Sabal Trail Transmission, LLC v. 7.72 Acres in Lee County, Alabama et al (MAG2)(LEAD)
MEMORANDUM OPINION AND ORDER: It is ORDERED that Bowdens Motions to Dismiss, Motion to Add Necessary Party, and Alternative Motion to Stay (Doc. 24 in 3:16-cv-173) are DENIED as further set out in the opinion and order. However, the arguments and o bjections contained therein shall be considered as part of Bowdens answer. It is further ORDERED that Plaintiffs Motions for Partial Summary Judgment and for Preliminary Injunction (Doc. 4 in 3:16-cv-173) are DENIED without prejudice as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 6/8/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SABAL TRAIL TRANSMISSION,
7.72 ACRES IN LEE COUNTY,
ALABAMA, et al.,
CASE NO. 3:16-CV-173-WKW
MEMORANDUM OPINION AND ORDER
Before the court are (1) Defendant Bowden Realty, Inc.’s Motions to Dismiss,
Motion to Add Necessary Party, and Alternative Motion to Stay (Doc. # 24) and
(2) Plaintiff Sabal Trail Transmission, LLC’s Motions for Partial Summary
Judgment and for Preliminary Injunction (Docs. # 4, 5). The motions have been
fully briefed. Based upon careful review of the pleadings, motions, briefing, the
transcript of the May 31, 2016 hearing before the Magistrate Judge, and post-hearing
submissions, the court finds that the Motions to Dismiss, Motion to Add Necessary
Parties, and Alternative Motion to Stay are due to be denied and that the Motions for
Partial Summary Judgment and for Preliminary Injunction are due to be denied
On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”)
issued an order, which among other things, granted to Sabal Trail Transmission,
LLC (“Sabal Trail”) a Certificate of Public Convenience and Necessity (“FERC
Certificate”) under the Natural Gas Act (“NGA”), 15 U.S.C. § 717f. (See Doc. # 1,
Ex. 3.) The FERC Certificate authorizes “Sabal Trail Transmission LLC to construct
and operate the Sabal Trail Project.” (Id. at 92.1) The Sabal Trail Project is a planned
516.2-mile long natural gas pipeline running through Alabama, Georgia, and
This opinion refers to the page numbers on the certificate, not the page numbers assigned
by the court’s CM/ECF system.
(See Doc. # 1 at 1.)
This map depicts the route of the pipeline:
(See Doc. # 55, Ex. 1, at 2;2 see also Doc. # 4, Ex. 1 at 11 (same pipeline route in
To build the pipeline, Sabal Trail must acquire easements to enter and
encumber the lands of 1,582 landowners along the route. Sabal Trail has purchased
easements from many of the landowners, but has also filed a number of
condemnation actions in Alabama, Florida, and Georgia. Seven cases were filed in
Plaintiff provided copies of other judicial rulings involving the same pipeline litigation
in other federal courts. The opinion that contains this map is by United States District Judge Mark
E. Walker. The court takes judicial notice that this document is accurate, but because the opinion
was recently issued on May 23, 2016, it is not yet listed on LexisNexis or Westlaw as of the
drafting of this opinion.
the Middle District of Alabama,3 though three of those cases were voluntarily
dismissed after the parties settled.4 These four cases, which have been consolidated,
The NGA grants private natural gas companies the power of eminent domain
where they hold a FERC certificate and either cannot acquire the property through
contract, or are unable to agree with the owner of the property on the amount of
compensation to be paid for the necessary right-of-way. 15 U.S.C. § 717(h). “Once
a [certificate of public convenience and necessity] is issued by the FERC, and the
gas company is unable to acquire the needed land by contract or agreement with the
owner, the only issue before the district court in the ensuing eminent domain
proceeding is the amount to be paid to the property owner as just compensation for
the taking.” Maritimes & Ne. Pipeline, LLC v. Decoulos, 146 F. App’x 495, 498 (1st
Cir. 2005); Millennium Pipeline Co., LLC v. Certain Permanent & Temp.
