Fifth Circuit Denies Due Process-Based Request for Preliminary Injunction Against Intrastate Texas Gas Pipeline


On October 3, in the case of Boerschig v. Trans-Pecos Pipeline, LLC, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s denial of request for a preliminary injunction to enjoin Texas state condemnation proceedings initiated by the pipeline defendant because, it was argued, these proceedings violated the Due Process Clause of the U.S. Constitution. The plaintiff landowner argued that the Texas law illegally delegated condemnation authority to a private party (the pipeline company), and that the process failed to provide an opportunity for the plaintiff to participate in a “predeprivation hearing” where the condemnation can be challenged. The Fifth Circuit concluded that the plaintiff was unable to establish a likelihood of success on the merit, a sine qua non for obtaining a preliminary injunction.

The plaintiff, John Boershig, owns a ranch in West Texas through which Trans-Pecos Pipeline, LLC planned to build an intrastate natural gas pipeline pursuant to the provisions of state law: Texas Property Code  § 21.0113 and Texas Utility Code  § 181.004. The Texas Constitution, Tex. Const. art. I, § 17(a), and the Texas Utility Code, Tex. Util. Code § 181.004,  allow a natural gas utility to condemn land for a “public use,” as in this instance.

To place a pipeline on land like Boerschig’s ranch, Texas Prop. Code § 21.0113 requires that the company first try to negotiate with the landowner. When the preliminary negotiations between the pipeline and the landowner failed, the pipeline initiated condemnation proceedings under Texas Prop. Code § 181.004, in accordance with its delegated powers of eminent domain.
While the state proceedings were underway, the landowner sought relief from the federal courts on the basis of a Due Process claim, citing the Anti-Injunction Act. The landowner “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.”

The lower court denied relief, “holding that the requested relief would violate the Anti-Injunction Act, which prohibits federal courts from enjoining ongoing state proceedings. After the District Court issued its ruling, the commissioners issued their valuation of $645,000 for the land taken by the pipeline, and the construction is now complete.

The Fifth Circuit held the District Court’s determination was not dispositive and completion of the construction did not moot the landowner’s request for injunctive relief.

A request for injunctive relief generally becomes moot when the event sought to be enjoined takes place. 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. (Internal citation omitted.)

The Fifth Circuit reasoned,

[a]fter 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 v. Lee, 328 U.S. 246, 251 (1946)], order that Trans-Pecos return Boerschig’s land to its precondemnation state. Because we could offer this “effective relief,” the controversy is not moot and we can consider the appeal. (Internal citation omitted.)

In a unanimous opinion, the Fifth Circuit noted that the landowner-plaintiff “cannot meet the demanding standard for the issuance of an injunction.” The Fifth Circuit confirmed that the fact that the pipeline had been completed was not an impediment to the court’s ability to rule in this case.

The Texas eminent domain laws “are longstanding and have withstood previous legal challenges,” including prior claims that the lack of a “predeprivation hearing” violated the law. Moreover, the plaintiff’s reliance on the “private nondelegation doctrine,” described by the Fifth Circuit as a “nook of Fourteenth Amendment law long recognized but seldom invoked,” was unsuccessful because the few federal cases cited to for this proposition “cannot dictate how state governments allocate their powers.”