National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

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.

http://wvrecord.com/stories/510632652-judge-says-pipeline-can-t-survey-without-eminent-domain

“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.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/30/federalism-and-constitutional-property-rights-a-response-to-rick-hills/

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

Balancing Federalism and Claims of Federal Control of Private Property

Posted in Michigan Eminent Domain, National Eminent Domain, Ohio Eminent Domain

 

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 Rick Hills discussion.  Ilya Somin’s will be in the next blog.

http://www.washingtontimes.com/news/2015/jul/29/celebrate-liberty-month-federal-protection-of-priv/print/

When governments regulate private property, there is always a risk of abuse and corruption.

When courts try to eliminate such governmental abuses, there is always the risk of judges creating clumsy, ill-fitting rules that make effective, publicly interested government impossible. There is no perfect way to eliminate either risk: The choice is always a matter of selecting the lesser of two evils.

Federal courts’ enforcement of federal constitutional doctrines to limit state and local governments’ power over land, however, is strong medicine, often more dangerous than the disease it purports to cure. When it comes to curbing abusive use of zoning and eminent domain, the best rule of thumb is to leave the solution to the states.

There is no doubt that state and local governments have, at best, a mixed record when it comes to controlling land. Critics who call for courts to curb governmental power frequently cite Poletown, the Detroit neighborhood condemned by the City of Detroit in 1981 to make room for a General Motors factory. Thousands of residents were displaced and churches and stores destroyed to cajole GM into creating 6,000 factory jobs that never materialized. More generally, there is always the risk that, due to inattentive voters, democratic processes will fail to protect private property from well-connected insiders who exploit public power for private gain.

But state and local political processes, while imperfect, also contain the resources to curb such abuses. Poletown is now a byword for eminent domain abuse. The Michigan Supreme Court, elected by Michigan voters, construed the state constitution to limit the use of eminent domain for economic development. Voters also amended their constitution in 2004 to impose even more stringent limits, and the Michigan legislature enacted statutory protections like awarding condemnees attorneys’ fees and requiring high evidentiary standards before land can be condemned to eliminate purported blight.”

 

Blocking FERC

Posted in Uncategorized

 

In a likely unsuccessful attempt to stop a pipeline acquisition of property, Franklin County, Massachusetts Residents are seeking to enjoin the Federal Energy Regulatory Commission Action. This is premised on a challenge to the need for additional pipeline as part of the interstate system. The issue of export is one that only the President and Congress have control of the decision making, not a state agency or the courts.

http://www.masslive.com/news/index.ssf/2015/07/franklin_county_residents_sue.html

In 2005, Congress granted the Federal Energy Regulatory Commission power to regulate the import and export of natural gas. FERC already had the power of eminent domain — that is, to take private land and pay the owner “just compensation” — in order to clear the way for gas transmission projects. Since international gas export is not a “public use,” it should not be used as a justification for eminent domain proceedings, the lawsuit argues.

“Exportation of United States gas to foreign countries depletes a national resource for the use of future generations without bringing any benefit whatsoever to the public interest,” the lawsuit reads.

Bonifaz in February filed a similar suit with the town of Deerfield as plaintiff.

The lawyer’s reasoning relies upon a report, written by independent researcher David Gilbert Keith of Deerfield, that the capacity of the proposed Kinder Morgan pipeline exceeds New England’s natural gas needs, and therefore the excess must be bound for export.”

Did Enbridge Make an “End Run” Against the County?

Posted in Uncategorized

 

In an interesting response to a claim by the Dane County Supervisor that Enbridge made a “end run” around the County regulations on insurance, Mark Maki, President of Enbridge, maintains that safety is of paramount import to Enbridge.

This really does not answer the question. The real question is whether the County required insurance is in any way truly related to the alleged endangered conduct of a pipeline company or whether the pipeline companies are being separated out and treated differently than other facilities which may manage potentially contaminating product. By example, is there an insurance requirement for gas stations in Dane County, Wisconsin? The real question of whether there is a specific separation which harms one participate vis-a-vis all others.

http://www.jsonline.com/news/opinion/enbridge-will-do-whats-right-b99547638z1-320213921.html

In his July 20 commentary, Dane County Supervisor Patrick Miles is not clear on the facts concerning Enbridge’s efforts to obtain a conditional use permit for the Waterloo Pump Station by incorrectly claiming the company was involved in legislation prohibiting local governments from imposing insurance requirements on pipeline projects.

