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International Border Crossings & Landowners


International border crossing legal issues are pretty rare, and pretty arcane. When they come up, they can be especially important to landowners, international trade and relations, domestic commerce in the United States, and to the rights of people. Domina Law Group pc llo finds itself involved, unexpectedly, in complex issues. This time, the subject is international border crossings.

Domina Law represents Nebraska landowners who want to assure that the law is satisfied in every respect, at the constitutional level, before, for profit corporation is permitted to exercise the power of eminent domain and take land from owners. Those concerns spring from attempts by Trans-Canada Pipeline Co., Ltd., to build a tar sands oil-bearing pipeline across the North American continent and through Nebraska. The Nebraska Supreme Court is now considering an appeal by the State after a ruling in favor of Domina Law's clients.

Domina Law took another step to protect the interests of landowners, and U.S. citizens, when it filed a friend of the Court, or amicus curiae, Brief with the Supreme Court of the United States in a case involving international border crossing issues between Michigan and Ontario.

The filing was made December 30, 2014. In the submission to the Supreme Court, Domina Law argues that U.S. federal law cannot be ignored, or set aside, because a foreign nation reaches a particular conclusion under its law (which happens to be substantively different from U.S. law), about a border crossing project. Instead, the amicus curiae brief argues, the record of administrative proceedings must prove the conclusion reached by the agency strictly by applying U.S. legal standards.

Writing for Nebraska Easement Action Team, Inc., David Domina told the Supreme Court that concerns were expressed because the administrative record in the Michigan case failed to disclose any Canadian proceedings, or evidence about how Canada reached its conclusion in support of the new international bridge across the Detroit River.

Instead, deference was paid to the decision made by Canada by the U.S. federal agency and the federal courts, even though there is no evidence in the record to explain how the Canadian conclusion was reached, or to reconcile Canadian legal standards with those applicable on the U.S. side of the border.

NEAT's brief to the Supreme Court argues that deference, called "comity" "should not arise to a decisional level over matters as significant as an international border crossing that impacts commerce and the environment. To allow such deference would sacrifice U.S. nationalism."

The amicus curiae Brief was filed in support of request by the Michigan land owner of an existing international bridge that the Supreme Court of the United States review a ruling by the United States Court of Appeals for the Sixth Circuit. Domina noted, "The Supreme Court grants review in cases like the one of the Michigan property owner rarely.

Our goal is not to help one side or the other prevailed in the Michigan dispute, but to begin the process of elevating awareness of issues raised, but seldom discussed intensively, in cases involving cross-border construction projects.

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