Justia Zoning, Planning & Land Use Opinion Summaries

In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation.The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.” View "West v. Charter Communications, Inc." on Justia Law

At issue was whether the rule of capture immunized an energy developer from liability in trespass, where the developer used hydraulic fracturing on the property it owned or leased, and such activities allowed it to obtain oil or gas that migrated from beneath the surface of another person’s land. Plaintiffs’ property was adjacent to a tract of land leased by Appellant Southwestern Energy Production Company for natural gas extraction. Plaintiffs alleged that Southwestern “has and continues to extract natural gas from under the land of the Plaintiffs,” and that such extraction was “willful[], unlawful[], outrageous[] and in complete conscious disregard of the rights and title of the Plaintiffs in said land and the natural gas thereunder.” Southwestern alleged that Plaintiffs’ claims were barred by, inter alia, the rule of capture, and sought declaratory relief confirming its immunity from liability. The court of common pleas court granted Southwestern’s motion for summary judgment, denied Plaintiffs’ motion for partial summary judgment, and denied the motion to compel as moot. The court agreed with Southwestern’s position that the rule of capture applied in the circumstances and, as such, Plaintiffs could not recover under theories of trespass or conversion even if some of the gas harvested by Southwestern had drained from under Plaintiffs’ property. The Superior Court reversed, holding that hydraulic fracturing could give rise to liability in trespass, particularly if subsurface fractures ... crossed boundary lines. The Pennsylvania Supreme Court rejected the concept that the rule of capture was inapplicable to drilling and hydraulic fracturing that occurred entirely within the developer’s property solely because drainage was the direct or indirect result of hydraulic fracturing. Nevertheless, the Supreme Court found the Superior Court panel’s opinion "to suffer from multiple infirmities," reversed and remanded with directions. View "Briggs, et al v. Southwestern Energy" on Justia Law

In this case involving a dispute between Portland Pipe Line Corporation (PPLC) and the City of South Portland (the City) the First Circuit certified three questions to the Maine Law Court because this clash raised important questions of state law preemption doctrine and statutory interpretation that are unresolved and may prove dispositive.The parties to this dispute were PPLC, a Maine corporation engaged in the international transportation of oil, and the City, which enacted a municipal zoning ordinance prohibiting the bulk loading of crude oil onto vessels in the City's harbor. The ordinance prevented PPLC from using its infrastructure to transport oil from Montreal to South Portland via underground pipelines. PPLC appealed the district court's dismissal of its claims, arguing that the ordinance was preempted by Maine's Coastal Conveyance Act and was in conflict with federal constitutional law. The First Circuit declined to address the federal questions, concluding that the case lacked controlling precedent and presented difficult legal issues that warranted certification to the Law Court. View "Portland Pipe Line Corp. v. City of South Portland" on Justia Law

The Supreme Court reversed the district court's order granting summary judgment to Arnold Bakie and determining that Mines Management, Inc.'s (MMI) use of an adit and underground tunnel traversing Defendants' unpatented mining claims constituted trespass, holding that the district court erred in determining that Bakie possessed valid unpatented mining claims, thus entitling him to summary judgment, and in determining that MMI's use of the adit and underground tunnel constituted a trespass.MMI filed a complaint against Bakie and other defendants seeking a declaratory judgment that the mining claims owned by Defendants were invalid. Defendants countersued, alleging that MMI's use of the adit and underground tunnel constituted a trespass. The district court granted summary judgment to Bakie, determining that Bakie's claims were valid unpatented mining claims and that MMI was liable for trespass. The Supreme Court reversed, holding (1) the district court erred in granting summary judgment for Bakie because there was no evidence of valuable mineral deposits on the claims at issue; and (2) for the same reasons, the district court erred in determining that MMI committed trespass by using the adit and underground tunnel. View "Mines Management, Inc. v. Fus" on Justia Law

The Energy Facility Siting Council modified its rules that govern amending site certificates. Petitioners challenged the validity of the new rules, arguing that the council failed to comply with required rulemaking procedures and that the rules exceeded the council’s statutory authority. FAfter review of petitioners' challenges, the Oregon Supreme Court agreed with some, but not all, of those grounds and concluded that the rules were invalid. View "Friends of Columbia Gorge v. Energy Fac. Siting Coun." on Justia Law

Petitioners Northern Pass Transmission, LLC and Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appealed the New Hampshire Site Evaluation Committee’s decision denying their application for a “Certificate of Site and Facility” (certificate) for the siting, construction, and operation of a high voltage transmission line (HVTL) and associated facilities from Pittsburg to Deerfield (the project). A subcommittee of the Evaluation Committee held 70 days of adjudicative hearings between April and December 2017. It received testimony from 154 witnesses and received 2,176 exhibits. At the conclusion of its proceedings, the Subcommittee voted unanimously that petitioners “failed to demonstrate by a preponderance of evidence that the Project will not unduly interfere with the orderly development of the region” and denied the application on February 1, 2018. The New Hampshire Supreme Court reviewed the record and concluded the Subcommittee’s findings were supported by competent evidence and ere not erroneous as a matter of law. Accordingly, the Court held petitioners did not sustain their burden on appeal to show that the Subcommittee’s order was unreasonable or unlawful. View "Appeal of Northern Pass Transmission, LLC & a." on Justia Law

