September 03, 2014 Article

Can Condemnation by Injunction by Gas Companies Be More Broadly Applied?

Condemning authorities are increasingly turning to the preliminary injunction process to immediately possess properties they seek to condemn

by Alan Windham and Ben Bryant

Condemning authorities are increasingly turning to the preliminary injunction process to immediately possess properties they seek to condemn. The natural gas pipeline industry has had particular success in gaining this immediate form of relief. Typically, in a federal condemnation action under Federal Rule of Civil Procedure 71.1, the condemnor does not take possession of the property until after a trial on the merits determines the issue of just compensation. However, Rule 71.1 implicitly recognizes the availability of other remedies. Many federal and state courts have held that immediate possession is available in a condemnation action on a well-founded motion for a preliminary injunction pursuant to Rule 65. This remedy presents an appealing option to condemnors facing tight deadlines to initiate projects on property they seek to acquire. Using the actions pursued under the Natural Gas Act and described in this article as a model, this approach could be expanded to other types of condemnations.

 

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