Amicus Curiae Brief — Lynda Like, et al., Petitioners v. Transcontinental Gas Pipe Line Company, LLC

No. 18-1206

In The

Supreme Court of the United States

♦

LYNDA LIKE, et al.,

Petitioners,

v.

TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC,

Respondent.

♦

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

♦

MOTION FOR LEAVE TO FILE BRIEF AS AMICI

CURIAE AND BRIEF OF AMICI CURIAE OWNERS’

COUNSEL OF AMERICA, PENNEAST NEW

JERSEY PROPERTY OWNERS, MVP AND ACP

VIRGINIA AND WEST VIRGINIA LANDOWNERS,

CATO INSTITUTE, AND NATIONAL FEDERATION

OF INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER IN SUPPORT OF PETITIONERS

♦

Robert H. Thomas

Counsel of Record

Loren A. Seehase

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street

16th Floor

Honolulu, HI 96813

(808) 531-8031

rht@hawaiilawyer.com

Anthony Della Pelle

Joseph W. Grather

MCKIRDY, RISKIN, OLSON

& DELLA PELLE, P.C.

136 South Street

Morristown, NJ 07960

(973) 539-8900

(additional counsel listed on inside cover)

Counsel for Amici Curiae

Additional counsel

Christopher S. Johns

JOHNS & COUNSEL PLLC

14101 Highway 290 West

Suite 400A

Austin, TX 78737

(512) 399-3150

Ilya Shapiro

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

tburrus@cato.org

Karen R. Harned

Luke A. Wake

NFIB SMALL BUSINESS LEGAL CENTER

1201 F Street, NW

Suite 200

Washington, DC 20004

(202) 314-2061

MOTION FOR LEAVE TO FILE

BRIEF AS AMICI CURIAE

Pursuant to this Court’s Rule 37.2, Owners’ Counsel

of America, PennEast New Jersey Property Owners,

MVP and ACP Virginia and West Virginia Property

Owners, Cato Institute, and National Federation of

Independent Business Small Business Legal Center

respectfully request leave to submit a brief as amici

curiae in support of Petitioners.

All counsel of record for the parties received timely

notice of the intention to file this brief. Counsel for Petitioners consented to the filing of this brief. Counsel

for Respondent did not respond to a request to consent.

The interests of the amici are set out in the attached

proposed brief. This petition presents fundamental

questions about the delegated power of eminent domain, separation of powers, and whether the courts

can use their equitable powers to grant a substantive

right to private condemnors that Congress never delegated. This is an issue affecting the parties, the

amici, and property owners across the nation. We believe our viewpoint and this brief will be helpful to the

Court, and request the Court grant this motion and

accept the attached brief for filing.

Respectfully submitted.

Robert H. Thomas

Counsel of Record

Loren A. Seehase

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street

16th Floor

Honolulu, HI 96813

(808) 531-8031

rht@hawaiilawyer.com

Anthony Della Pelle

Joseph W. Grather

MCKIRDY, RISKIN, OLSON

& DELLA PELLE, P.C.

136 South Street

Morristown, NJ 07960

(973) 539-8900

2

Christopher S. Johns

Ilya Shapiro

JOHNS & COUNSEL PLLC Trevor Burrus

14101 Hwy 290 West

CATO INSTITUTE

Suite 400A

1000 Mass. Ave. N.W.

Austin, TX 78737

Washington, DC 20001

(512) 399-3150

(202) 842-0200

Karen R. Harned

Luke A. Wake

NFIB SMALL BUSINESS LEGAL CENTER

1201 F Street, NW

Suite 200

Washington, DC 20004

(202) 314-2061

Counsel for Amici Curiae

APRIL 2019.

QUESTION PRESENTED

The Natural Gas Act (15 U.S.C. § 717f (h)) delegates

to certain private companies the ordinary eminent domain power: that is, the power to bring a condemnation lawsuit and then buy land at an adjudicated price

after final judgment. The Act does not delegate the

separate power to take immediate possession of land.

Notwithstanding the Act’s limited delegation, are

district courts empowered to enter preliminary injunctions giving private companies immediate possession of land before final judgment in Natural Gas Act

condemnations?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED................................

i

TABLE OF CONTENTS ...................................

ii

TABLE OF AUTHORITIES..............................

iv

INTEREST OF AMICI CURIAE ......................

1

SUMMARY OF ARGUMENT ...........................

