Sabal Trail Transmission, LLC v. 9.669 Acres of Land, More or Less, in Polk County, Florida et al

Filing 49

ORDER granting 4 Plaintiff's Motion for Partial Summary Judgment; granting 6 Plaintiff's Motion for Preliminary Injunction. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/11/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff,
v.

Case No. 8:16-cv-640-T-33AEP

9.669 ACRES OF LAND IN
COUNTY FLORIDA, BENNER
CORPORATION, ET AL.

POLK
LAND

Defendants.
____________________________/

ORDER
This cause is before the Court on Plaintiff Sabal Trail
Transmission, LLC’s Motion for Partial Summary Judgment (Doc.
# 4) and the Motion for Preliminary Injunction for Immediate
Possession (Doc. # 6), both filed on March 18, 2016. For the
reasons discussed herein, the Court grants both Motions.
I.

Background
On

February

Commission
things,

2,

(“FERC”)

granted

to

2016,

the

issued

an

Sabal

Trail

Federal
order
a

Energy

which,

Regulatory

among

Certificate

of

other
Public

Convenience and Necessity (“FERC Certificate”) under the
Natural Gas Act, 15 U.S.C. § 717f. (Doc. # 1-4). The FERC
Certificate authorizes Sabal Trail to construct and operate
an interstate natural gas pipeline project. (Id.). Relying on

1

the FERC Certificate, Sabal Trail brought this case against
Benner Land Corporation and Dunham Concrete Co.,1 along with
a number of related cases, in order to take the easements
necessary to complete the pipeline project. (Doc. # 1).
Simultaneously with filing the Complaint, Sabal Trail
moved for entry of a partial summary judgment on the issue of
its

entitlement,

under

the

Natural

Gas

Act,

15

U.S.C.

§717f(h), to condemn the easements described, identified, and
depicted in Exhibit A to the Complaint (the “Easements”).
(Doc. # 4). In addition, Sabal Trail moved for the entry of
a preliminary injunction granting it immediate possession of
the Easements. (Doc. # 6).
Sabal Trail effected service on Benner Land Corporation
pursuant to Rule 71.1(d)(3)(A), Fed. R. Civ. P., on April 1,
2016. (Doc. # 18). Benner Land Corporation responded in
opposition to both pending Motions on April 18, 2016, (Doc.
## 28, 29), and answered the Complaint on April 21, 2016 (Doc.
# 32).
On May 10, 2016, the parties filed a Stipulation for
Immediate Possession, stating that Benner Land Corporation

1

Upon a motion by Sabal Trail, the Court dismissed Dunham
Concrete Co. as a defendant in this proceeding because it
was wrongfully joined. (Doc. # 25).

2

“stipulates to a partial summary judgment confirming [Sabal
Trail’s] right to condemn and immediate possession.” (Doc. #
45). Thereafter, on May 11, 2016, the Court held a hearing,
at which it heard oral arguments on the pending Motions. This
Court’s findings of fact and conclusions of law regarding the
Motion

for

Partial

Summary

Judgment

and

Motion

for

Preliminary Injunction are described below.
II.

FEDERAL POWER TO CONDEMN

A.

Findings of Fact
1.

Sabal Trail requests that this Court enter an order

of partial summary judgment establishing its right to condemn
certain easement rights.
2.

On February 2, 2016, the Federal Energy Regulation

Commission (“FERC”) issued an Order granting Sabal Trail a
Certificate

of

Public

Convenience

and

Necessity

(“FERC

Certificate”) that authorizes Sabal Trail to construct and
operate the Sabal Trail Project (the “Project”).
3.

In order to construct the Project in accordance

with the FERC Certificate, Sabal Trail must acquire easements
from the larger parcel described in Exhibit 1 to the Complaint
filed herein (“Owner’s Larger Parcel”), which is located
within the jurisdiction of this District Court.

3

4.

As part of the certification process, Sabal Trail

submitted and FERC approved “alignment sheets” showing the
final alignment of the Sabal Trail Project.
5.

Sabal Trail prepared the easements set forth in

Exhibit 2 to the Complaint (“Subject Easements”) to conform
with the FERC-approved alignment sheets.
6.

Sabal

Trail

was

unable

to

acquire

the

Subject

Easements by contract.
B.

Conclusions of Law
7.

Congress enacted the Natural Gas Act to impose

federal regulation through the Federal Energy Regulatory
Commission (“FERC”) upon the interstate transportation and
sale of natural gas for resale to the public for domestic,
commercial, industrial or any other use. As such, the Natural
Gas Act applies to Sabal Trail’s Project, which will be an
interstate natural gas pipeline. The pertinent section of the
Natural Gas Act provides 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 right-ofway, for the location of compressor stations,
pressure apparatus, or other stations or equipment
necessary to the proper operation of such pipe line

4

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) (2016).
8.

A number of courts have held, and this Court agrees,

the Natural 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:

(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. E.g., Columbia Gas Trans.,
LLC, v. 1.01 Acres, More or Less, in Penn Twp., York Cty.,
Pa., 768 F.3d 300, 304 (3d Cir. 2014); Columbia Gas Trans.,
LLC, v. 0.85 Acres, 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, No. 3:14-cv-00400HEH, 2014 WL 4365476, at *4 (E.D. Va. Sept. 2, 2014).
9.

Under the pertinent section of the Natural Gas Act,

Sabal Trail meets each condition precedent to condemn the
Subject

Easements.

Sabal

Trail

holds

a

FERC

Certificate

authorizing the Project. FERC has determined that the Subject
Easements are necessary for the Project. And Sabal Trail has

5

been unable to acquire the Subject Easements by contract.
10.

