Amicus Curiae Brief — Karolyn Givens, et al., Petitioners v. Mountain Valley Pipeline, LLC

No. 19-54

IN THE

Supreme Court of the United States

________________

KAROLYN GIVENS, ET AL.,

Petitioners,

v.

MOUNTAIN VALLEY PIPELINE, LLC,

Respondent.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

________________

MOTION FOR LEAVE TO FILE AND BRIEF

AMICUS CURIAE OF THE NISKANEN CENTER

IN SUPPORT OF PETITIONERS

________________

NANCIE G. MARZULLA

Counsel of Record

ROGER J. MARZULLA

Marzulla Law, LLC

1150 Connecticut Ave. NW

Suite 1050

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

roger@marzulla.com

August 8, 2019

Counsel for Amicus Curiae

MOTION FOR LEAVE TO FILE BRIEF OF

AMICUS CURIAE THE NISKANEN CENTER

The Niskanen Center asks this Court under

S. Ct. R. 37.2(b), for leave to file a brief amicus

curiae in support of the petition for a writ of

certiorari to the United States Court of Appeals

for the Fourth Circuit. Petitioners have

consented to the filing of this brief, but

Respondent has not indicated whether it will

consent or oppose the filing of this brief. A copy

of the proposed brief is attached.

As more fully explained in the attached

brief under “Interest of Amicus Curiae,” the

Niskanen Center has demonstrated a particular

interest in the legal and constitutional issues

raised by the condemnation procedures followed

by gas pipeline companies under the Federal

Energy Regulatory Commission’s certificates, as

in this case. Niskanen is currently representing

landowners in the pending challenge to FERC’s

approval of the Atlantic Coast Pipeline1 and in

FERC’s pending proceedings in connection with

the proposed Pacific Connector Pipeline. 2 In

addition, Niskanen Center has submitted

amicus briefs in the D.C. Circuit challenges to

1 Final Brief of Intervenors Lora Baum and Victor Baum

In Support of Landowner Petitioners, Atl. Coast Pipeline

v. FERC, No. 18-1224 (D.C. Cir. July 24, 2019).

2 Federal Energy Guidelines: FERC Reports (FERC),

Docket Sheet CP17-494.

FERC’s approval of the Mountain Valley

Pipeline3 and the PennEast Pipeline,4 and an

amicus brief in the pending Third Circuit case

concerning whether the Eleventh Amendment

allows pipeline companies to condemn state

property in federal courts. 5 Niskanen Center

also filed an amicus brief in Puntenney v. Iowa

Utilities Board, 6 concerning the proper

interpretation of the Takings Clause in the Iowa

Constitution. In short, the Niskanen Center has

a significant interest in the issues raised in the

Petition.

This brief will assist the Court in

determining whether to grant certiorari because

the Niskanen Center’s brief sets forth the

public’s interest in preserving the integrity of

the government’s exercise of the power of

eminent domain in cases involving natural gas

pipeline installations under certificates of public

3

Final Brief Amicus Curiae of Niskanen Center In

Support of Petitioners, Appalachian Voices v. FERC, No.

17-1271, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019).

4 Final Brief Amicus Curiae of Niskanen Center in

Support of Petitioners, Del. Riverkeeper Network v. FERC,

895 F.3d 102 (D.C. Cir. 2019) (No. 18-1128), 2019 WL

2369441.

5 Brief for Amicus Curiae Niskanen Center in Support of

Appellants and Reversal, In Re PennEast Pipeline

Company, No. 19-1191, 2019 WL 1915656 (3d Cir. Apr.

25, 2019).

6 Final Brief of Amicus Curiae Niskanen Center,

Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829 (Iowa 2019)

(No. 17-0423).

necessity and convenience granted by FERC.

And because the Niskanen Center so often

represents landowners in defending their rights

before FERC’s decision-making bodies, the

Center will offer the Court a broad, policy

perspective on the issues not presented by

either party in the case.

The Niskanen Center respectfully requests

that the Court grant leave to file the attached

brief as amicus curiae.