3

ARGUMENT .....................................................

5

I.

Title Transfer Is the “Substantive”

Right in Federal Condemnations..............

5

Summary Judgment Did Not Transfer

Title, but Instead Only Recognized

Transcontinental’s Standing as the

Plaintiff .....................................................

6

III. A Court Cannot Use Preliminary

Injunctions to Shortcut the Usual,

Straight Takings Process and Transfer

the Owners’ Substantive Rights to

Transcontinental ......................................

8

IV. The Rules of Civil Procedure Cannot

Abridge the Landowners Substantive

Rights or Enlarge Transcontinental’s

Power, Which Congress Limited to

Straight Takings ......................................

10

II.

iii

TABLE OF CONTENTS—Continued

Page

CONCLUSION ..................................................

18

iv

TABLE OF AUTHORITIES

Page

CASES

Albert Hanson Lumber Co. v. United States, 261

U.S. 581 (1923).................................................... 14

Appalachian Voices v. Fed. Energy Reg. Comm’n,

No. 17-1271, (D.C. Cir. Feb. 19, 2019) ................. 7

Cherokee Nation v. Kan. Ry. Co.,

135 U.S. 641 (1890) ....................................... 14, 16

Cobb v. City of Stockton, 909 F.2d 1256

(9th Cir. 2018) ..................................................... 15

Danforth v. United States, 308 U.S. 271 (1939) ........ 5

Dolan v. City of Tigard, 512 U.S. 374 (1994) .......... 13

Goldenberg v. Transcontinental Gas Pipe Line Co.,

LLC, No. 18-1174 (Mar. 6, 2019) .......................... 4

Kirby Forest Industries v. United States,

467 U.S. 1 (1984).......................................... passim

Lynch v. Household Finance Corp.,

405 U.S. 538 (1972)............................................... 9

Monongahela Nav. Co. v. United States,

148 U.S. 312 (1893) ............................................. 15

Mountain Valley Pipeline, LLC v. 6.56 Acres of

Land, No. 18-1159 (4th Cir. Feb. 5, 2019) ........... 4

Nexus Gas Transmission, LLC v. City of Green,

Ohio, No. 18-3325 (6th Cir. Dec. 7, 2018) ............ 4

Transcontinental Gas Pipe Line Co., LLC v. 6.04

Acres, more or less, No. 16-17503

(11th Cir. Dec. 6, 2018) ......................................... 4

Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa Cnty., 550 F.3d 770

(9th Cir. 2008) ..................................................... 13

United States v. Dow, 357 U.S. 17 (1958).................. 6

v

TABLE OF AUTHORITIES--Continued

Page

United States ex rel. Tenn. Valley Auth. v.

Powelson, 319 U.S. 266 (1943) ........................... 16

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) ............................................. 10

CONSTITUTIONS, STATUTES, AND RULES

U.S. Const. amend. V ........................................ passim

Natural Gas Act

15 U.S.C. § 717f(h) ....................................... passim

Rules Enabling Act

28 U.S.C. § 2072 ................................................. 11

Declaration of Taking Act

40 U.S.C. § 3114(b) ........................................... 6, 8

40 U.S.C. § 3115 .............................................. 8, 14

40 U.S.C. § 3118 .................................................... 6

Supreme Court Rule 37.............................................. 1

Ariz. Rev. Stat. § 12-1126(A) ................................... 12

vi

TABLE OF AUTHORITIES--Continued

Page

Cal. Code of Civ. P. § 1268.030(a) ............................ 12

Haw. Rev. Stat. § 101-26 .......................................... 12

Mont. Code Ann. § 70-30-309(1) .............................. 12

OTHER AUTHORITIES

James W. Ely, The Guardian of Every Other

Right: A Constitutional History of Property

Rights (3d ed. 2008) ............................................. 1

John Locke, Of Civil Government (1924) .................. 9

Property owners along pipeline notified of possible

liens, https://www.wgal.com/article/propertyowners-along-pipeline-notified-of-possibleliens/26951370 (Mar. 26, 2019) ............................ 9

INTEREST OF AMICI CURIAE1

Owners’ Counsel of America. Owners’ Counsel of

America (OCA) is an invitation-only national network

of experienced eminent domain and property rights attorneys. They joined together to advance, preserve, and

defend the rights of private property owners, and

thereby further the cause of liberty, because the right

to own and use property is “the guardian of every other

right,” and the basis of a free society. See James W. Ely,

The Guardian of Every Other Right: A Constitutional

History of Property Rights (3d ed. 2008). OCA is a

501(c)(6) organization sustained solely by its members. Only one lawyer is admitted from each state.

