Category: National Eminent Domain

West Virginia Supreme Court Sides with Landowners in Pipeline Survey Case

In a move which contradicts a recent California decision, the West Virginia Supreme Court of Appeals affirmed a trial court’s refusal to allow surveys for a contemplated pipeline installation.

The difference between California and the subject may be that FERC must first approve the project. Approval had not yet been obtained in West Virginia for the project.

It will take years to parse the decisions, but one can well expect that the US Supreme Court will at one point determine whether surveys and entries prior to acquisition require and create a takings issue.

“Opponents of Virginia’s surveying law, including property owners who have resisted surveying efforts, have argued that the pipeline company should not have access to their property until after FERC decides whether to grant the certificate.

Otherwise, opponents have said, entry without permission and compensation violates ‘takings’ provisions of the Fifth Amendment of the U.S. Constitution.

In turn, the pipeline company has said it needs to survey properties to identify a route it can present for FERC’s review that minimizes negative impacts to the environment and historical and cultural resources.

Meanwhile, pipeline foes in Virginia, including Roberta Bondurant in Roanoke County, cite language in the West Virginia Supreme Court’s ruling that they say supports their efforts to overturn the Virginia surveying law.”

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Grazing Rights & Eminent Domain

The United States v Fuller set forth the rule of non-compensability for government permitted grazing rights. These are cases in which the federal government leases land to adjacent ranchers who are then allowed to use the land for grazing purposes.

Recently an organization has claimed grazers are effectively partial owners of the federal lands. This would run contrary to the precedent of sovereignty existing since the Magna Carta. One only need to look at the Public Land and Resources Law Review article which concludes the gazing rule a departure from eminent domain. To the contrary, the notion of sovereignty does still exist, even though this blogger would prefer it did not.

One thing is for certain. If the rules on permits change and provide for the temporary use to create compensability, the federal government will lease no land at all.

“Bonds said the allotment swap hasn’t been spoken of again.

McIntosh, the executive director of a new organization called Grazing Allotment Owners Association said a couple of historic court cases lend credence to his theory that grazers are partial owners, not renters of their allotments.

“Grazing allotments are private property – they are split estates. The government owns the mineral rights and the commercial timber rights and the rancher owns valuable land for grazing and stock water rights,” he said. The Supreme Court has also referred to the rancher’s right as “limited fee title,” he said, which includes all of the improvements, stock water rights, and forage.

“Based on U.S. v New Mexico, a 1978 Supreme Court decision, they (the ranchers) own the stock water rights, based on Kinney Coastal Oil v. Kieffer, they own the surface estate,” said McIntosh. “Also in Watt V. Western Nuclear, a 1983 Supreme Court Decision, the split estate concept is confirmed.”

The ranchers own the surface rights, starting with the Stock Raising Homestead Act of 1916, he said. “That’s why ranchers can buy or sell those allotments and they have been able to for 100 years. It was the basis for grazing allotments when they created the resettlement projects in the great plains that are now called national grasslands. Those were actually established as ‘resettlement projects.’”

Even the term “public land” is not used correctly, McIntosh believes.

“The definition – the original definition – was land that belonged to the United States that was open to entry and disposal.”

In 1920 Congress changed that legal definition because it had disposed of all these western lands as grazing allotments. “Now the definition after 1920 was land – and interest in land – that belonged to the United States and was open to entry and disposal. The reason for that distinction is because Congress created a split estate – so it was no longer talking about disposal of land but land ‘or interest in land’ and under these grazing allotments, the rancher owns grazing rights, the U.S. owns mineral rights.”

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Why Kitchen Table Meetings Do Not Work

The Indiana Department of Transportation is by its nature a public agency intending to serve the public. But the Department does not always “help” individuals who are about to be acquired. The notion that INDOT will contact individual owners for “kitchen-table meetings” with a third party appraiser implies that somehow the whole situation is collegial program. Realistically, the Department of Transportation agents would love to sit down with the owners and know all the owner’s positives and negatives. However, the owner comments may be taken out of context and utilized at some future trial. Nothing could be more detrimental to the owner. Below is a page of warnings to property owners, written by this firm years ago, but still instructive.

“The state estimates that in a worst-case scenario it could acquire as many as 279 homes and 96 businesses. But the exact route won’t be determined until 2018, and the amount of land acquired could be less.

Under the powers of eminent domain, the state can take private property for public use. In the first five sections of the highway project, the state paid $184 million for 348 properties.

When the properties the state needs are identified, INDOT will contact owners for in-person “kitchen table meetings,” and a representative will be assigned. A third-party appraiser will value the property, which will be reviewed by a second appraiser. To request a change in the appraisal, the owner must submit documentation to back it up.”

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The Invitation To Cheat

When governments have “secret” checkbooks, and public officials can pay for personal contract services without contemporaneous public review, public officials seem to consistently get themselves into corruption investigations, subjecting themselves to criminal liability.

