Job Posting For New International Trade Crossing

The Windsor-Detroit Bridge Authority job posting has been placed as a public notice. Apparently this posting is being made through the Ontario\Windsor side of the Authority.

Perhaps the building of the Bridge will really occur!


Federal Appeals Court Follows Traditional State Rule

Almost every jurisdiction follows the rule that an agency may not acquire more than it statutorily has a right to condemn. In other words, eminent domain may not be enacted for a use that is not legislatively delegated to the condemning authority.

In a recent City of Idaho Falls case, the U.S. Ninth Circuit Court of Appeals properly ruled that Idaho Cities may not acquire outside the City limits unless provided specific legislative authority by statutory delegation. This falls in line with the case of Grosse Ile v Grosse Ile Bridge Company, 722 NW2d 220 (2006), a decision that maintained that an acquiring agency cannot exercise its condemnation power beyond its limits in the absence of statutory authorization.


The landowners, operating as the Alliance for Property Rights and Fiscal Responsibility, sued in state court in March of 2012 to prohibit the City of Idaho Falls from condemning land in unincorporated Bonneville County for a transmission project.

The case was moved to federal court based on the landowners’ claims that condemnation would violate their 14th Amendment due-process rights.

“(The city) had told our clients negotiations had come to an end and the next step would be to condemn their property,” said Brent Whiting, attorney for the landowners.

In its Dec. 31 decision, a three-judge Ninth Circuit panel upheld a prior ruling against the city by Chief U.S. District Judge B. Lynn Winmill.

“Neither the Idaho Constitution nor the Idaho Legislature has expressly or impliedly given Idaho’s cities that power,” Judge N. Randy Smith wrote on behalf of the Ninth Circuit panel.



Another Example Of The Difficulty In A Successful Inverse Condemnation Action

The Federal Court of Appeals Opinion on flooding caused by the activity of local agencies relying on the United States Corps of Engineers is exemplified by the recent Prado Dam decision.

Even though the Federal Government is clearly the active participant in a process limiting use of land, including the Federal Government in an inverse condemnation action is well near impossible. This is simply one more example of the difficulty of successfully processing inverse condemnation proceedings.



The sequence of events that limited uses of the farms’ property doesn’t rise to the level of an unconstitutional taking, the appellate court ruled.

“The actions of state and local officials in voluntarily implementing zoning restrictions that affect the landowner’s property do not become takings by the federal government just because the local officials act in cooperation with, or at the urging of, federal officials,” the ruling said.

Courts have recognized “de facto” takings by the government, but in those cases the government “substantially interfered” with property rights — for example, by prohibiting mining of the land, the ruling said.

In this case, there has been no physical invasion and no “federal statute, regulation or other directive has limited the plaintiffs’ rights with respect of the use of their property,” the appellate court said.



The Constraints Between State Regulation And Local Regulation

The Pennsylvania Supreme Court has determined the natural gas rules passed by the State legislature were partially unconstitutional. The reasoning is premised upon the right of local zoning regulations to supersede the State legislative decisions because of the constitutional limitation on State regulated decisions.

This tension between State legislative decision making, especially in favor of special interests, is well exemplified by the gas and oil industry prevailing against long-standing constitutional protections for local government. This loss of local protection against gas exploration and regulation is a conflict occurring in many jurisdictions.

Seven municipalities had challenged the law that grew out of the state's need to modernize 20-year-old drilling laws to account for a Marcellus Shale drilling boom made possible by innovations in technology, most notably horizontal drilling and hydraulic fracturing. The process, also called fracking, has drawn widespread criticism from environmentalists and many residents living near drilling operations.

"Few could seriously dispute how remarkable a revolution is worked by this legislation upon the existing zoning regimen in Pennsylvania, including residential zones," wrote Chief Justice Ron Castille. He said the law's rules represented an unprecedented "displacement of prior planning, and derivative expectations, regarding land use, zoning, and enjoyment of property."

The high court's decision comes at a time when the energy industry is increasingly able to capture oil and gas from previously unreachable formations and, as a result, is bumping up against suburban and urban expectations of land use in states including Texas, Colorado and Ohio, where a similar legal challenge is underway.

The 2012 law restricted local municipalities' ability to control where companies may place rigs, waste pits, pipelines and compressor and processing stations, although the new zoning rules never went into effect because of court order after the towns sued. A narrowly divided lower court struck them down in 2012, but Corbett appealed, saying lawmakers have clear authority to override local zoning.