Easements, 777 F. Supp. 2d 475, 479 (W.D.N.Y. 2011), aff’d, 552 F. App’x 37 (2d
Cir. 2014); see also Sabal Trail Transmission, LLC v. .72 Acres of Land in Lake
Cty., Fla., Civ. Act. No. 5:16-cv-162, 2016 WL 2758915, at *3 (M.D. Fla. May 12,
2016) (Moody, J.) (quoting same). Relying on the FERC Certificate, Sabal Trail
See 3:16-cv-172-WKW, 3:16-cv-173-WKW, 3:16-cv-174-WKW, 3:16-cv-175-WKW,
3:16-cv-176-WKW, 3:16-cv-177-WKW, 3:16-cv-178-WKW.
See 3:16-cv-172-WKW (closed April 19, 2016), 3:16-cv-177-WKW (closed April 19,
2016), and 3:16-cv-178-WKW (closed May 26, 2016).
filed a complaint under Federal Rule of Civil Procedure 71.1 against Defendants,
owners of the subject properties, to take the easements necessary to complete the
project. (See Doc. # 1 in 3:16-cv-173-WKW, 3:16-cv-174-WKW, 3:16-cv-175WKW, 3:16-cv-176-WKW.) For purposes of case management and a hearing on
the pending motions, the court consolidated the remaining four cases and designated
this case (3:16-cv-173-WKW) as the lead case.5
Concurrent with the filing of the lawsuits, Sabal Trail also filed motions for
partial summary judgment and preliminary injunction in each case. These motions
seek summary judgment on Sabal Trail’s right to condemn the easements and a
preliminary injunction granting it immediate possession so that it may begin
construction on June 21, 2016, and begin service on May 1, 2017, as authorized by
the FERC certificate.
On April 20, 2016, Bowden filed its answer with a motion to dismiss under
Fed. R. Civ. P. 12(b) for lack of subject-matter jurisdiction, a motion to dismiss for
failure to add a necessary party, and a motion to dismiss or alternative motion to stay
all proceedings until FERC rehearing. (See Doc. # 24.)6 The court entered briefing
The Magistrate Judge conducted the May 31, 2016 hearing and addressed three of the
consolidated cases by Report and Recommendation (Doc. # 69) [3:16-cv-174-WKW (Livingston
property), 3:16-cv175-WKW (Dean Jr. property), and 3:16-cv-176-WKW (Danway property)].
However, due to the unique procedural and factual circumstances in 3:16-cv-173, the undersigned
vacated the referral of the motions in it to address the issues directly in this Opinion.
Danway, Dean Jr. (a defendant in one of the member cases), and Bowden are represented
by the same law firm (Dean & Barrett). However, this particular opinion only pertains to
schedules for full submission by May 27, 2016, of all the motions to dismiss, for
partial summary judgment, and for preliminary injunction.
On the eve of the May 31, 2016 hearing, Sabal Trail filed a corrected version
of Exhibit 2 to its complaint in this case, 3:16-cv-173-WKW. (See Doc. # 62.) Sabal
Trail acknowledges that it mistakenly had filed an incorrect exhibit to the complaint
involving Bowden and had represented that the wrong exhibit conformed to the
The alignment sheets are aerial photographs with a rough
approximation of the location of the pipeline drawn in. While these are represented
by Plaintiff to be the only descriptions approved by FERC, they are insufficient as
legal descriptions to convey an easement for specific property. Hence, Plaintiff
provided more detailed legal descriptions in each complaint.7 Counsel for Bowden,
although he would have received electronic notification, did not have a copy of the
new exhibit and legal description prior to the start of the hearing due to the Memorial
Day holiday. A copy was provided at the hearing by the court’s staff, and Plaintiff
had a large copy, which it utilized at the hearing.
The first argument in the motion to dismiss is the “failure to meet conditions
precedent to the issuance of certificate.” (See, e.g. Doc. # 24, at 11.) Bowden argues
Bowden’s answer and motions to dismiss. Thus, the only property at issue in this Opinion is
described in the complaint for Case No. 3:16-cv-173.
The alignment sheets were not filed as an exhibit to the complaint, but were filed as
Exhibit 3 to Exhibit B to Document Number 4, Plaintiff’s Motion for Partial Summary Judgment.
that there are 27 conditions imposed by the FERC in the certificate and that the
conditions have not been met. (Id. at 12.) Bowden asserts that until the conditions
precedent are met, Sabal Trail has no certificate of need, which deprives this court
of jurisdiction. Next, Bowden argues that a necessary party has not been added
under Fed. R. Civ. P. 71.3(c)(3), which requires joinder of “those persons who have
or claim interest in the property and whose names are then known.” (Id. at 13.)
