Condemnation: Pipeline Easement; Immediate Possession Administrative Law: Conflict of Interest

摘要

Guardian seeks to condemn some 100 parcels in order to construct a natural gas pipeline for which it has a FERC certificate of public convenience and necessity. The district court appoints a commission to receive evidence and propose findings as is authorized by Fed.R.Civ.P. 71.1. The commission issues a lengthy report which is adopted by the district court judge. Guardian Pipeline, L.L.C. v. 950.80 Acres of Land, 486 F.Supp.2d 741 (N.D.I11. 2007). Plaintiffs challenge the decision based on their claim that the chair of the commission had a conflict of interest. The chair is a retired state court judge who retired from the bench and joined a law firm which had pipeline companies as clients. A preliminary issue is whether eminent domain commissioners under Rule 71.1 are to be treated as judges under 28 U.S.C. § 455. While suggesting, but not deciding, that Section 455 does not apply to commissioners because there is no reference to it in Rule 71.1., the court finds that even if the heightened conflict of interest standards contained in Section 455 apply, they were not breached in this case. Neither the chair, nor the law firm, has ever represented Guardian. The fact that they represent other pipelines is insufficient to create a conflict of interest under any of the specific conflicts listed in Section 455. The court also concludes that plaintiffs cannot make a claim under the "appearance of impropriety" standard of Section 455(a) because such claims must be made during the proceeding. The court finds that the rule not allowing post-decision challenges is especially appropriate where the commission is only making recommendations which a district court judge may accept, modify, or reject.