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Here’s the Eleventh Circuit’s opinion in a case that adds to a circuit split (CA7 vs others) about whether a private condemnor, exercising the delegated federal power of eminent domain for a pipeline corridor under the Natural Gas Act, can obtain pre-judgment possession of the property, even though the NGA does not delegate the power to do so.

The Eleventh Circuit, like the Third and Fourth Circuits, concludes that the lack of delegation from Congress isn’t a problem, because, hey, Congress didn’t say that federal courts couldn’t exercise their “equitable” powers under Fed. R. Civ. P. 65, and issue injunctions to reach the same result.

We won’t go into the detail of the panel opinion (it pretty much tracks the other federal courts which have, for decades, been approaching this the wrong way). Nor shall we go into detail about why these courts are wrong, because we did so, in…

Continue Reading CA11 Adds To Circuit Split: Private Pipeline Condemnor Can Get Immediate Possession, Even Though Natural Gas Act Doesn’t Delegate Quick Take Power

As we just detailed, the Eleventh Circuit joined the Third and Fourth (contra the Seventh) Circuits in concluding that a lack of Congressional delegation of quick take power to private pipeline condemnors in the Natural Gas Act does not stand in the way of a federal district court issuing an injunction to affect immediate pre-title transfer of property.

Read our amicus brief in the Third Circuit en banc process for why this is wrong.

Here is where the Sixth Circuit reveals its fundamental misunderstanding of eminent domain:

On appeal, Landowners do not dispute that Nexus holds a FERC certificate, that the 1.4-acre tract of land is necessary to build and maintain the pipeline, and that the parties have been unable to negotiate a voluntary easement by contract. This case appears to present a question not of whether Nexus has the statutory right to condemn Landowners’ property, but only of…

Continue Reading CA6 Joins The Growing Circuit Split On Natural Gas Act Immediate Possession Injunctions

The U.S. Court of Appeals for the Third Circuit recently heard oral arguments (stream above, or download the mp3 here), in a case involving an issue we briefed recently in another circuit: whether state or federal law governs the determination of Just Compensation in federal court Natural Gas Act takings.

Now, you might automatically assume that because the case is in federal court under federal law, that federal standards for Just Compensation (and not the law of the state in which the property is located) provides the rule of decision. But it is not that simple. 

Short answer to the question posed by our title: no, the state’s law of just compensation does not govern. But the state’s law of property does govern.

Thus, we think that which law governs compensation in federal condemnations is determined by the law of the state. After all, the particular “sticks” in…

Continue Reading In Federal Pipeline Takings, Does The State’s Law Of Just Compensation Govern?

Earlier this week, we spoke to 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.”

His book is about property, property rights, and how these ideas are processed by the American psyche. But instead of the usual scholarly (and very often dry) treatment of these topics that we might expect – especially those of us in the legal and academic world – Mr. Mansfield takes a slightly different approach. He relates stories of how property fits in with the culture – the different and often competing narratives that are attached to the notion of property – and the often-contradictory way in which we in the United States view the idea of ownership and possession.

Listen to our interview above (Sound Cloud stream), or if that does not work for you…

Continue Reading Audio: Our Interview With Author Howard Mansfield – “The Habit of Turning The World Upside Down – Our Belief in Property and the Cost of That Belief”

Get ready. In this and upcoming posts, we’re going to be featuring the items on our agenda for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 24-26, 2019, in sunny Palm Springs, California. 

ALI-CLE has released the brochure, which those of you on the mailing list should have received — or will be receiving — in your brick-and-mortar inboxes. If not, download it here. Looking it over, you will see that we have assembled a great faculty with expertise in the range of issues that are driving our branch of the law, locally and nationally.

And, as always, one of the best aspects of this conference is the collegiality. Our attendees and faculty find that one of the most beneficial parts of the conference is to meet your colleagues from across the country, and talk shop about the issues we love.  

Of course we …

Continue Reading ALI-CLE Eminent Domain And Land Valuation Litigation Palm Springs Brochure Is Out

Here’s the amicus motion and proposed brief we filed yesterday in a Third Circuit case we’ve been following, and which we wrote about recently.

In the few short days since that post, the owners are now also represented by the Institute for Justice, and have filed a petition for rehearing and rehearing en banc. We thought that was a good opportunity to chime in to point out the panel’s fundamental misunderstanding of eminent domain. 

The issue presented by the petition is whether 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. This is an issue of pressing national importance, on which the panel decision conflicts not only with established Supreme Court doctrine, but the ruling of…

Continue Reading Amicus Brief: In Straight Takings, No Possession By Injunction Until Title Transfers

Here’s the motion for leave and proposed brief amici curiae we filed yesterday in an appeal pending in the U.S. Court of Appeals for the Eleventh Circuit. 

This is a pipeline case (another one!) involving land in Florida. The district court got it right, concluding that the property owner/condemnee was entitled to recover attorneys’ fees since state condemnation law governs the case, even though it was in federal court. The court also allowed the owner to testify about the fair market value of her property. The pipeline company appealed, arguing that the fact that Florida law allows recovery of attorneys’ fees in eminent domain cases is irrelevant in a federal eminent domain action because attorneys’ fees are not part of Fifth Amendment compensation. It also argues that the owner should not have been allowed to testify.

We filed the amicus motion and brief on behalf of Owners’ Counsel …

Continue Reading “A Property Right It Shall Be” – Fifth Amendment Requires Compensation For Whatever Interests A State Recognizes As Property

An observation: courts seem to believe that in eminent domain, a taking, once it is instituted, is inevitable. Thus, the landowner should simply go with the flow, because this is going to happen. We get where that comes from. After all, most takings are completed and the property is acquired. But it isn’t necessarily so. As a general rule, a condemnor is free to walk away after finding out how much the taking might actually cost them. Only when title actually transfers from the property owner to the condemnor does the taking actually become final. 

With that background, check out the latest decision about an issue we’ve covered before, and which isn’t going away. 

Try as you might, you can read through the entirety of the Natural Gas Act and you will not find anywhere in the statute where Congress delegates to private pipeline companies the quick-take power — those…

Continue Reading Third Circuit: If It Quacks Like A Quick Take, It’s Just A Preliminary Injunction