Specifically, Bowden asserts that Alabama Electric Cooperative (now PowerSouth
Energy Cooperative) has an easement on its property for an electric transmission
line. (Id.) Next, Bowden contends that the case should be dismissed or alternatively
stayed due to the pending FERC rehearing. Bowden concedes that FERC declined
to enter its own stay. (Id. at 15.) Finally, Bowden seeks dismissal for failure to
fulfill the purpose of the FERC certificate. He notes that the State of Georgia has
refused to grant permission to Sabal Trail to tunnel under any of its rivers. This
denial allegedly renders it impossible for Sabal Trail to meet the May 1, 2017
proposed completion date of the pipeline. (Id. at 17.)
The Magistrate Judge held a hearing on all pending motions on May 31, 2016.
At the conclusion of the hearing, the Magistrate Judge instructed Sabal Trail to stake
the properties at issue to eliminate any lingering ambiguity about the exact path of
the pipeline. Further, the Magistrate Judge also provided Defendants an opportunity
to file any additional response or information they wished the court to consider. (See
Doc. # 63.) Bowden filed its post-hearing response on June 2, 2016. (See Doc.
# 66.) The official transcript of the May 31, 2016 hearing has been filed. (See Doc.
Motions to Dismiss: Procedural Requirements
Federal Rule of Civil Procedure 71.1 governs condemnation actions under the
Natural Gas Act and permits defendants to file only two types of pleadings: “a notice
of appearance designating the property in which it claims an interest,” Fed. R. Civ.
P. 71.1(e)(1), and an answer, which must “state all the defendant’s objections and
defenses to the taking.” Fed. R. Civ. P. 71.1(e)(2)(C). In other words, “[n]o other
pleading or motion asserting an additional objection or defense is allowed.” Fed. R.
Civ. P. 71.1(e)(3). The Advisory Committee’s note explains that a Rule 71.1
condemnation proceeding “[d]epart[s] from the scheme of Rule 12[;] subdivision (e)
requires all defenses and objections to be presented in an answer and does not
authorize a preliminary motion.” Fed. R. Civ. P. 71.1, advisory committee’s note
(Original Report, Note to Subdivision (e)); see also 12 Charles Alan Wright &
Arthur Miller, Federal Practice & Procedure, § 3048 (2d ed.) (citing Maun v. United
States, 347 F.2d 970, 973 (9th Cir. 1965) (overruled on other grounds); Atl. Seaboard
Corp. v. Van Sterkenburg, 318 F.2d 455, 458 (4th Cir. 1963); City of Davenport,
Iowa v. Three-Fifths of an Acre of Land, More or Less, in City of Moline, Ill., 147 F.
Supp. 794, 796 (S.D. Ill. 1957)).
Based on the above authority, the Motions to Dismiss are procedurally
improper and due to be denied. However, the objections and arguments contained
therein will be considered as part of Bowden’s response to the motion for partial
summary judgment. Thus, despite Plaintiff’s request to strike the pleadings, the
court will consider the arguments for the purposes of objections contained within
Motion to Add a Necessary Party
Bowden argues that Sabal Trail failed to join a necessary party, namely,
PowerSouth Energy Cooperative, which has an easement on its property for an
electric transmission line, and that, without PowerSouth’s joinder under Federal
Rule of Civil Procedure 19, dismissal is required. Rule 71.1 provides that the
complaint “must . . . name as defendants both the property—designated generally by
kind, quantity, and location—and at least one owner of some part of or interest in
the property.” Fed. R. Civ. P. 71.1(c)(1).
However, “before any hearing on
compensation, the plaintiff must add as defendants all those persons who have or
claim an interest and whose names have become known or can be found by a
reasonably diligent search of the records, considering both the property’s character
and value and the interests to be acquired.” Fed. R. Civ. P. 71.1(c)(3). Sabal Trail’s
complaint names Bowden and the 7.72 acres as defendants and, thus, complies with
Rule 71.1(c)(1). Bowden cites no authority that PowerSouth’s joinder is required at
this juncture, and Rule 71.1(c)(3) is to the contrary.8 Accordingly, Bowden’s motion
to add PowerSouth or for dismissal is due to be denied.
