JOHN P. BOERSCHIG Plaintiff - Appellant
TRANS-PECOS PIPELINE, L.L.C. Defendant- Appellee
from the United States District Court for the Western
District of Texas
STEWART, Chief Judge, and HIGGINBOTHAM, and COSTA, Circuit
COSTA, CIRCUIT JUDGE:
law allows a natural gas utility to condemn land for
"public use." Tex. Util. Code § 181.004; Tex.
Const. art. I, § 17(a). Trans-Pecos Pipeline, LLC
exercised that authority and initiated a condemnation
proceeding to obtain a 50-foot wide permanent right-of-way
and easement on John Boerschig's ranch. The ranch is
along the route of a 148-mile pipeline Trans-Pecos is
constructing in west Texas that terminates at the Mexican
border in the middle of the Rio Grande.
contends that by ceding condemnation power to a private
company, Texas eminent domain law offends due process. His
argument principally relies on the private nondelegation
doctrine, a nook of Fourteenth Amendment law long recognized
but seldom invoked. The strength of this constitutional
challenge is the central question we must decide in reviewing
whether a federal court should enjoin the ongoing state
pipeline Trans-Pecos is constructing-with the exception of
the short section that crosses the Rio Grande and is thus
subject to federal authority-is intrastate and thus governed
by Texas law. To place a pipeline on land like
Boerschig's ranch, Texas requires that the company first
try to negotiate with the landowner. Tex. Prop. Code §
negotiations failed, so Trans-Pecos invoked Texas eminent
domain power via the following statute: "A gas or
electric corporation has the right and power to enter on,
condemn, and appropriate the land, right-of-way, easement, or
other property of any person or corporation." Tex. Util.
Code § 181.004; see also Anderson v. Teco Pipeline
Co., 985 S.W.2d 559, 564-66 (Texas Ct. App.- San
Antonio, 1998) (discussing the statutory scheme and noting
that "courts have determined that a corporation
operating a gas pipeline has the power of eminent domain if
it devotes its private property and resources to public
service and allows itself to be publicly regulated").
For statutes like this one that do not "specifically
require[ ] a condemning agency to show the necessity for the
condemnation, " courts view the legislature as
delegating to the condemning authority the question whether
the taking is necessary. Elizabeth M. Bosek, et al., 32 Tex.
Jur. 3d Eminent Domain § 103; see Circle X
Land & Cattle Co. v. Mumford Indep. Sch. Dist., 325
S.W.3d 859, 864 (Tex. App.-Houston [14th Dist.], 2010). So
before exercising its power to condemn, a gas utility must
determine that the taking is necessary to further what both
the Texas and federal constitutions require-a public purpose.
Anderson, 985 S.W.2d at 565 (explaining that the
company's board of directors usually makes this finding)
(citing Bevley v. Tenngasco Gas Gathering Co., 638
S.W.2d 118, 121 (Tex. Ct. App.-Corpus Christi, 1982, writ
ref'd n.r.e.)). In the judicial review that may follow,
this necessity determination is "conclusive, absent
fraud, bad faith, abuse of discretion, or arbitrary or
capricious action." Anderson, 985 S.W.2d at
brought this lawsuit to stop that state review process, as
Trans-Pecos had already initiated the condemnation
proceeding. That proceeding begins with a state district
court appointing special commissioners who assess the value
of the property. See City of Tyler v. Beck, 196
S.W.3d 784, 786 (Tex. 2006). After the commissioners make
that award, the condemnor can take control of the property.
Tex. Prop. Code § 21.021(a). If objections to the
commissioners' award are filed, a case is opened in state
court. Tyler, 196 S.W.3d at 786. It
is during that judicial phase when the landowner may
challenge the utility's finding of a public necessity.
See, e.g., Anderson, 985 S.W.2d at 566.
before the commissioners issued a ruling from which Boerschig
could have sought judicial review, Boerschig filed this
federal suit and sought to enjoin the state condemnation
proceeding. He asserted that Texas's eminent domain
regime violates the Due Process Clause, both because it is a
broad delegation of power to a private party and because it
fails to provide for a predeprivation hearing.
district court did not issue an injunction, holding that the
requested relief would violate the Anti-Injunction Act, which
prohibits federal courts from enjoining ongoing state
proceedings. See 28 U.S.C. § 2283. After the
district court ruling, the commissioners issued their
valuation of $644, 625, Boerschig filed his objections to the
taking in state court, and Trans-Pecos took control of the
property. Meanwhile, Boerschig filed this appeal of the
federal district court's refusal to enjoin the
Trans-Pecos has completed construction of the pipeline on
Boerschig's ranch during the pendency of this appeal,
Trans-Pecos believes it is too late for an injunction to
issue. It thus asks us to dismiss the appeal as moot. We
review questions concerning our jurisdiction-like whether a
controversy has become moot-de novo. Harris v. City of
Houston, 151 F.3d 186, 189 (5th Cir. 1998).
request for injunctive relief generally becomes moot when the
event sought to be enjoined takes place. Id. But
this rule has a well-established exception: when the
defendant completes the act to be enjoined despite having
notice of the request for injunctive relief, the plaintiff is
not deprived of appellate review if the reviewing court can
restore the status quo. Porter v. Lee, 328 U.S. 246,
251 (1946) (noting even then that the exception "has
long been established"); see also Moore v. Cons.
Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir.
2005) (Sotomayor, J.) (holding that a request for preliminary
injunction is not moot when the court has the ability to
"offer effective relief"). After the district court
denied Boerschig's request for preliminary injunction,
Trans-Pecos began construction on the pipeline. But we could,
pursuant to the exception in Porter, order that
Trans-Pecos return Boerschig's land to its
precondemnation state. See Bastian v. Lakefront Realty
Corp., 581 F.2d 685, 691-92 (7th Cir. 1978) (holding
that an appeal of a denial of preliminary injunction was not
moot even when the property at issue had ...