United States District Court, E.D. Michigan, Southern Division
ORDER ON COMMISSION INSTRUCTIONS
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
Court sets forth the following Commission instructions. Any
objections to the Commission instructions shall be filed
on or before 12 p.m. on April 11, 2019. No.
responses to objections will be allowed. If no objections are
filed, the Commission instructions will become final and
issued to the Commission. If objections are filed, the
Commission instructions will become final after the Court
resolves the objections.
a case in eminent domain, which means the power of the
government or an agency to take private property for a public
purpose upon payment of just compensation to the owner of the
property taken. Under the constitution and laws of this
state, all private property is held subject to this right of
eminent domain. The right of eminent domain is exercised
through proceedings commonly called a condemnation action.
This is such an action.
Pipeline, LLC (“Plaintiff”) has acquired a
non-exclusive 50' easement, as well as temporary
easements, across several properties to install a 42”
high- pressure interstate natural gas transmission pipeline.
Defendants include property owners and non-property owners
who possess interests in the properties at issue.
Plaintiff's easements (herein, “Easements”)
are described in paragraphs 29-49 of Plaintiff's Verified
Complaint, in Exhibit A to Plaintiff's Verified
Complaint, as amended, and in the Notices of Commencement of
Condemnation Action Plaintiff filed for each property. The
Natural Gas Act, 15 U.S.C. § 717 et seq., gives
Plaintiff the right to appropriate the non-exclusive
Easements subject to the requirement that compensation for
such taking shall be assessed by the Commission. The
Commission acts as an assessing body in determining the
amount of compensation to be paid to the Defendants.
(See M Civ JI 90.01).
Substantive Michigan Law Applies.
an action brought under the Natural Gas Act, 15 U.S.C. 717
et seq., but state law also applies. That is because
the Sixth Circuit has held that “although condemnation
under the Natural Gas Act is a matter of federal law, §
717f(h) incorporates the law of the state in which the
condemned property is located in determining the amount of
compensation due.” Columbia Gas Transmission Corp.
v. Exclusive Natural Gas Storage Easement, 962 F.2d
1192, 1199 (6th Cir. 1992). Accordingly, the Commission shall
apply Michigan substantive law in determining the just
compensation awards due and federal procedural law in
conducting the compensation proceedings. Id.
General Instructions on Commissioners' Duties, Powers,
to Rule 71.1, “[a] commission has the powers of a
master under Rule 53(c). Its action and report are determined
by a majority. Rule 53(d), (e), and (f) apply to its action
and report.” Fed.R.Civ.P. 71.1(h)(2)(D). Accordingly,
the Court directs that the Commissioners shall: (1) regulate
all Commission hearings and all proceedings related to these
hearings, such as briefing at the discretion of the
commissioners; (2) take all appropriate measures to perform
their assigned duties fairly and efficiently; and (3)
exercise the same power as this Court to compel, take, and
record evidence. Fed.R.Civ.P. 53(c). The Commission shall
establish its own procedures for filing and responding to
motions. The Commission shall produce written orders as
necessary, which the Commission shall forward to chambers for
filing and service on each party involved in a hearing.
Fed.R.Civ.P. 53(d). Similarly, the Commission shall produce a
written report on just compensation (“report”) to
the Court, which shall be filed and served on each party
involved in a hearing. Fed.R.Civ.P. 53(e). The Commission
may, in its discretion, issue a single report at the
conclusion of all hearings, or issue reports on different
dates regarding different properties grouped as it deems
written orders and reports shall be signed by the
participating Commission members, and, as with all orders and
reports, an electronic signature is sufficient. Evidentiary
or procedural orders as recognized below that fall within the
province of the Chairperson need only be signed by the
Chairperson. The written orders and reports shall include all
relevant findings of fact and conclusions of law; procedural
orders need not be as comprehensive but should be
sufficiently detailed to enable this Court to conduct
adequate review when necessary. The United States Supreme
Court has stated that “[c]onclusory findings are alone
not sufficient, ” because a district court would
“have no way of knowing what path the commissioners
took through the maze of conflicting evidence.”
United States v. Merz, 376 U.S. 192, 198 (1964).