Motion to Dismiss for Lack of Subject-Matter Jurisdiction or,
Alternatively, to Stay this Action
Bowden asserts that subject-matter jurisdiction is lacking over this action for
two reasons. First, it argues that the FERC Certificate is not final because of the
requests for rehearing. Second, its asserts that Sabal Trail has not satisfied all the
conditions precedent to proceed which, in essence, renders the FERC Certificate not
Alternatively, Bowden moves for a stay of these proceedings.
contentions are rejected for the reasons discussed below.
Bowden asserts that because FERC granted rehearing, the FERC certificate is
not final; ergo, this case is not ripe, and Sabal Trail cannot condemn the subject
easement. As noted, FERC issued its Certificate of Necessity on February 2, 2016,
which authorizes Sabal Trail to construct and operate the Sabal Trail Project. (See
Doc. # 1, Ex. 3.) On March 29, 2016, FERC issued an “Order Granting Rehearings
for Further Consideration.” (See Doc. # 38, Ex. A.) The next day, March 30, 2016,
The court, however, shares the concerns raised in the Report and Recommendation (Doc.
# 69, at 20), but is satisfied that Bowden has not demonstrated that dismissal is required at this
juncture for failure to join PowerSouth.
FERC denied several requests by landowners for a stay of the February 2, 2016 order
(Certificate of Necessity). (See Doc. # 38, Ex. B.)
Sister courts have analyzed this argument soundly, and their analyses are
compelling. (See Doc. # 55, Ex. A); Sabal Trail Transmission, LLC v. Real Estate,
et al, Order Granting Partial Summary Judgment and Preliminary Injunction (N.D.
Fla. May 23, 2016) (Walker, J); Sabal Trail Transmission, LLC v. 84.115 Acres of
Land in Marion Cnty, Civ. Act. No. 5:16-cv-208, 2016 WL 2627575 (M.D. Fla May
9, 2016) (Moody, J.). FERC regulations state “[u]nless otherwise ordered by the
Commission, rules or orders are effective on the date of issuance.” 18 C.F.R.
§ 385.2007(c)(1). The statute and the interpretive case law on this issue are clear,
and Bowden’s position is not well-taken.
15 U.S.C. § 717r(c) provides that “[t]he filing of an application for rehearing
. . . shall not, unless specifically ordered by the [FERC], operate as a stay of the
[FERC]’s order. The commencement of [appellate proceedings] shall not, unless
specifically ordered by the court, operate as a stay of the [FERC]’s order.” Further,
courts have noted that a motion for rehearing not accompanied by a stay from FERC
has no effect on the district court’s obligation to enforce a FERC certificate. See
Constitution Pipeline Co., LLC v. A Permanent Easement for 2.40 Acres, No. 3:14cv-2046, 2015 WL 1638211, at *3 (N.D.N.Y Feb. 24, 2015); Steckman Ridge GP,
LLC v. An Exclusive Nat. Gas Storage Easement Beneath 11.078 Acres, No. 08-168
et al., 2008 WL 4346405, at *3 (W.D. Penn. Sept. 19, 2008) (concluding that a
request for rehearing absent a stay does not affect the finality of an order from the
FERC); Tenn. Gas Pipeline Co. v. Mass. Bay Transp. Auth., 2 F. Supp. 2d 106, 109
(D. Mass. 1998) (concluding that a FERC certificate is final and binding unless a
stay is issued by the FERC).
FERC entered no such stay and in fact refused to stay its order in the
proceedings involving the rehearing on this FERC certificate. Finally, though not
binding on this court, the other district courts involved in the Sabal Trail Project
condemnation proceedings have rejected defense arguments to dismiss for lack of
jurisdiction and/or stay the proceedings due to the FERC rehearing. Their respective
reasoning is supported in the statute and case law.
Bowden also argues that Sabal Trail has failed to satisfy the conditions
precedent listed in the FERC Certificate. As noted by Sabal Trail at the hearing,
logically, some conditions cannot be satisfied until after construction is complete.
