The Sage Approach to Immediate Entry by Private Entities Exercising Federal Eminent Domain Authority under the Natural Gas Act and the Federal Power Act

Article excerpt

"[Necessity is the mother of our invention."

Plato, The Republic, Book II

Trans. Benjamin Jowett

I. INTRODUCTION

From time to time practical necessity gives expression to a new legal development that is implicit in established forms of rights or remedies.

On November 8, 2004, the United States Supreme Court denied a petition for certiorari with respect to East Tennessee Gas Pipeline Co. v. Sage.1 By denying the petition, the United States Supreme Court refused to review the application of an immediate entry remedy in federal takings by private entities in the United States district courts (USDC). This remedy, which authorizes a private condemnor to enter and possess or use condemned property prior to the time that compensation for the property is finally decided and paid, has evolved unevenly during the last fifty years, and the first documented request for immediate entry by a private party holding delegated federal eminent domain authority was denied.

That denial occurred in 1957 after a USDC was asked to consider a novel application of its general equity jurisdiction in aid of delegated federal eminent domain authority. Entry was sought by a natural gas company2 holding a certificate of public convenience and necessity (Certificate) issued by the Federal Power Commission (FPC)3 under section 7(c) of the Natural Gas Act (NGA).4 The plaintiff in the case,5 relied on United States v. Fish Building,6 arguing that a USDC exercising its inherent equity jurisdiction could, prior to determining compensation for the easement to be taken, grant the holder of an FPC Certificate immediate entry of an affected property.7 The court found decisions to be equivocal, reading United States v. a Parcel of Land8 to reach the opposite result from Fisk Building. Nevertheless, the court stated that it could exercise "its inherent equity power under suitable circumstances to order an immediate taking"9 because " there [was] an equity in favor of the public which call[ed] for the exercise of that power . . . determined by whether or not the public would be prejudiced or injured if the exercise of that power were withheld."10 The USDC, however, found little prejudice to the natural gas company and, to avoid harm to the landowner, decided that the immediate entry petition should be denied.

The remedy was not sought again and obtained in the USDC until 1981.12 Subsequently it evolved rapidly13 and by 2004, the United States Circuit Court of Appeals for the Fourth Circuit found it necessary to affirm an immediate entry remedy framed in terms of a mandatory preliminary injunction.14 In doing so the Fourth Circuit attempted to distinguish its decision from a Seventh Circuit decision which defendant landowners argued was inconsistent with immediate entry.15

The purposes of this article are to examine the evolution of the federal immediate entry remedy for private entities, identify its sources, constituent elements and purposes, assess the equity theory affirmed by Sage, assess applicability of the remedy to changes in the NGA and FPA16 rendered by the enactment of the Energy Policy Act of 2005 (EPAct 2005),17 and suggest some points of practice in the area of takings and entry. The authors believe that the USDCs' exercise of authority granted under the NGA, the FPA, and Rule 71 A of the Federal Rules of Civil Procedure (FRCP) has evolved into several approaches to the remedy of immediate entry for federally regulated but privately owned projects of which Sage is the best articulated. We hope that this article will help to inform future application of the remedy, by continuing to assure protection of property owners' rights in the face of public interest findings by Congress and the FERC that are implemented in part via the exercise of federal eminent domain authority.

In this article, we have chosen to use the terms "immediate entry" broadly to mean any court order or decision, issued in connection with a taking,18 to enter and use property for purposes specifically authorized by FERC under the NGA or FPA in advance of a final, non-appealable decision on and payment of compensation to an effected property owner. …