Thursday, July 23, 2015

OCA and The Counselors of Real Estate Announce a Webinar Today Focused on the Impact of the Controversial Kelo Decision

Today, Owners’ Counsel of America and The Counselors of Real Estate® (CRE) will present our first cooperative webinar: Kelo v. New London: The Grasping Hand and Its Legacy at 12:30 PM (Eastern) / 11:30 AM (Central) / 10:30 AM (Mountain) / 9:30 AM (Pacific) / 6:30 AM (Hawaiian).  Participants can register here.

Our distinguished panel includes:

Anthony DellaPelle, Esq., CRE, Shareholder/Partner, McKirdy & Riskin, PA.
Tony has represented property owners in eminent domain, redevelopment and real estate tax appeal matters for more than 25 years.  He also has significant experience representing landowners in land use, zoning and planning matters.  He is the New Jersey member of OCA and a designated member of The Counselor of Real Estate.

Professor Ilya Somin, Professor of Law, George Mason University School of Law.
Ilya has spoken and written extensively on the topic of eminent domain and public use.  In 2009, he testified on property rights issues at the United States Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor.  He is the author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015).

Jack Sperber, Esq., CRE, Partner, Faegre Baker Daniels.
Jack represents property owners and condemning entities in eminent domain proceedings in Colorado and around the country.  Jack regularly writes and lectures at legal conferences and before trade associations.  He has served for many years as one of the planning chairs for the American Law Institute’s national eminent domain conference and is the Colorado representative of OCA and a designated member of The Counselor of Real Estate.

Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert.
Robert is a land use, property rights and appellate attorney focusing on regulatory takings, eminent domain, water rights, and voting rights cases.  He is a frequent speaker on land use and eminent domain issues and regularly publishes scholarly and practical articles in these practice areas.  He is a planning chair of the American Law Institute’s national eminent domain conference and also the Hawaii member of OCA.

“The Supreme Court’s decision in Kelo changed the political physics of property rights,” said Andrew Brigham, Owners’ Counsel of America President and Florida member.  “While the Federal baseline under Kelo permits eminent domain takings for economic development and the transfer of private property to private entities, we have witnessed legislative reforms at the state level which restore private property rights and again allow the marketplace to determine who may benefit from investment-backed expectations.”

OCA is honored to collaborate with The Counselors of Real Estate to plan and host this webinar discussing the impact of the infamous and controversial Kelo decision during the ten year anniversary of the Supreme Court's decision in the case.

"Kelo v. New London: The Grasping Hand and Its Legacy" webinar will take place today, Thursday, July 23, 2015 at 6:30 AM (HST), 9:30 AM (PDT), 10:30 AM (MDT), 11:30 AM (CST), 12:30 PM (EDT), 5:30 PM (BST) and will be 75 minutes in length.  To register visit here.

We hope that you will join us later today. 

Thursday, April 16, 2015

Virginia Supreme Court Rules in Favor of Landowners in Eminent Domain Case: Condemnor's Initial Appraisal is an Admission of Value

This morning the Virginia Supreme Court issued its opinion in Ramsey v. Commissioner of Highways, No. 149029, finding that the Virginia Department of Transportation's (VDOT) initial pre-condemnation appraisal is not a confidential offer of settlement, but rather, an admission of value that should be considered as evidence at trial.   
OCA filed an amicus brief in support of the landowners, John and Janet Ramsey, arguing that the most important evidence in an eminent domain trial, the value of the property, should not be withheld from the jury.  More about OCA's brief is here and our earlier discussion about this case is here.
In this condemnation case, VDOT commissioned an appraisal of the Ramsey property before offering to purchase it in advance of condemnation.  The owners refused the state's offer and the state filed suit.  The landowners hired Virginia eminent domain law firm Waldo & Lyle to represent them in the proceedings.  (Note: Joe Waldo of Waldo & Lyle is the OCA Virginia representative.)
Prior to trial the state commissioned a second appraisal using a different appraiser who relied, in part, on the initial appraisal report.  Nevertheless, the second appraisal was much lower that the initial appraisal.  
The landowners sought to admit the initial appraisal into evidence at trial.  However, the state argued that its pre-take appraisal was offered as an attempt to settled and, therefore, inadmissible.  The trial court agreed and barred its admission, limiting testimony and cross examination to only the minor issue upon which the second appraiser relied (an estimate of value relating to landscaping destroyed by the take).  
The jury's verdict came in below the initial appraisal and $14,675 under the estimate of compensation VDOT deposited into the registry shortly after filing the lawsuit.  A judgment was entered requiring the landowners to refund the $14,675 plus nearly 3 years of interest to the DOT.  The landowners appealed. 
The opinion written by Justice Cleo E. Powell states:

