National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

TransCanada Makes a Positive Move

Posted in National Eminent Domain

The TransCanada pipeline has been the fight of the decade in the eminent domain arena. Some Nebraska residents and environmentalists have been central opponents to this project premised upon the Oligala Acquifer and the environmental damage created by oil.

Without taking a position in this, this blog senses that TransCanada recognizes that it can only obtain the approval upon FERC approval and, in this specific situation, some type of local approval. Appropriately, owners challenged TransCanada’s right to acquire by eminent domain without appropriate approvals. Well, TransCanada now has recognized that Nebraska Public Service Commission approval would make the issue moot.

This state application process probably should have been initiated ab initio, a Latin legal term meaning “from the beginning” if I understand those few Latin terms correctly.


Landowners Do Not Always Win

Posted in Articles, National Eminent Domain

The Illinois Enbridge cases have created substantial publicity and hostility in the community. Because of the problems in Michigan, Enbridge is treated as the “goat” of all condemnation authorities. Realistically, once Enbridge obtains its power to acquire from the state or federal regulatory authorities, condemnation will occur.

The issue is then one solely of damages. Although people were complaining in the Bloomington, Illinois area, the judge excluded testimony. On appeal, there is the likely chance that the decision will be reversed because of the court’s refusal to allow the owners to testify. However, one thing is clear in all litigation and that is there is no certainty of success for anyone.

“Last week, Lawrence ruled landowners would not be allowed to testify, and on Wednesday he barred three experts for the landowners from testifying, essentially removing all potential evidence in the landowners’ case. The judge’s rulings were based on his opinion that views from the landowners and experts on the hazards of pipelines were not relevant to the proceedings.

Tom Pliura, attorney for the landowners, said Thursday that “we respectfully disagree with the ruling and believe the landowners have a right to have the value of their property determined by a jury.”


Rover Pipeline Creates Consternation in Michigan

Posted in Uncategorized
  • A recent article about the Rover Pipeline in Livingston County raises all sorts of interesting issues.

    First, a state senator implies that one can simply get agents in line and “pull them in and slap them.” Who is he kidding? Agents do what they can to acquire their property at simply the lowest price.

    Second, is an implication in the article that owners have to sell their property. Realistically, the owners can face an eminent domain by simply objecting to the offer and waiting for a filing. First, of course, the owner has to obtain FERC approval.

    Finally, the article accurately describes Rover’s multiple offer, multiple and variable easements and the havoc that is created by the offering process utilized by the proposed, butnot yet approved eminent domain action.

    A number of out-of-state law firms have been soliciting eminent domain work in the community. While one recognizes a discontent with representation by non-local lawyers, one hopes that the lawyers do a capable job in representation of the owners.

Sen. Joe Hune said after the meeting that the pipeline should be “done safely and done in accordance with being a responsible neighbor.”

“There was a lot of concern and questions from folks who have been dealing with the land agents of the pipeline company. So, that is something we can definitely, hopefully, have an impact on. Make sure that the land agents are doing things on the up and up and not playing one neighbor off of another,” Sen. Hune said.

If land agents step out of line, the solution is to “pull them in and slap them in line,” he said.

“An overall decision of this pipeline lays (in the hands of) the federal government. The local community doesn’t have a tremendous amount of clout in the process and the state legislators have almost no clout outside of our voices,” he said.

Arkansas Congressional Delegation Feigns Interest in Controlling FERC

Posted in Articles, Uncategorized


An Arkansas Congressional delegation of two senators and four congressmen wrote a letter to the Department of Energy challenging the statutory enactment of the Energy Policy Act.

Rather than sending a letter, the Delegation would be far better off obtaining relief in the form of statutory modification. However, the lip service provided by the Delegation will at least put them in good standing with the locals until the locals realize nothing will occur to protect them until legislation is passed.

“The Department of Energy’s use of eminent domain with a private third-party company to construct an interstate electrical power line has been opposed by the entire Arkansas congressional delegation on the grounds of state’s rights and private property rights.In a nine-page letter to Department of Energy Ernest Moniz on Monday, Arkansas’ two senators and four congressmen state Section 1222 in the 2005 Energy Policy Act should not apply to Houston-based Clean Line Energy’s proposal to build a 700-mile high-voltage, direct-current transmission line through Arkansas from wind turbine farms in west Oklahoma and Kansas.U.S. Sens. John Boozman and Tom Cotton — along with U.S. Reps. Rick Crawford, French Hill, Steve Womack and Bruce Westerman — are asking Moniz to address their detailed concerns about the federal government’s possible “unprecedented partnership” with a third party to construct the electrical transmission project through Arkansas.“This Project does not appear to meet the statutory requirements of Section 1222, and we believe a state-level review of many serious concerns is necessary,” the delegation letter states. “Therefore, the Department should not approve the use of Section 1222 to carry out the Project.” – See more at:

For Those Who Believe a Local Option Prevails Over FERC

Posted in Uncategorized


For those who believe that a local option somehow prevails over FERC, the reader should review the Opinion of the United States Federal District Court ruling of Judge Young that Algonquin had a right to acquire property necessary to enforce and fulfill and give effect to a FERC certificate. Many people who would prefer that FERC did not control. However, under our system the United States Federal District Court Judge arrived at the correct result if we are to follow the rule of law.

“On Thursday, U.S. District Court Judge William Young ruled that Algonquin, a unit of Spectra Energy Partners LP, can take possession of parts of three streets — Centre Street, Grove Street and Washington Street — in the West Roxbury neighborhood.

“It is the duty of this court to enforce and give effect to the FERC certificate,” Young said, according to the Boston Herald. “Algonquin has established given the present [Federal Energy Regulatory Commission] certificate, [that] it has a right to an immediate taking of an easement.”

According to court documents in the eminent domain case [1:15-cv-12870-WGY], Algonquin had been unable to acquire the necessary permanent and temporary easements for working under the three streets from the city’s Public Improvement Commission (PIC). Algonquin received FERC authorization for the AIM Project [CP14-96] last March (see Daily GPIMarch 4).”

Nexus Foes May Be Looking the Wrong Way

Posted in Uncategorized

The coalition to reroute Nexus is spending time and effort to research whether there is a guarantee of a right to a jury trial and if the Natural Gas Act violates the Tenth Amendment. On the jury trial issue, courts have consistently held that there is no guarantee to a jury trial in an eminent domain action. As for the Tenth Amendment being violated by the Natural Gas Act, one only needs to remind themself that the Interstate Commerce Clause applies to the Natural Gas Act and over 200 years a precedent would provide a priority for the interstate commerce over the Tenth Amendment Reserve, Powers to the states.

The Nexus opponents would be better suited to work through the Federal Energy Regulatory Commission in obtaining the reroute! Believe it or not, FERC does, in certain circumstances, listen to public comment.

The Coalition to Reroute NEXUS continues its efforts to develop legal strategies to fight NEXUS. It’s researching whether the Fifth Amendment protects private agency land takings designed to benefit foreign companies and whether the Natural Gas Act violates the 10th Amendment by denying the right to a jury trial in eminent domain cases.

The group is also seeking donations because members said they have hit a stalling point in the work they are able to do as individual citizens. The group is now beginning to hire industry and legal experts to maintain momentum in their fight to reroute the pipeline.”

Water and Sewer Expenses are Substantial

Posted in Uncategorized

The Worth Township in St. Clair County now understands the importance of clean water. Part of the process is maintaining proper sewage capacity.

In this particular situation, rather than obtaining a whole new sewer plant, the Township decided to use what is called the Lagoon System, a system that works in the short run, but likely will only be a stopgap until there is a greater density of population, at which time the sewer plant would be required. In the interim, the Dimovskis will likely lose their property.

“The acquisition of one property and easements on about 100 others is necessary to begin a sewer project mandated by the Michigan Department of Environmental Quality nearly a decade ago, Worth Township Supervisor Phil Essenmacher said.

“We’re in the easement and acquisition process,” Essenmacher said. “One of the properties that we need is that property we’re putting the lagoon on.”

The 72-acre parcel is owned by brothers Slavko and Vojno Dimovski, according to court records.

Essenmacher said the brothers are willing to sell the property, but they can’t come to an agreement with the township on price.”

The Governmental Desire to be a Developer

Posted in Uncategorized

Rather than having FedEx obtain property on its own through a normal negotiation process, the Lehigh-Northampton Airport Agency thought that they would acquire property through eminent domain.

After spending far more than the Authority thought the property would ever cost, the Authority is still left with title issues.

Maybe the Government should not acquire property for private developers!

Airport attorneys argue that the covenant became void when a Lehigh County judge ruled that the airport effectively claimed eminent domain on the land in 1996, but they raced to file a motion Tuesday to have the court back up that argument.

They’ll need a clear title on the property before New York developers, the Rockefeller Group, can close the $9.9 million land sale and build the FedEx plant. Authority officials say they believe the matter will be cleared up quickly.

