Professional Documents
Culture Documents
18-1206
In The
Supreme Court of the United States
♦
LYNDA LIKE, et al.,
Petitioners,
v.
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 Pe-
titioners consented to the filing of this brief. Counsel
for Respondent did not respond to a request to con-
sent.
The interests of the amici are set out in the attached
proposed brief. This petition presents fundamental
questions about the delegated power of eminent do-
main, separation of powers, and whether the courts
can use their equitable powers to grant a substantive
right to private condemnors that Congress never del-
egated. This is an issue affecting the parties, the
amici, and property owners across the nation. We be-
lieve 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 Anthony Della Pelle
Counsel of Record Joseph W. Grather
Loren A. Seehase MCKIRDY, RISKIN, OLSON
DAMON KEY LEONG & DELLA PELLE, P.C.
KUPCHAK HASTERT 136 South Street
1003 Bishop Street Morristown, NJ 07960
16th Floor (973) 539-8900
Honolulu, HI 96813
(808) 531-8031
rht@hawaiilawyer.com
2
Karen R. Harned
Luke A. Wake
NFIB SMALL BUSINESS LEGAL CENTER
1201 F Street, NW
Suite 200
Washington, DC 20004
(202) 314-2061
APRIL 2019.
QUESTION PRESENTED
The Natural Gas Act (15 U.S.C. § 717f (h)) delegates
to certain private companies the ordinary eminent do-
main power: that is, the power to bring a condemna-
tion 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 in-
junctions giving private companies immediate posses-
sion of land before final judgment in Natural Gas Act
condemnations?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED................................ i
TABLE OF AUTHORITIES.............................. iv
ARGUMENT ..................................................... 5
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 Prop-
erty 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
OTHER AUTHORITIES
James W. Ely, The Guardian of Every Other
Right: A Constitutional History of Property
Rights (3d ed. 2008) ............................................. 1
7. See, e.g., Ariz. Rev. Stat. § 12-1126(A) (“When the final judg-
ment 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 sub-
ject of the condemnation action have been paid, the court shall
make a final order of condemnation, describing the property con-
demned 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 sat-
isfied 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 rec-
orded 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 sub-
stantive right.
2. The injunction did not preserve the status quo;
it instead dramatically altered the status quo by af-
firmatively 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 ex-
clude until such time as their right to just compensa-
tion irrevocably vests (which has not occurred here).
Thus, as detailed earlier, not only did the summary
judgment orders not grant Transcontinental a sub-
stantive 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 “(Addi-
tionally, Transco will post sufficient bonds upon the
grant of the preliminary injunction; therefore, any
CONCLUSION
The Court should grant the petition and review the
judgment of the Third Circuit.
Respectfully submitted.
Robert H. Thomas Anthony Della Pelle
Counsel of Record Joseph W. Grather
Loren A. Seehase MCKIRDY, RISKIN, OLSON
DAMON KEY LEONG & DELLA PELLE, P.C.
KUPCHAK HASTERT 136 South Street
1003 Bishop Street Morristown, NJ 07960
16th Floor (973) 539-8900
Honolulu, HI 96813
(808) 531-8031
rht@hawaiilawyer.com
Karen R. Harned
Luke A. Wake
NFIB SMALL BUSINESS LEGAL CENTER
1201 F Street, NW
Suite 200
Washington, DC 20004
(202) 314-2061
APRIL 2019.