The record demonstrates that the landowners were given the Savage appraisal, showing that the value of their entire property was $500,000, prior to the time any offer to purchase was made and/or settlement negotiations were initiated.  The landowners rely on United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979) for the proposition that the Savage appraisal was admissible into evidence as pre-condemnation party admissions by the Commissioner.  In 320.0 Acres of Land, the landowners sought to introduce into evidence the 42 U.S.C.§ 46512 statements of just compensation given to them by the Federal agency seeking to condemn their property.  The Fifth Circuit noted that the § 4651 statements were admissible because “[t]echnically, at the time the statements are provided, there is no disputed claim, and hence no settlement negotiations of a disputed claim.”  320.0 Acres of Land, 605 F.2d at 824-25.  The Fifth Circuit held that “if § 4651 statements of just compensation are provided a prospective condemnee, they are admissible at a subsequent compensation trial as an admission, once it becomes known that at trial the Government is valuing the property at a lower figure.”  Id. at 825.  See also Department of Transp. v. Frankenlust Lutheran Congregation, 711 N.W.2d 453, 462 (Mich. Ct. App. 2006)(“[A] landowner may, if the condemning authority seeks to establish a lower valuation for the property at trial, introduce evidence of the higher, precondemnation valuation for the purpose of rebutting the authority’s lower valuation.”).  We agree with this logic, which is consistent with the language adopted by the General Assembly.
Slip Op at 5 & 6.

The opinion reverses the trial court judgment and remands the case back to the trial court for further proceedings.

With today's opinion, VDOT's practice of reducing its statement of just compensation before trial should end with the understanding that "the Government is not completely free to play fast and loose with landowners telling them one thing in the office and something else in the courtroom." (U.S. v. 320 Acres of Land, 605 F.2d at 825.)

Thursday, March 26, 2015

Owners' Counsel of America Files Amicus Brief Supporting Landowner in Eminent Domain Case Before Oregon Supreme Court

The Owners’ Counsel of America (OCA) together with the Central Oregon Builders Association (COBA) and Oregonians In Action (OIA) filed an amicus brief supporting the property owner in State of Oregon v. Alderwoods (Oregon), Inc., case number S062766. The brief asks the Oregon Supreme Court to confirm a long-standing rule that owners of property directly adjacent to a highway have a right to direct access to the roadway. The brief seeks to reverse a Court of Appeals decision which erroneously affirmed a trial court ruling depriving the landowner of the right to a jury trial to determine the issue of just compensation in this eminent domain case.

In State of Oregon v. Alderwoods (Oregon), Inc., 265 Or App 572, 336 P3d 1047 (2014), twelve judges of the Oregon Court of Appeals split 6-6 resulting in an affirmance by an equally divided court of the trial court’s decision to withhold from the jury evidence of the reduction in Alderwoods’ property’s value resulting from the Oregon Department of Transportation’s (ODOT) taking of two driveways which provided direct access to the property from SW Pacific Highway (Highway 99W), in Tigard, Oregon. Alderwoods appealed to the Oregon Supreme Court, which agreed to review the case.   

The brief was authored by Jordan R. Silk and D. Joe Willis of the Pacific Northwest regional law firm Schwabe, Williamson & Wyatt. Schwabe attorneys Kelly M. Walsh and Jill S. Gelineau also contributed to the brief.

Speaking on behalf of the amicus parties, Joe Willis explained that “[t]he fractured analyses of the Court of Appeals’ concurring opinions ignore established principles of Oregon and federal constitutional law. If the Oregon Supreme Court affirms the Court of Appeals and agrees that juries are barred from considering evidence that property loses value when direct access to adjacent highways is cut off, the property rights of every landowner in Oregon are in jeopardy.”    

As part of a project to improve Highway 99W, the Oregon Department of Transportation (ODOT) brought an eminent domain action against Alderwoods, taking "[a]ll abutter's rights of access, if any," to adjacent to Highway 99W. A month after filing the condemnation suit, ODOT notified Alderwoods that it was administratively eliminating the driveways because they did not meet current safety standards. See Alderwoods, 265 Or App at 574 (2014).

