Eminent domain process for pipeline

Good Evening,
For those that have been through the eminent domain process, can you give me an idea of what to expect such as the process and the costs to the landowner? This would be for FERC approved pipeline.

Thank you!

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Permalink Reply by deutchen on December 25, 2014 at 5:58am
I'm confused on reading this discussion about "eminent domain". Eminent domain is where the government can force a person to sell land when it will be used for public use such as highways, schools, ect. Are you implying that a landowner has no choice but to grant a ROW to a pipeline company that wants one?
Permalink Reply by Philip Brutz on December 25, 2014 at 6:39am

deutchen, only for interstate pipelines or pipelines owned by a utility such as Dominion East Ohio.

Permalink Reply by gary smith on December 25, 2014 at 9:45am

the local government where you live can take your property and sell it to wal mart,if they believe that it will raise the tax base for their municipality.  the democrats have now made tax base the same as a school or road. they were forced into getting the courts to do this because of the failed democrat run cities and the refusal of those populaces to go along with raising taxes there for democrats to squander.as far as pipelines go, my prior post may be wrong. they may have always been included along with roads and schools.

Permalink Reply by Philip Brutz on December 25, 2014 at 11:54am

http://www.oilandgaslawreport.com/2012/10/19/oil-and-gas-pipeline-c...

Oil and Gas Pipeline Companies Can Condemn Private Property in Ohio By Chris Baronzzi on October 19th, 2012Posted in Exploration & Production, Mineral Interest, Ohio, Pipelines, Real Estate, Regulatory

In Ohio, private pipeline companies regulated as common carriers or public utilities have the power of eminent domain to “condemn” or “appropriate” private property in certain situations. 

It is well known that the power of eminent domain is available to government authorities.  But, the reality of modern America is that carefully regulated private companies, not government entities, furnish much of the energy resources and utilities we enjoy everyday.  Pipeline companies that transport oil and gas to market are classic examples of private companies that do a job that serves the public welfare.  Accordingly, under certain circumstances pipeline companies have the power of eminent domain under both Ohio and federal law. 

Federal Law Allows Condemnation for Gas Pipelines in the “Public Interest.”

Currently, control of interstate natural gas pipeline construction is preempted by the federal Natural Gas Act, which assigns regulatory responsibility for almost all aspects of natural gas pipelines to the Federal Energy Regulatory Commission (“FERC”). 

Under the Natural Gas Act, natural gas companies have the right to condemn property for natural gas pipelines as long as FERC determines that the project is in the public interest and issues a certificate of public convenience and necessity to the company. 15 USC §717f.  Once that determination is made, a natural gas company may condemn property in federal district court where the property is located.  But despite federal jurisdiction, the Natural Gas Act requires the federal condemnation action to “conform” as closely as possible “with the practice and procedure in a similar action or proceeding in the courts of the State where the property is situated . . . .”  15 USC §717f(h).   Thus, even with federal jurisdiction for natural gas pipeline condemnation, State law remains critically important.

As its name indicates, the Natural Gas Act is focused primarily on gas.  FERC’s only authority over liquids pipelines is to regulate rates and commercial access to the pipeline. Neither the Natural Gas Act nor any other law grants pipeline companies a federal right to condemn property for hydrocarbon liquids pipelines (i.e., oil and natural gas liquids pipelines).  Consequently, pipeline companies must look to the law of each state, and the courts of each county, for the right to appropriate property for hydrocarbon liquids pipelines.  

Ohio Law Allows Pipeline Condemnation “As Necessary and for a Public Use.”

The right to appropriate property under Ohio State law comes from Article I, Section 19 of the Ohio Constitution, which states, “private property shall ever be held inviolate, but subservient to the public welfare.”

In Ohio, a company organized for the purposes of transporting natural or artificial gas, petroleum or its derivatives through tubing, pipes, or conduits, is designated a “private agency.”  ORC §1723.01 and ORC §163.01(B).  As such, the company may enter, inspect and appropriate as much property as is “necessary and for a public use.”  ORC §1723.01 and ORC §163.021(A).

Unlike Pennsylvania and other States, Ohio law does not allow a “quick take” of property but Ohio does have its own expedited procedure for a pipeline company to appropriate property.  It is also noteworthy that Ohio law explicitly allows an oil and gas pipeline company to install water pipelines necessary for petroleum development, transportation, and production on the appropriated property.  ORC 1723.05.

In any event, the burden is on the pipeline company to prove in each county court where the property is located, by a preponderance of the evidence, that an appropriation is “necessary and for a public use.”  ORC §163.021.  However, the Ohio Revised Code makes clear that an appropriation by a common carrier is a public use.  Ohio law also allows a pipeline company to raise a rebuttable presumption that the appropriation is necessary by passing a corporate resolution, and the company may raise an irrebuttable presumption that the pipeline is necessary if it obtains regulatory approval of the project. ORC §163.09.

Once a company’s right to use eminent domain is settled, there remains the question of just compensation.  In Ohio, with a few exceptions, a pipeline company may take possession of an appropriated parcel only after a jury determines the appropriate amount of compensation and payment is deposited with the court. 

Overall, even though federal and Ohio law give pipeline companies a clear and fairly expeditious right of eminent domain, the process is very technical and can be challenging.  The requirements of Ohio appropriations law (not to mention federal law relevant to gas pipelines) are addressed in at least thirty-three different statutes that describe an assortment of unusual trial procedures, distinct evidentiary obligations, and the interplay of various regulations.  Representation by counsel with a clear understanding of Ohio law, and experience with pipeline regulations is necessary to efficiently and successfully navigate appropriations proceedings.


Permalink Reply by Philip Brutz on December 25, 2014 at 12:00pm

https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawY...

