National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

Is FERC Serious in Investigating Alternative Routes?

Posted in National Eminent Domain, Ohio Eminent Domain

FERC has ordered Nexus to “investigate” whether a route can be provided which will not go through the more densely populated areas such as Green, Ohio. However, the notion that it is to be “investigated” does not give solace if Nexus simply determines that the present route is the only appropriate route balancing the expenses and potential risks. One must wait to determine whether FERC will really move in a fashion that protects the individual property owners, something that certainly has not occurred to date.

The company has been looking at a possible southern alternative route of its own, although no details have been released.

The Federal Energy Regulatory Commission, which approves such pipeline projects, filed its directive to the company in a memo Tuesday — a day after Green pitched the alternative route in a 38-page filing with the agency.

When FERC will make its decision about what route it will approve has not been determined.

The Nexus pipeline — intended to move natural gas from the Utica Shale region to market — is generating a “large volume of public comments,” FERC said in its memo.

Green officials called the current 93.4-mile pipeline route through the Akron-Canton area “hastily drawn and ill-conceived with no respect to the human and environmental concerns.” Norton and Planning Director Wayne Wiethe signed the city’s filing.

Outstanding Appraiser Article

Posted in National Eminent Domain

Bill Rothman, an experienced Pennsylvania appraiser, provided an outstanding appraiser discussion about eminent domain. Mr. Rothman describes the process under which individuals deal with pipeline eminent domain actions in Pennsylvania. Reading this article offers an interesting outline of issues for individuals losing property to an acquiring agency. Mr. Rothman provided an interesting alternative offering of the eminent domain process to that provided by lawyers.

Because under Pennsylvania’s eminent domain law, a property’s value must be based on its “highest and best use” – a principle that became state law of the land following a lawsuit filed in 1958 by my parents, George and Dorothy Rothman.

At issue was Pennsylvania’s plan to straighten a section of Locust Lane – a project that would have taken part of the Lower Paxton Township cattle farm that had been in my family since the early 1940s.

When the state looked at the land – much of it where the Dauphin County Technical School now sits – the Commonwealth’s appraisers offered compensation based on its use as crop land.

Years before my father hired a surveyor and drew up a plot plan for a housing development; Locust Lane’s new path would have taken as many as 15 lots.

Posted in National Eminent Domain


Missoula may indeed have a right to acquire and control the privately owned water utility. But the simple argument that “this is owned by out of state people who will sell to other out of state people” does not properly deal with the issues of what is best for the community and what is allowed under the State and Federal Constitutions. The reality is that the notion that out of state ownership is dreadful cannot be the determining factor for Public Use. Rather, it is simply a question of what is Public Use given the circumstances.

As for rates, the City Attorney fails to mention the rates are regulated at the state Public Utility Commission!

But the city is trying to take ownership, through a legal process called eminent domain, by claiming that water is too important to the public good to leave in the hands of a company that simply wants to sell the utility for a profit.

128 other Montana cities own their own water utility. Missoula is the only major city in Montana that doesn’t own its own water.

Harry Schneider, lead attorney for the city, says the case isn’t about the right to own property, but rather, a city’s right to protect a crucial resource from out-of-state investors who just want to sell it to the highest bidder, “which in turn will influence the rates that’ll be charged to the people of Missoula who have no other choice but to purchase their water, Montana water.”

When Is A Song A Song? Rover Reroute

Posted in Michigan Eminent Domain


ET Rover maintains it will eliminate 110 miles of a proposed pipeline. In a recent Livingston Daily article, a local resident notes that ET Rover could still “expand their capacity” by providing a “loop” pipeline around the existing pipeline.

Owners should review the original easement documents to determine limitations on pipe expansion created by the easement itself as well as the original MPSC delegation.

So that takes us back to the original route but without new pipe through most of Livingston County and to the east. On the surface that sounds really good, but it is still clouded by the fact that ET Rover could still “expand their capacity” by installing a “loop” pipeline along the existing line. Their statement which says they have no plans to do so “at this time” makes many of us uneasy. As Jeff Insko says in his “Line 6B Citizens’ Blog,” “Landowners along the Vector line are now, as a friend of ours put it, living with a second shoe dangling over their heads, waiting to drop.”

The four Sierra Clubs in southeast Michigan plan to continue to oppose the pipeline by holding a series of meetings with federal legislators. Our hope is to present information to them that would certainly not have been suggested by the pipeline companies.

Changing Of The Guard At Appraisal Firm

Posted in Uncategorized

As with the appraisal firm Broom, Moody, Johnson & Grainger, Inc. in Jacksonville, Florida, many appraisal firms are expanding, becoming parts of larger enterprises or simply turning over the reins to the younger generation. In some circumstances, the firms are doing all three. As with law firms, the concern of not being large enough is a reason for operational change.

Appraisal practice in many instances is local and parochial. However, a responsible appraiser can appraise almost anywhere in the Country with the appropriate investigatory work.

With the new hires, the company said it would be expanding its eminent domain services and government work with different entities, such as the Department of Transportation.

Grainger, the last original partner of BMJG, called it a positive transition to the next generation.

“With three younger guys coming in it was time to rebrand. The next generation is now stepping up and they’re taking over the reigns,” he said. “Nick, Courtland and Justin are outstanding young men who have shown tremendous leadership, and they are very knowledgeable appraisers in all areas of valuation.”


