Federal Eminent Domain Blog

Seeking Relief In The Court Of Federal Claims

Alan Ackerman — Tue, 21 May 2013 19:46:09 -0600

Outstanding lawyer Thor Hearne of Aaron Fox has filed an action to protect those property owners who maintained an interest in the formerly used railroad easement properties. The properties were contemplated for railroad use only, giving rise to a claim to compensation in the Court of Federal Claims. The "taking" of the rights occurs without the filing of a condemnation complaint, necessitating the need for the owners to take the action

http://www.greenvilleonline.com/article/20130513/YOURUPSTATE10/305130075/Landowners-path-compensation-ends-federal-court

Although the property is owned by the individuals, control of the property is held by the federal government with the Surface Transportation Board governing what can be done with it, Hearne said.

The easement restricts access by property owners which could devalue their properties, he said.

“It’s not like a normal condemnation where the government comes in and sends you a notice saying ‘we’re taking 20 acres of your property for a highway,’ ” Hearne said. “In this case they never tell the owners anything. They just do it. They leave it up to the property owners who have to individually bring their case in the U.S. Court of Claims which is in Washington, D.C. And it’s the only court that has the jurisdiction to award them any compensation.”

Gulf South Pipeline Moves Forward In Mississippi

Alan Ackerman — Tue, 21 May 2013 19:43:12 -0600

FERC is now determined to prepare an Environmental Assessment discussing the environmental impact of the Southeast Market Expansion Program. The demand for gas pipelines and storage likely exists, and one can see the major eminent domain proceedings being initiated in the State of Mississippi.

http://www.power-eng.com/news/2013/05/07/gulf-south-pipeline-company-lp-supplemental-notice-of-intent-to-prepare-an-environmental-assessment.html

As previously noticed on November 19, 2012, and supplemented herein, the staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impact of the Southeast Market Expansion Project (SEME Project or Project) involving the construction and operation of facilities by Gulf South Pipeline Company, LP (Gulf South) in Jasper, Forrest, Perry, Greene, George, and Jackson Counties, Mississippi and Mobile County, Alabama. The Commission will use this EA in its decision-making process to determine whether the Project is in the public convenience and necessity. The Commission staff began its review of the Project on September 17, 2012, during the pre-filing process under Docket No. PF12-21-000. The initial scoping period closed on December 19, 2012.

The Major Effects of California Delta Tunnel Project

Alan Ackerman — Wed, 15 May 2013 19:41:37 -0600

The proposed Sacramento River Water Diversion Project will be a major game changer in California for literally dozens of square miles of prime farmland which will be destroyed. However, the water will be more readily available to millions of dry tounged South California recipients.

The crux of the problem is whether this major project cannot move forward without destroying the environment.

http://www.miamiherald.com/2013/05/12/3393885/delta-tunnel-project-to-radically.html

The plan has been in the works for seven years as a way to resolve long-standing tensions between statewide water demand and stress on the Delta. The estuary helps meet the water needs of 25 million people and 3 million acres of farmland, primarily south of the Delta. The tunnels are intended to make that freshwater demand less harmful to imperiled fish. The plan also calls for 100,000 acres of habitat restoration.
But the megaproject is giving rise to life-altering questions for people who live in the Delta, a mosaic of 70 islands and 1,000 miles of waterways that is the largest estuary on the West Coast of the Americas.
Nowhere are the impacts more significant than in this 10-mile corridor of farmland between Freeport and Walnut Grove in Sacramento County. All three intakes are proposed here, along with most of the additional above-ground infrastructure.
"It changes totally the river from Freeport to Walnut Grove," said Cathy Hemly, the matriarch of another prominent farming family, which has grown pears and apples since 1850. "We are absolutely in the bull's-eye."

Another View of the Montana Eminent Domain Fight

Alan Ackerman — Sat, 11 May 2013 08:27:42 -0600

While last week, this blog included an article about the environmental problems and opposition to a rail line and coal development in Montana. Other articles have concluded the development of the coal resource would be a major economic boom in the community.

This is the ultimate fight between environmental development and economic benefits. Eminent domain issues are front and center in the dispute!

http://mtstandard.com/business/ranchers-line-up-against-coal-railway/article_f490b39a-b457-11e2-8592-001a4bcf887a.html

“Otter Creek is probably the biggest development opportunity our state will see in our lifetime,” said Jim Atchison, director of Southeastern Montana Development, an economic promotion group. “So even though people may be complaining about coal development and how dirty rotten bad it is, it pays a lot of bills in the state of Montana.”