The Supreme Court reversed the decision of the court of appeals reversing the judgment of the circuit court striking two insurance conditions from a conditional use permit (CUP) Dane County issued to Enbridge Energy Company as unenforceable under 2015 Wisconsin Act 55, holding that because Enbridge carried the requisite insurance, Act 55 rendered Dane County's extra insurance conditions unenforceable.The two conditions at issue required Enbridge to procure additional insurance prior to Enbridge expanding its pipeline pump station. Dane County approved the CUP with these insurance conditions. Thereafter, the Wisconsin Legislature passed Act 55, which prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the pipeline operating company carries comprehensive general liability insurance with coverage for "sudden and accidental" pollution liability. Dane County issued the CUP with the invalid insurance conditions. The circuit court struck the two conditions from the CUP as unenforceable under Act 55. The court of appeals reversed on the ground that Enbridge failed to show it carried the requisite coverage triggering the statutory prohibition barring the County from imposing additional insurance procurement requirements. The Supreme Court reversed, holding that Enbridge carried the requisite insurance, and therefore, Dane County's extra insurance conditions were unenforceable. View "Enbridge Energy Co. v. Dane County" on Justia Law

Williams County appealed a the district court’s determination that its oil and gas leases with Twin City Technical LLC, Three Horns Energy, LLC, Prairie of the South LLC, and Irish Oil & Gas Inc. (“Lessees”), were void because the County failed to comply with the public advertising requirements for the lease of public land as provided in N.D.C.C. ch. 38-09. The Lessees sued the County in September 2015, about three and a half years after executing the leases. The North Dakota Supreme Court found record showed the Lessees received a June 2013 letter informing them of potential issues with the County’s mineral ownership. The Lessees contacted the County about the ownership issues by letter in April 2015. The County submitted an affidavit from its auditor stating bonus payments had already been spent and repayment would cause great hardship. Viewing the evidence and reasonable inferences drawn from the evidence in a light favorable to the County, the Supreme Court concluded there were genuine issues of material fact as to whether laches applied to bar the Lessees’ claim for repayment of the bonuses. The Supreme Court reversed that part of the judgment and remand for proceedings related to whether the Lessees’ delay in bringing their lawsuit was unreasonable, and whether the County was prejudiced by the delay. The Court affirmed as to all other issues. View "Twin City Technical LLC, et al. v. Williams County, et al." on Justia Law

A public utility filed a condemnation action seeking the land use rights necessary to construct a natural gas storage facility in an underground formation of porous rock. The utility held some rights already by assignment from an oil and gas lessee. The superior court held that because of the oil and gas lease, the utility owned the rights to whatever producible gas remained in the underground formation and did not have to compensate the landowner for its use of the gas to help pressurize the storage facility. The court held a bench trial to determine the value of the storage space. The landowner appealed the resulting compensation award, arguing it retained ownership of the producible gas in place because the oil and gas lease authorized only production, not storage. It also argued it had the right to compensation for gas that was discovered after the date of taking. The landowner also challenged several findings related to the court’s valuation of the storage rights: that the proper basis of valuation was the storage facility’s maximum physical capacity rather than the capacity allowed by its permits; that the valuation should not have included buffer area at the same rate as area used for storage; and that an expert’s valuation methodology, which the superior court accepted, was flawed. The Alaska Supreme Court concluded the superior court did not err in ruling that the landowner’s only rights in the gas were reversionary rights that were unaffected by the utility’s non-consumptive use of the gas during the pendency of the lease. Furthermore, the Court concluded the trial court did not clearly err with regard to findings about valuation. View "Kenai Landing, Inc. v Cook Inlet Natural Gas Storage, et al." on Justia Law

The surface and mineral estates of “Tract 46” in Pike County, Kentucky have been severed for a century. Pike and Johnson own the surface estate as tenants in common. Pike also owns the entirety of the coal below and wants to mine. In 2013, Pike granted its affiliate a right to enter the land and commence surface mining. Despite Johnson’s protestations, Kentucky granted a surface mining permit. Mining commenced in April 2014. In 2014, as the result of a federal lawsuit, the Secretary of the Interior determined that the permit violated the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1250. The deficiencies in the original permit were remedied; Kentucky issued an amended permit the same year. The Secretary then confirmed that the permit complied with federal law. Johnson sued again. An ALJ, the district court, and the Sixth Circuit affirmed, first finding that Johnson exhausted its administrative remedies to the extent required by SMCRA. The ALJ’s application of Kentucky co-tenancy law, instead of the state’s rules of construction for vague severance deeds, to uphold the issuance of Elkhorn’s permit and the Secretary’s termination of the cessation order was not arbitrary, capricious, or contrary to law. View "M.L. Johnson Family Properties, LLC v. Bernhardt" on Justia Law