Sabal Trail Transmission, LLC v. 0.22 Acres of Land in Osceola County Florida et al

Filing 20

ORDER granting 2 Motion for Partial Summary Judgment; granting 3 Motion for Preliminary Injunction. Plaintiff shall post a proper security bond with the Clerk of this Court in the amount of $600.00. Signed by Judge Roy B. Dalton, Jr. on 6/3/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff,
Case No. 6:16-cv-469-Orl-41-KRS
v.
Tract No: HT125-FL-OS-014.000
+/- 0.22 ACRES OF LAND IN
OSCEOLA COUNTY, FLORIDA;
INDIAN CREEK OSCEOLA COUNTY
HOMEOWNERS ASSOCIATION, INC.;
and UNKNOWN OWNERS, IF ANY,
Defendants.
____________________________________
ORDER
This cause is before the Court on the following matters:
(1)

Motion for Partial Summary Judgment Determining the Right to Condemn
Easements and Incorporated Memorandum of Law (Doc. 2), filed
March 18, 2016; and

(2)

Plaintiff’s Motion for Preliminary Injunction for Immediate Possession and
Incorporated Memorandum of Law (Doc. 3), filed March 18, 2016.
BACKGROUND

On February 2, 2016, the Federal Energy Regulatory Commission (“FERC”)
issued an order which, among other things, granted to Plaintiff Sabal Trail Transmission,
LLC (“Plaintiff”) a Certificate of Public Convenience and Necessity (“FERC Certificate”),
authorizing Plaintiff to construct and operate facilities for transporting natural gas in
interstate commerce—the Sabal Trail Project (“Project”). Pursuant to the Natural Gas
Act, 15 U.S.C. §§ 717–717z (“Gas Act”), and based on the FERC Certificate, Plaintiff

filed several land condemnation actions throughout the U.S. District Courts for the Middle
District of Florida (“M.D. Courts”) to acquire the easements necessary to complete the
Project. (Doc. 1.) With its Complaint in this action, Plaintiff filed:
1.

A description of the largest parcel of land at issue in this action
(Doc. 1-1 (“Parcel”));

2.

A proposed “Grant of Easement” with easement drawings (Doc. 1-2
(“Subject Easements”));

3.

A copy of the FERC Certificate (Doc. 1-4);

4.

A copy of the Notice of Condemnation in accordance with the
requirements of Federal Rules of Civil Procedure 71.1(c)(4) and
71.1(d)(2) (Doc. 1-5 (“Condemnation Notice”));

5.

A Motion for Partial Summary Judgment Determining the Right to
Condemn Easements and Incorporated Memorandum of Law
(Doc. 2 (“Rule 56 Motion”)); and

6.

A Motion for Preliminary Injunction for Immediate Possession and
Incorporated Memorandum of Law (Doc. 3 (“Rule 65 Motion”)).

In support of the Rule 56 and Rule 65 Motions, Plaintiff also filed sworn
Declarations from the Project’s Right-of-Way Project Manager (Doc. 4), the Construction
Project Manager (Doc. 6), and the Project Director (Doc. 5). Further, on May 20, 2016,
Plaintiff filed the Declaration of its counsel (Doc. 17), which set out appraised values for
the Parcels at issue in this action and in other actions pending in the M.D. Courts. The
Court directed Defendants to file their Answer and any responses to the Rule 56 and
Rule 65 Motions on or before May 17, 2016. (Doc. 12.) The Court also set the matter for
a hearing at 2:00 p.m. on May 23, 2016 (“Hearing”). (Id.)
In accordance with Rule 71.1(d)(3), Plaintiff served Defendant Indian Creek
Osceola County Homeowners Association (“ICOCHA”) with the Condemnation Notice.
(Doc. 14.) ICOCHA has not filed a response or an answer in this action, and it did not