Columbia Gas Storage Cases Get Hot

The Columbia Gas Company has filed a countersuit to the class action filed by property owners who have lost their gas and given up gas storage rights to expanding and seeping Columbia Gas storage fields.

The class action was filed by the Vorys firm, a law firm which maintains a number of capable and highly competent attorneys well versed in mineral rights and eminent domain. The Columbia countersuit probably is improperly filed because FERC has not has yet been granted the right to condemn.

These cases will require serious and substantial expertise to be properly presented. Attached is an article explaining the lawsuit, but an interesting commentary is made by Royce Larsen, who lost property for gas storage in another state at the end of the article.

Hiring competent counsel is the key. All too often, cases are solicited by individuals who have no sense of how to properly proceed on behalf of property owners.

Farm and Dairy

According to court records, the landowners who filed the class action lawsuit do not have a lease signed with Columbia Gas.

However, the landowners’ properties are being used by Columbia Gas Transmission as part of underground storage facilities.

The original lawsuit filed is asking for fair compensation for the landowners.

The case is not about challenging the need for underground storage facilities, but instead asking for fair compensation. The lawsuit claims the landowners are not being compensated for the use of the storage space under their property, and that the land is being used without their permission.



The Slow March To The Michigan Bridge Crossing

A new NITC time line has now been generated. It contemplates seeking bids in 2015. Arguably acquisition will occur before that.

The delays for the Detroit River International Crossing, now called the New International Trade Crossing, has been nothing short of a disaster. The recent Crain’s article provides an alleged new time table.

Canada and the State of Michigan fully comprehend that the 42 acre Yellow Freight Truck Terminal, now owned by Matty Moroun, will be a very sensitive issue. Hopefully the Moroun ownership will not cause a further delay because of its ownership of what for trucking is a relatively small piece of property, inhibiting others from finally being compensated for their years of waiting.


Crain's Detroit Business

The timeline and cost estimate, generated in 2010, have remained unchanged, organizers said.

"We still expect the entire project will take about seven years, starting from when we received the presidential permit back in April. During the next two years, we expect to complete the preliminary design, acquire property and relocate utilities," said Mark Butler, Transport Canada's senior communications adviser for the Gateway Project.

A permit related to shipping traffic clearance for the bridge is needed from the U.S. Coast Guard. That permit has been submitted, Ken Silfven, Gov. Rick Snyder's deputy press secretary, wrote in an email.
In the meantime, for any Delray property owners who choose not to sell, the state has said it plans to use eminent domain to acquire the parcels needed.

"The estimate is $350 million, although condemnation proceedings are somewhat unpredictable, as you can imagine," Silfven said.

The bridge footprint at one point included 43 businesses, 257 homes and five churches. It's believed the number of properties has been reduced. A large percentage of the land already is publicly owned from tax foreclosures, Lt. Gov. Brian Calley told Crain's in 2011.

The plaza site is bounded by Jefferson Avenue, Post and Campbell streets, and the NS/CSX rail line.

The leading opponent of the project is Ambassador Bridge owner Manuel "Matty" Moroun, the commercial trucking industrialist who has said the new span will bankrupt his bridge by taking lucrative commercial truck traffic.

He owns the 42-acre former Yellow Freight truck terminal at 7701 W. Jefferson, which is partially in the bridge site. Moroun bought the property in 2010 and moved some of his trucking operations there.



Federal Tomato Case Delay

In arguing the claim of a salmonella outbreak as an improper “taking” of property, under federal regulations “litigation reports” are exchanged.

It is amazing that the federal government’s shutdown has simply delayed the progress of the case and rights of the owners to determine just compensation.


The Packer

The government’s answer to the tomato lawsuit is now due Jan. 24.

The Justice Department also blamed the absence of a “litigation report” from the Department of Health and Human Services for the delay, according to court documents.

“Preparation of the litigation report requires significant coordination between the Food and Drug Administration and the Centers for Disease Control (and Prevention), in order to investigate the allegations set forth in the complaint. This coordination was delayed, in part, because relevant personnel were not permitted to work from Oct. 1 to Oct. 16 during the government shutdown,” according to the request for an extension.

The Justice Department attorney assigned to the case is also bogged down with work on at least six other federal court cases as well as cases pending in the Court of International Trade that have recently been transferred to him, according to the document.

