National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

Legal Expenses in Eminent Domain are Wearisome and Worrisome

Posted in National Eminent Domain


Incredibly, the Missoula water eminent domain case now has the a different biggest headline – not the cost of the project or the fight about the project, but the cost of the litigation.  The blog has written on the subject of this acquisition for over a year.

When the “Big Boys” get into these things, it only shows how small business and owners people really have a tough time fighting the government or unities seeking to acquire property.

“The city of Missoula has paid a big bill for condemning Mountain Water Co. – $3.39 million and counting.

The parties who got a slice of the pie range from hometown lawyers to out-of-state engineers, from local to far-flung finance gurus.

The amount doesn’t reflect the grand total, either. The case is entering another phase of condemnation in which water commissioners determine “just compensation.” In a separate process, the defendants also have appealed to the Montana Supreme Court.”




Ohio Trial Courts Again Deal With Rights of Entry for Nexus

Posted in Michigan Eminent Domain, Ohio Eminent Domain

Nexus desires to survey property that the company desires to acquire. There is little choice but for the oil pipeline companies to move forward unless the companies know what kind of soils will be dealt with. Challenges of environmental hazards, especially wetlands, rivers and the like, make it mandatory for the pipeline companies to assess what effects will occur on the environment from the pipeline.

A number of Ohio trial courts have already granted temporary restraining orders in favor of the pipeline company. One very well can expect this to continue.

The real issue is whether compensation must be made as part of the entry. In many states, the requirement may be one in which the compensation estimate for the entry must be made prior to the filing of a complaint for entry.

On Monday, attorneys for the gas company argued that Ohio law allows them to go onto private property to conduct surveys whether the property owners want them there or not. Medina County Prosecutor Dean Holman has already issued an opinion believing that the surveyors are committing criminal trespass if they enter property where they are not welcome. Attorneys for the project say that is not consistent with opinions in other courts across the state.

“We believe that under Ohio law we have the right to enter your property and it’s not a criminal trespass,” said attorney Jim Hughes.

Hughes is seeking an injunction against the property owners who are turning away surveyors for the project. He argued the company is not seeking to acquire property for the pipeline, only to survey the properties along the route where the pipeline is proposed for “native species, geological formations, cultural artifacts and environmental issues, such as wetlands,” said Hughes.

An attorney for property owners argued that they have rights too.

“A private property owner ought to be able to look at a gas company representative and decide whether they want to allow the survey or not and if I’m paying my mortgage payment and I’m paying my real estate taxes I would expect that I could say no I don’t want you to do this,” said Greg Huber.

Attorneys for the Nexus project also claim that the company will be irreparably harmed if the project is not completed by November 2017.

“That is a critical date, they will lose several million dollars per month that it is not online after 2017, their construction cost will go up and their reputation within the industry will be made,” argued Hughes.

A Shortage of Funds To Repair the Roads?

Posted in Uncategorized

After a referendum failure in Missouri, the Dexter, Missouri Daily Statesman notes the voter rejection excludes the Missouri Department of Transportation from necessary funds which are required in order to build new roads and perform road repair work.

Many states have relied upon the gas tax for road funding. Missouri is no different.

One has to wonder why we use funds to build stadiums in all our communities at public expense and yet cannot have a darn road. Ahh, the benefits of having a professional basketball, football or baseball team far outweighs the need for the roads to be in decent enough repair that our cars do not get destroyed by just driving at the posted speed limit. Maybe this is a cynical attitude, but we have to wonder how and why governments spend the money they do have, all the while knowing that voters do not want to increase their taxes!

“More planned undertakings elsewhere in district, including widening major routes such as U.S. 67 south of Poplar Bluff and U.S. 412 in the Bootheel, also won’t be possible.

All of those projects were on a list developed for funding through Amendment 7, a ballot measure for transportation funding rejected by voters in August. The measure would have raised hundreds of millions of dollars each year for transportation by raising fuel taxes.

MoDOT instead has announced the agency will have only $325 million available for its highways and bridges construction program in 2017 — far less than the annual amount it takes to even maintain the state’s 35,000-mile transportation system. MoDOT also reports it won’t be able to match federal highway funds, meaning those funds will go to other states, said Matt Seiler, an assistant district engineer for MoDOT based in Sikeston, Mo.

The agency gets as much as 70 percent of its funding from state fuel taxes, but inflation has taken a toll on how much buying power MoDOT has during a more than 20-year period the tax has remained the same, Seiler said.

