John Boerschig v. Trans-Pecos Pipeline, L.L.C.
2017 U.S. App. LEXIS 19179
5th Cir.2017Background
- Trans‑Pecos Pipeline invoked Texas eminent domain statute to acquire a 50‑foot easement across John Boerschig’s ranch for an intrastate gas pipeline terminating at the Rio Grande.
- Texas law requires an initial negotiation attempt; when negotiations failed, the utility exercised the statutory power to condemn for "public use."
- Texas procedure: special commissioners assess just compensation; condemnor may take possession after commissioners' award, and landowner may later object and seek judicial review.
- Boerschig filed a federal suit seeking to enjoin the ongoing state condemnation, arguing (1) Texas unconstitutionally delegated eminent domain power to a private company (private nondelegation) and (2) he was denied due process because there is no predeprivation hearing.
- The district court denied an injunction under the Anti‑Injunction Act; on appeal the Fifth Circuit considered mootness (pipeline construction completed) and whether injunction was warranted on the merits.
- The Fifth Circuit held the appeal was not moot (court could provide effective relief) but affirmed denial of preliminary injunction because Boerschig was unlikely to succeed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal court may enjoin state condemnation phase now (mootness/ability to provide relief) | Boerschig: injunction needed to stop taking; ongoing controversy | Trans‑Pecos: construction completed; appeal moot | Not moot — court could order restoration; appeal proceeds |
| Whether Anti‑Injunction Act barred federal injunction of the commissioners' phase | Boerschig: commissioners’ work is nonjudicial and separable, so §2283 doesn't bar injunction | Trans‑Pecos: commissioners’ phase converts into state judicial proceeding; §2283 bars injunction | Court avoided resolving §2283 question and affirmed on alternative ground (merits) |
| Whether Texas quick‑take and post‑take judicial review violates due process (right to predeprivation hearing) | Boerschig: taking before court hearing denies due process | Trans‑Pecos: quick‑take with later judicial review is longstanding and consistent with due process | Held: precedent supports quick‑take statutes; no constitutional violation shown |
| Whether allowing private utilities to determine necessity/public use violates the private nondelegation doctrine (Fourteenth Amendment due process) | Boerschig: delegation to private company gives unrestrained power to deprive property without "process of law" | Trans‑Pecos: statute includes an objective standard (public use) and judicial review (fraud, bad faith, abuse, arbitrary/capricious) constrains discretion | Held: challenge unlikely to succeed; Texas scheme materially differs from unconstitutional private delegations and provides standards and judicial oversight |
Key Cases Cited
- Eubank v. City of Richmond, 226 U.S. 137 (invalidating private authorization without standards) (illustrates private nondelegation concern)
- Washington v. Roberge, 278 U.S. 116 (same) (private veto without standards violates due process)
- Carter v. Carter Coal Co., 298 U.S. 238 (striking statute delegating regulatory power to private economic actors) (historic nondelegation precedent)
- Joiner v. City of Dallas, 380 F. Supp. 754 (N.D. Tex. 1974) (upholding Texas quick‑take procedure) (supports constitutionality of post‑take review)
- Smart v. Texas Power & Light Co., 525 F.2d 1209 (5th Cir. 1976) (quick‑take without predeprivation hearing consistent with due process)
- General Elec. Co. v. New York State Dept. of Labor, 936 F.2d 1448 (2d Cir. 1991) (recognizes private nondelegation doctrine remains good law)