The McRaes contend that the biggest costs are the ones you can’t see — the underwater aquifers that already have been polluted with coal ash.

“We have 16 springs on this ranch, and every single one of them comes out of a coal seam,” said the elder McRae, 78. “Now, they call us radical environmentalists because we want the laws enforced.”

The 42-mile-long Tongue River Railroad, they said, would bring its own problems. Seven trains a day would disrupt their cattle operations and impede efforts to fight rangeland fires.

“They will cut off our cattle from water - it’s like a concrete wall,” said Clint McRae, 50. “And if we don’t fence it off, we’re going to have cattle just wiped out by trains.”

The McRaes these days tell neighbors in Colstrip it’s not just the future they need to think about; look what’s already happened to the past. A widely known cowboy poet, the elder McRae penned a verse about landmarks that disappeared when the coal men came in. “Nobody knows, or nobody cares, about things of intrinsic worth,” he wrote.

Colstrip Mayor Rose Hanser counters that coal helped make southeast Montana a habitable place.

“We probably have two or less people per square mile in this part of the country. So when you’re providing jobs for hundreds of people in a state that has less than a million residents, you are impacting the economy of an entire state,” she said.

There has been some pollution, she said, “but the trade-offs are incredible. You have a better education system, you have better infrastructure, better recreation and activities.”

Are The Airport Authorities at Work?

Alan Ackerman — Thu, 09 May 2013 21:12:45 -0600

Charlotte, North Carolina is concerned about the present posture of its acquisitions. It has purchased hundreds of acres of land in recent years. The question is one of whether this is the proper way to proceed given the unknown need for the future development.

Realistically, the best way to expand is to do no more than purchase what is needed in the reasonably near future. The problem with airports is that the reasonably near future goes out 50 years and sometimes more. Yet, it may be far less. Planes may use smaller runways in the future than they do now rather than larger runways sought by airports. The accessory needs for airport facilities will change dramatically in coming years.

All too often, commissions are the big "give away". The politicians have a great boondoggle, obtaining jobs for people who do no work. Commissions offer truly scary potential misuses and abuses as well as benefits.

http://www.charlotteobserver.com/2013/05/04/4023287/airport-authority-would-play-big.html

Aviation director Jerry Orr, who supports removing the airport from the city’s oversight, has long had expansive plans for the area. “Planners say we will end up owning the west side. We don’t disagree,” Orr said in 2000.
Orr says the land west of the airport could support high-technology manufacturing and distribution, and maybe new research and technology facilities similar to those around UNC Charlotte. With access to air travel, Interstates 77 and 85, and what’s expected to be one of the busiest intermodal rail yards in the country, he favors commercial over residential development.
Now Orr is seeking to buy 350 more acres just south of the airport for $35 million.
The land will be used for warehouses to support the intermodal yard, Orr said. North of the airport, on the site of what used to be the East Coast Bible College, Orr has floated plans to build a Charlotte World Trade Center to provide space for international businesses.
How authority would work
The airport authority envisioned by the legislature would be governed by a new, regional board of 13 members, appointed by the Charlotte City Council, Mecklenburg commissioners, five surrounding counties and the state Senate, House and governor.

City Regional Water Fights Continue

Alan Ackerman — Sun, 05 May 2013 17:48:59 -0600

The North Carolina Legislature is dealing with an issue being dealt with throughout the United States. City water systems somehow fail. It is claimed that they cost too much, or that the water is not clean enough, or that they are mismanaged.

The issue is how to merge city water systems into county and regional systems. This issue is one that is not only in Asheville, but so many other communities in the country that they could not all be listed. As described in the article below, local officials fume the potential loss of power, but it is one that likely inevitably will be lost.

http://www.citizen-times.com/article/B0/20130427/NEWS/304270015/Water-transfer-legislation-altered

“The unprecedented use of eminent domain to seize a city-owned water system reveals a party power structure indifferent to the principles upon which that party is founded,” he said in a statement.

Senators from Wake and Mecklenburg counties pushed for the amendments to House Bill 488 during debate this week. The amendments go back to the House for consideration before the bill goes to the Senate for a final vote.