Dated: August 8, 2019

Respectfully submitted,

/s/ Nancie G. Marzulla

NANCIE G. MARZULLA

Counsel of Record

ROGER J. MARZULLA

Marzulla Law, LLC

1150 Connecticut Ave. NW

Suite 1050

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

roger@marzulla.com

Counsel for Amicus Curiae

i

QUESTION PRESENTED

The question dividing the courts of appeals

is:

Whether district courts have power—

without authorization from Congress—to issue

preliminary injunctions granting private

pipeline companies immediate possession of

property in condemnations under the Natural

Gas Act before the trials on just compensation.1

1

Petition for Writ of Certiorari at i, Givens v. Mountain

Valley Pipeline, LLC, No. 19-54 (S. Ct. July 3, 2019).

ii

TABLE OF CONTENTS

QUESTION PRESENTED .................................. i

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

INTEREST OF AMICUS CURIAE .................... 1

SUMMARY OF ARGUMENT ............................. 3

REASONS FOR GRANTING THE

PETITION ........................................................... 6

1. This Court’s recent decision in Knick

v. Township of Scott, Pennsylvania

appears to undermine the Fourth

Circuit’s reasoning ................................. 6

2. The Constitution guarantees just

compensation, not inadequate

compensation ........................................ 10

CONCLUSION .................................................. 18

iii

TABLE OF AUTHORITIES

Cases

Almota Farmers Elevator & Warehouse Co.

v. United States,

409 U.S. 470 (1973) ........................................ 12

Cherokee Nation v. Southern Kansas

Railway Co.,

135 U.S. 641 (1890) ................................... 9, 10

City of Monterey v. Del Monte Dunes at

Monterey, Ltd.,

526 U.S. 687 (1999) ........................................ 12

Constitution Pipeline Co., LLC v. A

Permanent Easement for 1.84 Acres,

No. 3:14-2458, 2015 WL 1220248 (M.D.

Pa. Mar. 17, 2015) ......................................... 16

Constitution Pipeline Co., LLC v. New York

State Department of Environmental

Conservation,

868 F.3d 87 (2d Cir. 2017) ............................. 16

First English Evangelical Lutheran Church

of Glendale v. Los Angeles,

482 U.S. 304 (1987) .................................. 10, 12

Hooten v. United States,

405 F.2d 1167 (5th Cir. 1969) ........................ 16

iv

Jacobs v. United States,

290 U.S. 13 (1933) ...................................... 7, 11

Kaiser Aetna v. United States,

444 U.S. 164 (1979) .......................................... 3

Kimball Laundry Co. v. United States,

338 U.S. 1 (1949) ............................................ 12

Knick v. Township of Scott, Pennsylvania,

139 S. Ct. 2162 (2019) ............................. passim

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) .......................................... 4

Mitchell v. United States,

267 U.S. 341 (1925) ........................................ 15

Mountain Valley Pipeline, LLC v. 6.56

Acres of Land, Owned by Sandra Townes

Powell,

915 F.3d 197 (4th Cir. 2019) ............ 6, 7, 14, 18

Mountain Valley Pipeline, LLC v. An

Easement to Construct, Operate and

Maintain a 42-inch Gas Transmission

Line Across Properties in Counties of

Nicholas, Greenbrier, Monroe, and

Summers, West Virginia,

No. 2:17-cv-04214, 2018 WL 1004745

(S.D.W. Va. Feb. 21, 2018) .............................. 9

v

Omnia Commercial Co. v. United States,

261 U.S. 502 (1923) .................................. 15, 16

Georgia-Pacific Corp. v. United States,

640 F.2d 328 (Ct. Cl. 1980) (per curiam) ...... 15

R.J. Widen Co. v. United States,

357 F.2d 988 (Ct. Cl. 1966) ............................ 16

Southern Counties Gas Co. of California v.