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attend the Hearing. 1 (See Doc. 18.) Upon review of the record and the pertinent
controlling law the Court agrees with the other judges in the M.D. Courts that Plaintiff’s
Rule 56 and Rule 65 Motions are due to be granted. 2
THE GAS ACT
In enacting the Gas Act, Congress determined that “the business of transporting
and selling natural gas for ultimate distribution to the public is affected with a public
interest” that necessitates “Federal regulation in matters relating to the transportation of
natural gas in interstate and foreign commerce.” See 15 U.S.C. § 717(a); see also Sabal
Trail Ocala, 2016 WL 2997669, at *1 (noting that the Act imposes federal regulation upon
the interstate transportation and sale of natural gas for resale to the public for domestic,
commercial, industrial or any other use”). Pursuant to the Gas Act, qualified applicants
may apply for issuance of a certificate of public convenience and necessity (“Certificate”).
See 15 U.S.C. § 717f(d). After notice and hearing in accordance with regulatory
procedures, Certificates shall issue:
to any qualified applicant therefore, authorizing the whole or any part of the
operation, sale, service, construction, extension, or acquisition covered by
the application, if it is found that the applicant is able and willing properly to
do the acts and to perform the service proposed and to conform to the
provisions of this chapter and the requirements, rules, and regulations of
the Commission thereunder, and that the proposed service, sale, operation,
construction, extension, or acquisition, to the extent authorized by the
1

After being served with a notice of condemnation or “taking” as required by
Rule 71.1(d), defendants who have “an objection or defense to the taking must serve an
answer within 21 days after being served.” Fed. R. Civ. P. 71(e)(2) (emphasis added).
Objections and defenses that are not set forth in an answer are waived. See Fed. R.
Civ. P. 71.1(e)(3).
2 See Sabal Trail Transmission, LLC v. +/- 0.9 Acres of Land in Citrus Cnty., Fla.,
Case No. 5:16-cv-196-Oc-30-PRL, 2016 WL 2997669, at *1 (M.D. Fla. May, 25, 2016)
(hereinafter “Sabal Trail Ocala”); Sabal Trail Transmission, LLC, v. +/- 9.669 Acres of
Land in Polk Cnty., Fla., Case No. 8:16-cv-640-T-33-EAP, 2016 WL 2745082, at *1
(M.D. Fla. May 11, 2016) (hereinafter “Sabal Trail Tampa”).

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certificate, is or will be required by the present or future public convenience
and necessity.
15 U.S.C. 717f(e).
The Gas Act further provides a right of eminent domain for construction of gas
pipelines as follows:
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 rightof-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.
15 U.S.C. 717f(h). Thus, the Gas Act authorizes a party to exercise the federal power of
eminent domain to acquire property necessary for an interstate natural gas pipeline
project when three requirements are satisfied: (1) first, the plaintiff holds a Certificate
authorizing a project; (2) second, FERC has determined that the property is necessary
for the project; and (3) third, the plaintiff is unable to acquire the property by contract. See
Columbia Gas Trans., LLC, v. 1.01 Acres, More or Less, in Pa. Twp., York Cty., Pa.,
768 F.3d 300, 304 (3d Cir. 2014), cert. denied, Brown v. Columbia Gas Trans., LLC,
135 S. Ct. 2051 (2015).
Once a Certificate is issued, Gas Act condemnation actions filed in federal district
courts do “not provide challengers with an additional forum to attack the substance and
validity of a FERC order.” See Williams Natural Gas Co. v. Okla. City, 890 F.2d 255, 264
(10th Cir. 1989) (noting that district courts do not perform an appellate function under the
Gas Act). Rather, at the outset of such an action, the authority of the district court is limited

