Pipelines

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Here’s the cert petition we’ve been waiting to drop.

If you follow this blog, you know we are all over the issue of the quick-take-by-injunction scheme that private condemnors have cooked up, and which a majority of federal courts go along with. 

Here’s the issue: can a private condemnor exercising the delegated eminent domain power under the Natural Gas Act may obtain prejudgment possession of the property to be condemned by way of a preliminary injunction, when Congress has not delegated the ability to obtain prejudgment possession? 

Knowing nothing else, you might think the obvious answer was “no.” When Congress doesn’t delegate the power to obtain prejudgment possession, the courts can’t grant prejudgment possession. But a host of federal appeals courts have held otherwise. Recently, the Fourth, Sixth, and Eleventh Circuits have joined the Third Circuit in allowing a NGA condemnor to obtain prejudgment possession of property, even…

Continue Reading New Cert Petition: No “Take-First-Pay-Later” In Natural Gas Act Condemnations

Mansfield flyer 3-13-2019

If you are in the Williamsburg, Virginia area next week Wednesday, March 13, 2019, please hold the lunch hour (12:50-1:50pm, Room L127) on your calendar to come join us for a session with Howard Mansfield, author of the recently-published book “The Habit of Turning the World Upside Down – Our Belief in Property and the Cost of That Belief.”

In November, we chatted with Mr. Mansfield, and this semester are basing a seminar on property rights at the William and Mary Law School on the book. Well worth reading. Here’s the printable flyer. 

His book is about property, property rights, and what he has discovered about how these ideas are processed by the American psyche. He will be speaking about how property fits with the culture—the competing narratives attached to the notion of ownership—and the often-contradictory way in which we view the idea of property and…

Continue Reading Upcoming 3/13/2019 Book Talk: Turning the World Upside Down: Property Rights, Pipelines, and Emergencies – A Conversation With Howard Mansfield

Here’s the motion and proposed amicus brief we filed earlier this week, in a case we’ve been following about natural gas pipelines, eminent domain, and immediate possession.

As we noted here, a panel of the U.S. Court of Appeals for the Fourth Circuit recently concluded that a private condemnor under the Natural Gas Act could obtain immediate possession of property it is in the process of condemning, even though the NGA does not delegate the quick take power. All three judges concluded that this case is “on all fours” with the Fourth Circuit’s earlier decision in East Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004), which held that even though Congress did not delegate the quick take power in the NGA, a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure could achieve the same result, and thus there was…

Continue Reading New Amicus Brief: Private Natural Gas Act Condemnors Can’t Use Rule 65 Injunctions To Short-Circuit The Straight Takings Process

We suppose we should not be too surprised by the U.S. Court of Appeals for the Fourth Circuit’s panel opinion in Mountain Valley Pipeline, LLC v. 6-56 Acres, No. 18-1159 (Feb. 5, 2019), which concluded, like the Third, Sixth, and Eleventh Circuits did recently, that a private condemnor may obtain immediate possession of property that it may condemn, even though Congress did not delegate the quick take power to those private condemnors in the Natural Gas Act.

After oral argument, we had a faint hope that the panel might see things differently. See “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?“

But alas no, it was not to be. All three judges concluded that this case is “on all fours” with the Fourth Circuit’s earlier…

Continue Reading Fourth Circuit Panel Sticks With Sage: Natural Gas Act Condemnor Given Immediate Possession Even Though No Grant Of Quick Take Power In The Statute

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Here is our annual “proof of life” photo, taken from the dais during the opening session, to prove that all 250 of us were in the room for the ALI-CLE Eminent Domain Conference, and not out on a Palm Springs golf course (it is 72º and sunny, so a golf course would not be a bad place to be).  

Here are the links from our talk this morning (along with Amy Boulris) about the latest issues to watch in eminent domain:

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Continue Reading Wish You Were Here: Links From Day 1, 2019 ALI-CLE Eminent Domain And Land Valuation Litigation Conference

Psweather

If you didn’t register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we’ll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we’ll be in a new city (by…

Continue Reading ALI-CLE Palm Springs (72º, Sunny) Here We Come

Don’t Miss the 2019 Eminent Domain Litigation Conference from American Law Institute CLE on Vimeo.

Check out this sound blurb, produced by the good media folks at ALI-CLE, about the upcoming Eminent Domain and Land Valuation Litigation Conference. (And no, we didn’t record this in a jazz club; although I wish we had.)

There’s still time to register, and come and join us in Palm Springs. Continue Reading Hot (Eminent Domain) Topics, Cool Jazz

We have mostly avoided the most recent kerfuffle about the southern border wall (or fence, take your pick) for a few reasons.

First, the signal-to-noise ratio is pretty bad at the moment, and that usually isn’t a good predictor for rational conversation. Second, others are covering the subject much better than we ever could. See Professors Gerald Dickinson, and Ilya Somin, for example. Third, yet other experts are going to be covering this topic at the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Palm Springs (Jan 24-26, 2019), and we can get the critical information downloaded to our brain from those right on the front lines. And finally, we’ve been tied up getting ready for a very important appellate oral argument which the Hawaii Supreme Court is hearing today. Actual work calls! 

But we just couldn’t resist when this item crashed our Twitter feed…

Continue Reading “Eminent Domain Just Compensation Act” – Withdrawing The Quick Take Power From Border Wall Takings – What Is It Good For?

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We’re almost there, but we still have room remaining. At the 2018 Conference in Charleston, we both sold out the registrations and the conference hotel, so we planned ahead for the upcoming 2019 Conference in Palm Springs at the Renaissance Palm Springs Resort. 

Register here. You will also be able to download the print brochure (above), or find out more details about the agenda and faculty on line. As always, we have assembled a great faculty — many of them new speakers — on the hottest topics in eminent domain and takings law: pipelines, jury presentations, challenging the take, an update on the most important decisions of 2018, pre-condemnation planning (from both the condemnor and property owner perspective), the border wall, and relocation. 

And of course, ethics and the “101” track for those new to the field, or experienced lawyers who would like a refresher on the…

Continue Reading Space Remaining Is Limited – Register Now For ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Palm Springs, Jan. 24-26, 2019)

Pitt lawprof Gerald S. Dickinson has written an interesting op-ed in the Washington Post, “The biggest problem for Trump’s border wall isn’t money. It’s getting the land.” The sublede poses an interesting thought: “Eminent domain fights could take years.”

Which raises the question, could it? 

Yes, it might, as Professor Dickinson notes. There’s the preliminaries, things like environmental and regulatory review. Negotiating with the property owners (if the feds either are required, or want, to go that route). There’s the special issue of the feds condemning lands occupied by tribes. 

But what about the biggest issue: are the feds going to use straight taking, or quick take (Declaration of Taking Act)? If the latter, any fights about compensation could get kicked down the road, and seizure of property — and construction — would not have to wait. 

We posted on this a while back (“…

Continue Reading Op-Ed: Border Wall “Eminent Domain Fight Could Take Years.” Or Could It?