Republican leaders expect it to pass. Republican Gov. Pat McCrory would then have to sign it into law.

The water bill is controversial in Asheville. Local officials contend the city stands to lose millions of dollars and control over development if its water system is merged with a regional authority.

Pipeline and Storage Condemnations Abound in Pennsylvania

Alan Ackerman — Mon, 29 Apr 2013 18:12:31 -0600

The Pittsburgh Post-Gazette covered a number of issues involving both pipelines and storage field issues.

This blogger in nationaleminentdomain.com has often discussed how important the terms of a lease are when dealing with a pipeline or storage company. In the situation described in the Pittsburgh Post article, one can find how a simple owner is placed in a situation with serious litigation risks simply by not having a clear understanding of what the owner is giving up.

http://www.post-gazette.com/stories/local/marcellusshale/eminent-domain-plays-a-key-role-in-us-pipeline-projects-685203/

When pipeline companies invoke eminent domain, there isn't much the targeted landowner can do to prevent or even slow the construction.

"Once they file their papers, they generally have to put up some sort of bonding amount. And with that bonding amount, they have the right to go into the property and do whatever they need to do," said Greensburg-based attorney George Kotjarapoglus, who represents another defendant. "You can't stop it."

PG graphic: Pipelines in Western Pa.
(Click image for larger version)

Columbia declined comment through a spokeswoman....

What if a company wants to build a new pipeline across your land? As a defense attorney, he'd "certainly take a look at every aspect of the property -- what they've used it for, how long they've had it, whether it's the least intrusive means" of advancing the pipeline, he said.

"What's currently on it?" he asked. "What's it being used for? What's it currently zoned?" If the property owner can show that he is taking steps to develop it, the court might factor that into its calculation of the value, he said.

Also this month, Columbia sued two Claysville residents who own 90 acres in Donegal. The eminent domain lawsuit in U.S. District Court said that the company owns the mineral rights under the property pursuant to a 1967 lease, which the landowners, Duane Douglas Wolfe and Bridget A. Wolfe, contend is invalid.

That lawsuit added a federal component to a legal fight that started in state court. There the Wolfes have asked a judge to confirm that they, and not Columbia, own the oil and gas rights for their 90-acre parcel.

Columbia's federal lawsuit said that the company stores gas underground, above a layer of sandstone. It said the Wolfes are allowed to continue to use the property "in any manner that will not interfere with Columbia's use and enjoyment of its rights," but the company wants to "re-secure" its rights in preparation for "constructing, maintaining, operating, altering, testing, replacing and repairing" its storage system there.

U.S. District Court in Florida Rejects Compulsory Dedication Procedure

Alan Ackerman — Sat, 27 Apr 2013 07:50:25 -0600

One of the great development tools used by communities has been to force people to give up property (dedication) in order to obtain development that would and should otherwise occur.

This procedure, one in which those who do not want to develop their land are taken and those who want to develop their land must dedicate their right-of-way has been ruled unconstitutional by a U.S. District Court Judge in Florida.

This dedication issue is one that is in somewhat of a betwixt and between zone. It is difficult to determine when the dedication falls within the constitutional parameters and when the Compulsory Dedicatory Act turns out to be a "taking" of property.

http://tbo.com/list/news-columns/jackson-pasco-ceo-job-just-got-a-lot-tougher-b82480762z1

Then attorneys for Hillcrest Preserve, a never-built mixed-use community north of State Road 52 west of Interstate 75, fed the ordinance to the human document shredder known as U.S. District Court Judge Steven Merryday, and when he was finished, Pasco’s well-laid plan was reduced to confetti.

The gist of the scheme was this: Owners of property along thoroughfares slated for expansion were divided into two groups. Those not interested in development would, at the proper moment, be paid “just compensation” for land that became part of the new right-of-way. But those with development ambitions were required to surrender, without payment, land within the proposed right-of-way as a prerequisite for having their plans approved.

To say Merryday was not amused is to put things tamely. Summarizing a 52-page opinion that fairly blazes with exquisite — if restrained, given the implications — fury, the judge writes, “Pasco County has enacted an ordinance that effects what, in more plain-spoken times, an informed observer would call a ‘land grab.’ ”

Had he wanted to be exceptionally blunt, the judge could have said Pasco was running a shakedown operation: Nice little development plan you got here. Shame if anything happened to it.

