OCA Blog

August 15th, 2020 — In Articles

Natural Gas Pipeline Easements: An Overview of the Takings Jurisprudence by Andrew Brigham

Although the eminent domain power is an attribute of the sovereign, there are instances in which a private licensee is delegated the power for the acquisition of easements necessary to establish a lineal corridor. For the purposes of this article, our examination of the jurisprudence associated with the acquisition of lineal corridor rights takes place in the “laboratory” of the federal district courts in Florida. For it is there that a new interstate pipeline project, known as the Sabal Trail Natural Gas Pipeline, resulted in the filing of approximately 263 condemnation cases for a lineal corridor of some 247 miles needed to construct a thirty-six-inch-diameter pipeline capable of transmitting up to one billion cubic feet of natural gas a day.

In review of these cases, some of which are yet pending appeals before the Eleventh Circuit, we are able to observe how private property rights are regarded when it is a private company wielding the eminent domain power to acquire easement rights, which make servient the estates of owners to a use of property that purportedly diminishes the value of their remainder property due to fear or stigma. Likewise, because some of these cases actually proceeded to jury trial on the measure of compensation, a rare look is afforded as to exactly how, as gatekeeper, a trial judge must often balance between admitting evidence that furthers the owner’s entitlement to a measure of compensation, which includes loss or severance damages resulting from fear or stigma, but preclude evidence where under Federal Rule of Evidence 403 the probative value is outweighed by unfair prejudice or jury confusion. Within this context, evidence as to the existence of fear or stigma is relevant and admissible, while evidence as to the reasonableness of fear or stigma is irrelevant and inadmissible. Topics discussed in this article include:

(a)  the progression of federal courts in condemnation cases under the Natural Gas Act to grant “immediate possession” in lieu of a delegated “quick-take” power;

(b)  the federal courts’ application of state law instead of federal law as the choice of law that controls the measure of compensation;

(c)  the federal courts’ decision to use jury trials instead of commission trials to determine the measure of compensation;

(d)  the condemnor’s use of Daubert challenges to exclude or limit testimony and evidence that is related to severance damages resulting from fear or stigma;

(e)  the condemnor’s objection to the testimony of the property owner as to the quantification of severance damages resulting from fear or stigma;

(f)  whether jury trials result in a “fair” and “just” determination of the measure of compensation.

To read this article in full please refer to the Brigham Kanner Property Rights Journal, [Vol. 8:121]

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April 16th, 2020 — In Uncategorized

PA Supreme Court Rejects Takings Challenge To COVID-19 Shut-Down Orders

In one of the first comprehensive court opinions on an issue of national interest, the Pennsylvania Supreme Court rejected business owners’ challenges to the recent shut down orders issued by Governor Tom Wolf in response to COVID-19 on various legal grounds. Ruling that the orders were supported by a compelling public health rationale and were not a regulatory taking of property because they were temporary in nature, the court upheld them. For a full review and analysis of the opinion, click here.

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July 23rd, 2019 — In Articles

Knick v. Township of Scott, Pennsylvania: Federal Courthouse Doors Now Open to Taking Claimants by OCA Member James Masterman

On June 21, 2019, the U.S. Supreme Court, in a 5-4 majority opinion written by Chief Justice John Roberts “restor[ed] takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.”Knick v. Township of Scott, 139 S. Ct. 2162 (2019). The Fifth Amendment’s “nor shall private property be taken without just compensation” is the clause Chief Justice Roberts references and is the bedrock protection afforded private property in the Bill of Rights, ensuring that full, fair, and just compensation is paid when a taking occurs. If rights guaranteed landowners in the Bill of Rights had so eroded that restorative action, and not merely interpretative, was necessary, there ought to be little dispute at the highest court. To the four justices who dissented, however, the Knick decision “smashes a hundred-plus years of legal rulings to smithereens.” Knick, 139 S. Ct. at 2183 (Kagan, J., dissenting). What could possibly have caused such a hot dispute in the fairly tepid world of eminent domain? Read on.

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July 18th, 2019 — In Articles

The Nasty, Brutish, and Short Life of Agins v. City of Tiburon

By OCA Members Gideon Kanner and Michael Berger

IF THE DUKE OF YORK’S MEN THOUGHT they were being made to perform useless, repetitive tasks to no worthwhile end, they were in about the same condition as the American lawyers who were practicing tak- ings law in the 1970s and 1980s. During that period of time, hordes of lawyers representing the competing sides in regulatory taking cases were sent, figuratively, charging up the hill to the Supreme Court (which, to make the analogy complete, sits on top of Capitol Hill in Washington, D.C.) in an effort to do intellectual battle over the issue of remedies in regulatory taking cases. That issue was whether such takings call for constitutionally mandated “just compensation” as specified in the Fifth Amendment, or only for judicial invalidation of the constitutionally overreaching regulation. Read on.

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June 24th, 2019 — In Articles

Knick Analysis, Part I: After More Than 30 Years, Supreme Court Reopens The Federal Courthouse Door To Property Owners

Read OCA Member Robert Thomas’ take on the recent Knick decision in his blog entitled Inverse Condemnation here.