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to the tasks of evaluating the scope of the Certificate and ordering “the condemnation of
property in accordance with that scope.” Steckman Ridge GP, LLC, v. An Exclusive Nat’l
Gas Storage Easement Beneath 11.078 Acres, More or Less, in Monroe Twp.,
No. 08-168, 2008 WL 4346405, at *3 (W.D. Pa. Sept. 19, 2008). Then, the “only open
issue” for the district court to determine is the amount a landowner will be compensated.
See Columbia Gas Trans., LLC, 768 F.3d at 304.
RULE 56 MOTION
A party moving for summary judgment pursuant to Rule 56 must identify “the part
of each claim . . . on which summary judgment is sought.” Fed. R. Civ. P. 56(a). The Court
should grant such a motion to the extent the moving party “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Id. In its unopposed Rule 56 Motion, Plaintiff requests entry of partial summary judgment
determining that it has an immediate right to condemn the Subject Easements (Doc. 2).
See Fed. R. Civ. P. 56(c)(2); Local Rule 3.01(b).
The record evidence establishes that, on February 2, 2016, FERC issued an
Order granting Plaintiff the FERC Certificate. (See Doc. 1-4; see also Doc. 4, ¶ 10.) As
part of the certification process, Plaintiff submitted and FERC approved “alignment
sheets” showing the final alignment of the Project (“FERC Sheets”). (See Doc. 4, ¶ 12;
Doc. 5, ¶ 17; Doc. 6, ¶ 17.) In conformance with the FERC Sheets, Plaintiff then prepared
and filed the Subject Easements. (See Doc. 4, ¶ 13.) In order to construct and operate
the Project in accordance with the FERC Certificate, Plaintiff must acquire the Subject
Easements—but it has been unable to do so. (See Doc. 4, ¶¶ 2, 11, 14–16; Doc. 6, ¶¶ 7,
10–12, 25.)

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Based on these facts, the Court finds that Plaintiff has met each condition
necessary to condemn the Subject Easements in accordance with the Gas Act—in
particular: (a) Plaintiff holds the FERC Certificate authorizing the Project; (b) FERC has
determined that the Subject Easements are necessary for the Project; and (c) Plaintiff
has been unable to acquire the Subject Easements by contract. Because Plaintiff is
authorized by the Gas Act to exercise the power of eminent domain and has the right to
condemn the Subject Easements identified in the Condemnation Notices, the Rule 56
Motion is due to be granted. See supra, n.2.
RULE 65 MOTION
In its Rule 65 Motion, Plaintiff also requests that the Court issue a preliminary
injunction granting it immediate possession of the Subject Easements so that Plaintiffs
can commence pre-construction and construction activities. (See Doc. 3.) To comply with
Rule 65(c), Plaintiff proposes posting a bond equal to two times the appraised value of
the Parcel. (See Doc. 17.) No Defendant has filed a response in opposition to the Rule 65
Motion.
I.

Legal Standards
A preliminary injunction may not issue absent: (a) “notice to the adverse party”

(see Fed. R. Civ. P. 65(a)(1)); and (b) “security in an amount that the court considers
proper to pay the costs and damages sustained by any party found to have been
wrongfully enjoined or restrained” (id. at 65(c)). Further, the movant must establish that:
(1) it has a substantial likelihood of succeeding on the merits of its claim; (2) it will suffer
irreparable injury unless the injunction is issued; (3) “the threatened injury to the moving
party outweighs whatever damage the proposed injunction might cause the non-moving

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party; and (4) if issued, the injunction would not be adverse to the public interest.” Jysk
Bed’N Linen v. Dutta-Roy, 810 F.3d 767, 774 (11th Cir. 2015).
II.

Discussion
A.

Success on the Merits Requirement

“‘[O]nce a district court determines that a gas company has the substantive right
to condemn property under [the Gas Act], the court may exercise equitable power to grant
the remedy of immediate possession through the issuance of a preliminary injunction.’”
Fla. SE Connection, LLC v. +/- 3.370 Acres of Land in Polk Cnty, Fla., No. 8:16-cv-676T-36TBM, 2016 WL 2745264, at *2 (M.D. Fla. May 11, 2016) (quoting E. Tenn. Nat. Gas
Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004)). 3 Because the Court has determined that
summary judgment is due to be entered in favor of Plaintiff concerning its right to condemn
the Subject Easements, Plaintiff has established a substantial likelihood of success on
the merits of its claims. See supra at 5–6; see also supra n.2.
B.

