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Screenshot 2021-07-26 at 09-25-52 Givens v Mountain Valley Pipeline  LLC and the Unresolved Circuit Split

Be sure to take a read of an article we’ve had in our queue to read for a while: Karen Adlay, Givens v. Mountain Valley Pipeline, LLC and the Unresolved Circuit Split, 7 Tex. A. & M. J. Prop. L. 137 (2021).

Several federal courts of appeals — including the Fourth Circuit in Givens — have upheld giving prejudgment possession of property to a private pipeline condemnor once a district has ruled in favor of the pipeline that it qualifies under the three predicates to condemn private property under the Natural Gas Act, 15 U.S.C. § 717f(h). These courts conclude that summary judgment on the power to take grants a pipeline a “substantive” right, and therefore there’s no reason to not give it possession now by granting a Rule 65 injunction even though in the NGA, Congress did not expressly delegate to private condemnors the “quick take” power. 

A close read of the language of section 717f(h) shows it is only about whether a private pipeline company may institute an eminent domain lawsuit to take property. In other words, whether it has standing. Summary judgment on the three statutory factors doesn’t grant a “substantive” right in these type of condemnations. Rather, the substantive right in a “slow” take is ownership of the property, which will not be finally determined until after a final adjudication of compensation and payment of that compensation. Only then does title (and possession) pass to the taker. The courts’ faulty reasoning is highlighted by their conclusion that summary judgment was an “order of condemnation,” when as we old hands know, and order of condemnation is the final order transferring title after adjudication and payment of compensation.

This is an issue we’ve been following along with for a while (see here, for example). We even filed an amici brief in an earlier case presenting the same issue. The article is a good summary of the state of affairs, and makes what we think is a solid argument that the Supreme Court needs to do something about it.

From the Abstract:

The natural gas industry is central to the United States economy. However, due to vague regulations and judicial leniency, natural gas pipeline companies have almost zero restraint in exercising eminent domain. Their current operations mirror that of the federal government’s authority to exercise immediate possession. Recently, landowners have contested the pipeline industry’s authority to exercise eminent domain, which has developed into a circuit split. The Fourth Circuit, and the six other circuits that have followed suit, hold that pipeline companies have the substantive right to immediate entry and are entitled to a preliminary injunction before a trial on just compensation. The Seventh Circuit holds that the courts do not have the authority to grant immediate entry, and the pipeline company must complete the entire standard condemnation process before entering the property. In 2019, there were two attempts to bring this issue before the Supreme Court, and both attempts failed. This Note evaluates the most recent attempt in Givens v. Mountain Valley Pipeline, LLC and argues that the Supreme Court should address this issue and adopt the Seventh Circuit approach.

Check it out.