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June 24th, 2019 — In Uncategorized

More than a ‘Knick’—SCOTUS Overrules ‘Williamson County’ in Stunning Victory for Property Owners

Read OCA Member Dwight Merriam’s fascinating article in the Connecticut Law Tribune on the impact of the recent Knick decision on landowner property rights here.

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May 6th, 2019 — By  Dwight H. Merriam, CRE — In Articles

OCA Member Dwight Merriam Weighs In On Controversial Topic Before Connecticut Supreme Court

By Dwight H. Merriam, CRE

Over the last 40 years, more than 8 million babies have been born through the miracle of in vitro fertilization, creating new love and new families.
But when couples split, what happens to the embryos? Is this a property rights issue or someting else? It’s not an easy question to answer. Connecticut would benefit from a law that provides
guidance. In the meantime, the Connecticut Supreme Court has that question before it. See OCA Member Dwight Merriam’s recent Article on this controversial topic in the Hartford Courant.

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January 17th, 2019 — In Uncategorized

Listen to OCA Member Andrew Prince Brigham’s NPR Interview on Eminent Domain and Trump’s Border Wall

March 5th, 2018 — In Uncategorized

Manatt Triumps in Eminent Domain Lawsuit Against the United States

Manatt, Phelps & Phillips, LLP, litigators, led by partner and OCA Member Edward G. Burg at trial, secured a victory for Hahm International Inc. and Levand Steel & Supply Corp. on Feb. 15 in the U.S. District Court, Central District of California against the United States. The jury awarded $30.3 million in compensation to the owners of 1,000 acres of land in the Mojave Desert, which was taken by eminent domain for expansion of the U.S. Marine Corps training base at Twentynine Palms.The property, owned by principals of Hahm International Inc. of Apple Valley and Levand Steel & Supply Corp. of Los Angeles, contained a permitted iron ore mine that was slated to supply iron ore to the cement industry for the next 45 years. The United States told the jury that the property was worth $5.6 million, while the owners claimed the property was worth $38.6 million.Burg, representing the property owners, hailed the verdict. “We always believed that the federal government vastly undervalued the property by not recognizing its uniqueness and its importance to future infrastructure and construction in California,” he said.

The property owners currently own one of two active iron ore mines in California supplying iron to the cement industry. The property in the lawsuit, a permitted mine known as Morris Mine, was to become the next source of iron ore for the industry. Located in Johnson Valley, in the desert east of Apple Valley, it is the only iron ore mine permitted in the state in the past 15 years.

The presently operating mine is scheduled to close in 2022 because it is in the path of the expansion of the Fort Irwin Army Base. The owners reached an agreement with the U.S. Army in 2006 that allows them to mine iron ore intermittently, leaving the property when the Army troops need to train. However, the Marine Corps was not willing to enter into a similar shared-use agreement for Morris Mine.

The United States filed its eminent domain case in 2016 to acquire the mine for expansion of the training base. The case was tried in federal court in downtown Los Angeles before Chief Judge Virginia A. Phillips.

After a six-day trial, the jury reached its verdict Thursday, finding that the owners are entitled to $30,273,850 from the United States for the taking of their property.

“We are gratified that the jury took the time to understand how valuable this property is,” said Burg. “We respect the Marine Corps’ decision to expand its base, but the United States never properly recognized the true value of the property.”

About Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP, is one of the nation’s leading law and consulting firms, with offices strategically located in California (Los Angeles, Orange County, Palo Alto, San Francisco and Sacramento), New York (New York City and Albany), Chicago and Washington, D.C. The firm represents a sophisticated client base—including Fortune 500, middle-market and emerging companies—across a range of practice areas and industry sectors. For more information, visit www.manatt.com.

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February 28th, 2018 — In Articles

Five New Orleans stores to receive $2.1M from Major Drainage Project

Owners’ Counsel of America Member Randall Smith represented several landowners who filed damage claims arising from a sewage and sanitation project in New Orleans. After several years of litigation, the New Orleans Sewerage & Water Board has agreed to pay five Uptown stores a total of $2.125 million for physical damages and the loss of business caused by major drainage work done on Jefferson Avenue in recent years.

The settlement, finalized Monday, comes as the S&WB is preparing for trial in a case brought by 275 plaintiffs who allege their homes also were damaged by work on the Southeast Louisiana Urban Flood Control Project, usually referred to as SELA.

Langenstein’s, Discount Corner, Prytania Liquor Store, Prytania Mail Service and British Antiques are among the first plaintiffs to settle claims against the S&WB for damage from the work that turned Jefferson, Napoleon and Louisiana avenues into construction zones for years

The five businesses suffered structural damage, including cracks in their buildings and problems with their foundations, and saw their business drop off because the construction limited access to their locations, said Randy Smith, an attorney representing the stores.

“At the end of the day, the S&WB and its lawyers stepped up and did what was right,” Smith said.

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