National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

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.”



A Rare Challenge To A Federal EIS

Posted in Uncategorized


It is very rare indeed that a federal court will find that an Environmental Impact Statement could not support a governmental action to create an activity within the governmental purposes. In a rare circumstance, the Wisconsin Department of Transportation’s attempt to expand Highway 23 to four lanes premised upon improper higher traffic counts and growth projections was not proven, negating the need for a highway expansion.

Realistically, the government has incredibly broad discretion in making choices of governmental activity so long as it is within the delegation of valid governmental activity. Theoretically, if the government is wrong in its political decisions, the voters vote the politically elected officials out of office. Realistically, most of our decisions are made by “commissions”, whether it is a local road commission or an agency of the federal office, making it impossible to directly challenge incompetent efforts.

The Wisconsin Department of Transportation outdid itself by having no support for its position to expand Highway 23. The Federal Court was duty bound to bar the project given the failures in the Environmental Impact Statement.

“According to the 26-page court decision by District Judge Lynn Adelman, an environmental impact statement released by the Wisconsin Department of Transportation failed to justify higher traffic volumes or explain how recently updated demographic data (slower growth projections) might affect traffic projections.

“Because the decision to expand Highway 23 to four lanes was based on violations of NEPA (National Environmental Policy Act) that have significantly affected informed decision-making and informed public participation, I find it is appropriate to vacate the record of decision and to remand the matter to the agencies for further consideration,” Adelman stated in his decision.

The ruling cuts off federal funding for the project, and the agencies are required to prepare a document that explains exactly how they arrived at future traffic volumes and consider new population data. A status hearing is scheduled for June 1.

“This is a huge win for taxpayers,” Steve Hiniker, the group’s executive director, said in a press release issued Saturday. “We have known for a number of years that the state DOT has been using artificially high traffic forecasts to justify a number of highway expansions. Now a federal court has validated our claims.”


West Virginia State Representative Attacks Forced Pooling

Posted in Uncategorized


Isaac Sponaugle, a delegate to the West Virginia House of Representatives, provides a direct attack against the lobbyists of the oil industry in pushing for forced pooling legislation.

The attack can be made as one of a political power dispute, yet the claim that Kelo simply allowed the jaws of governments to convey private property rights via eminent domain is not accurate. The reality is that what Kelo promised was that for future activity, each State would have its own right to determine public use under the police power delegation. The decision on unitization of oil and gas is one that is a property determination in every State jurisdiction. This should not come as a surprise that many States will allow unitization. Given the pro-development attitude of almost all of the legislatures for gas exploration and development, in part because of the need for energy and in part because the local jurisdictions receive severance taxes, the West Virginia legislation proposal is not a surprise.

“Prior to the Kelo decision, governments could compel an individual to forfeit their property for the public’s use, but not for the benefit of another private person. This requirement was an effort to promote fairness as well as security for individuals. The Kelo decision threw that principal out the window and established the power of private eminent domain for economic development purposes.

In essence it allowed any government entity to take private property and give it to a new owner so long as the new use claims to generate some extra benefit to the general public such as increased tax revenue or more jobs. For example, the state could replace any Holiday Inn with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory, all based on increased tax revenue or jobs claims. Thus, claims of economic development are now enough to transfer property from one private party to another.

The phrase “public use” is no longer a constraint against government powers toward an individual’s personal liberty. I strongly disagree with the Kelo decision and view forced pooling as an extension of this unwise principal in the State of West Virginia.”


Legal Costs, Litigation Expenses and Eminent Domain

Posted in Uncategorized

Governments and private entities acquiring property often have the problem of spending more than is necessary to acquire property. One may just think a position is “right” creating a need to fight because it is a matter of “principle.” Here, the Virginia Department of Transportation has moved forward, with attorney fees and costs which are a multiple of the Just Compensation to be paid. How do you treat owners fairly when you burden them with the cost and efforts of defending their rights to Just Compensation when one has a government with unlimited abilities to fight with OPM (other people’s money; i.e. public).

As a recent article in The Virginian-Pilot pointed out, VDOT’s ham-fisted tactics have now cost taxpayers $140,000 in legal fees. That’s just a hair short of the difference between what VDOT initially estimated the Ramsey’s land to be worth in 2009 and the amount the Ramseys asked for.

If VDOT had simply agreed to the Ramseys’ request, it could have spared itself years of effort and embarrassment. By the time the case is over, it will have spent more than it would have on the Ramseys’ asking price.

Yet a recent court filing by Attorney General Mark R. Herring suggests the agency still might not give up. And to add insult to injury, we now learn that the Ramseys made an offer to settle back in February of 2014 that closed the gap between the two parties to only $20,000. VDOT said no.



How Do You Treat Farmers Fairly?