In a hastily called special meeting Tuesday, the authority board unanimously authorized the legal action.


West Virginia Trial Court Denies Survey without Eminent Domain

Posted in National Eminent Domain



A West Virginia county Judge, Robert Irons, ruled that there was no right to enter property for an oil pipeline survey premised upon the rationale that there was “very little benefit to the people of West Virginia.” The project has not as yet been approved by the Federal Energy Regulatory Commission.

Realistically, the Court may be right in denying the entry for two reasons. First, there is no payment being offered or made prior to the entry. Second, FERC has not yet approved the project.

While the arguments of why entry should not be made prevailed at the trial court; in reality, if payment for entry damage is made, the trial court might feel differently. This is because a survey is required prior to ascertaining a precise route for the pipeline.

This is truly a chicken and egg event, and creates a true quandary.

“Judge Robert Irons ruled last week that Mountain Valley Pipeline didn’t show enough proof that its natural gas pipeline project would provide enough public use to do the survey through eminent domain. A packed courtroom of about 100 people reacted with cheers and applause, according to media reports ……….

Irons said he saw “very little benefit to the people of West Virginia” from the pipeline. A Mountain Valley Pipeline project manager, however, has said the company expects usage to develop in West Virginia after gaining approval from the Federal Energy Regulatory Commission.”

Balancing Federalism and Claims of Federal Control of Private Property

Posted in Uncategorized

Rick Hills and Ilya Somin, two of the most respected Property Professors in the country, raise an interesting conflict as to whether the federal courts are the proper forum for the determination of state acquisitions utilizing the power of eminent domain.

Given this author, Alan Ackerman, as a Michigan and Florida practitioner, one should understand that given the Hathcock decision reversing Poletown and noted in Kelo leads this author to believe a position that the States may control property rights activities within the jurisdiction provides the stronger legal basis.

Realistically, the Fourteen Amendment was enacted to supply protection from state abuse. The abuse related to any rights of property, often decided in such cases as state mis-regulation of railroads in California in the 1880’s and extended out to the irrationality of Lochner years later.

The reality of the situation is one in which States clearly have an opportunity to self-regulate via constitutional amendment or legislative action. The potential to limit the Police Power to only non-economic activities is one which a state may retain. Ilya Somin provides a rational argument supporting the protection being one that is in the federal jurisdiction. However, this writer has a sense that federalism allows States to be the “test tubes” for activity in all the States because the Public Use is subservient to the Police Power because the police power is reserved to the States under the Reserved Powers Clause of the Tenth Amendment.   But possibly the right to property use is a federally protected right even though property regulation has always been within the exclusive province of the State.

The two articles are included this and the next blog posting.  Below is the Ilya Somin’s discussion.  Rick Hills’  was  provided in the most recent prior blog posting.

If superior local expertise is not a good justification for federal judicial abdication of responsibility for enforcing other constitutional rights against state governments, it cannot justify tolerating violations of constitutional property rights either. Moreover, as I explained more fully in an article inspired by earlier debates with Hills, federal judicial enforcement of constitutional property rights actually promotes rather than undermines the use of superior local knowledge. When federal courts protect property rights against violation by state and local governments, it is not federal judges, but private property owners who ultimately get to determine the use of the property in question. And, most of the time, property owners both have greater knowledge about their land than government officials, and stronger incentives to use it efficiently. Even if federal judges know less about the property in question than state officials do, property owners are likely to know more than both.

Hills suggests that “public use” constraints on eminent domain, in particular, should be left up to state discretion because the Public Use Clause is “ambiguous.” For reasons I discuss here, there is a strong case for construing “public use” narrowly on both originalist and living constitution grounds. At the very least, “public use” is no more ambiguous than many other broad, general phrases in the Constitution that federal courts enforce all the time, such as “due process,” “equal protection” or “unreasonable searches and seizures.”

Hills also cites Detroit as an example of a city that could benefit from being able to use eminent domain to condemn property for transfer to private parties. I have to admire his chutzpah in relying on this particular example. Detroit is a city with a long history of extensive eminent domain abuse, lowlighted by the infamous 1981 Poletown case, in which some 4000 people were forcibly displaced so that the land could be transferred to General Motors to build a new factory. Ultimately, Detroit’s misuse of eminent domain was a notable factor in the city’s economic decline, culminating in bankruptcy. To say that Detroit would be better off with more use of eminent domain is a little like saying that the Soviet economy would have worked better if only they had relied more on central planning