Federal Eminent Domain Blog : Eminent Domain & Condemnation Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan, Ohio, and Washington, DC

FERC is now determined to prepare an Environmental Assessment discussing the environmental impact of the Southeast Market Expansion Program. The demand for gas pipelines and storage likely exists, and one can see the major eminent domain proceedings being initiated in the State of Mississippi.

http://www.power-eng.com/news/2013/05/07/gulf-south-pipeline-company-lp-supplemental-notice-of-intent-to-prepare-an-environmental-assessment.html

As previously noticed on November 19, 2012, and supplemented herein, the staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impact of the Southeast Market Expansion Project (SEME Project or Project) involving the construction and operation of facilities by Gulf South Pipeline Company, LP (Gulf South) in Jasper, Forrest, Perry, Greene, George, and Jackson Counties, Mississippi and Mobile County, Alabama. The Commission will use this EA in its decision-making process to determine whether the Project is in the public convenience and necessity. The Commission staff began its review of the Project on September 17, 2012, during the pre-filing process under Docket No. PF12-21-000. The initial scoping period closed on December 19, 2012.

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The proposed Sacramento River Water Diversion Project will be a major game changer in California for literally dozens of square miles of prime farmland which will be destroyed. However, the water will be more readily available to millions of dry tounged South California recipients.

http://www.miamiherald.com/2013/05/12/3393885/delta-tunnel-project-to-radically.html

The plan has been in the works for seven years as a way to resolve long-standing tensions between statewide water demand and stress on the Delta. The estuary helps meet the water needs of 25 million people and 3 million acres of farmland, primarily south of the Delta. The tunnels are intended to make that freshwater demand less harmful to imperiled fish. The plan also calls for 100,000 acres of habitat restoration.
But the megaproject is giving rise to life-altering questions for people who live in the Delta, a mosaic of 70 islands and 1,000 miles of waterways that is the largest estuary on the West Coast of the Americas.
Nowhere are the impacts more significant than in this 10-mile corridor of farmland between Freeport and Walnut Grove in Sacramento County. All three intakes are proposed here, along with most of the additional above-ground infrastructure.
"It changes totally the river from Freeport to Walnut Grove," said Cathy Hemly, the matriarch of another prominent farming family, which has grown pears and apples since 1850. "We are absolutely in the bull's-eye."

Read more here: http://www.miamiherald.com/2013/05/12/3393885/delta-tunnel-project-to-radically.html#storylink=cpy

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“Otter Creek is probably the biggest development opportunity our state will see in our lifetime,” said Jim Atchison, director of Southeastern Montana Development, an economic promotion group. “So even though people may be complaining about coal development and how dirty rotten bad it is, it pays a lot of bills in the state of Montana.”

The McRaes contend that the biggest costs are the ones you can’t see — the underwater aquifers that already have been polluted with coal ash.

“We have 16 springs on this ranch, and every single one of them comes out of a coal seam,” said the elder McRae, 78. “Now, they call us radical environmentalists because we want the laws enforced.”

The 42-mile-long Tongue River Railroad, they said, would bring its own problems. Seven trains a day would disrupt their cattle operations and impede efforts to fight rangeland fires.

“They will cut off our cattle from water - it’s like a concrete wall,” said Clint McRae, 50. “And if we don’t fence it off, we’re going to have cattle just wiped out by trains.”

The McRaes these days tell neighbors in Colstrip it’s not just the future they need to think about; look what’s already happened to the past. A widely known cowboy poet, the elder McRae penned a verse about landmarks that disappeared when the coal men came in. “Nobody knows, or nobody cares, about things of intrinsic worth,” he wrote.

Colstrip Mayor Rose Hanser counters that coal helped make southeast Montana a habitable place.

“We probably have two or less people per square mile in this part of the country. So when you’re providing jobs for hundreds of people in a state that has less than a million residents, you are impacting the economy of an entire state,” she said.

There has been some pollution, she said, “but the trade-offs are incredible. You have a better education system, you have better infrastructure, better recreation and activities.”

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Charlotte, North Carolina is concerned about the present posture of its acquisitions. It has purchased hundreds of acres of land in recent years. The question is one of whether this is the proper way to proceed given the unknown need for the future development.

http://www.charlotteobserver.com/2013/05/04/4023287/airport-authority-would-play-big.html

Aviation director Jerry Orr, who supports removing the airport from the city’s oversight, has long had expansive plans for the area. “Planners say we will end up owning the west side. We don’t disagree,” Orr said in 2000.
Orr says the land west of the airport could support high-technology manufacturing and distribution, and maybe new research and technology facilities similar to those around UNC Charlotte. With access to air travel, Interstates 77 and 85, and what’s expected to be one of the busiest intermodal rail yards in the country, he favors commercial over residential development.
Now Orr is seeking to buy 350 more acres just south of the airport for $35 million.
The land will be used for warehouses to support the intermodal yard, Orr said. North of the airport, on the site of what used to be the East Coast Bible College, Orr has floated plans to build a Charlotte World Trade Center to provide space for international businesses.
How authority would work
The airport authority envisioned by the legislature would be governed by a new, regional board of 13 members, appointed by the Charlotte City Council, Mecklenburg commissioners, five surrounding counties and the state Senate, House and governor.

Read more here: http://www.charlotteobserver.com/2013/05/04/4023287/airport-authority-would-play-big.html#storylink=cpy

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The North Carolina Legislature is dealing with an issue being dealt with throughout the United States. City water systems somehow fail. It is claimed that they cost too much, or that the water is not clean enough, or that they are mismanaged.

http://www.citizen-times.com/article/B0/20130427/NEWS/304270015/Water-transfer-legislation-altered

“The unprecedented use of eminent domain to seize a city-owned water system reveals a party power structure indifferent to the principles upon which that party is founded,” he said in a statement.