“Alderwoods’ property had two driveways provided direct access to Highway 99W that had existed since at least the 1930s,” Willis said of the property. “Both driveways were eliminated by ODOT and replaced with a curb and sidewalk as part of the highway improvement project.”

On ODOT’s request to bar the admission of any evidence that the loss of the driveways devalued its remaining property at trial, the trial court prohibited the landowner from presenting such evidence to the jury.

“Under Oregon common law, owners of properties abutting a state highway or county road have a right of direct access to that road,” explained Gelineau, a shareholder in Schwabe’s Portland office and the Oregon representative of OCA.

“In this case, ODOT indicated in its original eminent domain petition that it would condemn Alderwoods’ rights of access, if such rights existed,” continued Gelineau. “However, the State attempted to use its administrative power to extinguish those rights by not allowing the existing driveways to remain on the property to avoid condemning them outright and paying the landowner just compensation.”

The amici brief filed by OCA, COBA and OIA argues that the six concurring Judges of the Court of Appeals erred in their analysis of this case. Amici contend that the concurring opinions incorrectly applied regulatory takings law to a direct eminent domain proceeding resulting in the erroneous decision. The brief argues that Judge Wollheim’s dissent—joined by five other judges—correctly concluded that the common law right of direct access to an adjacent public highway from private property is well settled and a right which cannot be damaged or taken without the payment of just compensation.

“We believe that Judge Wollheim’s dissenting opinion articulates the proper analysis for this case,” said Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii member of OCA, who worked with the Oregon lawyers as OCA’s representative in connection with the brief. “We urge the Oregon Supreme Court to adopt the reasoning set forth in the dissenting opinion and remand this case to allow a jury to decide upon the amount of just compensation owed to this landowner.”

Friday, March 20, 2015

Amici Brief Supporting California Property Owners in Eminent Domain Case Argues the Sky Will Not Fall if the State Follows Procedures

The Owners’ Counsel of America (OCA) and the National Federation of IndependentBusiness (NFIB) Small Business Legal Center have filed an amici curiae brief in support of Sacramento-San Joaquin Delta property and business owners in Property Reserve, Inc. v. Superior Court, case number S217738. The brief calls upon the California Supreme Court to uphold a Third District Court of Appeal decision which held that the California Department of Water Resources’ (DWR) request to enter private property to undertake geological and environmental activities such as boring holes and installing permanent structures were not the “innocuous” or “superficial” activities permitted under California law. The Court of Appeal concluded that the level of intrusion on private property requested by DWR would be a taking, and that in order to undertake those activities, the DWR must follow eminent domain procedures.   

“The Third District Court of Appeal concluded, and we agree, that the government’s eminent domain power must be used ‘in strict conformity to the constitutional protections and procedures that limit its operation’,” explained Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii member of OCA, one of the authors of the OCA-NFIB brief.  “In a similar case in 1923, the California Supreme Court held that loyalty to constitutional protections is more important than the government’s ability to operate free of constitutional restraints, and all we’re asking the Court to do in this case is reaffirm that long-standing principle.”  

The DWR has proposed a conservation and resource management plan called the Bay Delta Conservation Plan (BDCP).  According to its website (, the BDCP includes a multi-million dollar water delivery project planned to divert water from the Sacramento-San Joaquin Delta to the southern regions of the state.

As part of its planning, the DWR requested permission to enter private property under California’s entry statutes (Cal. Civ. Pro. Code § 1245.010 et seq.) before filing suit to take the property by eminent domain.  DWR requested permission to perform geological and environmental studies on approximately 240 parcels owned by more than 150 owners.  The trial court granted DWR’s request to complete the environmental activities providing DWR deposit with the court an amount of money to compensate for any damages to or interference with the use of the properties.  

The court, however, denied DWR’s request to conduct geological testing prior to acquiring the properties through California’s eminent domain procedures. The trial court concluded that the geological activities amounted to a taking or damaging of property and ruled that the entry statutes are unconstitutional if used to authorize DWR’s taking or damaging of private property.  It further found that the entry statutes did not comply with article I, section 19, subdivision (a) of the California Constitution (Section 19(a)) - the constitutional provision limiting the use of eminent domain.  

