From The Kavanaugh Hearings

A hot — but most often neglected — topic, getting hotter: relocation benefits. 

In Osher v. City of St. Louis, No. 17-2402 (Sep. 6, 2018), the U.S. Court of Appeals joined the Fourth Circuit in its conclusion that the Uniform Relocation Act provisions are mere guidelines (insert our oft-repeated Pirate’s Code reference here), and not privately enforceable in court by the property owner the Act was designed to protect. 

The facts are pretty straightforward. The National Geospatial Intelligence Agency, headquartered in St. Louis, was going to move. To sweeten the pot for the agency to remain, the City said “hey, we’ll get you a better site right here,” and the City’s redevelopment agency started a condemnation action in state court against Osher and others, for that better site. 

Here’s the key phrase from the opinion: “While the state court action was pending, Osher brought suit in the district…

Continue Reading Eighth Circuit: Congress Didn’t Intend For The Uniform Relocation Act To Be Judicially Enforceable

Come on, let’s be candid here. When we pick up an opinion filled with statutory and regulatory jargon — replete with agency acronyms — our eyes see the words, but our brains process them like they are being spoken by the adults in the Peanuts cartoons.

But then we spot the words “eminent domain” and BAM! we’re all in. 

So it is with the U.S. Court of Appeals’ opinion in Delaware Riverkeeper Network v. Secretary Pennsylvania Dep’t of Environmental Protection, No. 16-2211 (Sep. 4, 2018), which does not disappoint it the jargon department: PADEP, NGA, FERC, Water Quality Certification, EHB, &c. But this is a challenge to a pipeline and also involves eminent domain (if only peripherally), so yeah, we’re diving in despite the buzzing sound.

Short story: natural gas pipelines need Federal Energy Regulatory Commission permission before they can start taking property under the Natural Gas Act.

Continue Reading Third Circuit: Takings Challenge To Pipeline Belongs In FERC

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You’ve known for a while that Palm Springs, California, specifically the Renaissance Palm Springs Hotel (a resort facility, but right in town, so you will have many options for “off campus” activities like art museums, the aerial tram, golf, and whatever suits your fancy, and close-in to the Palm Springs Airport), is the venue for our 2019 ALI-CLE Eminent Domain and Land Valuation Litigation, January 24 through 26, 2019.

Of course, you also knew that the programming would be the usual spread of topical and cutting-edge topics, presented by some of the nation’s experts. But we didn’t give you the details. So here are some of the programs we’re having: 

  • Keynote Address: “Property Rights: Foundation for a Free Society” – Taylor Revley, most recently the past President of the College of William and Mary, and also former law school Dean (as well as a

…
Continue Reading ALI-CLE 2019 Eminent Domain And Land Valuation Litigation Conference, Palm Springs Agenda – Register Now!

According to this story (“California moves closer to taking public pathway from billionaire Vinod Khosla“) in the Santa Cruz Sentinel, the State of California is considering exercising eminent domain to take an easement for public access over his San Mateo County property to access Martins Beach. 

This is the case that resulted in a cert petition after the California Court of Appeal ordered the owner to open up the route to the beach across private property which the previous owner had kept available to the public, but which Khosla closed. As we noted in this post (“Our Unfiled* Amicus In The California Beach Access Case“), the case involves an effort to open back up an access route to the beach across what is now Khosla’s land, simply because his predecessor allowed access (no good deed goes unpunished). After Khosla purchased and closed access, the Surfrider…

Continue Reading From The “Be Careful What You Wish For” Department: California May Take Beach Easement