Senators from Wake and Mecklenburg counties pushed for the amendments to House Bill 488 during debate this week. The amendments go back to the House for consideration before the bill goes to the Senate for a final vote.

Republican leaders expect it to pass. Republican Gov. Pat McCrory would then have to sign it into law.

The water bill is controversial in Asheville. Local officials contend the city stands to lose millions of dollars and control over development if its water system is merged with a regional authority.

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This blogger in nationaleminentdomain.com has often discussed how important the terms of a lease are when dealing with a pipeline or storage company. In the situation described in the Pittsburgh Post article, one can find how a simple owner is placed in a situation with serious litigation risks simply by not having a clear understanding of what the owner is giving up.

http://www.post-gazette.com/stories/local/marcellusshale/eminent-domain-plays-a-key-role-in-us-pipeline-projects-685203/

When pipeline companies invoke eminent domain, there isn't much the targeted landowner can do to prevent or even slow the construction.

"Once they file their papers, they generally have to put up some sort of bonding amount. And with that bonding amount, they have the right to go into the property and do whatever they need to do," said Greensburg-based attorney George Kotjarapoglus, who represents another defendant. "You can't stop it."

PG graphic: Pipelines in Western Pa.
(Click image for larger version)

Columbia declined comment through a spokeswoman....

What if a company wants to build a new pipeline across your land? As a defense attorney, he'd "certainly take a look at every aspect of the property -- what they've used it for, how long they've had it, whether it's the least intrusive means" of advancing the pipeline, he said.

"What's currently on it?" he asked. "What's it being used for? What's it currently zoned?" If the property owner can show that he is taking steps to develop it, the court might factor that into its calculation of the value, he said.

Also this month, Columbia sued two Claysville residents who own 90 acres in Donegal. The eminent domain lawsuit in U.S. District Court said that the company owns the mineral rights under the property pursuant to a 1967 lease, which the landowners, Duane Douglas Wolfe and Bridget A. Wolfe, contend is invalid.

That lawsuit added a federal component to a legal fight that started in state court. There the Wolfes have asked a judge to confirm that they, and not Columbia, own the oil and gas rights for their 90-acre parcel.

Columbia's federal lawsuit said that the company stores gas underground, above a layer of sandstone. It said the Wolfes are allowed to continue to use the property "in any manner that will not interfere with Columbia's use and enjoyment of its rights," but the company wants to "re-secure" its rights in preparation for "constructing, maintaining, operating, altering, testing, replacing and repairing" its storage system there.

 

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One of the great development tools used by communities has been to force people to give up property (dedication) in order to obtain development that would and should otherwise occur.

http://tbo.com/list/news-columns/jackson-pasco-ceo-job-just-got-a-lot-tougher-b82480762z1   

Then attorneys for Hillcrest Preserve, a never-built mixed-use community north of State Road 52 west of Interstate 75, fed the ordinance to the human document shredder known as U.S. District Court Judge Steven Merryday, and when he was finished, Pasco’s well-laid plan was reduced to confetti.

The gist of the scheme was this: Owners of property along thoroughfares slated for expansion were divided into two groups. Those not interested in development would, at the proper moment, be paid “just compensation” for land that became part of the new right-of-way. But those with development ambitions were required to surrender, without payment, land within the proposed right-of-way as a prerequisite for having their plans approved.



To say Merryday was not amused is to put things tamely. Summarizing a 52-page opinion that fairly blazes with exquisite — if restrained, given the implications — fury, the judge writes, “Pasco County has enacted an ordinance that effects what, in more plain-spoken times, an informed observer would call a ‘land grab.’ ”

Had he wanted to be exceptionally blunt, the judge could have said Pasco was running a shakedown operation: Nice little development plan you got here. Shame if anything happened to it.

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The Pew Charitable Trusts article really got it right in the article below. The next major fight between States will not be about land or politics, but about water. The division of water rights was premised upon Compacts entered into years ago. Many States feel that the old Compacts should be modified in accord with population changes.

http://www.pewstates.org/projects/stateline/headlines/red-river-showdown-texas-oklahoma-water-war-could-reverberate-across-us-85899470724 

But those victories were only the opening salvos in a Red River showdown fought not on the gridiron, where the states’ universities are fierce rivals, but in a series of courtrooms. Now the U.S. Supreme Court, which heard oral arguments Tuesday, will have the final say in a dispute likely to reverberate far beyond the combatant states.

In 2007, the Tarrant Regional Water District, a state agency that allocates water in north central Texas—including the two million people who live in Dallas-Fort Worth—filed a lawsuit alleging that a four-state water compact signed by Texas, Oklahoma, Arkansas and Louisiana entitles Texas to some 130 billion gallons of water from Oklahoma’s side of the Red River basin.

The case before the Supreme Court focuses on the four-state water compact, but it raises broader ideological questions about state sovereignty and interstate commerce.

A sweeping decision could unleash a flood of litigation asking courts to crack open some of the more than 30 compacts that determine how states share water. Adding to the tension is climate change, which is contributing to droughts across the country, further shrinking contested supplies.

“It could have profound effects on state water regimes across the country,” said Mark Davis, director of the Tulane Institute on Water Resources Law and Policy.

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The Clean Line project in Kansas has taken some of the owners by "surprise". It is astonishing that these owners should be surprised when they already have a line traversing the property. Clearly the Environmental Impact Statements and the Public Regulatory agencies place greater favor in assigning new right of ways near already existing easements. All too often, Environmental Impact Statements urge, or at least show a preference, for the new easements to follow the path of old easements.

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