The “325 Plan” of the agency for maintenance calls for primary routes — about 8,000 miles of roads — to be maintained by today’s standards. The remaining 26,000 miles of roads will “receive limited, routing maintenance,” a recent agency newsletter stated.

“For those, all we can do is take care of them with a dumptruck and a shovel,” Seiler said. “People, I don’t think, will realize that’s a problem until they start to fall apart.”



Is Congress Going the Right Way on Eminent Domain?

Posted in Uncategorized


Representative Sensenbrenner of Wisconsin has introduced a bill in which it will be closely reviewed. The Private Property Rights Protection Act proposes to make states for cities ineligible for funding for two fiscal years if an eminent domain property in the state is utilized to transfer private property to other private parties for the pivots of economic development.

The decision of what is a police power, which includes economic development, is one for the states to make under the Reserve Powers Clause.

If Congress wants to do it right, the legislation will maintain that no Federal funding shall be utilized for projects in which properties are acquired by eminent domain for transfers to third parties. Hopefully the Senate and Congress will rethink on this issue so we can properly protect private citizens and allow for community development.

“Under the Private Property Rights Protection Act, unveiled Thursday, a state or political subdivision of a state would become ineligible for federal economic funds for two fiscal years if it uses its eminent domain power to transfer private property to other private parties for the purpose of economic development.

A judicial body will have to determine first if the law has been violated before any funding is taken away.

“The freedom to own and protect one’s private property is foundational to our country,” Sensenbrenner said in a statement. “Congress must fight to protect the private property rights of Americans and reform the use and abuse of eminent domain.”

Missoula Succeeds With Mountain Water at Trial Court

Posted in Uncategorized

This blog is written extensively about the Missoula’s attempt to acquire the Mountain Water Company.

One might think that this is some simple transaction. However, Montana has very specific limitations under the statute delegating the authority to acquire water utilities. The question is one of whether the statutory requirements have been fulfilled, something we will hear much more about from the Montana Supreme Court.

“Two weeks ago, District Judge Karen Townsend ruled in favor of Missoula in its eminent domain case, giving the city the rights to purchase its own water supply system.

The ruling gave the Carlyle Group, which is the parent company of Mountain Water, 30 days to propose a purchase price or face additional litigation.

Last week, the Carlyle Group, along with Mountain Water Company and its employees, filed separate appeals to the ruling.

Mountain Water President John Kappes says in a statement that moving forward with the case “while the necessity ruling is still under appeal puts taxpayer funds and the water system itself at significant risk.”

Green Belt Express Rejected in Missouri

Posted in Uncategorized


In a “sort of” win, the opponents to the Green Belt Express Transmission System succeeded at the Missouri PSC. However, be not shocked when the Federal Energy Regulatory Commission involves itself in that activity. Basic public policy supports non-fossil fuel energy sources. The Green Belt Express Transmission System intends to use wind energy in the electrification process.

“The commission concludes that the substantial and competent evidence in the record supports the conclusion that GBE has failed to meet, by a preponderance of the evidence, its burden of proof,” the commission wrote.

Missouri regulators used five criterial to evaluate the project, but ultimately found that Grain Belt “failed to prove a need for the project, that it was economically feasible and that it promotes the public interest,” the commission said in a statement.

Missouri Regulators Take Populist Stand To Block Wind Transmission Project

Posted in Uncategorized


The Missouri MPSC is considering blocking a project by a three to two vote. In all likelihood, the project lobbyists will find the last vote resulting in three to two in favor of the project. However, the St. Louis Post-Dispatch article appropriately notes that should the Public Service Commission reject the project, the transmission line developer can readily go to the Federal Energy Regulatory Commission.


Complain as we may, our Federal Government is pushing for two things. First, the use of non-fossil fuel energy is preferred. Second, domestically-created energy resources are favored. Given these two public policies, it is difficult to imagine that the transmission line will not be approved.

The issue is bigger than Missouri or the Grain Belt project in particular, said Mark Lawlor, Clean Line’s director of development. The country is trying to figure out how to reduce carbon pollution linked to climate change under new federal regulations, which many say will require a large buildout of transmission infrastructure.

“How do we get stuff built?” Lawlor said. “If the ‘no’ was because people didn’t like it, landowners didn’t like it, then how are we going to build transmission? It kind of goes beyond this one project.”