For example, the conditions of the certificate of public convenience and necessity
require that construction must be completed within 24 months and that Sabal Trail
must file updated status reports on a biweekly basis detailing its “efforts to obtain
the necessary federal authorizations.” (Doc. # 24-1, App’x B, at 105.) In other
words, Sabal Trail can continue to work on these conditions as the pipeline
progresses. There is no basis to delay the condemnation proceedings because any
failure to comply with the FERC certificate is an issue for FERC – not this court at
this stage in the proceedings. See Gas Transmission Nw. LLC v. 15.83 Acres, 126
F. Supp. 3d 1192, 1198 (D. Or. 2015) (“When a landowner contends that the
certificate holder is not in compliance with the certificate, that challenge must be
made to FERC, not the court.” (quoting Millennium Pipeline Co. v. Certain
Permanent & Temp. Easements, 777 F. Supp. 2d 475, 481 (W.D.N.Y. 2011))); see
also Portland Nat. Gas Transmission Sys. v. 4.83 Acres of Land, 26 F. Supp. 2d 332,
339 (D.N.H. 1998) (“The district court does not have the authority to enforce
compliance with pre-construction conditions.”); Columbia Gas Transmission, LLC
v. 76 Acres More or Less, No. ELH-14-0110, 2014 WL 2960836, at *3 (D. Md. July
27, 2014) (“Complaints that the holder of a certificate is violating the certificate must
be made to FERC not the district court in a condemnation proceeding.”). Further,
“even assuming, for argument’s sake, that the certificate holder is violating the
FERC Certificate conditions, this would not affect the validity of the FERC
Certificate or the certificate holder’s ability to exercise its authority of eminent
domain.” Gas Transmission Nw., 126 F. Supp. 3d at 1198 (quoting Columbia Gas
Transmission LLC v. 0.85 Acres, More or Less, No. WDQ-14-2288, 2014 WL
4471541, at *4 (D. Md. Sept. 8, 2014)) (internal modifications omitted).
Based on all the above, the objections in Bowden’s answer (as required in
Rule 71) are rejected, and the motion to dismiss for lack of subject-matter
jurisdiction or, alternatively, to stay this action is due to be denied. Having resolved
the jurisdictional question, the court turns to the merits of the summary judgment
motion by Plaintiff.
Motion for Partial Summary Judgment
To succeed on summary judgment, the movant must demonstrate “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). The court must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean–Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
If the movant meets its burden, the burden shifts to the nonmoving party to
establish—with evidence beyond the pleadings—that a genuine dispute material to
each of its claims for relief exists. Id. at 324. A genuine dispute of material fact
exists when the nonmoving party produces evidence allowing a reasonable fact
finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).
Finally, Federal Rule of Civil Procedure 56(e) also provides that, “[i]f a party
fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c), the court may: (1) give an
opportunity to properly support or address the fact; (2) consider the fact undisputed
for purposes of the motion; (3) grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that the
movant is entitled to it; or (4) issue any other appropriate order.”
Initially, Bowden’s argument regarding the failure of the Georgia legislature
to pass the bill involving permission to install the pipeline beneath Georgia rivers is
not an issue for this court’s consideration. Despite the fact the Georgia legislature’s
action does put some of the pipeline construction timeline at issue, it has no effect
on the Alabama properties, which are the only matters before this court.
Consequently, this argument and objection are rejected.
Congress enacted the Natural Gas Act to impose federal regulation upon the
interstate transportation and sale of natural gas for resale to the public for domestic,
commercial, industrial, or any other use. 15 U.S.C. § 717(a). The NGA applies to
Sabal Trail’s Project, which will be an interstate natural gas pipeline. Id. at § 717(b).
The portion relevant to these condemnation lawsuits provides
[w]hen 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
Id. The NGA authorizes a party to exercise the federal power of eminent domain to
acquire property when (1) the plaintiff is the holder of a FERC Certificate
authorizing a project, (2) FERC has determined that the property is necessary for the
project, and (3) the plaintiff is unable to acquire the property by contract. See, e.g.,
Columbia Gas Trans., LLC, v. 1.01 Acres, More or Less in Penn Twp., York Cty.,
Pa., Located on Tax ID No. 440002800150000000 Owned by Dwayne P. Brown &
Ann M. Brown, 768 F.3d 300, 304 (3d Cir. 2014) (“[A] certificate of public
convenience and necessity gives its holder the ability to obtain automatically the
necessary right of way through eminent domain, with the only open issue being the
compensation the landowner defendant will receive in return for the easement.”);
Sabal Trail Transmission, LLC v. 0.4 Acres of Land in Marion Cnty, Fla., Civ. Act.
No. 5:16-cv-210-Oc-30PRL, 2016 WL 2997672, at *2 (M.D. Fla. May 25, 2016);
Columbia Gas Trans., LLC v. 0.85 Acres, More or Less, in Harford Cty., Md., No.