Irreparable Injury Requirement

Given the pending in-service date and the magnitude and complex nature of the
Project—which consists of five pipeline construction spreads and three compressor
station construction spreads (a “spread” is a separate construction segment) across three
states—the Court also finds that Plaintiff will suffer irreparable injury if the Court denies
the Rule 65 Motion. In particular, the Court notes that the Project involves the construction

3

See also Alliance Pipeline, LP, v. 4.360 Acres, 746 F.3d 362, 368-69 (8th Cir.),
cert. denied, 4.360 Acres of Land, More or Less, In The S/2 Section 29, Township 163 N.,
Range 85, W., Renville Cnty, N.D., 135 S. Ct. 245 (2014); Columbia Gas Trans., LLC,
768 F.3d at 315–16; Columbia Gas Trans., LLC, v. 252.071 Acres, No. ELH-15-3462,
2016 WL 1248670, at *10–*18 (D. Md. Mar. 23, 2016) (applying Sage and granting gas
company a preliminary injunction for immediate possession of property).

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and operation of approximately 516.2 miles of natural gas pipeline and related facilities,
which consists of: (1) approximately 481.6 miles of mainline pipeline in Alabama, Georgia,
and Florida; (2) 13.1 miles of lateral pipeline (the Hunters Creek Line) in Florida;
(3) another 21.5 miles of lateral pipeline (the Citrus County Line) in Florida; (4) five new
natural gas-fired compressor stations; and (5) appurtenant facilities. (See Doc. 5, ¶ 13.)
In addition, Plaintiff will construct and operate a facility in Osceola County, Florida,
referred to as the Central Florida Hub. (Id.)
In Florida, the construction schedule for the Project is predicated upon coordinated
construction of the new pipeline facilities starting in particular places within the several
spreads and proceeding in a sequential manner. (Id. ¶ 14). The process is comparable to
an assembly line, with specialized teams following each other down the right of way,
successively performing tasks such as clearing, grading, ditching, pipe-stringing, welding,
coating, pipe-laying, backfilling, testing, and land restoration. (Id.) Construction is carefully
planned so that crews and equipment proceed sequentially along the right of way at a
distance per day dependent on topography, road and stream crossings, and other factors.
(Id.) To meet the in service date of May 1, 2017, construction on each spread must begin
no later than Tuesday, June 21, 2016; thus, Plaintiff must take immediate possession in
order to perform certain pre-construction activities. (Id.)
Once construction begins on previously-acquired parcels, nearly insurmountable
challenges will arise if a construction crew reaches a parcel of land that Plaintiff does not
yet possess. In such circumstances, Plaintiff would have only two options, both of which
entail significant delays and costs. The first option would require that Plaintiff stop work
on the Project altogether until the necessary easements can be acquired

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(“Delay Option”). The Delay Option is untenable because any cessation of construction
would delay completion of the Project indefinitely and cause Plaintiff to miss the in-service
date. (Id.) It also would result in significant financial consequences, as Plaintiff would be
liable to its contractors for delay costs resulting from work stoppage estimated to range
between $20,333.00 and $123,333.00 per day. (Id. ¶ 23).
The section option would require Plaintiff to attempt to “move around” the
unresolved parcel, begin construction on the next parcel, and return at such time as the
necessary easement can be obtained (“Move Around Option”). (Id. ¶¶ 23–24.) The
Move Around Option also is untenable because it would disrupt the efficient, linear
workflow and delay completion of the Project for at least as long as it takes to acquire the
necessary interests, thereby substantially increasing costs and the risk of missing the
in-service date. (See id. ¶ 24.) Further, depending on various factors specific to each
skipped area—such as the size of the property and the nearest FERC-approved access
locations for other accessible properties—the costs resulting from each use of the Move
Around Option will likely range between $18,000.00 to $130,000.00. (Id.) The cost would
rise to approximately $720,000.00, if all of the construction crews are required to move
around a particular parcel. (Id.)
In short, each disruption of the Project’s orderly, linear workflow would force
Plaintiff to incur such added construction costs that could not be recouped and constitute
irreparable injury. See supra n.2; N. Border Pipeline Co. v. 64.111 Acres,
125 F. Supp. 2d 299, 301 (N.D. Ill. 2000) (holding irreparable harm would result from
construction delays because increased construction costs could not be recovered from
defendants); see also Columbia Gas Trans., LLC, v. 0.85 Acres, More or Less, in Hartford