OCA members and their firms have been counsel for

a party or amicus in many of the property cases this

Court has considered in the past forty years and participated as amicus in the court below. OCA members

have also authored and edited treatises, books, and

articles on eminent domain, property law, and property rights, including the authoritative treatise on eminent domain law, Nichols on Eminent Domain.

PennEast New Jersey Property Owners. These

amici are owners whose properties are being condemned under the Natural Gas Act by the PennEast

Pipeline Company, LLC, which is constructing a 36inch pipeline project to transport natural gas from

Pennsylvania’s Marcellus Shale field to New Jersey.

These owners have been subject to preliminary

1. Pursuant to this Court’s Rule 37.2(a), all counsel of record

for the parties received timely notice of the intention to file this

brief. Counsel for Petitioners consented to the filing of this brief.

Counsel for Respondent did not respond to a request to consent.

No counsel for any party authored any part of this brief; no person or entity other than amici made a monetary contribution intended to fund its preparation or submission.

2

injunctions that allow PennEast to obtain immediate

possession of their properties, in much the same way

as in this case.2

MVP and ACP Virginia and West Virginia

Landowners. These amici are landowners whose

properties are being condemned under the Natural

Gas Act by Mountain Valley Pipeline LLC or Atlantic

Coast Pipeline LLC. Each company is building a 42inch pipeline to transport natural gas from West Virginia’s Marcellus Shale fields to interconnections in

Virginia and North Carolina. Like the New Jersey

landowners, these owners have been subject to preliminary injunctions that have ordered them to give

immediate possession to the pipeline company or are

facing motions seeking such injunctive relief.3

NFIB Legal Center. The National Federation of

Independent Business Small Business Legal Center

(NFIB Legal Center) is a nonprofit, public interest law

firm established to provide legal resources and be the

2. Case No. 3:18-cv-1853, Jacqueline H. Evans (112 Worman

Road, Delaware Tp); Case No. 3:18-cv-2508, Foglio & Associates,

LLC (155 Lower Creek Rd, Delaware Tp); Case No. 3:18-cv-1722,

Joseph and Adele Gugliotta (111 Worman Rd, Stockton Bor);

Case No. 3:18-cv-1779, Richard and Elizabeth Kohler (40 Lambertville HQ Rd, Del Tp); Case No. 3:18-cv-2014, Dan and Carla

Kelly-Mackey (60 Sanford Rd, Delaware Tp); Case No. 3:18-cv1811, Virginia James (Block 29 Lot 12, West Amwell Tp); Case

No. 3:18-cv-1798, Carl and Valerie Vanderborght (60 Hamp Rd.,

Lambertville); Case No. 3:18-cv-2028, Frank and Bernice Wahl

(815 Milford-Frenchtown Rd, Alexandria Tp).

3. Case No. 7:17-cv-00492 (W.D. Va.), Karolyn W. Givens (MVP

Tract No. VA-GI-200.041); Case No. 2:17-cv-04214 (S.D. W.Va.),

Orus Ashby Berkley (MVP Parcel Nos. 7-15A-13, 7-15A-13.1);

Civil Action No. 3:18-cv-00098 (W.D. Va.), Rockfish Valley Investments, LLC (ACP Parcel No. 08-001-B037); Civil Action No.

3:18-cv-00079 (W.D. Va.), Shahir and Nancy Kassam-Adams

(ACP Parcel Nos. 46-3-1, 46-3-2A).

3

voice for small businesses in the nation’s courts

through representation on issues of public interest affecting small businesses. The National Federation of

Independent Business (NFIB) is the nation’s leading

small business association, representing members in

Washington, D.C., and all 50 state capitals. Founded

in 1943 as a nonprofit, nonpartisan organization,

NFIB’s mission is to promote and protect the right of

its members to own, operate and grow their businesses.

NFIB represents small businesses nationwide, and

its membership spans the spectrum of business operations, ranging from sole proprietor enterprises to

firms with hundreds of employees. While there is no

standard definition of a “small business,” the typical

NFIB member employs 10 people and reports gross

sales of about $500,000 a year. The NFIB membership

is a reflection of American small business. To fulfill its

role as the voice for small business, the NFIB Legal

Center frequently files amicus briefs in cases that will

impact small businesses.

