Can a Power Plant Owned by a Company Take Land by Eminent Domain Under the Federal Power Act?

Full Question:

A paper company has a subsiiary co. that has 5 hyroelectic plants. At one of the hyro plants they have a hand full of public customers. At one of their other hydo plants where they servic only their paper mill, they are claiming the Fed Powers Act to condemn some water frontage on their resevoir. Is it possible to defeat their use of eminent domain? List court cases. They also have applied to the WI PSC to withdraw their utility status prior to selling their hydro plants.
04/20/2011   |   Category: Government ยป Zoning   |   State: Wisconsin   |   #24685

Answer:

The answer will depend on all the circumstances involved. We suggest you contact a local attorney who can review all the facts and documents involved. Please see the following cases and article involving the exercise of eminent domain under the Federal Power Act. The cases involve the capacity of a municipal corporation of a state to act under such license when its exercise requires the condemnation of state-owned property dedicated to a public use, estoppel, just compensation, and other issues.

Please see:

http://www.docstoc.com/docs/52369185/of-Eminent-Domain-to-Nonfederal-Entities
http://supreme.vlex.com/vid/tacoma-v-taxpayers-19997960#ixzz1K6RaVJeh

http://caselaw.findlaw.com/us-2nd-circuit/1051415.html
http://vlex.com/vid/nickell-zella-36719187

http://supreme.vlex.com/vid/tacoma-v-taxpayers-19997960

Please see the following from the U.S. Code to determine applicability:

TITLE 16--CONSERVATION

CHAPTER 12--FEDERAL REGULATION AND DEVELOPMENT OF POWER

SUBCHAPTER I--REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES


Sec. 814. Exercise by licensee of power of eminent domain

When any licensee cannot acquire by contract or pledges an
unimproved dam site or the right to use or damage the lands or property
of others necessary to the construction, maintenance, or operation of
any dam, reservoir, diversion structure, or the works appurtenant or
accessory thereto, in conjunction with any improvement which in the
judgment of the commission is desirable and justified in the public
interest for the purpose of improving or developing a waterway or
waterways for the use or benefit of inter

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state or foreign commerce, it may acquire the same by the exercise of
the right of eminent domain in the district court of the United States
for the district in which such land or other property may be located, or
in the State courts. The practice and procedure in any action or
proceeding for that purpose in the district court of the United States
shall conform as nearly as may be with the practice and procedure in
similar action or proceeding in the courts of the State where the
property is situated: Provided, That United States district courts shall
only have jurisdiction of cases when the amount claimed by the owner of
the property to be condemned exceeds $3,000 \1\ Provided further, That
no licensee may use the right of eminent domain under this section to
acquire any lands or other property that, prior to October 24, 1992,
were owned by a State or political subdivision thereof and were part of
or included within any public park, recreation area or wildlife refuge
established under State or local law. In the case of lands or other
property that are owned by a State or political subdivision and are part
of or included within a public park, recreation area or wildlife refuge
established under State or local law on or after October 24, 1992, no
licensee may use the right of eminent domain under this section to
acquire such lands or property unless there has been a public hearing
held in the affected community and a finding by the Commission, after
due consideration of expressed public views and the recommendations of
the State or political subdivision that owns the lands or property, that
the license will not interfere or be inconsistent with the purposes for
which such lands or property are owned.