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Columbia Gas Transmission, LLC v. 84.53 Acres of Land

United States District Court, N.D. West Virginia

February 21, 2018




         The plaintiff, Columbia Gas Transmission, LLC (“Columbia”), seeks to condemn certain temporary and permanent easements necessary for the construction and operation of a natural-gas pipeline that runs through West Virginia. To facilitate the expeditious completion of its project, Columbia seeks partial summary judgment regarding its right to condemn the easements, and a preliminary injunction allowing it to access and possess the property prior to paying just compensation. After carefully considering the record, and the evidence adduced at a hearing on February 16, 2018, for the following reasons, the Court GRANTS Columbia's Motion for an Order of Condemnation and for Preliminary Injunction.


         This proceeding is governed by the Natural Gas Act (“NGA” or to acquire property by eminent domain. 15 U.S.C. § 717 et seq. Under the Act, a “natural-gas company” is “a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.” Id. § 717a(6). Such companies may build and operate new pipelines only after obtaining a certificate of public convenience and necessity (“Certificate”) from the Federal Energy Regulatory Commission (“FERC” or “the Commission”). As the Fourth Circuit has summarized:

The procedure for obtaining a certificate from FERC is set forth in the NGA, and its implementing regulations. The process begins with an application from the gas company that includes, among other information, (1) a description of the proposed pipeline project, (2) a statement of the facts showing why the project is required, and (3) the estimated beginning and completion date for the project. Notice of the application is filed in the Federal Register, public comment and protest is allowed, and FERC conducts a public hearing on the application. As part of its evaluation, FERC must also investigate the environmental consequences of the proposed project and issue an environmental impact statement. At the end of the process FERC issues a certificate if it finds that the proposed project “is or will be required by the present or future public convenience and necessity.” In its order issuing a certificate, FERC specifies a date for the completion of construction and the start of service. The certificate may include any terms and conditions that FERC deems “required by the public convenience and necessity.”

E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 818 (4th Cir. 2004) (internal citation omitted).

         “Once FERC has issued a certificate, the NGA empowers the certificate holder to exercise ‘the right of eminent domain' over any lands needed for the project.” Id. (citing 15 U.S.C. § 717f(h)). The authority by which natural-gas companies may exercise the right is set forth fully in the Act:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, 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 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 the 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.

15 U.S.C. § 717f(h). Notably, the “state procedure requirement has been superseded” by the implementation of Fed.R.Civ.P. 71.1, which provides the applicable procedure in most condemnation cases. See Sage, 361 F.3d at 822.

         There are, therefore, three essential prerequisites that must be met prior to exercising the power of eminent domain under the NGA. The natural-gas company must only establish that “(a) It is a holder of a certificate of public convenience and necessity; (b) It needs to acquire an easement, right-of-way, land or other property necessary to the operation of its pipeline system; and (c) It has been unable to acquire the necessary property interest from the owner.” Rover Pipeline LLC v. Rover Tract No(s) WV-DO-SHB-011.510-ROW-T & WV-DO-SHB-013.000-ROW-T, No. 1:17cv18, 2017 WL 5589163, at *2 (N.D.W.Va. Mar. 7, 2017).

         Further, the law in the Fourth Circuit is clear that, “once a district court determines that a gas company has the substantive right to condemn property under the NGA, the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction.” Sage, 361 F.3d at 828. A preliminary injunction is proper when the plaintiff can “[1] establish that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).[1]


         On December 29, 2017, FERC granted a Certificate to Columbia authorizing construction of 170.9 miles of natural-gas pipeline in West Virginia (“the Project”) (Dkt. No. 1-1 at 2).[2] The Project also includes the construction or modification of several compressor stations, a regulating station, and tie-in sites. Id. at 3-5. The Certificate is subject to various environmental conditions, including those that must be fulfilled before and during construction of Columbia's pipeline. Id. at app. C.

         Columbia must obtain easements along the Project in order to construct its pipeline, and under the appropriate circumstances the NGA grants it the authority to do so by eminent domain. On January 12, 2018, Columbia sought to exercise that authority over certain property located in the Northern District of West Virginia, which it was unable to acquire by agreement, by filing a complaint pursuant to the NGA and Fed.R.Civ.P. 71.1 (Dkt. No. 1). As required by Rule 71.1(c)(2), Columbia included descriptions of the property, as well as the interests to be taken (Dkt. Nos. 1 at 44-68; 1-2). On January 16, 2018, Columbia moved for partial summary judgment on its right to condemn the subject property, as well as a preliminary injunction allowing it to immediately possess the property (Dkt. No. 6). Columbia also moved to expedite a hearing on its motion, given that it must clear vegetation and trees from the subject easements by March 31, 2018 (Dkt. No. 9).