Amici are filing this brief because this case presents

fundamental questions about the delegated power of

eminent domain, separation of powers, and whether

the courts can use their equitable powers to grant a

substantive right to private condemnors that Congress never delegated. This is an issue affecting the

parties, the amici, and property owners across the nation. We believe our viewpoint and this brief will be

helpful to the Court.

♦

SUMMARY OF ARGUMENT

The unstated premise at the heart of the reasoning

by the Third Circuit and the other courts which

4

adhere to the same approach is that, once initiated, a

Natural Gas Act condemnation is all but inevitable.4

Because the pipeline company will eventually obtain

the property after it pays the adjudicated compensation, the reasoning goes, what’s the harm in giving it

possession now? Once the pipeline company obtains

summary judgment on the three predicates that a private condemnor must satisfy to institute an eminent

domain action under section 717f(h) of the NGA, it’s

all over but the shouting because the summary judgment order resolved the substantive issues.

There are several fundamental problems with this

approach: most critically, a misunderstanding about

what the “substantive” rights are in an eminent domain action. The substantive right at stake in all federal takings, these included, is ownership of the property. And in straight takings, ownership and title are

transferred to the plaintiff only after it agrees to pay

the adjudicated price and exercises its option to buy

at that price. Only then, and after the owner either is

provided with compensation or has an irrevocably

vested right to recover it, may the condemnor obtain

possession. The Third Circuit concluded the district

court’s summary judgment order granted Transcontinental a substantive right to Petitioners’ properties.

4. This issue is not isolated. Besides the Third Circuit, the

Fourth, Sixth, and Eleventh Circuits have recently considered

the same issue. See Mountain Valley Pipeline, LLC v. 6.56 Acres

of Land, No. 18-1159 (4th Cir. Feb. 5, 2019); Nexus Gas Transmission, LLC v. City of Green, Ohio, No. 18-3325 (6th Cir. Dec. 7,

2018); Transcontinental Gas Pipe Line Co., LLC v. 6.04 Acres,

more or less, No. 16-17503 (11th Cir. Dec. 6, 2018). Nor is the

issue going away. A separate petition seeking this Court’s review

of the Eleventh Circuit’s opinion has been filed, see Goldenberg

v. Transcontinental Gas Pipe Line Co., LLC, No. 18-1174 (Mar.

6, 2019), and others may soon be forthcoming in the other cases.

5

But the summary judgment order did no such thing.

It merely determined Transcontinental could be a

straight taking plaintiff-condemnor and maintain a

federal condemnation lawsuit. Any protections in the

preliminary injunction process are hollow substitutes

for the usual constitutional safeguards, because here,

Transcontinental unquestionably retained the ability

to walk away if it did not like the adjudicated compensation eventually established by the trial court.

By virtue of these injunctions, Transcontinental possesses both its cake (prejudgment possession of the

properties), and the ability to eat it (the option to not

buy if it doesn’t like the final price).

ARGUMENT

I.

Title Transfer Is the “Substantive” Right

in Federal Condemnations

In Kirby Forest Industries v. United States, 467 U.S.

1 (1984), this Court described the “straight taking”—

or “standard” condemnation—power, noting its key

feature: ownership of the property being condemned

is the substantive right to which possession is tied:

The practical effect of final judgment on

the issue of just compensation is to give

the Government an option to buy the property at the adjudicated price. If the Government wishes to exercise that option, it

tenders payment to the private owner,

whereupon title and right to possession

vest in the United States. If the Government decides not to exercise its option, it

can move for dismissal of the condemnation action.

Id. at 2 (emphasis added) (citing Danforth v. United

States, 308 U.S. 271, 284 (1939)).

6

Similarly, in the two other forms of federal statutory

takings, the right to possession similarly vests only

upon title transfer. In a quick-take, “[o]n filing the

declaration of taking and depositing in the court, ‘title . . . vests in the Government; the land is condemned and taken . . . ; and the right to just compensation for the land vests in the persons entitled to the

compensation.’” 40 U.S.C. § 3114(b)(1)–(3); see also 40

U.S.C. § 3118 (“the right to take possession and title

in advance of final judgment” in quick-take eminent

domain actions) (emphasis added).

Finally, in a pure statutory taking, a statute itself

vests “all right, title, and interest” in the government.