In the complaint, the tomato growers contend that the FDA’s erroneous naming of tomatoes as the source for a salmonella outbreak later linked to hot peppers from Mexico entitles them to $40 million from the government under the eminent domain clause of the Constitution’s Fifth Amendment.

Referred to as the “takings clause” in the tomato growers’ lawsuit, the provision in the Constitution requires government to pay fair compensation when taking property for public use. However, the property doesn’t have to be used by the public. Rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest.



Increased Safety Zones Come At A Cost

As noted in the Columbia-Greene Media comment, the proposed increased safety zone at the Columbia County Airport will require an acquisition. In this specific case, a golf course will be severely affected. These are tough decisions, but they must be made in order to comply with federal regulations.

Columbia-Greene Media

The Board of Supervisors’ Airport Committee discussed yet another eminent domain alternative Wednesday after Richmor Aviation’s President Mahlon Richards suggested the county try paving their airport’s runway another 450 feet south to create the Federal Aviation Administration’s recommended 1,000-foot safety zone.

“It gives you the sufficient takeoffs and landings that you need and you still have the safety zone,” Richards said.

The 450-foot extension into Runway End 3’s safety zone still allows “for 1,000 feet of safety zone on each end of the runway,” he said, and does not encroach onto the neighboring Meadowgreens Golf Course.



Seattle Enters The Under-Water Mortgage Business

It looks like the Seattle City Council is following the Richmond, California, and other jurisdictions in its consideration of acquiring under-water mortgages, then seeking refinancing.


Wednesday, The Seattle City Council voted to explore various options in helping local homeowners who face foreclosure (one-fifth to one-third of Seattle homeowners are underwater, depending on who you ask). However, a few of those options have some folks a little worried.

 The most concerning is the option of using eminent domain.

 The city would seize the mortgage from the bank and allow the homeowner to pay the city back at a reduced rate. Some say this type of principal reduction is the only way to go; others say it would create further financial instability because lenders would shy away from any city seizes mortgages.

Another option presented was to create a municipal land bank that put a tax on foreclosed properties and turn that in a "beneficial community use," whatever that means.

City lending officials will complete their list of viable options to help Seattle homeowners and present them to the city council in the near future. In the meantime, how does the idea of eminent domain strike you? Is there a better option?



Do Federal Inspectors Inspect?

In an article written for Indian Country, one which clearly opposes pipelines, the writer touches on a very “sore” point for Michigan citizens. Allegedly there are 175 federal regulators inspecting these pipelines. Clearly that is not what has occurred. Much of the Enbridge pipeline in Michigan has been a disaster for dozens and dozens of years, and there seems to be a sense that Enbridge knew about the problem every step of the way.

Now, Enbridge is seeking to acquire additional easement for a second pipeline.

Following a “scorched earth” process, Enbridge is now taking a “no settlement” approach to its cases. At some point, the courts will figure out what is occurring here.


Indian Country

Enbridge’s pipelines are largely monitored by the company. That is, if you don’t count the 135 federal inspectors who are responsible for 2.5 million miles of pipeline. Those inspectors, working for the U.S. Transportation Department’s Pipeline and Hazardous Materials Safety Administration (PHSMA), were on furlough when the 835,000-gallon Tioga spill happened, but it didn’t matter because remediation was in company hands.

It turns out there’s a piece of equipment called a “pig” (a pipeline inspection gauge actually), which goes through the lines to check them for structural problems. Sort of like a pipeline colonoscopy. This pig hasn’t worked out too well, it seems.

According to Enbridge’s company data, between 1999 and 2010, across all of the company’s operations, there were 804 oil spills that released 161,475 barrels (approximately 6.8 million gallons) of hydrocarbons into the environment. This amounts to approximately half of the oil that spilled from the oil tanker Exxon Valdez after it struck a rock in Prince William Sound, Alaska, in 1988. The single largest pipeline oil spill in U.S. history was the Kalamazoo spill, which was an Enbridge line.

“Federal regulators are investigating the 2010 rupture of Line 6B, part of the Enbridge-operated Lakehead pipeline system,” Michigan lawmakers testified. “The National Transportation Safety Board found Enbridge knew of a defect on the pipeline five years before it burst open and spilled around 20,000 barrels of oil into southern Michigan waters.”