Both parties appealed the trial court’s order.  In Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), the Court of Appeal ruled in favor of the property owners finding that the geological activities, which included entering the land, boring holes and installing permanent structures is a taking or damaging of property which requires the State to follow statutory eminent domain procedures.  The appellate court also found that DWR’s proposed environmental activities would constitute a temporary taking and cannot be authorized by the entry statutes.  DWR sought review by the California Supreme Court.

“Essentially, the appellate court ruled that there is no substitute for eminent domain when there’s been a taking,” said Edward G. Burg, a partner with Manatt, Phelps & Phillips, LLP in Los Angeles and the California member of OCA, who joined Mr. Thomas on the brief.  “No matter how small the interest, if the government takes property, it must condemn and pay for it first, and provide all of the protections the eminent domain process has.”  

The amici brief filed by the NFIB Small Business Legal Center and OCA argues two points.  Amici contend that any significant physical invasion of private property is a taking requiring the payment of just compensation and compliance with eminent domain procedures.  The brief disputes the State’s assertions that its adherence to established eminent domain procedures would interfere with its ability to function or to complete this and other projects.  Rather, amici argue, at worst complying with eminent domain procedures might be inconvenient for the government, but will not make the project impossible.

“There is no reason to think that this project will grind to a halt should the Court reaffirm the bedrock constitutional principle that the government must condemn and pay just compensation when its invasive activities are of such magnitude that they interfere with an owner’s property rights,” stated Thomas.  “The sky will not fall if the California Supreme Court continues to require what the Constitution has always demanded.”

Tuesday, February 17, 2015

Owners' Counsel of America Recognizes UH Law Professor David Callies with the 2015 Crystal Eagle Award for His Scholarship on Takings Law and Private Property Rights

Prof. Callies addresses OCA Members.
In a ceremony February 7, 2015 at the Nikko Hotel in San Francisco, OCA recognized Professor David L. Callies, the Benjamin A. Kudo Professor of Law at the University of Hawai‘i William S. Richardson School of Law, for his lifetime of scholarship addressing land use, eminent domain, takings law and private property rights.

Annually, OCA identifies an individual who has made a substantial contribution toward protecting the civil right of private property ownership and presents that individual with the Crystal Eagle Award.  We are honored to recognize David Callies with the 2015 Crystal Eagle Award for his work concerning property rights, land use regulation and takings law.

Richardson Law School Dean Avi Soifer said, “It is wonderfully fitting that David Callies has been honored in this way. He has been a standout teacher and scholar at our Law School for decades during which he has informed, challenged, and creatively provoked a generation of our students.” Soifer added, “David continues to do that and much more for the Law School as well as for many members of the larger community.”  

At the Law School, Callies teaches property, land use, and state and local government law. He is a member of the American Law Institute, the American College of Real Estate Lawyers, the Council of the International Bar Association’s Asia Pacific Forum, the College of Fellows of the American Institute of Certified Planners and a Life Fellow with the American Bar Foundation. He is also the past Chair of the American Bar Association’s Section of State and Local Government Law, and he received the Section’s 2006 Lifetime Achievement Award. 
A prolific writer, Callies has authored or co-authored 20 books and over eighty articles on topics relating to real property law, takings law, and land use and development in both the United States and Asia. In 2007, his book Taking Land: Compulsory Purchase and Land Use Regulation in the Asia-Pacific (with Kotaka) (U.H. Press, 2002) was republished in Japanese.  Additionally, his book, Land Use Controls in the United States is published in both Japanese and Chinese.   He authored the article "Takings, Physical and Regulatory," addressing the use of U.S. property law precedents by Hong Kong’s highest court that was published in a special 2007 edition of the Asia Pacific Law Journal to commemorate the 10th anniversary of Hong Kong’s establishment as a special administrative region of China. 

Gideon Kanner introduces Prof. Callies.
Beyond his written scholarship, Callies has delivered endowed lectures at Albany Law School and John Marshall Law School, presented at the Brigham-Kanner Property Rights Conference at William & Mary Law School, and lectured on land use issues in Japan, China, and Korea.  He recently served as co-chair and lecturer at Touro Law School’s symposium commemorating the 40th anniversary of The Takings Issue, a book Callies coauthored with Fred Bosselman and John Banta in 1973. He is a regular speaker at annual conferences presented by the American Law Institute, and the American Planning Association.  
Gideon Kanner, Professor Emeritus, Loyola Law School, and Robert H. Thomas, a director with Damon Key Leong Kupchak Hastert in Honolulu, introduced Professor Callies and presented the award. Thomas is the Hawai’i representative of OCA and a 1987 graduate of the William S. Richardson School of Law.