The Next War Between States..WATER

Alan Ackerman — Fri, 26 Apr 2013 06:10:56 -0600

The Pew Charitable Trusts article really got it right in the article below. The next major fight between States will not be about land or politics, but about water. The division of water rights was premised upon Compacts entered into years ago. Many States feel that the old Compacts should be modified in accord with population changes.

This litigation will be heard by the United States Supreme Court for years and years to come. The original Constitutional provision, providing each State with at least two Senators will be especially important in order to avoid control by the House of Representatives’ majority delegations. We will be reading about these water fights for the next 40 years.

http://www.pewstates.org/projects/stateline/headlines/red-river-showdown-texas-oklahoma-water-war-could-reverberate-across-us-85899470724

But those victories were only the opening salvos in a Red River showdown fought not on the gridiron, where the states’ universities are fierce rivals, but in a series of courtrooms. Now the U.S. Supreme Court, which heard oral arguments Tuesday, will have the final say in a dispute likely to reverberate far beyond the combatant states.

In 2007, the Tarrant Regional Water District, a state agency that allocates water in north central Texas—including the two million people who live in Dallas-Fort Worth—filed a lawsuit alleging that a four-state water compact signed by Texas, Oklahoma, Arkansas and Louisiana entitles Texas to some 130 billion gallons of water from Oklahoma’s side of the Red River basin.

The case before the Supreme Court focuses on the four-state water compact, but it raises broader ideological questions about state sovereignty and interstate commerce.

A sweeping decision could unleash a flood of litigation asking courts to crack open some of the more than 30 compacts that determine how states share water. Adding to the tension is climate change, which is contributing to droughts across the country, further shrinking contested supplies.

“It could have profound effects on state water regimes across the country,” said Mark Davis, director of the Tulane Institute on Water Resources Law and Policy.

Kansas Farmers Face Power Lines

Alan Ackerman — Fri, 26 Apr 2013 06:02:23 -0600

The Clean Line project in Kansas has taken some of the owners by "surprise". It is astonishing that these owners should be surprised when they already have a line traversing the property. Clearly the Environmental Impact Statements and the Public Regulatory agencies place greater favor in assigning new right of ways near already existing easements. All too often, Environmental Impact Statements urge, or at least show a preference, for the new easements to follow the path of old easements.

http://www.thelegalrecord.net/story.asp?story_id=2986

The second line - taller and with higher voltage - went up just two years ago, running parallel a few hundred feet from the first.

This time ITC Great Plains used eminent domain when many in the area, including Brake’s daughter and grandson, couldn’t reach agreement with the company on a right-of-way settlement for the 345-kilovolt line, erected to move wind-generated electricity from near Spearville onto the state’s electric grid.

Now, Theresa Brake and her nephew, Kevin Brake, fear a third line - the largest yet - will take more land from their limited farm, and they plan to resist it.

Nearly a dozen other farmers or landowners from the area joined the Brakes in a church meeting room to express their concern and frustration with the latest project - Clean Line Energy Partners’s “Grain Belt Express.”

Clean Line Energy, headquartered in Houston and formed by a pair of out-of-state billionaires, is proposing to build a 700-mile-long overhead high voltage electric line that will carry a projected 3,500 megawatts of wind-generated power from Kansas east to Illinois, Indiana and beyond.

The company is promoting the 600-kilovolt “direct current,” or DC line, as a boon to Kansas in that it will allow the state’s wind energy to be marketed outside of Kansas, resulting in expansion of western Kansas wind farms, though none of the power in the line will - or can - be used within the state.

Eminent Domain Wins A Race In Australia

Alan Ackerman — Wed, 24 Apr 2013 14:33:58 -0600

It is too difficult for this blogger not to write about a horse named Eminent Domain, overcoming great illnesses, to win an important race at the Randwick Harness Racetrack in Australia. On the same day, please note that Black Caviar retired!

http://wwos.ninemsn.com.au/article.aspx?id=8645803

Two years ago Eminent Domain was struck down by illness and spent six weeks at a veterinary clinic.

Williams was told to prepare for the worst.

"They were going to give the horse 24 hours and if he didn't show improvement they were going to put him down," Williams said.

"I actually took a bag of our own wheat and hay to the horse. I drove from Goulburn to Camden with it and the horse ate it.