United States,

157 F. Supp. 934 (Ct. Cl. 1958) ..................... 16

San Remo Hotel, L.P. v. City of San

Francisco, California,

545 U.S. 323 (2005) ......................................... 9

Stipe v. United States,

337 F.2d 818 (10th Cir. 1964) ........................ 16

United States ex rel. Tennessee Valley

Authority v. Powelson,

319 U.S. 266 (1943) ................................. 15, 16

United States v. 1.604 Acres of Land,

844 F. Supp. 2d 668 (E.D. Va. 2011) ............. 16

United States v. 57.09 Acres of Land in

Skamania County, Washington,

757 F.2d 1025 (9th Cir. 1985) ....................... 15

United States v. 677.50 Acres of Land,

420 F.2d 1136 (10th Cir. 1970) ...................... 16

vi

United States v. 1735 North Lynn Street,

676 F. Supp. 693 (E.D. Va. 1987) .................. 15

United States v. General Motors Corp.,

323 U.S. 373 (1945) .............................. 6, 13, 15

United States v. Gossler,

60 F. Supp. 971 (D. Or. 1945) ........................ 16

United States v. Grand River Dam

Authority,

363 U.S. 229 (1960) ....................................... 16

United States v. Miller,

317 U.S. 369 (1973) .................................. 11, 12

Williamson County Regional Planning

Commission v. Hamilton Bank of

Johnson City,

473 U.S. 172 (1985) ......................................... 9

Yuba Natural Resources, Inc. v. United

States,

904 F.2d 1577 (Fed. Cir. 1990) ..................... 15

Other Authorities

Richard Epstein, Takings: Private Property

and the Power of Eminent Domain

(1985) ……………………………….………...... 14

vii

Nathan Bu, Taking Stock: Exploring

Alternative,

49 Colum. Hum. Rts. L. Rev. 213

(Winter 2018) ............................................... 13

Marina Fegan, Just Compensation

Standards and Eminent Domain

Injustices: An Underexamined connection

and opportunity for Reform,

6 Conn. Pub. Int. L.J. 269 (2007) ................. 13

1

INTEREST OF AMICUS CURIAE

Under Supreme Court Rule 37.2(a), the

Niskanen Center submits this brief amicus

curiae in support of Petitioners.8

The Niskanen Center, which launched

operations in January 2015, is a nonpartisan

501(c)(3) think tank that works to promote an

open society: a social order that is open to

political, cultural, and social change; open to

free inquiry; open to individual autonomy; open

to the poor and marginalized; open to commerce

and trade; open to people who may wish to come

or go; open to different beliefs and cultures;

open to the search for truth; and a government

that protects these freedoms while advancing

the cause of open societies around the world.

Central to Niskanen Center’s purpose is the

principle of securing Americans’ rights to their

property. It is a fundamental matter of justice

that government should forcibly take private

Under this Court’s Rule 37.2(a), the Niskanen Center has

received written consent from Petitioners. The Center has

requested consent from Respondents, but has not received

confirmation whether consent is granted. Counsel of record

for all parties received notice prior to the due date of the

Amicus Curiae’s intention to file this brief.

8

Under Rule 37.6, Amicus Curiae affirms that no

counsel for any party authored this brief in whole or in part,

and no counsel or party made a monetary contribution to

fund the preparation or submission of this brief. No person

other than Amicus Curiae, or its counsel, made a monetary

contribution to its preparation or submission.

2

property only as a measure of last resort, when

truly for public use, and must compensate the

property owners sufficiently to render them

indifferent to the taking.

The Niskanen Center has demonstrated a

particular

interest

in

the

legal

and

constitutional

issues

raised

by

the

condemnation procedures followed by gas

pipeline companies under FERC certificates, as

in this case. Niskanen represents landowners in

the pending challenge to FERC’s approval of the

Atlantic Coast Pipeline9 and in FERC’s pending

proceedings in connection with the proposed

Pacific Connector Pipeline. 10 In addition,

Niskanen Center has submitted amicus briefs in

the D.C. Circuit challenges to FERC’s approval

of both the Mountain Valley Pipeline11 and the

PennEast Pipeline,12 and an amicus brief in the

pending Third Circuit case concerning whether

the Eleventh Amendment allows pipeline

companies to condemn state property in federal

9 Final Brief of Intervenors Lora Baum and Victor Baum

In Support of Landowner Petitioners, Atl. Coast Pipeline v.