West Virginia Limits Forced Pooling

Posted in Uncategorized

The gas lobbyists succeeded in pushing through a bill in the West Virginia House and a bill in the Senate with minor changes. However, when it came to a re-vote with amendments, the West Virginia Property Rights Coalition ran an advertisement opposing the project. Although the State Farm Bureau supported forced pooling, local Farm Bureaus mounted their own individual opposition to the project.

Forced pooling is simply not an issue that will go away. On the one hand we want to be able to access our minerals in order to create a domestic supply of energy. Yet, the whole notion of forced pooling is the antithesis of privacy and primacy of property rights protection.

Susman said he knew that the late night Saturday vote by the House was going to be close — within two votes.

“Even though the West Virginia Farm Bureau came out in favor of the bill, local farm bureaus began to peel off,” Susman said. “I was told that the Ohio County farm bureau was opposed and the Harrison County farm bureau was opposed.”

“Small oil and gas landowners and producers were peeling off — they felt that the law was written by the large oil and gas companies in such a way that they could control the market.”

“After the first House vote, delegates began getting calls from back home,” Susman said. “Many delegates were having a case of voter’s remorse.”


Economic Development Corporation’s Transfer of Eminent Domain Acquired Property

Posted in Uncategorized

The City of Detroit Economic Development Corporation’s transfer of a 40 acre tract required for the construction of a 400,000 square foot automotive supplier raises the objection of some because part of the property was acquired by eminent domain.

Realistically, this is a situation in which the use of the Eminent Domain Act to acquire property meets Public Use standards. This is a far cry from the outrages of Poletown and Hathcock.

The board of the quasi-public development agency voted Wednesday to sell the property on Detroit’s east side to Crown, which is negotiating with an unnamed logistics company to be the tenant. Crown expects the new facility will create about 250 jobs.

The city has been working on the concept of the I-94 Industrial Park on about 150 acres near City Airport since at least 1999. A spokeswoman for the EDC said Wednesday that land sold to Crown was abandoned residential area. She noted the city used eminent domain to accumulate some of the land. Eminent domain is when a government agency takes private property for public use with compensation.

Piercing the Police Power Veil

Posted in Uncategorized

The Police Power has always been a power reserved to the State under the Tenth Amendment. Yet, the notion that there is Police Power protection for governmental employee pensions only assumes a defense to enforcement of the contractual obligation. In Illinois, the Attorney General has challenged guaranteed pensions as one protected by the State enactment. As with the Detroit pension, the question is one of whether the Bankruptcy Clause supersedes the Reserve Power created in the form of the Police Power.

This may be the first piercing of the Police Power shield protecting State actions. It may even be analogous to the question of whether State limitations on same sex marriage are subordinate to other Amendment rights, such as the propounded Right to Privacy.

And many experts predict that, if nothing is done in the next 15 years, some pension funds could run out of money leaving those workers flat.

As the Illinois Supreme Court hears oral arguments Wednesday over a state law that attempted to begin to address the problem, the question facing justices really boils down to this:

Is Illinois’ pension crisis the equivalent of needlessly shouting “fire” in a crowded theater?

That’s one of the standards the U.S. Supreme Court long ago set in creating exceptions  to what is largely believed to be absolute First Amendment rights. There is far more to it than this, of course, but, in a nutshell, the court was suggesting that the rights of individuals cannot be allowed to infringe on the rights, safety and well-being of others.

Outstanding Review of the Eminent Domain in California

Posted in Uncategorized

The JD Supra Business Advisor article written by Nossaman offers an outstanding perspective of the important eminent domain issues of the past and coming year. Although this article for the most part covered California cases, upon reading it, one would understand the slowly changing process of eminent domain throughout the nation.

At first it seemed 2014 had been a relatively slow year for eminent domain cases.  But looking back, there was more activity than we initially recalled.  There were few decisions that provided any dramatic shift in the landscape (which is probably why it felt like a slow year), but several decisions refined and clarified the law.

One exception was the challenge to the right-of-entry statutes, which is now before the California Supreme Court.  That decision could be a real game-changer.

While we wait to see what happens in 2015, here are some of the highlights of 2014.  And of course, you can continue to keep up to date by checking out our blog, the California Eminent Domain Report.

Oklahoma Seeks Wind Turbine Regulations

Posted in Uncategorized



Many jurisdictions are facing the problem that wind turbines have a negative affect on surrounding property. Because of this, many local jurisdictions and state legislatures have placed limits on proximity to schools, residences and airports.

Limitations near airports are easy to regulate. The Federal regulations for airports require certain types of height limitations on nearby construction. As for residential proximity to the wind turbines, the local and State regulations vary greatly, causing financial harm to those individuals residing near the turbines.

“WERTZ: Dozens of people crowded into a recent public meeting in Guymon. These landowners can make plenty of money from a power line or turbine lease. They asked questions and looked at maps showing possible routes for the 700 mile so-called Plains and Eastern Clean Line. It’s designed to carry wind power from Oklahoma’s Panhandle across Arkansas to Memphis where it will be funneled into the southeastern power grid.

MICHAEL SKELLY: We’ve maxed out the available grid, so if you want to continue to grow the export of Oklahoma wind to other states, you need new infrastructure to do that with.

WERTZ: Michael Skelly is president of Clean Line Energy Partners, the company that wants to build this and four other projects across the U.S. These aren’t the typical AC power lines that crisscross the country. The proposal is a much more expensive direct current line, which is also a lot more efficient.

Mark Jacobson teaches engineering at the Atmosphere/Energy program at Stanford University. He says AC power lines can lose up to one third of the electricity en route. With DC lines, that loss can be less than 10 percent.”