Eminent Domain: When the Government Wants Your Property

Q: What is eminent domain?
A: Eminent domain is the power of federal, state and local governments and even certain private companies, including railroads and utilities, to take private property and devote it to a public use. An entity with this power is sometimes referred to as a “condemning authority." Taking of property by eminent domain frequently occurs in Ohio for uses such as construction of roads, libraries, or even airports. Both the U.S. and Ohio constitutions provide that property shall not be taken for a public use without the payment of just compensation.

Q: Why should I consult an attorney in an eminent domain matter?
A: Negotiations are very complex and each property is unique. If you are a landowner involved in easement agreement negotiations and other eminent domain proceedings, the condemning authority will try to get your consent quickly. However, it is to your advantage to slow the process and become fully informed before making any decisions. You and future landowners likely will live with an these decisions for the rest of your lives. An attorney can make sure you take the proper steps to receive just compensation and protect any other rights from being waived or lost. Not only are you entitled to just compensation for the land taken, but you are entitled to any damage to the rest of your property. This includes damage to future farming operations and development opportunities. You are also entitled to certain relocation expenses, and in some cases, compensation for loss of income or good will. 

Q: How much does an attorney cost?
A: Some attorneys will review your eminent domain situation without a fee. Thereafter, an attorney will sometimes agree to a contingent fee, which is a percentage of what the attorney is able to obtain for you above the government’s original offer of just compensation and above all expenses. The contingent fee structure and the new protections provided by recent changes to eminent domain law in Ohio have helped to make hiring an attorney affordable for landowners.

Q: What are some non-traditional forms of eminent domain?
A: When most people think about eminent domain, they picture a road going through their home or a pipeline through their farm. In these situations, the municipality, ODOT, or a public utility will file a petition to appropriate your property. While you may be upset that your property is being taken, appropriation proceedings are good because they are means toward receiving "just compensation." This is how eminent domain traditionally occurs.

However, what happens when the authority takes your property without first filing a petition to appropriate it (thus preventing you from "just compensation")? In this situation, you must file a motion for a "writ of mandamus" asking the court to order the authority to initiate appropriation proceedings. This is common practice when your property is taken in non-traditional ways.

For example, a non-traditional taking may occur when your property floods as the result of government activity. Government-induced flooding is an eminent domain taking if 1) the flooding is either intended by the government or is the direct, natural or probable result of government-authorized activity and 2) the flooding is either a permanent invasion or creates a permanent liability because of intermittent, but inevitably recurring, overflows.

Such a case was brought to the Supreme Court of Ohio. In 2011, after the Ohio Department of Resources (ODNR) had upgraded a spillway of Grand Lake St. Marys, many of the local residents suffered frequent, severe and persistent flooding. Because the ODNR had not initiated appropriation proceedings, the property owners filed a motion for a writ of mandamus. The Court granted the motion and compelled ODNR to initiate appropriation proceedings. Now the residents are on track to receive just compensation.

Q: What else I should know when facing an eminent domain action?
A: You should be aware that you cannot stop the government from moving forward if your property is taken (or in threat of being taken) for a public purpose. You can, however, assert your rights to ensure you receive just compensation. State law requires you to allow survey and other crews on your property to collect information, so you should schedule a time when you and your attorney can be present for any survey or site inspection and set reasonable limits. Finally, document the condition of your property before the inspections begin so that you will have the evidence if any damage is done to your property.

5/3/2013

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Michael Braunstein, a principal in the law firm Goldman and Braunstein, LLP, which represents landowners in eminent domain cases. ​

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
Permalink Reply by Gary L on December 25, 2014 at 8:46pm

Philip B

We all appreciate your input and posts as they reflect your integrity and dedication. Your networking warrants a great deal of merit in your character. The leverage that we need is to better understand issues in order to make prudent decisions. If I may, I would like to piggyback on your recent post. FERC interstate pipeline projects almost always implement eminent domain. Intrastate pipeline projects fall under the jurisdiction of the Ohio Siting Board. Its been more stringent for land condemnation through Ohio Siting Board for private entities. The project discussed in this thread appears to be a feeder line in Ohio. I guess that makes it an interstate since it connects to the main multistate pipeline network. 

PHMSA and Federal codes 49CFR Part 192 are also good for lanowners to get familar with. I have sat in on landowners court hearings and it takes time to go through all the hoops before you get to that point in the process. The fears and scare tactics they use, make it a very taxing process, on land owners trying to keep their land free of any impediments. JMHO.  

Permalink Reply by gary smith on December 26, 2014 at 1:10am

research  kelo vs new London.     supreme court out of control.

Permalink Reply by Frank Walker on December 28, 2014 at 2:55am

I disagree, but in a gentle and quiet manner, with those who maintain there is no avoiding a taking of your land when the circumstances appear at first hopeless (e.g., FERC approved or a situation where there is ample law and precedent on the other side lined up against you).

Your outcome could, instead, depend on how much money you have and on whether alternatives are available for execution of the project.  To wit:

If no viable alternative exists to the taking of your land, no alternative route for example, you can stick a fork . . . yer done.

If a viable alternative exists which might be, for example, more costly to those who want your land, you have an option if you have money.  Here is the drill:

Realizing you ultimately cannot win in court, you nevertheless use your money in effort to run the clock, if your lawyer tells you this is possible.  The objective is to string out your adversary sufficiently to where they decide it's less expensive to elect their alternative (i.e., to go around you) rather than continue court fights against you and lose critical time.  Time, in some circumstances, is money.

Entities wanting your land do not hold a personal grudge.  They merely have a project they wish to bring to fruition at lowest possible cost.  Your goal, as a landowner with money wanting to preserve his land as is, is to make use of your land by that entity their higher cost alternative.

Course if you don't have the money to fight in court, you have no chance whatsoever.  That's the American way.  

  

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