Mark Murakami '99, Prof. Callies, and Robert Thomas '87.

“The Owners’ Counsel of America sought to honor David Callies for his scholarship, which has evolved over the last 40 years to highlight the importance of private property rights in takings law,” said Thomas. “David has become an abiding voice in support of the constitutional right of property, and a fearless and outspoken critic when property rights are not given appropriate recognition.  For example, in a recent article, he noted that the Hawai‘i Supreme Court’s 1993-2010 track record on private property rights was ‘appalling,’ and hoped the current court would reverse that trend.”

“In addition to his work researching, thinking and writing about property and takings law, we are grateful to Professor Callies for educating and mentoring new generations of lawyers, and for showcasing the relationship between property rights and individual liberties,” Thomas added. 

Prof. Callies with the 2015 Crystal Eagle Award.

Friday, February 13, 2015

Injunction Issued to Prevent Condemnation of Property for XL Pipeline in Nebraska

This guest post has been authored by OCA Nebraska Member Bill Blake and follows his previous guest posts here and here.  As events continue to unfold relating to the Keystone XL pipeline, we hope to feature more of Bill's insights.

The Judge of the District Court of Holt County, Nebraska issued a temporary injunction on February 12, 2015, halting Transcanada’s efforts in Nebraska to acquire easement rights for the XL pipeline through eminent domain proceedings.  Transcanada had filed over one hundred proceedings in county courts along the proposed route in January, to obtain the permanent and temporary easements needed to complete the pipeline corridor.  Over 80% of the easement rights were already been obtained through negotiations with landowners.  The condemnation proceedings were filed on the on the eve of expiration of a permit issued by the Governor to use the selected route through Nebraska.  The condemnees in Holt county joined together to file the action to enjoin the condemnations. 
The Nebraska Supreme Court temporarily opened the way for condemnation in an opinion that failed to hold the routing procedure unconstitutional, but may have also failed to hold it to be constitutional.  Only four judges of the Court’s seven judges voiced an opinion on the issue.   It takes five judges to declare a statute unconstitutional.  The remaining three judges opined that the plaintiffs did not have standing and refused to give an opinion on the constitutional issue.  See Thompson v. Heineman, 289Neb. 798 (2015) (or Bill's previous guest posts here and here).
Included in the list of bizarre twists and turns in the XL saga is the fact that Transcanada agreed to issuance of the injunction.  This leaves the condemnation proceedings in limbo until the Nebraska Supreme Court has been given a chance to revisit the constitutionality issue in a case where the plaintiffs meet the  standing test of the remaining three judges.  Interestingly, the Court could also add even one more twist by determining that the Court had accepted jurisdiction in the prior case by a vote of four to three  and that the matter has  already been decided, even though no judge to date has given an opinion that the routing statute is constitutional.  The Court could also avoid the issue altogether by focusing on any one of several other challenges to the route approval process.   

William G. Blake
Baylor Evnen Law Firm                                                                                                                Lincoln, Nebraska

Wednesday, January 14, 2015

It Ain't Over 'Til It's Over: Nebraska Supreme Court Rules (or Maybe Not) on the Validity of the TransCanada XL Pipeline Route Approval Through Nebraska

The following guest post has been authored by OCA Nebraska Member Bill Blake as a follow up to his earlier post here concerning the recent Nebraska Supreme Court opinion regarding the constitutionality of the process for routing of the TransCanada pipeline through Nebraska.
Probably no appeal to the Nebraska Supreme Court has been watched more closely by more people than the challenge to the statutory routing process for the proposed TransCanada XL Pipeline.

On January 9, 2015, the Nebraska Supreme Court issued its decision, or lack thereof, in a sixty-four page opinion.[1]  By state constitution, the Nebraska Public Service Commission has plenary power over all common carriers.[2]  However, the Legislature adopted a process in 2012 to specifically address the route of the proposed XL Pipeline through Nebraska.  The Legislature allowed the Governor, after input from the Nebraska Department of Environmental Quality, to approve the route.[3]  The proposed route was studied and the Governor issued approval.  A group of citizens then challenged the process, claiming that approval was unconstitutionally taken away from the Public Service Commission and delegated to the Governor.  They made their challenge on the basis of their standing as taxpayer citizens, claiming the approval process was an unlawful expenditure of public funds.  Their standing was challenged, but the trial court found they had standing as taxpayers, that the XL Pipeline would be a common carrier, and that the statutory approval process was unconstitutional.  The decision was immediately appealed to the Nebraska Supreme Court.  The Court’s hearing process was expedited, but many weeks went by without a decision being issued.  We now know the reason for the delay.  Unfortunately, we learn little else from the decision.  It raises more substantive and procedural questions than it answers, exhibiting an unprecedented amount of acrimony among our Nebraska Supreme Court Judges.