"He has come a long way."

Eminent Domain lost half his stomach due to the illness and has also had his career interrupted by a fractured splint bone, not to mention the various niggles so often afflicting racehorses.

But none of that was evident at Randwick as he swept down the outside to claim the TAB.com.au Sprint (1200m).

Williams said it was a big thrill to win a race on Doncaster day and was happy the four-year-old had finally lived up to his expectations.

"I've put my reputation on the line a few times with this horse and he's let me down but he's had a lot of bad luck," Williams said.

Eminent Domain ($14) had a length to spare over Upshot ($9) with Potions ($17) another long head back third.

Keystone On The Counter-Attack

Alan Ackerman — Mon, 22 Apr 2013 18:29:40 -0600

Intellectual Libertarian supporters of Keystone present a claim that the opposition to Keystone on the basis of protecting property rights is contradicted by the same participants interfering with property development. There is some merit to the argument, but restrictions on property use and general safety should be looked at as individual issues. It is not to say that Dr. Edwards, the writer, is wrong. Quite simply, the question is whether one should one look at these issues as independent? Possibly, Dr. Edwards is correct in his assumption that a restriction on property use should have some semblance of a relationship between objecting to property use restrictions and opportunities to develop one’s property rights.

http://news.heartland.org/newspaper-article/2013/04/19/keystone-xl-opponents-hypocritically-talk-property-rights

Opponents of the proposed Keystone XL pipeline are increasingly trumpeting private property rights as a reason people should oppose the pipeline. Drawing upon small-government conservatives’ wariness of the federal government abusing its eminent domain power, environmental activist groups are suddenly presenting themselves as champions of limited government and private property. If Keystone XL opponents showed signs of applying their newfound fervor for private property rights to all proposed energy sources, this would be an encouraging sign. Unfortunately, however, all signs point to the environmental activists advocating private property rights solely to the detriment of affordable energy.

During the past few weeks environmental activist groups have inundated my email inbox with patriotic-sounding calls for conservatives to stand up against big-government using its eminent domain power on behalf of Keystone XL. A quick Bing News (or Google News, if that is your pleasure) search of the terms “Keystone” and “eminent domain” shows environmental activists are targeting more than just my inbox with eminent domain appeals.

On the surface, the environmental activists make a good point. Government often abuses its Fifth Amendment eminent domain power to forcibly obtain private property, with or without the Constitutionally required “just compensation.” This is especially troubling when government forcibly obtains private property and then immediately turns it over to another private party. Our government can certainly afford to take a few steps back in this realm, and our nation would be the better for it

Arlington Storage Company Files EIS in Schuyler County, New York

Alan Ackerman — Mon, 22 Apr 2013 18:25:43 -0600

The Arlington Storage Company is determined that there is a better use of the Senaca Lake Storage Facility than the previous liquid propane gas storage. It is therefore requesting the facility is turned into a natural gas storage location.

The caverns were previously used for brine production until the 1960s. The project offers an interesting change of use. It is interesting to note that the storage use has changed. Arlington hopes to avoid eminent domain by limiting any acquisitions.

http://www.gpo.gov/fdsys/pkg/FR-2013-04-12/html/2013-08598.htm
The staff of the Federal Energy Regulatory Commission (FERC or
Commission) will prepare an environmental assessment (EA) that will
discuss the environmental impacts of the Arlington Storage Company, LLC
(Arlington Storage) Seneca Lake Storage Facility Gallery 2 Expansion
Project (Project). The expansion would be accomplished through the
conversion of two existing interconnected bedded salt caverns
(collectively known as ``Gallery 2''), previously used for liquid
propane gas (LPG) storage, to natural gas storage. The Project is
located in Schuyler County, New York on the west side of Seneca Lake in
the Town of Reading (Figure 1). This EA will be used by the Commission
in its decision-making process to determine whether the project is in
the public convenience and necessity.
This notice announces the opening of the scoping process the
Commission will use to gather input from the public and interested
agencies on the Project. Your input will help the Commission staff
determine what issues need to be evaluated in the EA. Please note that
the project scoping period will close on May 3, 2013. Further details
on how to submit written comments are provided in the Public
Participation section of this notice.