Thus, although “[t]he commissioners need not make
detailed findings such as judges do who try a case without a
jury[, ]” the commissioners must nonetheless
“reveal the reasoning they use in deciding on a
particular award, what standard they try to follow, which
line of testimony they adopt, what measure of severance
damages they use, and so on.” Id.; see also 13
James W. Moore, Moore's Federal Practice §
71.1.12 (“A report containing only conclusory
statements and a summary of the evidence is clearly
insufficient.”). Additionally, not “every
contested issue raised on the record before the [C]ommission
must be resolved by a separate finding of fact” and
there does not have to be “an array of findings of
subsidiary facts to demonstrate that the ultimate finding of
value is soundly and legally based.” Merz, 376
U.S. at 198-199. Rather, the path followed by the
commissioners in reaching their decisions should be
“distinctly marked.” Id. at 199. The
Commission is therefore “required to state not only the
end result of their inquiry, but the process by which they
reached it.” Id.
the filing of a Commission order or report, a party involved
in the hearing with which the order or report is concerned
may file specific and detailed objections to the Commission
order or report no later than seven (7) days after a copy of
an order is served and fourteen (14) days after a copy of a
report is served. Fed.R.Civ.P. 53(f)(2). This shall
constitute the party's notice of and opportunity to be
heard on the order or report. Fed.R.Civ.P. 53(f)(1). The
Court may in its discretion elect to receive evidence related
to the order or report, but no oral argument or hearing on
any objection will be held unless ordered by the Court. The
parties should note that in acting on a Commission order or
report, the Court may adopt or affirm, modify, wholly or
partly reject or reverse, or resubmit to the Commission with
instructions the order or report. Fed.R.Civ.P. 53(f)(1).
response to any objection to an order or report must be filed
within seven (7) days of the objection. No. reply briefs may
be filed, unless specifically allowed by the Court. The Court
will decide any objection to a conclusion of law or finding
of fact made or recommended by the commission on a de novo
basis. Fed.R.Civ.P. 53(f)(4). The Court will review the
commission's ruling on a procedural matter under an abuse
of discretion standard. Fed.R.Civ.P. 53(f)(5). The
Commission's report(s) on just compensation shall be
submitted to the Court on or before July 26,
Duties of Chairperson.
Court has designated Robert S. Rollinger as the Commission
Chairperson. The Chairperson shall make all discovery and
evidentiary rulings related to all hearings in which he takes
part and will insure that the Commission adheres to any
rulings by this Court. See 13 James W. Moore,
Moore's Federal Practice § 71.1.12
(“A lawyer is often appointed by the court to function
as Chairperson and to make evidentiary rulings.”). In
any hearing in which the Chairperson does not participate, he
shall designate another Commissioner to assume the role of
chairperson for that hearing and that designated Chairperson
shall make all evidentiary rulings. The Chairperson shall
also be responsible for conducting the hearing - i.e.,
calling the hearing to order and supervising the proceedings.
Finally, although all of the exhibits that have been admitted
into evidence will go to the courtroom deputy following the
filing of the report to which they pertain, the Chairperson
is charged with maintaining control of the exhibits until
delivery to the courtroom deputy.
alternate Commissioners shall attend each hearing and shall
not be discharged until the Commission has reached a just
compensation decision and the Court has made its final ruling
on the matter. Prior to replacing a Commissioner, an
alternate Commissioner cannot be present at, or participate
in, the Commission's deliberations. If, before or during
deliberations, it becomes impossible for a regular
Commissioner to continue his or her duties, the alternate
Commissioner will replace that regular Commissioner. If such
replacement occurs during the course of deliberations, the
Commission must start its deliberations over again. Unless he
or she has replaced a regular Commissioner and is engaged in
the deliberations, no alternate Commissioner may discuss the
case with anyone, including the other alternate Commissioner.
party may file a written request or stipulation thirty (30)
days prior to a scheduled hearing for a viewing of the
property by the Commission. Any objection to a viewing
request shall be filed within seven (7) days of the
request's filing. If the assistance to the Commission is
outweighed by an injustice to a party, however, the request
for a viewing may be denied. Such denial is proper, for
example, where the only purpose the view could serve would be
to show the property in an unfair light or where the
Commission, in the exercise of its discretion, finds that the
prejudicial nature of the view exceeds any illustrative
benefits or efficacy. If a viewing is not denied or is held
by stipulation, the Commission and the parties shall then
work to coordinate the viewing, which must be completed prior
to the close of evidence. Failure to file a written request
or stipulation by the deadline described shall constitute a
waiver or forfeiture of a request for a viewing, subject to a
showing of good cause warranting an exception for an untimely
request. The view of the premises is not evidence. Rather, it
is solely for the purpose of enabling the Commission to
better understand the evidence offered by the parties.
