After a fairly quiet CA3-opinion week, three today.
First up, a divided panel today reversed in an eminent-domain appeal. Here’s majority’s introduction:
The issue before us is straightforward: does Columbia
Gas Transmission, LLC (“Columbia”), have the right of
eminent domain to obtain easements over the land of
objecting landowners, outside of the existing right of way, in
order to replace deteriorating pipeline? The answer is equally
straightforward and clear: yes.
And the dissent’s:
The Majority interprets the pertinent regulations to
unambiguously allow private gas companies to replace a
pipeline anywhere, on anybody’s property, without any type
of formal administrative review. In deciding that the Federal
Energy Regulatory Commission (“FERC”) has extended such
a broad grant of the sovereign power of eminent domain to
private companies, the Majority relies on a definition of
“replacement” not provided in the text of the regulations but
supplied by Columbia, even though it is at odds with what
Columbia admits is the common understanding of what
constitutes a “replacement” and despite the fact that FERC
had never adopted that definition until, in the middle of an
unrelated rulemaking, the agency crafted a footnote in
reaction to the District Court’s decision in this case. In my
view, the Majority’s limitless reading of the regulations is
deeply problematic and renders them constitutionally suspect.
To avoid logical difficulties within the regulations, as well as
to avoid constitutional concerns, some sort of locational
limitation must serve as a constraint on pipeline replacement
outside of an original right-of-way.
The case is Columbia Gas v. 1.01 Acres. Opinion by Rendell joined by Chagares, dissent by Jordan. Arguing counsel were John Wilburn of McGuire Woods for the gas company and Joshua Autry of Lavery Faherty Patterson for the landowners.
Next up is a bankruptcy reversal. At issue is a dispute (arcane, to my non-expert eyes) involving the adequacy of a trustee’s effort to recover of fraudulently transferred property.
The case is In re Allen. Opinion by Fisher, joined by Scirica and Cowen. Arguing counsel were Jason Baruch for the appellant and Daniel Allen for himself, pro se, which is a real rarity.
Today’s final case is an ERISA appeal in which the court affirmed, holding that an investment company that allegedly charged excessive fees was not a fiduciary to 401(k) participants.
The case is Santomenno v. John Hancock. Opinion by Fisher, joined by Van Antwerpen and Tashima CA9 by designation. Arguing counsel were Stephen Skillman of Szaferman Lakind for the investors, James Fleckner for the company, and Radha Vishnuvajjala for the US Department of Labor as amicus.