Kirby, 467 U.S. at 5, n.5; see also United States v. Dow,

357 U.S. 17, 21-22 (1958) (“in both classes of ‘taking’

cases—condemnation and physical seizure—title to

the property passes to the Government only when the

owner receives compensation, or when the compensation is deposited into court pursuant to the [Declaration of] Taking Act”).

II.

Summary Judgment Did Not Transfer

Title, but Instead Only Recognized

Transcontinental’s Standing as the

Plaintiff

Here, by contrast, the Third Circuit concluded that

the district court’s summary judgment order on the

three predicates that a private condemnor must satisfy in order to institute an eminent domain action in

federal court under 15 U.S.C. § 717f(h) granted Transcontinental a substantive right, even though the court

7

acknowledged that title would not transfer until the

end of the case.5

The Third Circuit’s focus on the summary judgment

orders as the substantive actions fundamentally misconstrued the nature and effect of the ruling. Because

Congress delegated to Transcontinental only the

straight takings power, the district court’s order could

only determine—at most—that Transcontinental may

exercise the straight taking power.6 Thus, the order

only determined that Transcontinental may exercise

the delegated federal eminent domain power and

could prosecute a condemnation lawsuit, and that the

takings are for public purposes. Could the order determine the substantive issue in these cases: how much

is owed as just compensation? No. Or at least not yet.

And that is key, because until the properties are actually taken after final adjudication of compensation

owed, there is no right of possession.

That is best illustrated by what the district court’s

order did not do. It did not vest title to the properties

in Transcontinental. It did not establish the amount

of just compensation owed the owners. It did not obligate Transcontinental to pay whatever compensation

may eventually be adjudicated. It did not obligate

5. Pet. App. 19 (“Here, unlike in a ‘quick take’ action, Transcontinental does not yet have title but will receive it once final

compensation is determined and paid.”).

6. The D.C. Circuit concluded recently in Appalachian Voices

v. Fed. Energy Reg. Comm’n, No. 17-1271, Slip Op. at 3 (D.C. Cir.

Feb. 19, 2019), that in the NGA Congress delegated the “usual”

power of eminent domain: “The eminent domain power conferred

to Mountain Valley . . . requires the company to go through the

‘usual’ condemnation process, which calls for ‘an order of condemnation and a trial determining just compensation” prior to the

taking of private property.’”

8

Transcontinental to complete the condemnations if it

is not willing to pay that amount and Transcontinental remains free to refuse to exercise its “option” to

buy. The order did not vest in the property owners an

irrevocable right to compensation.

Rulings recognizing the power to institute and maintain an eminent domain action are not the same as

rulings on the ultimate issue: whether Transcontinental has actually acquired title to the properties. There

is a fundamental difference between the “right to exercise eminent domain” and having actually obtained

ownership of the properties being condemned.

III.

A Court Cannot Use Preliminary

Injunctions to Shortcut the Usual,

Straight Takings Process and Transfer

the Owners’ Substantive Rights to

Transcontinental

Lacking the transfer of a substantive right to Transcontinental (the owners’ titles) and the corresponding

vesting of a substantive right in the owners (the condemnor’s irrevocable obligation to pay whatever is determined to be just compensation)—which in every

other federal condemnation is the predicate to possession—the Rule 65 preliminary injunction process falls

woefully short. Although the district courts attempted

to structure the injunctions so that they look somewhat like a quick-take, they lack the key protections

of a constitutional prejudgment possession: a quicktake condemnor obtains title and possession and in return foregoes the ability to decline to pay whatever

compensation the court may eventually determine.

See 40 U.S.C. § 3115 (a quick-take under § 3114 results in the government’s “irrevocable commitment” to

pay whatever compensation is eventually determined).

9

These injunctions have real-world consequences for

property owners who, despite the fiction that eminent

domain actions are in rem, are being subject to personal deprivations of their fundamental rights. As

this Court held,

[T]he dichotomy between personal liberties and property rights is a false one.

Property does not have rights. People have

rights. The right to enjoy property without

unlawful deprivation, no less than the

right to speak or the right to travel, is, in

truth, a “personal” right, whether the

‘‘property” in question be a welfare check,

a home, or a savings account. In fact, a fundamental interdependence exists between

the personal right to liberty and the personal right in property. Neither could have

meaning without the other. That rights in

property are basic civil rights has long

been recognized.