         Pursuant to Fed.R.Civ.P. 71.1(e)(2), the following defendants asserted defenses by answering the complaint: Wheeling Power Company (Dkt. No. 300); David E. Bowyer (Dkt. No. 267); Monongahela Power Company (Dkt. No. 265); Timothy L. Schiele and Robin K. Schiele, Dallas F. Smith, Mary Lou Weekley, Roger A. Hodge and Deanna L. Hodge, Kendall B. Hodge and Tracy J. Hodge, Carolynn Hodge and David I. Hodge, George T. Mayes and Sherre Mayes, Doris L. Davis, Pat L. Boone, Lisa Davis-Heller, and Norman E. Keeney, Jr., and Nancy M. Keeney (Dkt. No. 87); Frontier West Virginia, Inc. (Dkt. No. 85); Antero Midstream LLC, Antero Midstream Partners, LP, Antero Resources Appalachian Corporation, Antero Resources Corporation, Antero Treatment LLC, and Antero Water LLC (“the Antero defendants”) (Dkt. No. 75).[3]

         On February 16, 2018, the Court conducted an evidentiary hearing at which, despite being provided notice of the hearing, no defendant actively participated. Columbia presented the testimony of Troy Tally (“Tally”), a project director employed by TransCanada Corporation, which wholly owns Columbia. Tally's testimony regarding the Project will be discussed in more detail below.


         Summary judgment is appropriate where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” establish that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). When ruling on a motion for summary judgment, the Court reviews all the evidence “in the light most favorable” to the nonmoving party. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must avoid weighing the evidence or determining its truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made the necessary showing, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256 (internal quotation marks and citation omitted). The “mere existence of a scintilla of evidence” favoring the non-moving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248-52.

         The Court may only exercise its equitable power to grant a preliminary injunction after determining “that a gas company has the substantive right to condemn property under the NGA.” Mid Atlantic Express, LLC v. Baltimore Cty., Md., 410 F. App'x 653, 657 (4th Cir. 2011) (unpublished decision) (quoting Sage, 361 F.3d at 828). As discussed, to establish that it has the right to condemn, Columbia must demonstrate only that 1) it holds a FERC Certificate, 2) it needs to acquire the easements, and 3) it has been unable to acquire them by agreement. 15 U.S.C. § 717f(h). Columbia has satisfied each of these elements, and is entitled to partial summary judgment regarding its right to condemn.

         First, the parties cannot dispute that FERC issued a Certificate to Columbia on December 29, 2017 (Dkt. No. 1-2). Second, Columbia has established that the easements are “necessary and consistent with the easement rights that FERC authorized [Columbia] to obtain.” Rover Pipeline LLC, No. 1:17cv18, 2017 WL 5589163, at *2. The uncontested evidence in this case demonstrates that the easements sought “are portions of the route approved by the FERC Certificate as necessary for the construction, maintenance, operation, alteration, testing, replacement, and repair of the Project, ” and that “Columbia cannot construct the Project in accordance with the FERC Certificate without acquiring the [e]asements” (Dkt. No. 7 at 4). Indeed, Tally testified that the easements sought in this case are the same easements identified in alignment sheets Columbia submitted to FERC.

         Finally, to the extent it was able to contact the record owners, Columbia has made offers to purchase the interests at issue this case. Those owners either declined Columbia's offers or failed to respond. Id. at 5-6. “[T]he amounts claimed by the [owners] relative to the outstanding [e]asements exceed $3, 000.” Id. at 6. The Court thus concludes that Columbia has been unable to acquire the easements by contract or agreement. Therefore, because Columbia has satisfied the three requirements of 15 U.S.C. § 717f(h), the Court confirms Columbia's right to condemn the easements described in the complaint and GRANTS its motion for an order of condemnation (Dkt. No. 6).


         Given its authority to condemn the subject easements, Columbia seeks a preliminary injunction permitting it to access and possess the easements prior to paying just compensation (Dkt. No. 6). A preliminary injunction is proper when the plaintiff can “[1] establish that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U.S. at 20. “[A]ll four requirements must be satisfied, ” Real Truth AboutObama, Inc., 575 F.3d at 346, and ...

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