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Dominion Energy Transmission, Inc. v. 0.11 Acre of Land

United States District Court, N.D. West Virginia

September 30, 2019




         The 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.

         After 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).


         This 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 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, 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, 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 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).

         On 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).

         On 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.


         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 ...

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