Lynch v. Household Finance Corp., 405 U.S. 538, 552

(1972) (citing John Locke, Of Civil Government 82-85

(1924)). For example, some Pennsylvania property

owners who were subject to possession-by-injunction

for a pipeline have been threatened with mechanics’

liens after a pipeline subcontractor did not get paid.

See, e.g., Property owners along pipeline notified of

possible liens, https://www.wgal.com/article/propertyowners-along-pipeline-notified-of-possible-liens/

26951370 (Mar. 26, 2019). Others have seen a pipeline

recording an interest in their land with the local recorder of deeds, even though title to the easement has

not yet granted. And early takings will continue to

cause landowners significant damages that are likely

not compensable as part of the condemnation process.

10

For example, allowing the pipeline company to take

possession now rather than after trial has caused lost

farm and business income that is likely unrecoverable

as part of a just compensation award. Cf. United

States v. Gen. Motors Corp., 323 U.S. 373, 379–80

(1945).

By contrast, Transcontinental has obtained prejudgment possession without any corresponding obligation

to pay the yet-to-be determined amount. Because

there’s no question it retains the straight-take option

of walking away if the compensation eventually determined is too dear. The critical flaw in the Third Circuit’s reasoning is that Transcontinental still possesses, in this Court’s words, the “option” to decline to

pay the “adjudicated price.” Cf. Kirby, 467 U.S. at 2.

In other words, after title transfers, any other federal

condemnor who obtains possession cannot decide to

not obtain title while, here, Transcontinental as a preliminary injunction condemnor can. That this scenario may be unlikely is beside the point. What matters is that Transcontinental is under no legal obligation to exercise its “option.”

IV.

The Rules of Civil Procedure Cannot

Abridge the Landowners Substantive

Rights or Enlarge Transcontinental’s

Power, Which Congress Limited to

Straight Takings

A judicial order of possession before title transfer intrudes on Congress’s sole power to establish

whether—and most importantly how—to take property. Neither the district courts’ equitable powers, nor

the Rules Enabling Act, nor the rules of civil procedure can recognize in Transcontinental more rights

(or powers) than Congress has delegated.

See 28 U.S.C. § 2072(b) (the rules of civil procedure

11

“shall not abridge, enlarge or modify any substantive

right.”).

But the panel concluded that although Congress did

not delegate the quick-take power in NGA takings,

neither did it take away district courts’ equitable powers, nor did it expressly prohibit the use of preliminary injunctions to give private condemnors prejudgment possession. This is wrong for four reasons, each

rooted in the standards for Rule 65 injunctions:

1. The key element to any injunction is likelihood

of success on “the merits.” In reviewing a preliminary

injunction, the court looks at the underlying claim.

Here, the taking by Transcontinental of the properties

upon either the actual payment of just compensation

or vesting of the right to obtain whatever amount is

finally determined to be just compensation. If it appears as if Transcontinental is likely to prevail at trial

on the merits of this underlying claim, the court then

evaluates the other preliminary injunction factors.

And the issue being evaluated for determining

whether the plaintiff is likely to prevail on the merits

must be identical to the issue it is asking the court to

enjoin (or in this case to affirmatively order).

That is not the case here. Transcontinental sought

immediate possession under the three factors in

15 U.S.C. § 717f(h). But the underlying merits question in these condemnation cases is what will be the

just compensation owed to the owners, an issue not a

part of the § 717f(h) calculus, on which Transcontinental submitted no evidence allowing the district

court to reach a conclusion about the amount of final

compensation, and which admittedly has yet to be determined.

12

The panel, however, wrongly concluded the district

court’s grant of summary judgment was a “merits” determination. Pet. App. 13. It also mischaracterized the

district court’s summary judgment order as an “order

of condemnation.” Id. at 22. As outlined earlier, in

straight-takings cases like these, the merits question

is whether the condemnor has title, which can only

happen here once Transcontinental exercises its option to buy. That, in turn, can only come after the

court finally determines the amount of compensation.