FERC, No. 18-1224 (D.C. Cir. July 24, 2019).

10 Federal Energy Guidelines: FERC Reports (FERC),

Docket Sheet CP17-494.

11 Final Brief Amicus Curiae of Niskanen Center In

Support of Petitioners, Appalachian Voices v. FERC, No.

17-1271, 2019 WL 847199 (D.C. Cir. Feb. 19, 2019).

12 Final Brief Amicus Curiae of Niskanen Center in

Support of Petitioners, Del. Riverkeeper Network v. FERC,

895 F.3d 102 (D.C. Cir. 2019) (No. 18-1128), 2019 WL

2369441.

3

courts.13 Niskanen Center also filed an amicus

brief in Puntenney v. Iowa Utilities Board, 14

concerning the proper interpretation of the

Takings Clause in the Iowa Constitution.

SUMMARY OF ARGUMENT

This Court has held that the landowner’s

right to exclude others is “one of the most

essential sticks in the bundle of rights that are

commonly characterized as property.” 15

Consequently,

[a]n owner suffers a special kind of

injury when a stranger directly invades

and occupies the owner’s property. . . .

[P]roperty law has long protected an

owner’s expectation that he will be

relatively undisturbed at least in the

possession of his property. To require,

as well, that the owner permit another

to exercise complete dominion literally

adds insult to injury. See Michelman,

Property,

Utility,

and

Fairness:

Comments on the Ethical Foundations

13 Brief for Amicus Curiae Niskanen Center in Support of

Appellants and Reversal, In Re PennEast Pipeline

Company, No. 19-1191, 2019 WL 1915656 (3d Cir. Apr. 25,

2019).

14 Final Brief of Amicus Curiae Niskanen Center,

Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829 (Iowa 2019)

(No. 17-0423).

15 Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).

4

of “Just Compensation” Law, 80 Harv.

L. Rev. 1165, 1228, and n. 110 (1967).16

When a statute authorizes permanent

occupation of private land by a third party or

the government, this Court’s “cases uniformly

have found a taking to the extent of the

occupation, without regard to whether the

action achieves an important public benefit or

has only minimal economic impact on the

owner.”17

Knick v. Township of Scott, Pennsylvania,18

decided in this Court’s most recent term, after

the Fourth Circuit’s decision in this case,

reaffirmed this principle, holding that “a

property owner has a claim for a violation of the

Takings Clause as soon as a government takes

his property for public use without paying for

it.”19

The preliminary injunction granted in this

case, which allowed Mountain Valley Pipeline

Company to immediately occupy Petitioners’

land without paying for it, would appear to be

directly contrary to Knick, meriting review by

this Court—if not summary reversal.

16 Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 436 (1982).

17 Id. at 419-20.

18 139 S. Ct. 2162 (2019).

19 Id. at 2170.

5

This case has far-reaching implications

since, as the Inspector General of the

Department of Energy has noted, recent

significant growth in the natural-gas industry

has dramatically increased the number of and

controversy over natural-gas pipelines like the

one in this case.20

In addition, this case raises a critical issue

regarding the proper measure of just

compensation when a taking not only deprives

the owner of exclusive possession, but also

destroys the income derived from the property.

As the Fourth Circuit noted:

[O]ne Landowner, for instance, operates

property that serves as a wedding venue

and pick-your-own-apples orchard, and

testified that he would suffer greater

harm as a result of construction in the

spring and summer than if possession

were delayed until November 2018.

And, to give a second example, another

Landowner alleged special disturbances

to farm animals and timber values that

20 See Office of Inspector General, U.S. Department of

Energy, Audit Report: The Federal Energy Regulatory

Commission’s Natural Gas Certification Process (May 24,

2018),

https://www.energy.gov/sites/prod/files/2018/05/f52/DOEOIG-18-33.pdf (last accessed July 25, 2019).

6

would result from immediate possession

of her land.21

Contrary to the Fourth Circuit, an award of

just compensation will not compensate

Petitioners for these losses, which federal law

classifies as consequential damages not

included in a just compensation award.22

The Court should grant review to determine

whether the measure of just compensation,

when denied to the landowner at the time of

taking, should include consequential losses,

which could not be claimed if the landowner had

received just compensation at the time of

taking—and title had passed to the pipeline

company—as the Fifth Amendment requires.