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Cnty, Md., No. WDQ-14-2288, 2014 WL 4471541, at *6 (D. Md. Sept. 8, 2014) (holding
undue delay and costs in construction constituted irreparable harm); Perryville Gas
Storage, LLC, v. 40 Acres of Land Located in Franklin Parish, La., No. 3:11-cv-1635,
2011 WL 4943318, at *3 (W.D. La. Oct. 17, 2011) (stating increased costs if immediate
possession was not granted would contravene public policy and “would be
unrecoverable”); Tenn. Gas Pipeline Co. v. 0.018 Acres of Land in the Township of
Vernon, Sussex Cnty., N.J., No. 10-4465 (JLL), 2010 WL 3883260, at *3 (D.N.J.
Sept. 28, 2010) (concluding gas company would suffer irreparable harm because
“working around one small property is likely to [be] very difficult and result in large
additional construction costs...[which] would not be able to be recovered”).
C.

Balance of Injuries Requirement

The Court also finds that the irreparable injury at stake for Plaintiff outweighs any
reparable damage that may be caused to Fidelity or the Individual Defendants if the
proposed injunction is granted. Notably, any damages to the non-movants must and will
be remedied under the Gas Act with money, and that right to compensation will not be
harmed by Plaintiff’s immediate possession of the Subject Easements. As explained in
Sage, in Gas Act condemnation actions, the damage to the non-movants is simply loss
of possession that “would still be disturbed, albeit at a later time, if just compensation was
determined first.” See Sage, 361 F.3d at 829; see also Columbia Gas Trans. Corp. v. An
Easement to Construct, Operate, & Maintain a 24-inch Gas Trans. Pipeline Across Props.
In Greene Cnty., Va., No. 3:07-cv-28, 2007 WL 2220530, at *4 (W.D. Va. Jul. 31, 2007)
(“[T]he only ‘harm’ to Defendants is that of compensation—an issue that will not change
depending on whether [the court] grant[s] or den[ies] the injunction.”).

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Upon the grant of injunctive relief in this action, there will remain the proceeding to
determine just compensation. See supra n.2. Further, the Court will condition entry of the
preliminary injunction on Plaintiff posting a security bond in the amount of $600.00
(“Bond”), which is two times the amount of Plaintiff’s most recent appraisal of the
compensation owed for Parcel HT125-FL-0S-014.000. (Doc. 17.) The Bond will “blunt” or
negate any potential claim of irreparable harm to the non-movants. See Sage, 361 F.3d
at 829.
D.

The Public Interest Requirement

“Congress passed the Gas Act and gave gas companies condemnation power to
insure that consumers would have access to an adequate supply of natural gas at
reasonable prices.” See Sage, 361 F.3d at 830. Congress did so because supplying
natural gas for the generation of electricity and other energy needs advances the public
interest. See id. (finding pipeline project served public interest because it would make gas
available to consumers and electric power plants, as well as help local communities to
attract new business); see also E. Tenn. Nat. Gas, LLC, v. 1.28 Acres in Smyth Cnty.,
Va., No. 1:06-cv-00022, 2006 WL 1133874, at *14 (W.D. Va. Apr. 26, 2006) (“[T]here is
a substantial public interest at stake in this case—the need to capture and supply as much
natural gas to the market as soon as possible.”). Further, before issuing a certificate of
public convenience and necessity under the Gas Act, FERC must determine that the
project at issue furthers the goals of the Gas Act and, thus, serves the public interest. See
Sage, 361 F.3d at 830 (“FERC conducted a careful analysis of the [pipeline project] and
determined that the project will promote these congressional goals and serve the public
interest.”).