WDQ-14-2288, 2014 WL 4471541, at *3 (D. Md. Sept. 8, 2014); Transcon. Gas
Pipe Line Co., LLC v. Permanent Easement Totaling 2.322 Acres, More or Less, &
Temp. Easements Totaling 3.209 Acres, More or Less, Over a Parcel of Land in
Brunswick Cty., Va. Approximately 83.00 Acres in Size, No. 3:14-cv-00400-HEH,
2014 WL 4365476, at *4 (E.D. Va. Sept. 2, 2014). Sabal Trail meets the first
condition to condemn the subject easement, but there is a genuine dispute of material
fact as to the second and third conditions.
As to the first condition, Sabal Trail holds a FERC Certificate authorizing the
project. As discussed in the prior section, Bowden makes certain arguments about
the finality of the FERC certificate and whether conditions precedent have been met.
However, beyond those arguments, Bowden does not (and indeed cannot) dispute
that FERC issued Sabal Trail a certificate of public convenience and necessity.
The sole remaining argument Bowden makes is with regard to the specificity
and adequacy of the description of the easement at issue. On the eve of the May 31,
2016 hearing before the Magistrate Judge, Sabal Trail filed a “corrected version of
Exhibit 2 to the complaint in Case No. 3:16-cv-00173-WKW-TFM.” (See Doc. # 62
& Ex. A.) This Exhibit A is meant to replace the Exhibit 2 on the original complaint
filed on March 17, 2016. Sabal Trail acknowledged the original Exhibit 2 was
incorrect with regard to the described easement requested as it did not follow the
FERC alignment sheets. Though the Magistrate Judge required Sabal Trail to stake
the property, that does not overcome the fact that the original easement requested on
the first exhibit 2 was wrong. Further, even after Bowden pointed out the error in
its response to the motion for partial summary judgment by an affidavit of a licensed
property surveyor, Sabal Trail still maintained the easement requested was correct.
(See Doc. # 58 at 6–8.) Not until 4:42 p.m. CDT on May 30, 2016 (Memorial Day
and the day before the 9:30 a.m. hearing) did Sabal Trail finally correct the error.
(See Doc. # 62.) Though the court declines to attribute this to a falsehood, it is an
error that has significant legal consequences.
Sabal Trail argues the error has no effect and was harmless because the
description in the FERC alignment sheet is the only controlling document. This is
wrong. See, e.g., S. Nat. Gas Co. v. Land, Cullman Cty., 197 F.3d 1368, 1375 (11th
Cir. 1999) (“Rule 71A(c)(2) requires that a condemnation complaint include a
description of the property sufficient for its identification. [Plaintiff’s] complaint
for condemnation easily satisfied this requirement by incorporating both a legal
description and a plat map showing the placement of the pipeline and relevant
easements. Moreover, as a practical matter, the Commissioners, the parties, and the
lawyers have walked the centerline of the easement from one end of the
[defendants’] property to the other, and no one had any problem locating the
easement. Thus, we see no merit to the [defendants’] assertion that the property
description was inadequate.”).
Unlike the other three easements at issue (Danway, Dean Jr., and Livingston
properties), the Bowden property was not properly described by the Plaintiff in its
original complaint. The corrected exhibit 2 merely fixes what was previously a
deficient second requirement (property that FERC has determined is necessary for
the property – properly described). Nor were the alignment sheets an exhibit to the
Bowden complaint; they were “exhibits to the exhibits” of the motion for partial
summary judgment. (Doc. # 4.) The court is not persuaded by Bowden’s argument
that Sabal Trail is required to do a full survey with a metes and bounds description
and plat drawn by a registered land surveyor showing the property to be taken.
Though that is certainly an action Sabal Trail could, and perhaps should, take, an
adequate description of the property9 that comports with the FERC alignment sheets
is adequate. Having reviewed the new Exhibit 2, the court finds that it is sufficient
as a description for purposes of ordering condemnation. Further, the Magistrate
Judge’s extra step of having Plaintiff stake the property should resolve any lingering
ambiguity. Thus, having filed the correct Exhibit 2, Plaintiff likely can satisfy the
second requirement in any future motion for summary judgment on condemnation.10
That is, a description that reasonably enables a landowner to accurately locate the
easement on the ground.