REASONS FOR GRANTING THE

PETITION

1.

This Court’s recent decision in Knick v.

Township of Scott, Pennsylvania is at

odds with the Fourth Circuit’s

reasoning

21 Mountain Valley Pipeline, LLC v. 6.56 Acres of Land,

Owned by Sandra Townes Powell, 915 F.3d 197, 220 (4th

Cir. 2019).

22

Interagency Land Acquisition Conference, Uniform

Appraisal Standards for Federal Land Acquisitions at 160

(2016), https://www.justice.gov/file/408306/download (last

accessed on July 25, 2019); see United States v. Gen.

Motors Corp., 323 U.S. 373, 379 (1945) (“compensation . . .

does not include future loss of profits”).

7

This Court should grant certiorari to

determine whether its holding in Knick v.

Township of Scott, Pennsylvania,23 decided after

the Fourth Circuit and other courts have upheld

the practice of gas pipeline companies gaining

occupancy before paying just compensation, is

consistent with the Fifth Amendment’s

guarantee of just compensation when private

property is taken for a public use.

As the petition states, the Fourth Circuit

(and the other circuits that have disagreed with

the Seventh) grounded its holding on the

erroneous belief that “the Constitution does not

prohibit condemnations in which possession

comes before compensation.”24

But a little over a month ago this Court, in

Knick v. Township of Scott, Pennsylvania,

squarely rejected that analysis, reaffirming that

taking possession of private property without

paying for it violates the Fifth Amendment’s

Just Compensation Clause “[r]egardless of posttaking remedies that may be available to the

property owner.” 25 The Court explained that

“[t]he Clause provides: ‘[N]or shall private

property be taken for public use, without just

compensation.’ It does not say: ‘Nor shall

private property be taken for public use,

139 S. Ct. 2162 (2019).

Mountain Valley Pipeline, 915 F.3d at 213; see Jacobs

v. United States, 290 U.S. 13, 27-28 (1933).

25 Knick, 139 S. Ct. at 2170.

23

24

8

without an available procedure that will result

in compensation.’”26

To grant possession of private property

without payment of just compensation violates

the Fifth Amendment’s guarantee because

[a] later payment of compensation may

remedy the constitutional violation that

occurred at the time of the taking, but

that does not mean the violation never

took place. The violation is the only

reason compensation was owed in the

first place. A bank robber might give the

loot back, but he still robbed the bank.

The availability of a subsequent

compensation remedy for a taking

without compensation no more means

there never was a constitutional

violation in the first place than the

availability of a damages action renders

negligent conduct compliant with the

duty of care.27

Overruling two of its own decisions which

improperly relied on the same analysis as the

Fourth Circuit did in this case, the Knick Court

held unequivocally that “[t]he Framers meant to

prohibit the Federal Government from taking

property without paying for it. Allowing the

government to keep the property pending

26

27

Id.

Id. at 2172.

9

subsequent compensation to the owner . . . was

not what they envisioned,” 28 overruling

Williamson County29 and San Remo.30

The Fourth Circuit, like the respondents in

Knick, relied on the statement in Cherokee

Nation, 31 to the effect that the Constitution

“does not provide or require that compensation

shall be actually paid in advance of the

occupancy of the land to be taken.” 32 But, as

this Court explained:

[R]espondents read those statements

too broadly. They concerned requests

for injunctive relief, and the availability

of subsequent compensation meant that

such an equitable remedy was not

available. Simply because the property

owner was not entitled to injunctive

relief at the time of the taking does not

Id. at 2176 (emphasis in original).

Williamson Cty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985).

30 San Remo Hotel, L.P. v. City of San Francisco, 545 U.S.

323 (2005).

31 Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641

(1890).

32 Mountain Valley Pipeline, LLC v. An Easement to

Construct, Operate & Maintain a 42-inch Gas

Transmission Line Across Props. in Ctys. of Nicholas,

Greenbrier, Monroe, & Summers, W. Va., No. 2:17-cv04214, 2018 WL 1004745, at *11 (S.D.W. Va. Feb. 21,

2018) (quoting Cherokee Nation, 135 U.S. at 659) (citing

E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 829 (4th Cir.