The claim that Enbridge made a “legislative end run” around Dane County’s permitting process is untrue. Enbridge was not involved in drafting of the insurance provision nor did the company support or advocate for it as part of the state budget.

 

Survey Rights in Ohio

Posted in Uncategorized

 

Professor Heidi Gorovitz Robertson of the Cleveland Marshall College of Law reviews the recent decisions dealing with pre-acquisition entries for surveys. She notes that TROs allowing entry for survey work have been granted.

The conclusion of the article was that landowner efforts to delay the project might encourage Nexus to consider a more southerly route. Realistically, if Nexus feels that a southerly route is either less expensive and otherwise feasible, it may move the route. Realistically, two years is a relatively short time frame for a pipe which will be in the ground for a hundred years.

On the survey issue, one only needs to look to California decisions, now being appealed to the California Supreme Court in which the lower California courts have required payment prior to entry.

http://www.crainscleveland.com/article/20150731/BLOGS05/150739958/nexus-pipeline-fight-is-not-over-yet

“To facilitate conducting the surveys, the company sent letters to Medina landowners (and to many others along the proposed pipeline route) telling them the company was requesting permission to enter the landowners’ private land to conduct the needed surveying. But that if permission was denied, or just not granted, Nexus cited Ohio Revised Code sections 163.03 and 1723.01 as giving it the right to enter private property to perform the necessary survey activities — with notice to the landowners, but without the landowners’ permission.

So what do these Ohio statutes say? The first section Nexus cites, Ohio Revised Code section 163.03, gives agencies a right of access to private land for surveying after the agency provides proper notice to the landowner.

But could Nexus — a private corporation — really be an agency under Ohio law? It doesn’t look like an agency from the outset, but here is why Nexus argues that it is.

Ohio law, in section 163.01(B), says that a private agency includes any corporation that is authorized under Ohio law to appropriate property. Could corporations possibly be authorized to appropriate property in Ohio?

Actually, Ohio law gives appropriation authority to quite a few types of corporations. One type of corporation that qualifies is one that is organized for the transport of oil or gas through pipes. Ohio Revised Code section 1723.01 says that if a company exists for the purpose of transporting gas through pipes, it can enter onto private land to conduct surveys for those pipes. It actually says those words — “such company may enter upon any private land to examine or survey lines for its … pipes.”

 

When is a Limitation on Water Use a Taking?

Posted in Uncategorized

The California drought has raised numerous issues on how to deal with the distribution of the limited resource of water. Does the loss of water create a “taking” in and of itself? Is there any guarantee of water which constitutes a compensable property right?

In all likelihood, the Courts will be reticent in awarding damages for water curtailments because the damages will be too great for the community as a whole and because there is an arguable utilization of the Police Power in the limitation. Yet, people were assured that they will have water usage, and should fully expect to be able to use water when the water product has always been available.

http://www.eenews.net/stories/1060022451

“At issue: the U.S. Constitution’s 5th Amendment, which says no property shall be taken without just compensation.

So if California gets more aggressive in requiring irrigation districts — and particularly so-called senior rights holders, whose claim to divert and use water dates back more than a century — to curtail water use, some property rights lawyers think they can sue the state.

“If these water districts have vested, pre-existing rights that are more than 100 years old, those are legitimate property rights,” said Michael Berger, a Los Angeles-based takings specialist at the firm Manatt, Phelps & Phillips LLP. “I don’t think the government can take that away.”

Environmental lawyers and some academics disagree. They argue California is enforcing its water rules to address the extreme shortage.”

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 Nationaleminentdomain.com 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.

http://ravallirepublic.com/missoula/news/local/article_2c16abf4-b306-5d34-aa67-0211116a3e74.html

“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.

 

http://fox8.com/2015/07/13/medina-county-homeowners-pack-courtroom-to-block-proposed-pipeline/

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!

http://www.dailystatesman.com/story/2211967.html

“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.”