District courts have limited jurisdiction in Natural Gas Act condemnation actions. Tenn.
Gas Pipeline Co. v. 104 Acres of Land More or Less, in Providence Cty. of the State of R.I., 749
F. Supp. 427, 430 (D.R.I. 1990). The condemnation action “does not provide challengers with an
additional forum to attack the substance and validity of a FERC order. The district court’s function
under the statute is not appellate but, rather, to provide for enforcement.” Williams Nat. Gas Co.
v. Okla. City, 890 F.2d 255, 264 (10th Cir. 1989). “The District Court’s sole charge and authority
is to evaluate the scope of the FERC Certificate, and order the condemnation of property in
accordance with that scope.” Steckman Ridge GP, LLC v. An Exclusive Nat. Gas Storage
Easement Beneath 11.078 Acres, More or Less, in Monroe Twp., Nos. 08-168, et al., 2008 WL
4346405, at *3 (W.D. Pa. Sept. 19, 2008); see also Columbia Gas Transmission Corp. v. An
Even though Sabal Trail has corrected the error, a material fact remains at
issue as to the third requirement for condemnation – failure to acquire the property
Though there is significant evidence that Sabal Trail has been
negotiating with Bowden over some piece of property, there is a genuine dispute of
material fact over whether the property described in the corrected Exhibit 2 has been
the property for which the offers were made. Sabal Trail continues to attempt to fix
its error through another late submission on June 3, 2016. (See Doc. # 67 and
attachments.) However, there remain two contradictory facts. Sabal Trail argues it
was negotiating over the corrected easement, but Bowden states in his post-hearing
submission that the parties have not negotiated over the parcel of land described in
the corrected Exhibit 2. Further, the original affidavits submitted with the Complaint
were clearly erroneous.11 Thus, the court cannot credit Sabal Trail’s assertions over
Bowden’s contradictions. It cannot grant partial summary judgment by its very
definition because there is no conclusive, undisputed evidence before the court that
Sabal Trail negotiated to acquire the parcel that is described in the May 30, 2016
Easement to Construct, Operate & Maintain a 24-Inch Pipeline, Civ. Act. No. 5:07CV04009,
2008 WL 2439889, at *2 (W.D. Va. June 9, 2008) (citations omitted) (“Thus, the role of the district
court in NGA eminent domain cases extends solely to examining the scope of the certificate and
ordering the condemnation of property as authorized in that certificate.”). The FERC certificate
with the alignment sheets permits the condemnation of the subject easements.
The court declines to adopt Bowden’s allegations of falsity.
corrected Exhibit 2.12 Finally, Bowden is correct that there has been no fair
opportunity to respond to the late filings.
Pursuant to Rule 56(e), the court may issue an appropriate order when a party
fails to properly support an assertion of fact. It is clear that the FERC certificate
exists and that it is in the public interest that this project move quickly. However,
the landowner also has an interest in receiving an adequate description of the
property and in negotiating a price for a clearly defined easement. Thus, the only
issue that remains is whether Sabal Trail has established that it has attempted to
obtain that specific easement location through contract. Therefore, the motion for
partial summary judgment is due to be denied without prejudice.
Motion for Preliminary Injunction
The decision to grant or deny a preliminary injunction “is within the sound
discretion of the district court.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.
2002) (citations omitted). To obtain a preliminary injunction, the moving party must
establish, among other prerequisites, “a substantial likelihood of success on the
merits.” GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322
(11th Cir. 2015) (citing Burk v. Augusta-Richmond Cty., 365 F.3d 1247, 1262–63
(11th Cir. 2004)).
The June 3, 2016 post-hearing filing (Doc. # 67) merely pertains to prior negotiations.
Because the court has declined to grant partial summary judgment, Sabal Trail
cannot establish a substantial likelihood of success on the merits at this time.
Therefore, the preliminary injunction motion is due to be denied without prejudice.
Accordingly, it is ORDERED that Bowden’s Motions to Dismiss, Motion to
Add Necessary Party, and Alternative Motion to Stay (Doc. # 24 in 3:16-cv-173) are
However, the arguments and objections contained therein shall be
considered as part of Bowden’s answer.
It is further ORDERED that Plaintiff’s Motions for Partial Summary
Judgment and for Preliminary Injunction (Doc. # 4 in 3:16-cv-173) are DENIED
DONE this 8th day of June, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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