If the PSC does reject the project, Lawlor said Clean Line won’t give up. It could pursue federal eminent domain authority through the Energy Department, an approach it is pursuing in Arkansas after the state declined to approve another of its routes.

“These projects are too valuable and too much in demand (to walk away from),” Lawlor said. “We remain confident in their value and we’ll look at everything we can.”

At the same meeting, the PSC approved a 7-mile transmission project between Palmyra and the Mississippi River proposed by Ameren Transmission, the final leg of its 380-mile Illinois Rivers project across that state. It is scheduled to be complete in 2018

FERC Supported Sandpiper Pipeline Prevails Over Individual Emotions

Posted in Uncategorized

In response to a property owner’s claim that the FERC approved pipeline would only create further environmental harm, a Federal Court recognized that the approval by the Federal Energy Regulatory Commission was superior to any individual claim. In a like fashion, the court noted that, although the pipeline may be profit making, FERC does have control over the pipeline’s rates and regulations. One can question the FERC analysis of profitablilit, one which provides a 13% rate of return. However, that is why we have elected officials, those who watch a dollar of taxes, but let the franchised monopolies to profit.

But Judge Debbie Kleven disagreed, finding the public will be entitled to access the pipeline at prices set by the Federal Energy Regulatory Commission. All potential shippers had the opportunity to sign transport agreements during an open enrollment period, the judge pointed out, and those who chose not to sign up can still use the pipeline subject to those federally approved rates.

The pipeline is a direct benefit to the people of North Dakota because “any citizen has a right to transport their oil,” Kleven found.

An Enbridge Energy statement said the company appreciates the judge’s careful consideration. “Setting the Order aside, our goal is to make every reasonable attempt to work with landowners and other project stakeholders. We are committed to having positive relationships not only with landowners but also with the communities in which we operate.”

Kentucky Reconfirms The Power Of The Public Service Commission

Posted in Uncategorized

Almost every State maintains what is called a “Public Utility Commission” or “Public Service Commission” to regulate utility activities and changes.

The attempt of Kinder Morgan to acquire property without authority from the Public Utilities Commission failed in Kentucky. A Kentucky Court of Appeals panel affirmed the decision of the lower court that a utility must obtain the approval of the State’s Public Service Commission. This rule generally applies to almost every State.

“These companies, including Oklahoma-based Williams company, the Bluegrass Pipeline developer, “will have to deal with landowners on a willing seller, willing buyer basis,” said the attorney, Tom FitzGerald, director of the Kentucky Resources Council.

He said it will also preclude Kentucky oil and gas producers from using the threat of eminent domain to site gathering lines and wells.”

Can One Challenge The Army Corps of Engineers in Ottawa Township, Putnam County, Ohio?

Posted in Ohio Eminent Domain, Uncategorized

A number of members of the Ottawa Township, Ohio community are seeking to modify a proposed flood control measure to minimize damaged property. We all recognize that the Corps of Engineers has almost unfettered discretion to do as the Corps desires when it comes to the waterways. This is part of the original delegation of the power to control the waterways which is part of our national Constitution with regard to commerce and navigability. Yet, it is hard to imagine that if a better plan can be shown than that proposed by the Corps, the Corps would not at least take a long look at an alternative proposal which creates less harm to the community. This may be one of the rare circumstances where even the federal courts would review the process. Please note the decision of the Federal Court in Wisconsin this blog wrote about this week.

“Why can’t we have a plan for the entire watershed, that takes into account other communities and the rural community?” Siefker said. “Instead, we just have plans at these two pinch points, Findlay and Ottawa. Of course, they want a diversion channel to route the high water quickly around their communities, but what about us downstream? We need to work together on a plan that benefits everyone.”

The corps’ plan for Findlay includes a 9.4-mile Eagle Creek diversion channel. Eagle Creek drains into the Blanchard River at Findlay, and the intent of the diversion channel is to route some of the creek’s floodwater away from the city, and slow its re-entry into the river.

While construction of any flood-control measure in Findlay isn’t expected until the year 2022, construction in Ottawa could begin soon.

The Maumee Watershed Conservancy District voted in August 2014 to take over leadership of Ottawa’s flood-control project at the request of both Ottawa Council and the Blanchard River Flood Mitigation Coalition. The coalition was formed in 2007 to find solutions to flooding in Ottawa .

The conservancy district has the authority of eminent domain, which means it can take property from landowners for a public use. Landowners must be paid a fair price for the property taken.

The conservancy district will most likely manage the construction of flood-control projects for Findlay, too.”