Posted in Uncategorized

In many jurisdictions, the farmers are considered the guys with the bucks. Clearly, many farmers have done well over the last ten years. Hopefully, some of this money has been kept “at home” and has not been moved out of the local community.

In Rhode Island, land use is a real problem. Here we have property ready for development. At the same time, there is value in something more than just farming for these properties.

The Warwick Beacon article does not fully comprehend what is “fair” or “unfair” to farmers. Realistically, the state determines that it wants to protect farmers, you can easily do this by proper statutory enactments. This is why some states provide a premium to personally owned residential properties subjected to condemnation.

Each of us has to figure out what is fair, and that is spoken through the state legislative body. What happens on farms in our future and for our future, must be determined through state legislative action. This is not an easy decision to make, but one that needs to be made each and every time there is an opportunity to develop land for non-agricultural use.,102072?ord

For a home or business owner, compensation equal to 150 percent of a property’s real estate value, based on a sliding six-to-12 comparative market value scale, is more than a fair payback. With such a payment, one can easily purchase another house or set up shop in another office or storefront. For the farmer, who is subject to the same eminent domain taking and compensation policies, a 150 percent compensation level does not break even in the long-term.

The eminent domain compensation amount granted for farmland is based solely on physical acreage and incidental fees. It does not account for the productivity, arability, and cash crop value of each acre, leaving farmers with a definite quandary. Farmers lose not only their land, but also the accrued annual income for each year the land is no longer in their ownership.

Consider a typical Rhode Island farm in the USDA’s view: In 2012, the average Rhode Island farm contained approximately 56 acres. Nationally, the average price of hay, one of Rhode Island’s most important crops, sold for approximately $226 per ton, with 1.88 tons produced per acre per year. Using the 2012 national average farm acre price of $2,650, a Rhode Island farmer whose land was seized under eminent domain powers would be entitled to an upfront payment of $222,600. Though it is a fair compensation for the physical land lost, this amount does not come close to compensating the profit lost at a yearly rate. The same farmer would lose $23,793.28 in income per year, for a grand total loss of nearly a half million dollars over a 20-year period.

As advanced as Rhode Island’s eminent domain laws are, they lack differential policy. To be truly fair to all types of landowners, the Rhode Island General Assembly must recognize the inherent differences between agricultural and other entities, as the former must receive fair consideration for lost profit in a way that other, more easily transplanted businesses do not. Farmers have long been the backbone of the United States of America. Rhode Island would do well to act as an example for the rest of the nation and take steps toward full protection of farmers’ rights and revenue.




Title Disputes In Eminent Domain

Posted in National Eminent Domain

The St. Louis Public Radio article discussing the dispute over who owns the “McKee parcels” is a prime example of how an eminent domain statute is to work when title disputes exist.

Almost every State has a procedure in which all parties who may have an interest in the property are notified of the condemnation, then proceed on to the eminent domain just compensation issue. Either a separate title action or a statutorily designated process which is part of the eminent domain proceeding will determine who is to be paid. Robert Denlow, the outstanding and leading eminent domain lawyer of St. Louis, described the Missouri process in the attached article.

But the Board of Aldermen’s approval of eminent domain to clear the site protects the project, according to attorney Bob Denlow. An expert in eminent domain, Denlow said the city’s Land Clearance for Redevelopment Authority can still buy the land, even if it’s not clear who owns it.

“The fact that McKee and Titan have a difference in opinion as to who has what rights to the property or the proceeds won’t affect the condemnation,” he said.

He said the court could appoint three commissioners to decide how much the LCRA should pay for the land. If any of the parties were unhappy with the amount, a full jury would decide. Then, he said, McKee and Titan could go to court to decide who should get the money.

When Does a Subterfuge Give Cause to Bar a Condemnation

Posted in National Eminent Domain

While the Judge “slammed” Readington’s attempt to stop development, the issue may end up with a question of whether the final use is a “Public Use” under the framework of the jurisdiction. In some jurisdictions, the Courts will not look to the true intent of an eminent domain proceeding, but will simply find that the contemplated use by the government is a Public Use. In the Solberg Airport situation, the limits of providing deference to a legislative decision simply were not imposed upon the Court. Yet, an Appellate Court may not arrive at the same result as the Trial Court Judge provided in his recent decision. With a judge dismissing the township’s lawsuit to acquire the development rights to Solberg Airport through the power of eminent domain, the next move in the decade-long legal battle is up to the township committee. James Rhatican, the township’s attorney in the case, told Superior Court Judge Paul Armstrong on Monday that he would have to meet with the township committee and discuss options, including the possibility of an appeal. Armstrong’s 54-page ruling came after a 48-day trial that began in May 2014 and ended in January with testimony from 11 witnesses and more than 800 pieces of evidence. The judge also reviewed 5,600 pages of court transcripts.