Detroit Canada Bridge to Benefit Michigan and Ohio

Alan Ackerman — Wed, 17 Apr 2013 18:13:08 -0600

The Toledo Blade takes a somewhat different and even more positive outlook towards the Detroit International Trade Crossing/ DRIC Bridge than even the Michigan papers. The Blade recognizes the importance to Ohio of Detroit’s second international bridge crossing.

It is interesting to note that the Ohio legislature passed a resolution supporting this proposed International Trade Crossing.

http://www.toledoblade.com/Nation/2013/04/13/Detroit-Canada-bridge-receives-U-S-approval.html

“Getting Michigan-made products to more markets faster will enhance our economic competitiveness in the future and help our state create more jobs,” Mr. Snyder said.

The bridge is expected to be a boon to Ohio commerce with Canada as well.

Ohio sells more to Canada than the next 14 countries combined, according to the Toledo Metropolitan Area Council of Governments.

Roy Norton, the consul general of Canada in Detroit, told The Blade that millions of U.S. jobs depend on trade with Canada.

An artist’s rendering shows the proposed New International Trade Crossing linking Detroit and Windsor, Ontario, 2 miles south of the Ambassador Bridge. MICHIGAN DEPARTMENT OF TRANSPORTATION Enlarge

“Since one-quarter of all U.S. trade with Canada crosses the Ambassador Bridge ... 2 million U.S. jobs depend on the Ambassador Bridge,” he wrote.

He said the number of Canadian jobs reliant on the Ambassador Bridge “is comparable,” so that would be another 2 million jobs.

Mr. Norton’s region includes Ohio, Michigan, Indiana, and Kentucky.

Read more at http://www.toledoblade.com/Nation/2013/04/13/Detroit-Canada-bridge-receives-U-S-approval.html#DbHRZDWAiYtzmQwh.99

The Backlash from Oil Spills

Alan Ackerman — Wed, 17 Apr 2013 18:03:34 -0600

An article in the Niagara Gazette described the potential that the U.S. Army Corps of Engineers will block future gas lines because of the failures of Marshall, Michigan, and Arkansas. This is a situation in which public opinion is changed by dramatic events. The two oil spills quite apparently will have a major influence on future pipeline eminent domain activities. The tone of the battle about pipelines seems to be changing.

http://niagara-gazette.com/local/x1916528027/FERC-should-further-study

It’s also important for environmentalists and others who are opposed to anything that has to do with hydrofracking. FERC is the agency that will decide whether the pipeline can be constructed, and, if approved, determine the pathway it should take to send shale gas extracted in northeastern Pennsylvania to two existing pipelines in Schoharie County.

“As we’ve said from the beginning, we are not powerless, and this is not a done deal,” said Anne Marie Garti of East Meredith, one of the organizers of a group called Stop the Pipeline. “It is particularly refreshing to have the support of a federal agency, like the Army Corps of Engineers, in this environmental review.”

While backers of the $750 million project insist that the pipeline would not harm the environment, we only have to look at the recent major oil spill in Arkansas to realize that accidents do happen. We have also been uncomfortable with the concept of using eminent domain on a private rather than public project.

While we are not terribly concerned that the pipeline would — as some opponents suggest — promote fracking in our area, we believe that despite the assurances of those backing the project, the lure of selling pipeline natural gas overseas for big-time profits will eventually be irresistible.

We urge FERC to take its time and agree to the request by the Army Corps of Engineers to do a thorough study before making any final decision.

Detroit Legal News Writes About Bridge Frustrations

Alan Ackerman — Thu, 11 Apr 2013 09:19:33 -0600

When will the NITC \ DRIC Bridge get a positive sendoff? We are left with a decision from Secretary of State Kerry! Below is the Detroit Legal News article on the subject of the Bridge.

http://www.legalnews.com/oakland/1374519

The Bridge is Bound to Happen - Matty Moroun's Failing Federal Suit

Alan Ackerman — Wed, 10 Apr 2013 10:41:12 -0600

In another attempt to stop the second bridge span, Mr. Moroun is seeking relief from the Federal Bench, in maintaining that there is no authority in the Secretary of State to allow the second span to proceed. A copy of a portion of the Complaint is below.

A basic tenet of our government is that we have distribution of power in the branches of government. We have a legislative branch which determines the law, an executive branch which enforces the law administratively and a judicial branch which reviews improper activities by the other branches.