2004)).

28

29

10

mean there was no violation of the

Takings Clause at that time.33

In addition, the Cherokee Nation quote

appears to be dictum since the statute analyzed

there provided that “before the railway shall be

constructed through any lands proposed to be

taken, full compensation shall be made to the

owner for all property to be taken or damage

done by reason of the construction of the road.”34

In Knick, this Court reiterated its holdings

in numerous just compensation cases that “the

act of taking”35 is the “event which gives rise to

the claim for compensation.” 36 Taking

occupancy of private property without paying

just compensation is flatly unconstitutional

because the Fifth Amendment “places a

condition on the exercise of that power” 37 to

take private property in the first instance.

2.

far

The Constitution guarantees just

compensation, not inadequate

compensation

This case squarely presents the issue of how

post-deprivation compensation can be

Knick, 139 S. Ct. at 2175 (internal citations omitted).

Cherokee Nation, 135 U.S. at 659.

35 Knick, 139 S. Ct. at 2170.

36 Id. (quoting United States v. Dow, 357 U.S. 17, 22

(1958)).

37 First English Evangelical Lutheran Church of Glendale

v. Los Angeles, 482 U.S. 304, 314 (1987).

33

34

11

stretched and still pass constitutional muster.

In the seminal case of Jacobs v. United States,38

involving the payment of interest on an award

of just compensation, the Court articulated a

broad definition of just compensation that

leaves no room for the conclusion that

landowners would recover anything less than

full monetary losses resulting from the

legitimate exercise of eminent domain:

The amount recoverable was just

compensation,

not

inadequate

compensation. The concept of just

compensation is comprehensive and

includes all elements, “and no specific

command to include interest is

necessary when interest

or

its

equivalent

is

a

part

of

such

compensation.”

The owner is not

limited to the value of the property at

the time of the taking; “he is entitled to

such addition as will produce the full

equivalent

of

that

value

paid

contemporaneously with the taking.”39

In United States v. Miller,40 the Court held

that just compensation means the “full and

perfect equivalent in money of the property

Jacobs, 290 U.S. at 13.

Id. at 16-17 (internal citations omitted) (quoting

Seaboard Air Line Ry. Co. v. Unites States, 261 U.S. 299,

306 (1923)).

40 United States v. Miller, 317 U.S. 369 (1973).

38

39

12

taken and the owner is to be put in as good

position pecuniarily as he would have occupied

if his property had not been taken.”41 And in

City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 42 the Court described just

compensation as a compensatory remedy. 43

That is why, in defining “highest and best” use,

the Supreme Court has emphasized that “[a]s

its name suggests, . . . just compensation is, like

ordinary money damages, a compensatory

remedy.”44

This Court has defined just compensation as

the fair market value, “what a willing buyer

would pay in cash to a willing seller.”45 But as

this Court explained in Kimball Laundry Co. v.

United States,46 the “transfer brought about by

eminent domain is not a voluntary exchange, [so

just compensation] can be determined only by a

guess, as well informed as possible, as to what

the equivalent would probably have been had a

voluntary exchange taken place.”47

Here, the facts show that losses sustained

by the landowners under the early access

Id. at 373; see also First English, 482 U.S. at 304.

526 U.S. 687 (1999).

43 Id. at 710.

44 Id.

45 Almota Farmers Elevator & Warehouse Co. v. United

States, 409 U.S. 470, 474 (1973).

46 338 U.S. 1 (1949).

