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 PRELIMINARY INJUNCTION AND IMMEDIATE
POSSESSION [DKT. NO. 4]
M. KEELEY, UNITED STATES DISTRICT JUDGE.
plaintiff, Dominion Energy Transmission, Inc.
(“Dominion”), seeks to condemn certain temporary
easements necessary to repair and stabilize a slip of
property neighboring their existing easement, which was
acquired to construct and operate a natural gas pipeline that
runs through West Virginia. To facilitate expeditious
remediation of the slip, Dominion seeks partial summary
judgment regarding its right to condemn the temporary
easements, and a preliminary injunction allowing it to access
and possess the property prior to paying just compensation.
carefully considering the record and the evidence adduced at
a hearing on September 27, 2019, for the following reasons,
the Court GRANTS Dominions’s motion
for partial summary judgment (Dkt. No. 3) and motion for
preliminary injunction and immediate possession (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 Dominion
authorizing construction of 37.5 miles of natural gas
pipeline in West Virginia (“the Project”) (Dkt.
No. 1 at 4). To construct the Project, Dominion obtained
easements by agreement with landowners and by eminent domain.
On March 12, 2019, during a “voluntary”
construction stand-down, Dominion became aware that some
earth had begun to slip onto property outside an existing
easement that it had obtained by agreement. Id. at
5. Aware that the slip would worsen without remediation,
Dominion attempted to contact the owner of the neighboring
property, defendant Anthony Lake (“Lake”), for
his consent to repair and stabilize the slip. Id. at
1, 5. Because it was unable to contact him, Dominion
requested a variance, pursuant to its FERC Certificate, for
additional temporary easements on the neighboring property to
conduct earth slippage remediation (Dkt. Nos. 1 at 5; 1-5;
1-6). On June 28, 2019, FERC granted Dominion’s request
for a variance for a temporary work space of up to 0.13 acres
to remediate the slip (Dkt. Nos. 1 at 5-6; 1-7).
September 16, 2019, Dominion sought to exercise its authority
over 0.11 acres of property located in the Northern District
of West Virginia, which it has been unable to acquire by
agreement, by filing a complaint pursuant to the NGA and
Federal Rule of Civil Procedure 71.1 (Dkt. No. 1). As
required by Rule 71.1(c)(2), Dominion included a description
of the property, as well as the interests to be taken (Dkt.
Nos. 1 at 3-6; 1-8). On that same day, Dominion moved for
partial summary judgment on its right to condemn the subject
property and sought a preliminary injunction allowing it to
possess immediately the temporary easements (Dkt. Nos. 3; 4).
To date, no defendant has appeared in the case or filed an
answer pursuant to Fed.R.Civ.P. 71.1(e)(2).
September 27, 2019, the Court conducted an evidentiary
hearing at which, despite having been served by publication,
no defendant appeared. Dominion presented the testimony of
Matthew R. Sickles (“Sickles”), the Manager of
Engineering for the Project, and Andrew L. Lasser
(“Lasser”), a Senior Land Agent for the Project.
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 ...