The situation described in Allentown involves a number of substantial and well respected law firms. All are tarnished by the process in which they received 3.8 million dollars in attorney fees. Noteworthy is that a substantial proportion of the unchecked billings occurred out of eminent domain proceedings.

This is not unlike what had occurred in Bridgeport, Connecticut only ten years ago. There, the attorney received “bonuses” in the form of broker’s fees when he bought properties for the City, with the broker’s fee increasing as owners received greater amounts of alleged compensation.

The invitation is one which is too attractive to too many. Too frequently, professional services are rendered to those who are most active in the process rather than those who have a concern about being fair and paying what is Just Compensation to owners, which should be the most important consideration.

“For more than three years, the FBI has been investigating an alleged pay-to-play scheme in Allentown to determine if public officials traded contracts and other favorable treatment for campaign contributions, food and drinks. Three city officials and three others have pleaded guilty in the investigation, which was revealed last summer with the raid of Allentown City Hall.

FBI agents served the city the subpoena asking for thousands of documents related to more than two dozen people and businesses that worked or attempted to work with Allentown. Their examination covered the previous decade’s worth of records. In a series of stories, The Morning Call has analyzed bills, invoices and agreements from numerous contractors on the list.”

“Stevens & Lee topped the list with $1.79 million received over the 10-year span. Norris McLaughlin earned $1.73 million from work performed directly for the city and for the Allentown Neighborhood Improvement Zone Development Authority as it built the PPL Center arena. Duane Morris was paid $319,000.”

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Pipeline Challenge Goes down a Beaten (and Unsuccessful) Path

Owners in Medina, Ohio are attempting to stop Nexus surveys of the proposed properties to be taken.

The decision to acquire is one which only is made after the surveys are made and the determination of the best route is completed. One of the problems is that the determination of best route may not necessarily be what is most environmentally sensitive or least expensive, but rather what the utility, in its sole discretion, determines as the “best route”.

The challenge being made by the owners is similar to what was made and rejected in California only last week. See Alan Ackerman, Important Right of Entry Statute Found Constitutional, National Eminent Domain, July 2016.

“MEDINA, Ohio — Lawyers for a proposed natural gas pipeline argued in court that surveyors should be allowed on the land of more than 32 Medina county property owners to survey endangered bats, wetlands and cultural or historical sites along the pipeline’s 255-mile path.

Residents oppose any intrusion by Nexus Gas Transmission on their land.

Medina County Common Pleas Court Judge Christopher Collier heard part of Nexus’ request for a court order to allow the surveys Wednesday morning. The hearing will continue Thursday.

In October, Collier ruled that Nexus workers should be permitted onto the property of homeowners to perform surveys for the pipeline. That ruling has been appealed to the U.S. Ninth District Court of Appeals, which has not yet issued a ruling.

“These people have received letters saying they must sign papers to allow the (land) survey by Nexus or they (Nexus) will simply enter the property on certain dates,” said Greg Huber, lawyer for the landowners. “Private property owners have the right to tell someone they cannot enter their property. Nexus representatives come to their doors, and while one man talks, the other man stands there carrying a sidearm.”

Nexus spokesman Adam Parker responded by email, “Occasionally, Nexus employs off-duty police officers at its own expense to accompany its survey crews in order to ensure their safety and security.”

Residents in court Wednesday said that the request to allow people on their land to look for bats, wetlands and historical sites was a way of getting around homeowners’ refusal to let them survey their property for the gas line.

“I think that they are using the bat issue as a backdoor way of getting onto our land so they can survey it for the pipeline,” said Jacqueline Pradu-Fecca, of Medina.”

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Important Right of Entry Statute Found Constitutional

Almost every state has a “Right of Entry” statute. The provision that allows an agency considering the acquisition of property, the right to enter property to survey and test the property prior to the filing of a condemnation case. This entry is not to be one that damages a property, or any damages would then be paid for.

This Right of Entry provision has been held constitutional in California despite the notion that anything touched or taken should be paid for generally on a good faith offer prior to acquisition. Quite simply, the surveying process, one which is available in almost every jurisdiction, is one necessary for authorities to not be at risk of paying too much for property.

The California Supreme Court opinion Property Reserve v. Superior Court, (2016 WL 3924221) has been awaited for months because of its implication in the statutory process of many other jurisdictions.

“In a defeat for Delta landowners, the state Supreme Court on Thursday ruled that government officials need not go through a formal eminent domain process before they can survey private property for the $15 billion twin tunnels.
The decision reverses a lower court’s ruling and removes one potential hurdle for the massive water diversion project after a six-year, back-and-forth legal struggle between Delta farmers and the state Department of Water Resources.
Delta farmers, who fiercely oppose the tunnels, objected to the state’s efforts to access their land. The proposed surveys included activities such as searching for animals, taking photographs and drilling softball-sized holes more than 200 feet deep to examine the soil.”

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