National Eminent Domain Blog : Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan and Washington, DC

Indiana Economic Digest

The measure declares that the transportation of CO2 by pipeline "is declared to be a public use and service, in the public interest, and a benefit to the welfare of Indiana," citing its potential to reduce carbon emissions and to promote economic development.

"Granting eminent domain to a private entity is reason enough, we think, to oppose this bill," said Kerwin Olson, program director for Indianapolis-based Citizens Action Coalition.

The group said the measure is to benefit Indiana Gasification, which in 2006 proposed building a $1.5 billion plant in Spencer County to convert high-sulfur coal to gas. Utilities could use the gas for heating and to generate electricity.

Indiana Gasification, which planned to sell gas to Merrillville-based NIPSCO and Evansville-based Vectren, shelved plans in late-2008 after failing to reach long-term gas supply contracts with utilities, which feared such contracts could impair their long-term credit.

The Indiana measure provides for a reasonable public use; protecting society from carbon emissions. However, the unregulated transfer of property, so that private profit-making companies can simply bring their pipelines through private property, raises severe constitutional questions.  It is unlikely that many states will allow private companies without government regulation to acquire land for the pipelines.

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State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.

Kentucky American has said it has the right to condemn property but seldom uses it.

Company spokesman Brian Wright said in more than 2,000 cases over the last 19 years, KAW has had to ask a court to condemn property only five times.

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allow the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

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State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.
Kentucky American has said it has the right to condemn property but seldom uses it.

… The pipeline will run one-tenth of a mile in Owen County, 15.3 miles in Franklin County, 10.7 miles in Scott County and 3.8 miles in Fayette County.
The entire project is scheduled for completion in early summer of 2010.

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allows the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

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Star Telegram

When a gas drilling company wants a piece of land for a pipeline, its representative usually shows up at the owner’s door with a letter from the Texas Railroad Commission, stating that the company has a right to take the land.

Pipeline companies can condemn land because they’re considered either utility companies, which serve the public the same as Atmos or TXU, or "common carriers," a legal term that means they carry oil or gas for anyone.

Major gas companies have formed their own pipeline divisions as they seek routes for gathering pipelines to serve the Barnett Shale. These divisions have the power to condemn land. ...

This is an article worth reading.  Consider the following questions when reading this article. When is a take effectively a private take?  Is there statutory relief needed?  What is the constitutional and statutory authority designed to limit “public use” \ pipeline takings?

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The Monroe News recently published a very informative article on what to do when you are faced with eminent domain.

If you're approached by an oil company, gas company, or any other utility, eminent domain attorney Alan Ackerman says there are a few things you can do to ensure you're treated fairly.

Mr. Ackerman first suggested retaining a lawyer or at least consulting with one throughout the process. In most cases, he said, the entity attempting to obtain land or get easements will be responsible for homeowners' legal fees under Michigan law.

However, those who shy from attorneys also have options:

• Keep quiet, get the offer in writing and figure out what the basis for the offer is. Keeping quiet at this stage is important, said Mr. Ackerman, since whatever you say can be used later.

• Figure out exactly where the pipeline, wires, etc., are being installed. How will this affect the property next year? In 20 years? Does it destroy the farm tiles?

• Make sure you know what your local government mandates.

• Get everything in writing, make sure you can understand it and make sure it's specific. Do not sign anything until you have read it thoroughly and understand it.

• Keep the property well maintained.

• Keep in mind the people who come to negotiate the use of your property are professionals at this.

• Get an independent assessment.

• Get exact definitions.

• Beware of the tactics.

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UPDATE:  Right of way agencies are once again contacting owners.

Detroit News, September 19, 2007

City Council members grilled officials from Marathon Petroleum on Tuesday over the environmental impact of its $1.5 billion refinery expansion proposal and put pressure on the company to commit to hiring more Detroiters and minorities.

The project, which could bring up to 1,200 construction jobs and close to $9 million a year in taxes as well as increase gasoline supplies.

But some residents and environmental groups fear it would increase air pollution and say their southwest Detroit neighborhood is already overburdened with industry.

Company officials said they are committed to hiring Detroiters. They have scheduled job fairs and have set aside money for technical training and scholarships. The project will generate 135 permanent refinery jobs.

"The focus clearly is on Detroit residents," said Angelia Graves, a company spokeswoman.

-Marathon is still working to establish a plan, allowing for more temporary construction jobs and a number of permanent jobs. There is much to face in both the acquisition as well as construction process.