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Here, the purpose of the Project is to provide additional supplies of natural gas to
Florida Power & Light Company (“FP&LC”) and Duke Energy Florida, LLC (“Duke”), for
their power generation needs and to the southeast region of the United States as a whole,
by making additional supplies and new energy infrastructure available to support other
regional power generators and the growing demand for natural gas. Upon completion, the
Project will be able to transport up to 1.1 billion cubic feet of natural gas per day. (See
Doc. 1-4, p. 3, ¶ 4.) The Project will not only provide increased natural gas supplies to
existing delivery points, but will also involve the construction of the Central Florida Hub,
which will serve as a new natural gas trading point with the potential for increased market
competition that will result in economic benefit to end users. See Sabal Trail Ocala,
2016 WL 2997669, at *6.
If Plaintiff does not complete construction by the in-service date, then it will be
unable to timely transport price-competitive natural gas from Alabama to Florida to help
meet the growing demand for natural gas by the electric generation, distribution, and end
use markets in Florida and the Southeast United States. (Doc. 5, ¶ 25.) Further, any delay
in granting Plaintiff possession of the Subject Easements will impede its ability to provide
the needed energy delivery services already and conclusively deemed by FERC to be in
the best interest of the public. See id.
A delay of the Project’s in-service date would cause injury to Plaintiff’s customers,
particularly FP&LC and Duke, as well as their customers—the numerous citizens and
businesses that purchase electric power. Such negative impacts on a gas company’s
customers and the public consumers they serve support entry of a preliminary injunction
and counsels in favor of granting immediate possession to Plaintiff. See Sage, 361 F.3d

12

at 829. Additionally, the Project is expected to have a positive economic impact on
Florida’s economy. Plaintiff anticipates that the Project will provide thousands of
temporary construction jobs, 360 permanent operational jobs, and 977 indirect
employment positions. See Sabal Trail Ocala, 2016 WL 2997669, at *6. Postponement
of these benefits contravenes the public interest. See Sage, 361 F.3d at 829 (noting
construction delays would cause harm by hindering “economic development efforts”).
Based on determinations that the Project is necessary, its “benefits to the market
will outweigh any adverse effects on other pipelines and their captive customers, and on
landowners and surrounding communities,” and “the public convenience and necessity
requires approval of” the Project, the FERC Certificate authorizes the construction and
operation of the Project on the terms and conditions specified in the Order. (Doc. 1-4,
p. 29, ¶ 88). FERC also determined that the “[P]roject’s benefits to the market will
outweigh any adverse effects on other pipelines and their captive customers, and on
landowners and surrounding communities . . . [and] the public convenience and necessity
requires approval of [the Project].” (Id.) Such findings are conclusive and binding on this
Court and cannot be collaterally attacked. See E. Tenn. Nat. Gas, 2006 WL 1133874, at
*13 (noting the defendants could not ask the district court to “engage in an appellate
review of the propriety of [the FERC-approved] project”). Thus, based on the Gas Act, the
FERC Certificate, and the record evidence, the Court finds that the public interest will be
served if Plaintiff is granted immediate possession of the Subject Easements in order to
construct the Project in a timely manner.

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CONCLUSION
Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED:
1.

Plaintiff’s Motion for Partial Summary Judgment (Doc. 2) is GRANTED in
that the Court finds that Plaintiff has the right to condemn the Subject
Easements.

2.

Plaintiff’s Motion for Preliminary Injunction and Immediate Possession
(Doc. 3) is GRANTED.

3.

Upon Plaintiff posting a proper security bond with the Clerk of this Court in
the amount of $600.00, the following shall occur:
a.

Plaintiff shall have immediate access to, and possession of,
the

Subject

Easements

described

in

the

Notice

of

Condemnation (Doc. 1-5) and incorporated herein; and
b.

Plaintiff may immediately begin pre-installation activities so
that

construction-related

activities

can

commence

by

June 21, 2016, for the purposes of constructing the Project.
4.

All pre-installation and construction-related activities shall be consistent
with the FERC Certificate and all other applicable regulatory permits.

DONE AND ORDERED in Chambers in Orlando, Florida, on June 3, 2016.

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Copies:
Counsel of Record
Unrepresented Parties
U.S. District Court Judge Carlos E. Mendoza
U.S. Magistrate Judge Karla R. Spaulding

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