Location of Hearing.
otherwise ordered by the chairperson or this Court, or
stipulated by the parties, all hearings shall be held at the
Theodore Levin U.S. Courthouse, United States District Court
for the Eastern District of Michigan in Detroit, Michigan.
Hearings may, as necessary, be held away from this location
in order to accommodate schedules or for the convenience of
the parties, counsel, or Commission members. Any party may
file a written request or stipulation thirty (30) days prior
to a scheduled hearing to conduct the hearing in a location
other than the courthouse. Failure to file such a written
request or stipulation by the deadline described shall
constitute a waiver or forfeiture of a request for an
alternate location, unless there is a showing of good cause
warranting an exception for an untimely request.
Manner of Hearing.
property shall be the subject of a separate and distinct
hearing before a panel of three Commissioners, unless the
parties stipulate or the Commission decides that more than
one property be combined into a single hearing (e.g., in the
case of a Defendant property owner who owns more than one
property upon which Plaintiff has obtained Easements). The
manner of the hearings shall adhere to the conventions of a
trial. There is no general burden of proof applicable to all
issues in a condemnation proceeding. Therefore, for the
purposes of presenting evidence at Commission hearings, it
will be within the Commission's discretion to decide the
order of presentation.
parties through counsel shall give opening statements to the
Commission, either at the commencement of the proceeding or
immediately prior to the party presenting its evidence.
Evidence shall then be presented to the Commission. The
parties through counsel shall then present an oral closing
argument, after which time the panel shall take the matter
under advisement and conduct subsequent deliberations that
should result in a written report. The decision of the
Commission is determined by a majority. See 13 James
W. Moore, Moore's Federal Practice §
71.1.04[h] (stating that a commission's “action
and report are determined by a majority”).
hearings must be on the record through a registered court
reporter. Plaintiff shall compensate any court reporter used
at a hearing at the regular hourly rate of that reporter, in
addition to travel expenses. The parties are responsible for
the costs of obtaining a transcript just as they would be in
any case. The reporter shall bill Plaintiff directly, and any
issue surrounding billing or payment should be brought to the
attention of the Court promptly.
Duty in Deliberating.
Court cannot embody all the law in any single part of these
instructions. One portion of the instructions should be
considered in light of and in harmony with all the
instructions. Whether certain instructions are applicable may
depend upon the conclusions the Commission reaches on the
facts. If a Commissioner has an impression that the Court
indicated how any disputed fact should be decided, the
Commissioner must put aside such impression because only the
Commissioners determine such a matter. The Commission must
not be influenced by any consideration of sympathy or
prejudice. It is the Commission's duty to weigh the
evidence, to decide the disputed questions of fact, to apply
the instructions to the Commission's findings, and to
render a decision accordingly. In fulfilling their duty, the
Commissioners' efforts must be to arrive at a fair and
just compensation award.
the Commissioners' duty to consult with one another and
to deliberate with a view of reaching an agreement if they
can do so without disturbing their individual judgment. Each
of the Commissioners must decide each contested issue for
himself or herself, but should do so only after an impartial
consideration of the evidence in the case with their fellow
Commissioners. In the course of the Commission's
deliberations, no Commissioner should hesitate to re-examine
his or her own views and change his or her opinion if he or
she is convinced that it is erroneous. However, no
Commissioner should surrender his or her honest conclusion as
to the weight or effect of the evidence solely because of the
opinion of his or her fellow Commissioners or for the mere
purpose of returning a decision. The Commissioners are the
impartial triers of the facts. Their sole interest is to
ascertain the truth from the evidence in the case.
