Public Use | Kelo

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Here’s the amici brief we’re filing in an important Public Use case we’ve been following.

In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking by the St. Bernard Port, Harbor, and Terminal District of a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a “hand-picked” private operator. The owner challenged the power to take, as well as the compensation awarded. We filed an amicus brief on the issue of compensation, arguing that just compensation isn’t limited to fair market value, but the jury must be allowed to consider replacement cost for a unique property like VDP’s facility. 

The Louisiana Supreme Court held that the Port has the power…

Continue Reading SCOTUS Amici Brief: Kelo Revisited – Louisiana Case Is An Opportunity To Clarify Eminent Domain Pretext

The Colorado Supreme Court has agreed to review a public use case we’ve been following with keen interest, Carousel Farms Metropolitan District, No. 18SC30 (July 2, 2018), one we noted was the “most interesting” such case of 2017. 

The Court of Appeals held that the actual purpose of the taking was private, so it didn’t matter that the public was actually going to use the property being taken. In short: 

When the primary purpose of a condemnation is to advance private interests, even if there will be an eventual public benefit, the condemnation is not for a public purpose

Slip op. at 18. Read our summary of the case here for more details. 

The condemnor sought discretionary review, and the Supreme Court agreed to consider these issues:

[REFRAMED] Whether the court of appeals should review for clear error a trial court’s determination that a condemning authority sufficiently demonstrated…

Continue Reading Colorado Supreme Court To Review Major Eminent Domain Case: Does Public Use Save A Taking From A Private Purpose?

Letter

Some good (Dolan, Lucas), some bad (Kelo, Murr), some … not sure (Lingle).

But now, things get interesting.

Let’s just say that we’re not totally convinced this letter from Justice Kennedy announcing his retirement isn’t “fake news,” since it does not list the four factors he considered in deciding to step down.   Continue Reading Kennedy, J. (ret.)

Here’s a new cert petition, filed yesterday in a case we’ve been following out of Louisiana that asks the Supreme Court to revisit the Public Use Clause questions left open by Kelo v. City of New London, 545 U.S. 469 (2005). 

In Violet Dock Port, LLC v. St. Bernard Port, Harbor, & Terminal District, 239 So.3d 243 (La. 2018), the Louisiana Supreme Court upheld the taking of a private port facility on the Mississippi River to give it, turnkey, another private operator. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a “hand-picked” and previously identified private operator. The court rejected the owner’s argument that the real purpose was to take over VDP’s valuable Navy contracts and to halt competition. Not so, held the court, the record suggested the real reason for the…

Continue Reading New Cert Petition: How Do You Ferret Out Private Benefit In Eminent Domain?

It’s a go for next Monday, June, 11, 2018, and the exclusive Honolulu screening of “Little Pink House,” the feature film about the Kelo v. City of New London case.

There are still some seats left, so if you are even thinking of attending, buy your ticket here, right now.

We’ve seen the film. It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course). If you know eminent domain law, you will like this movie (spoiler alert!). And if you aren’t that familiar with eminent domain, be prepared to be educated and entertained.

Thanks to Honolulu real estate agent (and victim of eminent domain) Choon James, for setting this up. 

More here. 

Also, for those of you on the Big Island, a reader notes that there are multiple screenings of LPH over…

Continue Reading One More Reminder: Seats Still Available For June 11 Honolulu Screening Of “Little Pink House”

Recently, Pennsylvania property owners filed two cert petitions (download here and here) asking the U.S. Supreme Court to review this question:

Whether the Hazardous Liquid Pipeline Safety Act (HLPSA)1 preempts the Pennsylvania Public Utility Commission’s (PUC) jurisdiction to issue Certificates of Public Convenience resulting in eminent domain power when the HLPSA states it has exclusive jurisdiction, and when the PUC specifically states it does not have jurisdiction.