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Pantagraph, October 1, 2007

LeRoy attorney and political activist is recruiting clients to fight an eminent-domain request to build a crude-oil pipeline from Pontiac to Patoka in Southern Illinois.

Millions of dollars in payments to landowners hang in the outcome of Enbridge Inc’s request from eminent domain.

Enbridge spokesperson has repeatedly said eminent domain is a last resort.

-It is good to see an activist fight the condemnation process. However, each landowner should protect their individual interest on the damage claims. The same attorney can do this, but each owner should look to the individual claim that they may present. Otherwise, they may find themselves in front of a group of special masters who have no understanding of the issues at hand and face the possibility of no just compensation.

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Detroit News, September 4, 2007

Marathon cleared a hurdle this morning toward a proposed $1 billion expansion of its Detroit refinery.

The expansion would add 135 jobs at the refinery and increase gasoline supplies in Michigan.  The project would also create 1200 construction jobs.

Several city council members have said they have serious questions about the project's impact on the neighborhood.

-Apparently Marathon has slowed down its acquisition attempts in Monroe and Wayne Counties. Marathon is awaiting a final determination of which community will obtain the pipeline.

There are concerns about the negative impact on the neighborhood of the refinery. However, the station vis a vis the community and the brownfield cleanup may offset these concerns.

One thing is for certain, with a billion dollar proposed expansion, even if only a half tax occurs, an economic boom will occur in the local area.

The eminent domain proceeding, consisting of the condemnation necessary for the pipeline, would shift into high gear.

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Chico Enterprise, August 18, 2007

Paradise Irrigation District has been in talks about collaborating with its neighbor, Del Oro Water Co., to chare water from a proposed pipeline.

PID officials announced they are looking at an alternative. They would like to acquire Del Oro’s two districts covering Lime Saddle and Old Magalia.

Del Oro maintains its districts are not for sale.

If PID presses ahead with the acquisition process, it will have to seek approval from the Butte County Local Agency.

-The article is a classic example of the desire to obtain a new “economy of scale” in purchasing franchises, thereby expanding the business viability and opportunity. As part of this taking, the proposed acquirer would best review its statutory authority. See Grosse Ile Township v. Grosse Ile Bridge Company, 727 Mich. 593 (2007).

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Pantagraph, August 20, 2007

A Canadian crude oil transporter requested eminent domain to construct a pipeline through McLean, Livingston and DeWitt counties.

The eminent domain power is sought only in the interest of efficiency and to meet public need for crude petroleum.

Enbridge wants to construct a 170 mile pipeline east of Bloomington from Pontiac to Patoka. Construction is slated to start in 2008.

-The pipeline going through Indiana is also going through Illinois. Property owners are challenging the taking at the Illinois Commerce Commission. It is unlikely that the local Commerce Commission would rule against a pipeline, especially in the present day context that the pipelines are federal activities and the challenge would therefore be made at the federal level. The pipeline company will aggressively take on the farmers, so the farmers and other owners challenging the estimate of just compensation is incorrect at a future date.

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Pantagraph, July 10, 2007

A Canadian company that wants to contruct a crude-oil pipeline through Central Illinois plans to file for eminet domain power near the end of the month.

Eminent domain remains a last option, however, Endbridge Inc. might begin negotiating with landowners around the same time it files for certificate of good standing...

The 170-mile pipeline would run east of Bloomington Normal from Pontiac to Patoka, affects about 95 landowners in Mclean county, 68 in Livingston County and 65 in DeWitt Count.

-A Canadian pipeline will work its way through Illinois despite the opposition of the local farmers. The issue then becomes one of how owners can be treated fairly. To simply “start negotiations” does not deal with the compensation or the valuation of pipeline takes.

At least there seems to be recognition that the tile fields will require repair.

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Monroe Evening News, January 18, 2007

When property owners in Monroe Michigan found out about a proposed Marathon Petroleum pipeline they understood that pipelines are a fact of life, but that doesn't mean they have to like it.

Marathon has been laying the groundwork for installing a new pipeline through Monroe County.   The pipeline would bring crude oil from Canada to the transfer station in Detroit.

The new line would be wider by 24 inches.

-Pipelines often have different attributes. Some are gas, while others are oil or gasoline.
Each pipeline has a different effect on the property. The environmental considerations are of paramount import. Affects on the property may occur in any of a number of ways.

The pipeline companies can be challenged. Despite a pipeline agent telling people that it will be very expensive for them, in many jurisdictions, the agency is required to pay the expert fees of the owners even as part of a settlement or litigation. The Marathon pipeline discussed in the Monroe Evening News will be particularly challenging for owners.

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