Sabal Trail Transmission, LLC v. 84.115 Acres of Land in Marion County Florida et al

Filing 20

ORDER denying 15 Defendants AZ Ocala Ranch, LLC and Will Bellamy's Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by Judge James S. Moody, Jr on 5/9/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

SABAL TRAIL TRANSMISSION,
LLC,
Plaintiff,
v.

Case No: 5:16-cv-208-Oc-30PRL

84.115 ACRES OF LAND IN
MARION COUNTY, FLORIDA,
AZ OCALA RANCH, LLC, WILL
BELLAMY, AND UNKNOWN
OWNERS, IF ANY,
Defendants.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendants AZ Ocala Ranch, LLC and
Will Bellamy’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 15) and
Plaintiff’s response in opposition (Doc. 18). The Court, having reviewed the motion and
response, and being otherwise fully advised in the premises, concludes that Defendants’
motion should be denied. 1
BACKGROUND
On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”) issued
an order which, among other things, granted to Sabal Trail a Certificate of Public
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The Court is aware of Federal Rule of Civil Procedure 71.1(e)(3)’s prohibition on objections raised outside
of an answer. But because Defendants also raised this objection in their answer and the challenge is to the Court’s
subject matter jurisdiction, the Court did not strike the motion as improper.

Convenience and Necessity (“FERC Certificate”) under the Natural Gas Act, 15 U.S.C.
§ 717f. The FERC Certificate authorizes Sabal Trail to construct and operate 516.2 miles
of a natural gas pipeline and related facilities across Alabama, Georgia, and Florida. (Doc.
1 at 3). 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. § 717f(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).
Relying on the FERC Certificate, Sabal Trail filed a complaint under Federal Rule
of Civil Procedure 71.1 against Defendants, owners of the subject property, to take the
easements necessary to complete the project. (Doc. 1). By their motion to dismiss,
Defendants argue that the Court lacks subject matter jurisdiction over this action and the
related actions because the FERC certificate is not final due to pending requests for
rehearing before the FERC. (Doc. 15).

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DISCUSSION
Currently, there are four requests for rehearing pending before the FERC regarding
the FERC Certificate, including a request filed by Sabal Trail. (Doc. 18, Ex. 1). The
rehearing requests are currently under consideration by the FERC, but have not yet been
granted. As such, Defendants argue that Sabal Trail’s claims are not ripe. (Doc. 15).
Defendants’ contention, however, is without merit and overwhelmingly refuted by the
many courts that have previously addressed this issue.
The FERC’s regulations explicitly provide that its “orders are effective on the date
of issuance.” 18 C.F.R. § 385.2007(c). The FERC Certificate, issued on February 2, 2016,
became final on that date. More important, a request for rehearing has no effect on the
finality of an order absent a stay issued from the FERC. Specifically, § 717r(c) states: “The
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.” Here, several parties specifically requested a stay from the FERC, and
the request was denied. (Doc. 18, Ex. 2).
In the recently-decided case of Constitution Pipeline Co., LLC v. A Permanent
Easement for 2.40 Acres, No. 3:14-cv-2046 (NAM/RFT), 2015 WL 1638211, at *3
(N.D.N.Y Feb. 24, 2015), the court concluded that a motion for rehearing that was not
accompanied by a stay from the FERC did not affect the court’s obligation to enforce a
FERC certificate. Accord Steckman Ridge GP, LLC v. An Exclusive Natural Gas Storage
Easement Beneath 11.078 Acres, No. 08-168 et al., 2008 WL 4346405, at *3 (W.D. Penn.
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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); Ecee, Inc. v. Fed. Power Comm’n, 526 F.2d
1270, 1274 (5th Cir. 1976) (“A complete resolution of matters before an administrative or
judicial tribunal does not wait for finality until an appeal is decided; it is final unless and
until it is stayed, modified, or reversed. . . . In the absence of a stay, the [FERC’s
predecessor’s, the Federal Power Commission] orders are entitled to have administrative
operation and effect during the disposition of the proceedings.”).
CONCLUSION
Because the FERC has not issued a stay, the FERC Certificate is final and binding
and Sabal Trail’s condemnation case is ripe. Thus, the Court has subject matter jurisdiction
to enforce the FERC Certificate.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendants AZ Ocala Ranch, LLC and Will Bellamy’s Motion to Dismiss

for Lack of Subject Matter Jurisdiction (Doc. 15) is DENIED.
DONE and ORDERED in Tampa, Florida, this 9th day of May, 2016.

Copies furnished to:
Counsel/Parties of Record
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