Applicability of Federal Rules.
Commission proceedings shall be conducted as a trial in
accordance with the Federal Rules of Evidence and the Federal
Rules of Civil Procedure, except where provisions of the
latter are clearly inapplicable to Commission proceedings.
See 13 James W. Moore, Moore's Federal
Practice § 71.1.12 (noting that “[t]he
Federal Rules of Evidence apply in all condemnation
proceedings, whether tried before the court, a jury or a
commission”). The Chairperson may at his election
permit the filing of hearing briefs, and the parties shall
comply with any scheduling order the Chairperson issues.
the duty of the Commission to determine the amount of just
compensation payable by Plaintiff to each Defendant. Although
the Commissioners are the sole finders of the fact, they are
duty-bound to follow the law as stated in the instructions of
the Court and to apply the law to the facts as they find the
facts from the evidence presented to the Commission. The
Commission is not to single out any one instruction alone as
stating the law, but must consider these instructions as a
whole. No. Commissioner is to be concerned with the wisdom of
any rule of law. Regardless of any opinion that a
Commissioner may have as to what the law ought to be, it
would be a violation of that Commissioner's duty to base
a decision upon a view of the law that contradicts the view
given in the instructions of the Court, just as it would also
be a violation of the Commissioner's duty, as a finder of
the facts, to base a decision on anything other than the
evidence in the case.
these instructions are not intended to state fully all rules
of law that the Commission may find applicable. The
recitation of any rules of law herein are not meant to
exclude different or additional rules, except to the extent
that any such rules contradict any statements on the law
contained in these instructions. The Commission may make a
formal request to the Court to clarify the current
instructions or seek to include additional instructions as it
Duties of the Commission.
system of law does not permit the Commission to be governed
by prejudice, sympathy, or public opinion. The parties and
the public expect that the Commission will carefully and
impartially consider all of the evidence in the case and
reach a just compensation decision regardless of the
All Persons Equal Before the Law.
Commission should consider and decide each hearing as an
action between persons of equal standing in the community, of
equal worth, and holding the same or similar stations in
life. All persons, whether corporations, a governmental
entity, or individuals, stand equal before the law and are to
be dealt with as equals in a court of justice.
evidence in each hearing consists only of the sworn testimony
of the witnesses and all the exhibits that will have been
received in evidence in that hearing. The evidence does not
include any statements of counsel made during the hearing
unless such statement was an admission or agreement admitting
certain facts. The opening statements and the closing
arguments of counsel are designed to assist the Commission,
but they are not evidence. The Commission is to consider only
the evidence admitted during the hearing.
Direct and Circumstantial Evidence.
Commission may properly consider two types of evidence in
reaching a just compensation award. They are known as direct
evidence and circumstantial evidence. Direct evidence is
where a witness testifies as to what he or she saw or heard.
In other words, when a witness testifies about what is known
to the witness as personal knowledge by virtue of his or her
own senses - what he or she sees or hears - that is called
direct evidence. For example, if a witness testified that she
saw it raining outside and the Commission believes her, that
would be direct evidence that it was raining.
evidence is evidence that tends to prove a disputed fact by
proof of other facts. For example, if someone walked into the
courtroom wearing a raincoat covered with drops of water and
carrying a wet umbrella, that would be circumstantial
evidence from which the Commission could conclude that it was
raining. Circumstantial evidence is of the same value and
quality as direct evidence. Circumstantial evidence by
itself, or a combination of circumstantial evidence and
direct evidence, can be used to prove or disprove a
proposition. All the evidence, both direct and
circumstantial, must be considered.
have a right to consider all the evidence in the light of
their own general knowledge and experience in the affairs of
life, and to take into account whether any particular
evidence seems reasonable and probable. However, if a
Commissioner has personal knowledge of any particular fact in
this case, that knowledge may not be used as evidence.
may infer on the bases of reason, experience, and common
sense from an established fact the existence or the
nonexistence of some other fact. To infer, or to make an
inference, is to reach a reasonable conclusion of fact that a
Commissioner may make, but is not required to make, from
other facts that he or she finds have been established by
direct evidence. Whether an inference is made rests entirely
with the Commission. ...