Pursuant to the Nebraska Constitution, a statutory enactment cannot be declared unconstitutional without five of our seven judges so ruling.  However, in the challenge to the XL routing process, four of the judges agreed that the plaintiffs had standing and that the courts therefore had jurisdiction to hear the case.  The four also agreed that the statutory approval process was unconstitutional.  However, the other three judges dissented on the question of standing and refused to address the merits of the case.  While no judge stated a vote in favor of the constitutionality of the process, the four member majority was not enough to declare the process unconstitutional.  Therefore, the legislation and the proposed route of the pipeline through Nebraska would appear to be approved by default.  The three member dissent accused the other four members of reaching an absurd result, but the four members were quite clear that they thought the dissenting members had shirked their judicial duty and forced an absurd result.  The two camps could not even agree on whether to refer to the four members as a majority or a plurality.

For condemnation lawyers, the most important part of the opinion is that the four members fairly clearly ruled that eminent domain cannot be exercised by just any company that owns a pipeline.  Prior case law in Nebraska, as well as our statute authorizing eminent domain for pipelines, had made it appear that privately owned pipeline companies could exercise eminent domain for private use pipelines, and in fact case law had approved condemnation proceedings for such pipelines.  However, the court carefully considered the history of pipeline regulation in the state and recognized that the prior decisions allowing private pipeline companies to exercise the power had been issued at a time when it was thought that the federal government had preempted state regulation of interstate pipelines.  The court, referring to a prior opinion[4], stated that:

“[the] argument that a private carrier could exercise the right of eminent domain in this state for a non-public purpose….is simply wrong….[T]he reason common carriers can exercise the right of eminent domain lies in their quasi-public vocation of transporting passengers or commodities for others.  A citizen’s property may not be taken against his or her will, except through the sovereign powers of taxation and eminent domain, both of which must be for a public purpose.  Eminent domain is the State’s inherent power to take property for a public use.”  (Court’s italics).[5]

The court then clarified what is meant by the term “common carrier”, finding assistance from Texas case law and stating that statutes authorizing use of eminent domain power by common carriers do not include the owner of a pipeline built for that owner’s exclusive use.  “Under the Nebraska Constitution’s limitation on the power of eminent domain, pipeline carriers can take private property only for a public use.  That minimally means that a pipeline carrier must be providing a public service by offering to transport the commodities of others, who could use its service, even if they are limited in number.”[6]

The Court did not appear to be comfortable with the conclusion that the XL Pipeline would be a common carrier, but the district court had so concluded, and the parties did not contest the issue.

Given the rather perplexing result and the nature of the matter, this will likely not be the end of the litigation.   News services were quick to declare Nebraska’s approval of the XL, and proponents urged Congress and/or the President to do the same.  However, opponents were just as fast in arguing that they are not ready to give up.  TransCanada still needs easements through more than 100 properties in Nebraska, and must file condemnation before its routing permit expires.  The permit will expire on January 22, 2015.  Any effort to condemn can be expected to be challenged by somebody who has standing as a property owner in the path of the proposed route.  Would such challenge gain the fifth court vote to declare the siting unconstitutional?    Can the Governor extend the siting permit to avoid the two-year window of opportunity?   How will this affect the political battle in Washington, D.C. over Federal approval of the pipeline?

As Yogi said:  “It ain’t over ‘til it’s over.”

William G. Blake
Baylor, Evnen Law Firm
1248 O Street, Suite 600
Lincoln, Nebraska  68408


[1] Thompson v Heineman, 289 Neb. 798 (2015)
[2] Nebraska Constitution, Article IV, Section 20.
[3] Nebraska Unicameral, L.B. 1161 (2012).
[4] City of Bayard v North Central Gas Co., 164 Neb. 819, 83 N.W.2d 861 (1957).
[5] Thompson v Heineman, at 843.
[6] Id. at 845.