Lawsuit log; pipelines and land rights and eggs, oh my!

Feb 21, 2014
by WLJ

It may still be winter and the growing season of spring hasn’t yet sprung, but that doesn’t mean it isn’t lawsuit season! Of course, when isn’t lawsuit season?

Among the recent ag-related lawsuits of note include a Missouri fight over California’s egg laws, a Colorado couple fighting the government over its attempt to use eminent domain to take their mountain cabin, and the declaring of a key piece of legislation in the Keystone XL Pipeline case to be unconstitutional.

Pipeline war

Wednesday of last week, Lancaster County District Court Judge Stephanie Stacy ruled in favor of three Nebraskan landowners in a case against Dave Heineman, Governor of the state, with regard to his authority to advance the TransCanada Keystone XL Pipeline. This ruling overturned Nebraska’s 2012 Legislative Bill 1161, which effectively gave any person or entity involved with the transporting of petroleum oil as part of interstate commerce the power to use eminent domain to acquire wanted or needed land for that purpose.

LB 1161 violates [the Nebraska Constitution] article IV, § 20 by divesting the [Public Service Commission] of control over the routing decisions of oil pipelines subject to the act and vesting such regulatory control over common carriers in [the Nebraska Department of Environmental Quality] and the Governor,” read the judge’s final ruling. “Plaintiff’s request for declaratory judgment is granted, and LB 1161 is declared unconstitutional and void.”

The decision hinged on the relatively obscure rules in the Nebraska state constitution regarding “common carriers,” which would apply to the TransCanada Keystone XL Pipeline. Under the state’s constitution, exclusive regulatory rights over common carriers lay in the hands of the Public Service Commission.

The decision additionally nullifies the actions taken under the flag of LB 1161, which means Gov. Heineman’s clearing of the proposed pipeline route is effectively rescinded.

“Under the Court’s ruling, TransCanada has no approved route in Nebraska,” said Dave Domina, the attorney working with the landowner plaintiffs. “Trans- Canada is not authorized to condemn the property against Nebraska landowners. The pipeline project is at standstill in this state.”

Acknowledging the highly politicized nature of the pipeline, Judge Stacy made a big effort to point out the ruling was on the constitutionality of LB 1161 and the Governor’s actions, not the pipeline itself.

“TransCanada’s Keystone XL pipeline has become a political lightning rod for both supporters and opponents of the pipeline, but the issues before this court have nothing to do with the merits of that pipeline,” she stressed. “Decisions regarding the merits of TransCanada’s Keystone XL Pipeline are properly left to others.”

Domain debacle

A Chicago couple bought their personal slice of heaven in the Colorado Rockies three years ago. Recently, however, the experience has turned decidedly darker as the county is planning to take that land and the cabin on it to preserve it as open space.

Andy and Ceil Barrie purchased 10 acres in the White River National Forest near Breckenridge, CO. Included on the property was an oldbut-refurbished cabin accessible via an old mining road.

Otherwise, the land was undeveloped and wild.

The Barries’ use of a motorized all-terrain vehicle to reach their cabin drew the attention of the U.S. Forest Service, which told them they are not allowed to do so on concerns of damage to the habitat of the endangered and reintroduced Canadian Lynx. Last October the Summit County commissioners voted to condemn the property and are now seeking to seize it through eminent domain in an effort to keep it as open space.

The move is odd, considering the use of eminent domain is usually reserved for economic development for the greater public interest. That is not to say governments can’t use eminent domain to preserve land deemed important as open space; it’s just not the norm.

Dana Berliner, who was co-counsel in the 2005 U.S. Supreme Court case that upheld the constitutionality of eminent domain, told the Associated Press, “There’s typically other ways of doing open space than just taking land.”

The Barries have said they never intended to develop the land and are even willing to tear down the somewhat primitive cabin, which the county ruled had been illegally modified by the previous owner. “We just want the land,” Ceil Barrie said, noting they would be happy camping on their property in a tent or yurt.

Californian eggs

The state of Missouri is pushing back against a California state law which would either impose expensive rules on Missouri egg farmers or result in economic ruin for those same farmers. At the beginning of February, Missouri Attorney General Chris Koster filed a lawsuit against California in the U.S. District Court for the Eastern District of California.

Koster alleges that California’s 2008 Proposition 2—which sets specific space requirements for egg-laying hens, among other animals—and its 2010 law requiring states supplying eggs to California abide by Prop. 2, violate the U.S. Constitution and the sovereignty of Missouri.

“California has placed restrictions on the sale or transfer of a commodity based on production methods that have nothing to do with the health or safety of California consumers” said Koster in his official announcement of the lawsuit.

“If California legislators are permitted to mandate the size of chicken coops on Missouri farms, they may just as easily demand that Missouri soybeans be harvested by hand or that Missouri corn be transported by solarpowered trucks.”

Koster claims the requirement that other states abide by California law violates the Commerce Clause of the U.S. Constitution, which prohibits any state from enacting legislation that regulates conduct wholly outside its borders, protects its own citizens from out-of-state competition, or places undue burdens on interstate commerce.

“This case is not merely about farming practices,” said Koster. “At stake is whether elected officials in one state may regulate the practices of another state’s citizens who cannot vote them out of office. When California passes legislation that imposes new requirements or limits on Missouri businesses, it is my job to fight against it.” — WLJ