47 Id. at 6.

41

42

13

scheme sanctioned by some courts does not

result in just or truly compensatory

compensation for property owners’ losses. Many

of the landowners incur ruinous economic losses

to their agribusiness, which are not recoverable

as just compensation because consequential

damages (including business losses) are outside

the scope of takings damages.48 The landowners

whose property is subject to early entry by

pipeline companies thus suffer “the injustice

caused by undercompensation.”49

According

to

one

commentator,

“[u]ndercompensating condemnees may cause

condemnors to fail to appreciate the total costs

of eminent domain. Condemnors might then use

eminent domain where the losses suffered by

property owners exceeds the public use’s net

benefit to society.”50

The Fourth Circuit failed to apprehend the

constitutional implications of its ruling that

allowed pipeline companies access to private

land and to commence pipeline construction,

See Gen. Motors Corp., 323 U.S. at 379-80 (noting

business losses are excluded from a compensation award).

49 Nathan Bu, Taking Stock: Exploring Alternative, 49

Colum. Hum. Rts. L. Rev. 213, 222 (Winter 2018).

50 Id. at 223; see also Marina Fegan, Just Compensation

Standards and Eminent Domain Injustices: An

Underexamined Connection and Opportunity for Reform,

6 Conn. Pub. Int. L.J. 269, 269 (2007) (arguing that

“inadequate compensation of property owners is greatly to

blame for unjust or ineffective takings.”).

48

14

and yet delay compensation until many years

later (if ever, if the pipeline is not completed):

It is true, as the Landowners contend,

that because the process of determining

just compensation will be a lengthy one,

the grant of preliminary relief means

that their property will be disturbed

sooner rather than later. But as we held

in Sage, that is “simply a timing

argument,” not an independent injury

traceable to the “taking [of] property

before determining just compensation.”51

But the issue is more than just a timing

issue of when a landowner receives just

compensation, as the Fourth Circuit erroneously

concluded;

the

issue

is

whether

the

compensation is just when the time comes to

compensate for the taking.

A noted takings scholar, Richard Epstein,

has stated that the ideal amount of (or just)

compensation would leave the property owner

“in a position of indifference” 52 between

condemnation and retention of the property.

Here, if just compensation is to be just for the

landowners whose land and businesses have

been destroyed or severely damaged during the

51 Mountain Valley Pipeline, 915 F.3d at 220 (quoting

Sage, 361 F.3d at 829).

52 Richard Epstein, Takings: Private Property and the

Power of Eminent Domain 182 (1985).

15

period between the actual transfer of the

easement to the pipeline company and the

actual

payment

of

compensation,

the

compensation

would

have

to

include

consequential damages.

The record shows significant consequential

damages that will result from the pipeline’s

activities on the private land, none of which are

recoverable under the standard of just

compensation that focuses solely on the value of

the property taken.53 Among the consequential

losses not recoverable as Fifth Amendment just

compensation are: loss of business value or

going concern value, 54 loss of or damage to

goodwill,55 future loss of profits,56 frustration of

plans, 57 frustration of contract or contractual

expectations, 58 and loss of opportunity or

See Gen. Motors Corp., 323 U.S. at 379-80 (noting

business losses are excluded from a compensation award).

54 Mitchell v. United States, 267 U.S. 341, 345 (1925);

United States v. 1735 N. Lynn St., 676 F. Supp. 693, 69798 (E.D. Va. 1987).

55 Gen. Motors Corp., 323 U.S. at 378.

56 Id.; United States ex rel. Tenn. Valley Auth. v.

Powelson, 319 U.S. 266, 283 (1943); Yuba Nat. Res., Inc.

v. United States, 904 F.2d 1577, 1581-82 (Fed. Cir. 1990);

Ga.-Pac. Corp. v. United States, 640 F.2d 328, 360-61 (Ct.

Cl. 1980) (per curiam).

57 1735 N. Lynn St., 676 F. Supp. at 701 (citing Powelson,

319 U.S. at 281-82 & n.12; Omnia Commercial Co. v.

United States, 261 U.S. 502, 513 (1923)).

58 Omnia, 261 U.S. at 513; United States v. 57.09 Acres of

Land in Skamania Cty., 757 F.2d 1025, 1027 (9th Cir.