And that has not yet happened. An “order of condemnation” is the document by which the court transfers

title to the condemnor after payment of the final adjudicated compensation.7 In short, a summary judgment

7. See, e.g., Ariz. Rev. Stat. § 12-1126(A) (“When the final judgment has been satisfied and all unpaid property taxes which

were levied as of the date of the order for immediate possession,

including penalties and interest, on the property that is the subject of the condemnation action have been paid, the court shall

make a final order of condemnation, describing the property condemned and the purposes of the condemnation.”); Cal. Code of

Civ. P. § 1268.030(a) (“Upon application of any party, the court

shall make a final order of condemnation if the full amount of the

judgment has been paid as required by Section 1268.010 or satisfied pursuant to Section 1268.020.”); Haw. Rev. Stat. § 101-26

(“When all payments required by the final judgment have been

made, the court shall make a final order of condemnation, which

shall describe the property condemned and the purposes of the

condemnation, a certified copy of which shall be filed and recorded in the office of the registrar of conveyances, and thereupon

the property described shall vest in the plaintiff.”); Mont. Code

Ann. § 70-30-309(1) (“When payments have been made and the

bond, if appropriate, has been given as required by 70-30-307 and

70-30-308, the court shall make a final order of condemnation.

The order must describe the property condemned, the purposes

of the condemnation, and any appropriate payment for damages

13

ruling under section 717f(h) did not recognize a substantive right.

2. The injunction did not preserve the status quo;

it instead dramatically altered the status quo by affirmatively depriving the property owners of their

substantive rights—including the right to exclude—

which this Court has repeatedly emphasized is “one of

the most essential sticks in the bundle of rights that

are commonly characterized as property.” Dolan v.

City of Tigard, 512 U.S. 374, 393 (1994).8 In every

other federal taking, owners retain the right to exclude until such time as their right to just compensation irrevocably vests (which has not occurred here).

Thus, as detailed earlier, not only did the summary

judgment orders not grant Transcontinental a substantive right; the injunction actually deprived the

owners of one of their most essential substantive

rights, the right to exclusive possession of their land

and the vested right to compensation when that right

is taken.

3. It does not matter that the injunction bond sort

of looks like a quick-take deposit. Pet. App. 59 “(Additionally, Transco will post sufficient bonds upon the

grant of the preliminary injunction; therefore, any

to the property actually taken as well as to any remaining parcel

of property that may be adversely affected by the taking.”).

8. In Transwestern Pipeline Co. v. 17.19 Acres of Property Located in Maricopa Cnty., 550 F.3d 770 (9th Cir. 2008), the court

recognized, “preliminary injunctions . . . are primarily issued to

preserve the status quo of the parties and as a means for the

court to retain jurisdiction over the action”). Id. at 776. In denying the injunction, the court noted, “[h]ere, Transwestern [the

private NGA pipeline condemnor] seeks not to preserve the status quo, but instead seeks a mandatory injunction, which is ‘particularly disfavored’ in law.” Id.

14

amount of money damages any landowner may suffer

will be secure and a remedy will be available.”). A

bond, however, does not obligate Transcontinental irrevocably to pay whatever the district court later determines is just compensation, and thus is a poor substitute for a quick-take deposit. Cf. 40 U.S.C. § 3115

(government’s “irrevocable commitment” to pay whatever compensation is eventually determined). The injunction also did not vest in the owner the corresponding irrevocable right to compensation. See Albert Hanson Lumber Co. v. United States, 261 U.S. 581, 587

(1923) (“The owner is protected by the rule that title

does not pass until compensation has been ascertained and paid, nor a right to the possession until

reasonable, certain, and adequate provision is made

for obtaining just compensation.”) (citing Cherokee

Nation v. Kan. Ry. Co., 135 U.S. 641, 659 (1890)). Cf.

Pet. App. 23-24.

The reason a bond is not a “reasonable, certain, and

adequate” guarantee of compensation is because when

the federal government occupies property without

having obtained title, the owners have a governmentally-guaranteed and vested ability to obtain whatever compensation the court determines—and the

means to obtain it. Because the power to take property

is an attribute of sovereignty and the Fifth Amendment’s command is self-executing, this obligation cannot be avoided; Congress has provided a vehicle to obtain after-the-fact compensation: a lawsuit under the

Tucker Act, either in a district court (for compensation

claims up to $10,000) or in the Court of Federal

Claims (for all others). The panel viewed a state-law

trespass action as the equivalent: “the landowners

could proceed with a trespass action if the company

did not promptly make up the difference” between the

15

bond and the final compensation. Pet. App. 28, 58. But

a bond and an inchoate state-law trespass cause of action are not the same as the self-executing right to

compensation backed by the federal government and

the availability of a federal inverse condemnation

judgment to guarantee collection.