———-

1. Also commonly referred to as the Pipeline Safety Act of 1979 (PSA).

The crux of the argument is that the Pennsylvania PUC and courts were preempted by a federal statute from accepting Sunoco’s assertion that its pipeline (which is to run from Ohio to Delaware via the petitioners’ Pennsylvania properties) is purely an intrastate pipeline, and not an interstate pipeline as defined in the statute:

Sunoco Pipeline (hereinafter “Sunoco”) seeks to build, and is currently building, an interstate…

Continue Reading New Cert Petitions: Can Pennsylvania Redefine What Counts As An “Interstate” Pipeline Under Federal Law?

You have about a week to reserve your tickets for the exclusive Honolulu screening of “Little Pink House,” the feature film about the Kelo v. City of New London case,  scheduled for June 11, 2018:

Two key dates:

  • June 4, 2018: This is the deadline to buy your ticket. The way this works is that if a critical mass of tickets are presold, the screening is a go. If for some reason not enough tickets are sold by June 4, you get a refund. No lose. So buy your ticket here, right now.
  • June 11, 2018: The date of the screening. It will start at 6:30pm, at the Consolidated Theatres Kahala 8 (convenient, plus plenty of parking). Easy. 

We’ve seen the film. It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course).

If you know…

Continue Reading Tickets For Honolulu Screening Of “Little Pink House” Still Available

Jeff Benedict, author of “Little Pink House,” the book about the Kelo v. New London eminent domain debacle (and now a movie) has made a video (at the still-vacant Fort Trumbull site), and written an op-ed, arguing that the land should be conveyed back to its former owners, including Ms. Kelo:

Here’s the rub. Thirteen years after the Kelo decision, after all the condemning and evicting and bulldozing, nothing has been built on the land that was taken. Basically, an entire neighborhood was erased in vain. Meantime, all those vacant lots have become New London’s scarlet letter.

Thirteen years of inertia is long enough. For the sake of all parties – the city, the state, and the residents who were displaced – it’s time to turn the page and write an epilogue with a far more redeeming outcome.

….

But before the city can expect…

Continue Reading “Little Pink House” Author: Time To Give The Land Taken By Eminent Domain Back To Kelo And Other Former Owners

Yesterday, the U.S. Court of Appeals heard arguments about the Mountain Valley Pipeline (which will run from northern West Virginia to southern Virginia), a situation receiving a lot of attention, and which has generated a number of lawsuits (go here for a list of the cases and a summary).

The question in Berkley v. Mountain Valley Pipeline, LLC, No. 18-1042, is whether the Federal Energy Regulatory Commission properly delegated eminent domain authority to Mountain Valley. The District Court dismissed the lawsuit for lack of jurisdiction, concluding that the plaintiff property owners could only challenge the takings in FERC under the Natural Gas Act. 

Here are the issues presented (from the property owners’ Opening Brief):

1. Whether the district court erred in its application of the Thunder Basin framework and finding that Congress implicitly divested the district court of subject matter jurisdiction over the Landowners’ claims.

2. Whether…

Continue Reading 4th Cir Oral Arguments In Pipeline Takings Case: “Meaningful” Judicial Review, Or FERC Procedures?

Little Pink House, the feature film about the Kelo v. City of New London case is in general release, and is now scheduled for a special screening in Honolulu in June.

Mark two dates on your calendar:

  • June 4, 2018: This is the deadline to buy your ticket. The way this works is that if a critical mass of tickets are presold, the screening is a go. If for some reason not enough tickets are sold by June 4, you get a refund. No lose. So buy your ticket here, right now.
  • June 11, 2018: The date of the screening. It will start at 6:30pm, at the Consolidated Theatres Kahala 8 (convenient, plus plenty of parking). Easy. 

We’ve seen the film (full review coming soon). It is a compelling piece, and very accurate to the real story (with a few concessions to the art form, of course).

If…

Continue Reading Coming Attraction: Little Pink House (Honolulu, June 11, 2018, 6:30pm)