United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND MOTION
FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
plaintiff, Dominion Energy Transmission, Inc.
(“DETI”), 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 expeditious completion of its
project, DETI 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 22,
2018, for the following reasons, the Court
GRANTS DETI's Motion for Partial Summary
Judgment (Dkt. No. 3) and Motion for Immediate Possession of
the Easements (Dkt. No. 4).
proceeding is governed by the Natural Gas Act
(“NGA” or “the Act”), which provides
private natural-gas companies the power 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
E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 818
(4th Cir. 2004) (internal citation omitted).
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
are, thus, three essential prerequisites that must be met
prior to any exercise of 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,
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
“ establish that he is likely to succeed on the
merits,  that he is likely to suffer irreparable harm in
the absence of preliminary relief,  that the balance of
equities tips in his favor, and  that an injunction is in
the public interest.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).
October 13, 2017, FERC granted a Certificate to DETI
authorizing construction of 37.5 miles of natural-gas
pipeline in West Virginia (“the Project”) (Dkt.
No. 1-2 at 7). The Project also includes the construction
of four compressor units, six valve sites, and two sets of
pig launcher and receiver sites. Id. DETI 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.
February 5, 2018, DETI 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), DETI included a
description of the property, as well as the interests to be
taken (Dkt. Nos. 1 at 6-9; 1-4). On February 6, 2018, DETI
moved for partial summary judgment on its right to condemn
the subject property, and sought a preliminary injunction
allowing it to possess immediately the easements sought (Dkt.
Nos. 3; 4). DETI also moved to expedite a hearing on its
motions so that it can “complet[e] necessary
pre-construction and construction activities” (Dkt. No.
5). To date, no defendant has appeared in the case or filed
an answer pursuant to Fed.R.Civ.P. 71.1(e)(2).
February 22, 2018, the Court conducted an evidentiary hearing
at which, despite having been provided notice, no defendant
appeared. DETI presented the testimony of Matthew Sickles
(“Sickles”), Supervisor of Engineering for the
Project; Jamie Burton (“Burton”), a Senior Land
Agent for the Project; and Wesley Woods, a real estate
appraiser retained for the Project. At the close of the
hearing, the Court directed DETI to provide further
information regarding efforts taken to identify existing
mineral interests that may be affected by the Project.
February 28, 2018, DETI filed the Declaration of Jamie
Burton, who declared that DETI had identified and provided
notice to third-party interest holders, that there are no
active coal mines near the Project, and that DETI “is
negotiating mutually acceptable agreements necessary to
preserve the integrity of” surface and near-surface
facilities identified during surveying. (Dkt. No. 40). Burton
further declared that, while the property at issue contains
four existing pipelines, the shallow trenching to be utilized
in constructing the Project will not affect oil and gas
interests, and DETI will “either avoid these facilities
or take appropriate measures to protect the[ir]
integrity.” Id. at 2-3.
MOTION FOR PARTIAL SUMMARY JUDGMENT
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).
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.
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,
DETI 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). DETI has satisfied each of these elements,
and is entitled to partial summary judgment regarding its
right to condemn.
the parties cannot dispute that FERC issued a Certificate to
DETI on October 13, 2017 (Dkt. No. 1-2). Second, DETI has
established that the easements are “necessary and
consistent with the easement rights that FERC authorized
[DETI] to obtain.” Rover Pipeline LLC, No.
1:17cv18, 2017 WL 5589163, at *2. The uncontested evidence in
this case demonstrates that the “[e]asements are
necessary for constructing, maintaining, operating, altering,
testing, replacing, and repairing” the Project (Dkt.
No. 3-3 at 2). Indeed, Sickles testified that the easements
sought in this case are along the route approved by FERC.
although DETI has engaged in negotiations with all affected
landowners, it has been unable to reach an agreement with the
defendants in this case. DETI made written offers to acquire
the necessary easements in November 2017, but the defendants
rejected those offers and claim that the value of the
easements exceeds $3, 000. Id. at 4. The Court thus
concludes that DETI has been unable to acquire the easements
by contract or agreement. Therefore, because DETI has
satisfied the three requirements of 15 U.S.C. § 717f(h),