Since the first major United States Supreme Court decision, our judiciary has consistently maintained that relations with foreign power is an issue to be dealt with by legislative delegation and executive administration.

In Ware v Hylton, a United States Supreme Court Case (1796) the United States Supreme Court laid down a clear rule that the federal government can maintain the supremacy of a treaty over any state laws to the contrary. It was on this basis that even had the referenda opposing the Bridge succeeded, the United States Government could have superseded the State’s objection to the Detroit River Crossing.

I PREDICT IF THIS COMPLAINT IS THE BEST THAT THE OPPOSITION TO THE DRIC\NITC BRIDGE CAN PRODUCE, THE BRIDGE WILL BE APPROVED WITHIN WEEKS.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DETROIT INTERNATIONAL BRIDGE COMPANY and THE CANADIAN TRANSIT COMPANY,

　

-vs.-

　

Plaintiffs,

　

THE UNITED STATES DEPARTMENT OF STATE, HILLARY RODHAM CLINTON, in her official capacity as Secretary of State, THE CANADA UNITED STATES-ONTARIO-MICHIGAN BORDER TRANSPORTATION PARTNERSHIP, THE UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, VICTOR MENDEZ, in his official capacity as Administrator of the United States Federal Highway Administration, RAY LAHOOD, in his official capacity as Secretary of Transportation, THE GOVERNMENT OF CANADA, THE WINDSOR-DETROIT BRIDGE AUTHORITY, THE UNITED STATES COAST GUARD, ADM.

ROBERT J. PAPP, JR., in his official capacity as Commandant ofthe United States Coast Guard, JANET NAPOLITANO, in her official capacity as Secretary ofHomeland Security, and THE UNITED STATES OF AMERICA,

Defendants.

　

Docket No. 10-cv-476-RMC

　

SECOND AMENDED COMPLAINT

As and for their Second Amended Complaint, plaintiffs Detroit International Bridge

Company ("DIBC") and the Canadian Transit Company ("CTC") state as follows:

1

　

Case 1:10-cv-00476-RMC Document 83 Filed 02/11/13 Page 2 of 92

NATURE
OF THE CASE
1. This is an action for declaratory and injunctive relief to declare, define, and enforce the franchise rights held by plaintiffs DIBC and CTC to build, own, and operate the international bridge crossing between Detroit, Michigan and Windsor, Canada.

2. For over 80 years, the plaintiffs and their predecessors have held and exercised a perpetual and exclusive franchise right, granted by statute and treaty, to construct, own, operate, and maintain the toll bridge franchise across the Detroit River between Detroit, Michigan, and Windsor, Ontario; to collect tolls from vehicles crossing the bridge; and to exercise other specified powers in connection with these rights.

3. Plaintiffs' bridge, known as the Ambassador Bridge, carnes more than one quarter ofthe total commercial traffic between the United States and Canada. The Ambassador Bridge, like all other toll bridges, is a commercial enterprise. Plaintiffs' principal revenue source consists of tolls collected from vehicles passing in each direction across the bridge. Plaintiffs also earn additional revenue through leases at the Ambassador Bridge. Plaintiffs' expenses include, among other things, expenses for maintenance and operation of the bridge and the associated facilities. The Ambassador Bridge competes for traffic and toll revenue with the nearby Detroit-Windsor Tunnel, rail tunnels and ferries, and other international border crossings, including the Blue Water Bridge between Port Huron, Michigan and Sarnia, Ontario.

4. The franchise granted to DIBC and CTC to construct, maintain, and operate the Ambassador Bridge between Detroit and Windsor was created by concurrent and reciprocal legislation enacted by the United States Congress and the Canadian Parliament in 1921, expressly identifying DIBC's predecessor company and CTC as the sole entities receiving the franchise. That legislation constituted a "special agreement" between the United States and

2

　

Case 1:10-cv-00476-RMC Document 83 Filed 02/11/13 Page 3 of 92

Canada under the 1909 Boundary Waters Treaty. Under that treaty, no bridge may be built over the boundary waters between the United States and Canada except as specified in the treaty. Neither the Boundary Waters Treaty nor the United States and Canadian legislation creating a special agreement to allow for the construction of the Ambassador Bridge has ever been repealed or amended. In addition, the United States Congress and the Canadian Parliament have never purported to grant a second franchise for a bridge between Detroit and Windsor, or to enter into a new special agreement that would allow for the construction of a new bridge between Detroit and Windsor that complies with the terms of the Boundary Waters Treaty.

