Public Use | Kelo

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Here’s what we’re reading today (in addition to the four unanimous Supreme Court decisions issued this morning):

Continue Reading Thursday Round-Up: A SCOTUS Losing Streak, Prune Yard II Denied, Mortgage Seizures

Here are links to the cases and other materials we spoke about at today’s teleconference with Professor Dan Mandelker and my OCA colleague Dwight Merriam:

  • Pipeline takings: Texas

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Continue Reading Teleconference Links: Do You Dare Even Say “Eminent Domain” After Kelo?

According to this story (“Eminent Domain and a Horse Slaugherhouse at Wounded Knee?“) the Oglala Lakota Nation has decided to condemn land on the reservation at Wounded Knee, South Dakota to prevent its sale by its current (non-Indian) owner to third parties. The Wounded Knee site is significant for at least two reasons, the infamous massacre by the U.S. 7th Cavalry in the 1800’s, and the 1970’s takeover and months-long armed standoff by AIM.

The case raises unsettled issues. Can the Nation to condemn land owned by non-members? According to an unnamed Indian law expert quoted in the story, it would be “very hard for me to see the tribe pull this off.” What’s the value of the land if it can be taken by eminent domain? The owner claimes to have offers from potential purchasers in the millions, while others claim that the land is worth…

Continue Reading Eminent Domain In Indian Country: Oglala Sioux To Condemn Land At Wounded Knee?

Update: Professor Ilya Somin, a leading eminent domain scholar and author of the definitive articles on post-Kelo reforms, adds his thoughts on the decision here. Here’s a report from the local paper.

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In the wake of Kelo v. New London, 545 U.S. 469 (2005), a majority of states adopted rules about what constitutes a “public use” in eminent domain. Missouri is one of the states that, by statute, now prohibits takings “solely” for “economic development” purposes:

1. No condemning authority shall acquire private propertythrough the process of eminent domain for solely economic developmentpurposes.

2. For the purposes of this section, “economic development” shall mean ause of a specific piece of property or properties which would provide anincrease in the tax base, tax revenues, employment, and general economichealth, and does not include the elimination of blighted, substandard, orunsanitary conditions, or conditions rendering the property or itssurrounding area…

Continue Reading Missouri S Ct Deconstructs Condemnor’s Stated Reasons, Finds Taking Is “Solely” For Economic Development

What we’re reading today:

  • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure

Here’s one as cliché as beach cases from Hawaii: an opinion from a Texas court about the meaning of the term “crude petroleum” in the Texas Natural Resource Code. Oil that is. Black gold. Texas Tea. 

It’s also another pipeline case from the Texas Court of Appeals (Ninth District) — the same panel that on the same day held that TransCanada is a common carrier possessing the power of eminent domain. Except in this case, the court held that Crosstex, which held a permit from the Texas Railroad Commission to build a liquid natural gas pipeline is not a common carrier because a pipeline used to transport LNG is not the same as a pipeline used to transport crude petroleum. Crosstex NGL Pipeline, L.P. v. Reins Road Farms-1, Ltd., No. 09-12-00563 (May 23, 2013). 

The case was Crosstex’s appeal from the trial court’s denial of its…

Continue Reading One More Common Carrier Case From Texas: Pipeline Would Transport Liquid Natural Gas, Not “Texas Tea”

At a recent ABA conference, we suggested during our presentation that cases involving pipelines (petroleum, natural gas, etc.) would be “hot topics,” and here’s the latest: in In re Texas Rice Land Partners, Ltd., No. 09-12-00484-CV (May 23, 2013), the Texas Court of Appeals (Ninth District) held that TransCanada Keystone Pipeline, L.P. is a “common carrier” that has the power of eminent domain, and can condemn an easement for its pipeline.

The Keystone Pipeline is a 2,151 mile petroleum pipline from Hardisty, Alberta in Canada, to Port Arthur, Texas, via Illinois and Oklahoma. TransCanada instituted an eminent domain action to take an easement over land being used for rice farming, and the property owners objected, asserting that TransCanada did not have the condemnation power. The trial judge didn’t make a ruling on that issue, but granted immediate possession to TransCanada, concluding that resolution of its ability to take…

Continue Reading Tex App: TransCanada Keystone Pipeline Is Common Carrier With Eminent Domain Power

Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

These topics will also be covered:

  • Contractor Licensing Update
  • Planning Update – Development Near the Right of Way
  • Uniform Relocation Act Benefits
  • Rail Development and Property Valuation
  • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

Here’s one that might make you feel better, particularly if you end up drawing the short straw in litigation: in The Upside of Losing, 113 Colum. L. Rev. 817 (2013), Professor Ben Depoorter writes about how winning may not be the “only thing” in public interest litigation.

Of particular interest to the readers of this blog is the section that begins on page 831, which focuses on the Kelo case and its aftermath. There’s one where the litigant didn’t win in the Supreme Court, but the issue jumped to the forefront of the public consciousness:

What first resembled a resounding loss eventually became a victory of a different sort for the opposition to economic development takings. The history of Kelo illustrates that, as much as a plaintiff might hope to win a favorable verdict, substantial benefits also obtain in defeat. Fundamentally, Kelo and its aftermath suggest that certain disputes…

Continue Reading New Law Review Article, “The Upside of Losing,” Focuses On Kelo

Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal.

Here’s a video snippet focusing on eminent domain and the Kelo decision, from PBS’s ongoing series on the U.S. Constitution. It’s a somewhat generic view of the issue complete with silly sound effects and graphics, but it does touch on the concept of property rights, and there’s a tour of the former Fort Trumbull neighborhood in New London, currently an overgrown field.

The money quote is from former property owner Michael Cristofaro: “How could those justices in black robes steal our property rights from us? I feel like the Constitution failed me.”

Professor Gideon Kanner adds his thoughts on the video here. Continue Reading PBS’s Constitution USA On Eminent Domain