53

16

business prospect, 59 frustration of

enterprise,60 and the loss of customers.61

an

This narrow definition of just compensation

means that many of these Petitioners will

therefore never receive just compensation for

the pipeline easement. The Holleran family lost

their property and livelihood when the pipeline

company cut down the 250-year-old sugar

maples they used to make syrup.62 The petition

1985); United States v. 677.50 Acres of Land, 420 F.2d

1136, 1138-39 (10th Cir. 1970); Hooten v. United States,

405 F.2d 1167, 1168 (5th Cir. 1969); United States v.

1.604 Acres of Land, 844 F. Supp. 2d 668, 681-82 (E.D.

Va. 2011); United States v. Gossler, 60 F. Supp. 971, 97677 (D. Or. 1945).

59 Powelson, 319 U.S. at 283; United States v. Grand

River Dam Auth., 363 U.S. 229, 236 (1960); Omnia, 261

U.S. at 513.

60 Grand River, 363 U.S. at 236; Omnia, 261 U.S. at 513.

61 Stipe v. United States, 337 F.2d 818, 819-21 & n.3

(10th Cir. 1964); R.J. Widen Co. v. United States, 357

F.2d 988, 990, 993-94 (Ct. Cl. 1966); S. Ctys. Gas Co. of

Cal. v. United States, 157 F. Supp. 934, 935-36 (Ct. Cl.

1958).

62 Petition for Writ of Certiorari at 25-26, Givens v.

Mountain Valley Pipeline, LLC, No. 19-54 (S. Ct. July 3,

2019); see Constitution Pipeline Co., LLC v. New York

State Dep’t of Envtl. Conservation, 868 F.3d 87, 91 (2d

Cir. 2017) (upholding the State of New York’s denial of

§ 401 of the Clean Water Act certification for the

Constitution Pipeline); Constitution Pipeline Co., LLC v.

A Permanent Easement for 1.84 Acres, No. 3:14-2458,

2015 WL 1220248, at *4 (M.D. Pa. Mar. 17, 2015)

(granting the Constitution Pipeline immediate possession

of the Hollerans’ property); Marie Cusick, Conflicting

17

also discusses the business losses—many of

these properties are thriving agricultural

businesses—farms and ranches—that earn

income.63 The petition further states that

[t]heir owners—some on fixed incomes—

depend on that money to make ends

meet. Early possession prematurely cuts

off that income. Landowners cannot

grow crops or graze cattle in the fields

possessed by the pipeline company.

They are forced to close businesses,

temporarily or permanently, and miss

out on rental income.64

This Court has repeatedly held that the

Just Compensation Clause is not the “poor

relation”65 of the other protections set forth in

the Bill of Rights. But this case calls into

question the federal courts’ commitment to

backing full and fair just compensation for

property owners who are paid inadequate

compensation for the taking of their property.

Decisions on Pipelines Frustrate Industry, Landowners,

State

Impact

Pennsylvania

(Sept.

18,

2017),

https://perma.cc/UVK4-6KEH (reporting how the pipeline

developer’s contractors “cut down a large swath of maple

trees” but pipeline project’s failure left the Hollerans

“with heaps of rotting maple trees”).

63 Petition for Writ of Certiorari at 27, Givens, No. 19-54

(S. Ct. July 3, 2019).

64 Id. at 26.

65 Knick, 139 S. Ct. at 2169.

18

It may be that the public will benefit from

constructing new natural gas pipelines. The

Fourth Circuit noted that “Mountain Valley’s

certificate rests on an agency finding that the

proposed pipeline will benefit the public by

meeting a market need for natural gas, and will

do so in a way that is environmentally

acceptable.”66 The open question, however—and

the issue worthy of review by this Court—is

whether the burden of achieving this public

good must be borne by the affected landowners,

or whether the right to just compensation

secured by the Fifth Amendment (the only

express money damages provision in the

Constitution) must comprehensively include all

losses associated with the exercise of eminent

domain for the pipeline easement.

CONCLUSION

The petition for a writ of certiorari should

be granted.

66

Mountain Valley Pipeline, 915 F.3d at 221-22.

19

Respectfully submitted,

NANCIE G. MARZULLA

Counsel of Record

ROGER J. MARZULLA

Marzulla Law, LLC

1150 Connecticut Ave. NW

Suite 1050

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

roger@marzulla.com

August 8, 2019

COUNSEL FOR AMICUS CURIAE