5. As the United States Congress and the United States Department of State have both recognized, the franchise granted to DIBC and CTC includes the right to repair, replace, and enlarge the Ambassador Bridge, including by building a twin span right next to the existing span. This right to expand or twin the Ambassador Bridge is subject only to general regulatory requirements (relating to navigation and environmental issues). Subject only to those requirements, DIBC and CTC have the right to build a new span to the Ambassador Bridge without obtaining any additional franchise rights, without needing to seek Presidential or Congressional approval, and without requiring any further action to satisfy the requirements of the Boundary Waters Treaty.

Curis Dispute Gets Complicated

Alan Ackerman — Tue, 09 Apr 2013 18:19:15 -0600

For fear that it would be sued for its limitation on the use of sulfuric acid, the Florence City Council rescinded its ordinance limiting the use of the product in Curis mining activity.

To simply assume that one is going to condemn 1,187 acres of land which maintains substantial minerals is to assume that the community is about to pay far more money than it could ever afford. "Tipping fees" probably would do this community far better, especially if there was a specific charge to make sure the property was cleaned up and maintained long after the mining activity terminates.

http://www.bizjournals.com/phoenix/news/2013/04/03/fight-over-florence-copper-mine-shifts.html

The move allows the city to avoid the legal and other potential costs of the Curis federal lawsuit.

It also shifts the legal and other fights over the mine to condemnation and eminent domain efforts brought forth by the town in March.

The Florence council approved a condemnation and eminent domain measure last month for lands Curis acquired in 2010. The Canadian company has also promised to sue the town over that action if and when it is initiated.

Still, Curis executives welcome the town’s decision last night and say it allows the company to move forward with testing and early phases of the mining project.

“We look to this decision as a positive first step toward building a more constructive relationship between Curis and the Town of Florence,” said Curis CEO Michael McPhie in response to the Tuesday vote to get rid of the acid ordinance.

The Mandamus Power Explained

Alan Ackerman — Mon, 08 Apr 2013 18:38:53 -0600

http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2013/2013-Ohio-762.pdf

Below is an Opinion of the Sixth Appellate District Court of Appeals in Ohio.

This Sandusky County Appellate Division had a real understanding of the power of mandamus. Additionally, the panel clearly explains the procedural process for mandamus action in Ohio. In many States, including Ohio, the mandamus action is commenced at an Appellate level rather than the Circuit Court level. Ascertaining how to seek inverse condemnation relief through the mandamus process is one of the trickiest activities in legal procedure. This Opinion is well worth reading!

Skyland Thuds to Finality

Alan Ackerman — Thu, 04 Apr 2013 20:27:41 -0600

After a lengthy response period, D.C.’s Community Housing Office finally provided the documents to support the $28,000,000 wasted on Skyland.

Skyland is but one of those great examples of what happens when private enterprise gets the ear of the government which then allows a private activity to benefit at the public trough. The end result is that there will not be a viable project.

http://www.bizjournals.com/washington/blog/2013/03/dc-responds-to-hud-on-skyland.html?page=all

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Michael Neibauer: Staff Reporter- Washington Business Journal; Email | Twitter

Binders full of records showing that D.C.’s use of federal funds for acquisition of Skyland Shopping Center was by-the-book and properly documented are now in the hands of the U.S. Department of Housing and Urban Development.

As I first reported in December, HUD found D.C.’s use of Community Development Block Grants for the purchase and maintenance of Skyland to be “problematic.”

HUD gave the city's Department of Housing and Community Development 45 days (later extended into February) to come up with documents detailing how roughly $28 million was spent. And HUD warned that the District might have to pay the money back if it failed to do so.

“The failure to produce these records at the time of the review establishes a basis for HUD to question virtually all expenditures associated with the Skyland project,” Michael Rose, director of community planning and development in HUD’s D.C. field office, wrote in a Dec. 13 letter to Michael Kelly, the District housing office's executive director.

Well, it took some time, but the D.C. housing department has come up with those records — two binders of them, which were submitted to HUD on Thursday. The documents likely include appraisal forms, sales contracts, declarations of taking, settlement sheets, land disposition agreements, wire transfers records, copies of checks and deeds of trust. One binder is for condemnations, the other for voluntary sales.