The injunctions do not compel Transcontinental to

pay whatever the courts determine is just compensation. What if the final adjudicated compensation exceeds Transcontinental’s current estimate, and the

bonds and deposits are insufficient? See Pet. App. 59.

Or what if Transcontinental simply abandons the project because it no longer is profitable to continue? Critically, nothing in the injunction overrules Transcontinental’s option under the NGA not to take the properties if it does not like the option price, or if it just decides not to proceed at any stage. And what if Transcontinental becomes insolvent, something that owners

whose property is taken by the federal government

need not worry about? In that situation, any state-law

trespass claims these owners may have against

Transcontinental would likely not represent the “full

and perfect equivalent for the property taken.” Monongahela Nav. Co. v. United States, 148 U.S. 312, 326

(1893). Compare Pet. App. 28 (a state court trespass

action is all the protection the property owners need)

with Cobb v. City of Stockton, 909 F.2d 1256, 1267(9th

Cir. 2018) (state-law inverse condemnation claims

against a municipality that have not been reduced to

final judgment may be “adjusted in bankruptcy”).

In sum, the preliminary injunction bonds are merely

security for Transcontinental’s future conduct, not

Transcontinental’s irrevocable and enforceable obligation to pay—backed by the self-executing Fifth

Amendment—whatever final compensation the courts

16

may ultimately determine. Injunctions do not provide

the “reasonable, certain, and adequate” vesting of the

right to just compensation this Court envisioned in

Cherokee Nation.

4. Finally, quick-take injunctions—which grant

immediate possession rather than an option to possess the land after trial—abridge the substantive

rights of property owners in violation of the Rules Enabling Act. Landowners lose not only the right to exclude pipeline workers and heavy machinery from

their properties during the months or years before the

final determination of just compensation at trial, they

also lose the right to use their property as they see fit

during the pendency of the case. Some of the harms

flowing from the abridgement of their property

rights—such as lost business, farm, and rental income

that could have been earned during the pendency of

the case—are often noncompensable in eminent domain proceedings. See, e.g., United States ex rel. Tenn.

Valley Auth. v. Powelson, 319 U.S. 266, 283 (1943)

(“[S]ettled rules of law preclude[] a consideration of

consequential damages for losses of a business or its

destruction . . . .”) (internal quotation marks omitted).

Premature possession likewise deprives the landowners of the opportunity to prevent or mitigate environmental damage to the springs, streams, hillsides, and

other features of their land.

Some courts of appeals have reasoned that the pipeline company will get the property anyway—and that

the timing of possession therefore does not matter.

But anyone familiar with property law—with its life

estates, determinable fees, remainders, reversions,

rights of entry, leases, and options—knows that substantive property rights are inextricably linked to,

17

and are indeed often defined by, the timing of possession.

Landowners facing quick-take injunctions rarely

talk about their injuries in the language of substantive rights. They talk instead of losing one or two more

years of walking through their forests, watching wildlife playing on the ground and in the trees, caring for

a dying relative, earning a living from farming and

ranching, listening to the sound of the wind blowing

through the trees, and enjoying peace and quiet. The

real-world consequences of losing these blessings of

property are certainly “substantive” to the landowners who are forced to endure premature takings.

18

CONCLUSION

The Court should grant the petition and review the

judgment of the Third Circuit.

Respectfully submitted.

Robert H. Thomas

Counsel of Record

Loren A. Seehase

DAMON KEY LEONG

KUPCHAK HASTERT

1003 Bishop Street

16th Floor

Honolulu, HI 96813

(808) 531-8031

rht@hawaiilawyer.com

Anthony Della Pelle

Joseph W. Grather

MCKIRDY, RISKIN, OLSON

& DELLA PELLE, P.C.

136 South Street

Morristown, NJ 07960

(973) 539-8900

Christopher S. Johns

Ilya Shapiro

JOHNS & COUNSEL PLLC Trevor Burrus

14101 Hwy 290 West

CATO INSTITUTE

Suite 400A

1000 Mass. Ave. N.W.

Austin, TX 78737

Washington, DC 20001

(512) 399-3150

(202) 842-0200

Karen R. Harned

Luke A. Wake

NFIB SMALL BUSINESS LEGAL CENTER

1201 F Street, NW

Suite 200

Washington, DC 20004

(202) 314-2061

Counsel for Amici Curiae

APRIL 2019.