Here’s the cert petition we just filed asking the U.S. Supreme Court to review a Fourth Circuit decision (which we posted about in “CA4 Puts The Cart Before The Horse: Private Entity Doesn’t Have The Power Of Eminent Domain, But It Is Likely To Get It If Only Those Pesky Owners Were Stopped From Exercising Their Right To Exclude“).
The Fourth Circuit affirmed the district court’s issuance of a preliminary injunction which authorized a private energy corridor developer to exercise the rights of a condemnor which had been delegated the power of eminent domain, even though here, the developer has not been delegated the power of eminent domain. The Fourth Circuit’s theory? The developer is likely to obtain the power of eminent domain somewhere down the road, so why not let it exercise those powers now.
Because this is one of ours, we’re not going to delve into great detail and commentary, but will let you read for yourself. But we will post the Question Presented for your consideration:
An owner’s right to keep others out is “universally held to be a fundamental element” of private property. Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979). A Maryland statute carves out an exception to this longstanding and traditional right to exclude, permitting those who act for the State, or for an entity “having the power of eminent domain,” to enter and occupy private property to conduct studies and surveys to determine if the land is suitable for acquisition for a public use. Md. Code Ann., Real Prop. § 12-111(a). Respondent PSEG Renewable Transmission LLC, a private, for-profit developer of high-voltage corridor projects, has not been delegated the power of eminent domain. But claiming to exercise rights under this statute, PSEG sued Petitioners—landowners who had declined its demands to enter their properties—and invoked the federal courts’ equitable powers to compel them to step aside. The Fourth Circuit affirmed the district court’s issuance of a preliminary injunction requiring Petitioners to allow PSEG to enter their land. The court held that even though PSEG presently lacks the actual authority needed to gain entry, it was nonetheless entitled to do so because it had likely been delegated that power. The Fourth Circuit created a three-way split on whether preliminary injunctions can allow private parties to exercise eminent domain powers prior to final judgment. The question presented:
Whether a preliminary injunction may be used to allow a private party to exercise sovereign eminent domain powers before it has been delegated that authority?
Stay tuned.
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