Sabal Trail complied with its obligations under the

Natural Gas Act by attempting to acquire the Subject Easements
by contract.

No greater effort is required. See Maritimes &

Ne. Pipeline, LLC, v. Decoulos, 146 Fed. Appx. 495, 498 (1st
Cir. 2005), cert. denied, 546 U.S. 1138 (2006) (“Absent any
credible

authority

making

good

faith

negotiation

a

requirement precedent to the condemnation action . . . we
decline

the

invitation

to

create

one

in

this

case.”)

(citations omitted).
11.
attempt

Even if the NGA implicitly requires Sabal Trail to
to

negotiate

in

good

faith,

several

factors

illustrate that Sabal Trail has satisfied that requirement.
Sabal

Trail

submitted

the

declaration

of

a

Right-of-Way

Project Manager for the Sabal Trail Project, Brian Armitage.
(Doc. # 5 at ¶ 2). In the Declaration, Brian Armitage provided
the following statements of fact: (1) Sabal Trail hired
Florida-licensed real estate appraisers to determine the
value of each easement and sent offers to the landowners based
on those appraisals (Id. at ¶ 15-16); (2) Sabal Trail hired
land agents to negotiate with the landowners (Id. at ¶ 14);
and (3) as of the date of the Declaration, Sabal Trail
succeeded in negotiating purchase agreements with 1,248 of

6

the 1,582 landowners affected by the Project. (Id. at ¶ 11).
Finally, the appraised value of the easement on the subject
property in this case as of the date of the Declaration is
$1,458,900.00, and Sabal Trail extended a final offer of
$1,500,000.00. (Doc. # 5-3, as amended at the hearing). These
facts, taken together, show that Sabal Trail negotiated in
good faith.
12.

District

courts

have

limited

jurisdiction

in

Natural Gas Act condemnation actions. 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), cert.
denied, 497 U.S. 1003 (1990). “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., et al., Nos. 08-168, et al.,
2008 WL 4346405, at *3 (W.D. Pa. Sept. 19, 2008) (citations
omitted); see also Columbia Gas Transmission Corp. v. An
Easement to Construct, Operate & Maintain a 24-Inch Pipeline,

7

No. 5:07CV04009, 2008 WL 2439889, at *2 (W.D. Va. June 9,
2008).
13.

Thus,

this

Court

finds

that

Sabal

Trail

is

authorized by the Natural Gas Act to exercise the power of
eminent domain and has the right to condemn the Subject
Easements identified in Exhibit A hereto and incorporated by
reference.
III. PRELIMINARY INJUNCTION AND POSSESSION
A.

Findings of Fact
14.

Sabal Trail also requests that the Court issue a

preliminary injunction granting it immediate possession of
the Subject Easements in order to begin pre-construction and
construction activities.
15.

The FERC Certificate authorizes the construction

and operation of the Project on its specified terms and
conditions. (FERC Certificate, ¶ 88, p. 28). FERC found the
Project

is

necessary,

its

“benefits

to

the

market

will

outweigh any adverse effects on other pipelines and their
captive

customers,

communities,”

and

and
“the

on

landowners

public

and

convenience

surrounding

and

necessity

requires approval of” the Project, as conditioned in the Order
granting certification. (Id.).
16.

The purpose of the Project is to provide additional

8

supplies of natural gas to Florida Power & Light Company and
Duke Energy Florida, LLC, 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 Sabal
Trail Project will be able to transport up to 1.1 billion
cubic feet of natural gas per day. (FEIS at p. 1-2 through 16; FERC Certificate at ¶ 4, p. 2).
17.

The Project involves the construction and operation

of approximately 516.2 miles of natural gas pipeline and
related

facilities.

facilities

will

(Doc.

consist

of

#

7

at

¶

11).

approximately

The

481.6

pipeline
miles

of

mainline pipeline in Alabama, Georgia, and Florida; 13.1
miles of lateral pipeline (the Hunters Creek Line) in Florida;
21.5 miles of lateral pipeline (the Citrus County Line) in
Florida; five new natural gas-fired compressor stations; and
appurtenant

facilities.

(Id.).

Sabal

Trail

also

will

construct and operate a facility in Osceola County, Florida,
referred to as the Central Florida Hub.
18.

The magnitude of the Project requires a complex

and coordinated construction process, with work activities
being performed in sequential phases. (Doc. # 7 at ¶ 13). The

9

Sabal Trail Project consists of five pipeline construction
spreads and three compressor station construction spreads (a
“spread” is a separate construction segment) across three
states.

(Id.).

The

construction

schedule

in

Florida

is

predicated upon construction of the new pipeline facilities
starting in particular places within the several spreads and
proceeding in a sequential manner. (Id. at ¶ 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, pipestringing,
testing,
carefully

welding,
and

land

planned

coating,

pipe-laying,

restoration.
so

that

crews

(Id.).
and

backfilling,

Construction
equipment

is

proceed

sequentially along the right of way at a distance per day
dependent on topography, road and stream crossings, and other
factors. (Id.).
19.

Sabal Trail must begin construction on each spread

no later than June 21, 2016, in order to be completed by the
May 1, 2017, in-service date. (Doc. # 7 at ¶ 13). Sabal Trail
must take immediate possession in order to perform certain
pre-construction activities. (Id.).
20.

If

construction

begins

on

previously-acquired

parcels but a construction crew reaches a parcel that Sabal

10

Trail does not yet possess, Sabal Trail would have only two
options, both of which entail significant delays and costs:
Sabal Trail must either stop work on the Project altogether
until the necessary easements can be acquired or try to “move
around” the unresolved parcel, begin construction on the next
parcel, and return at such time as the necessary easement can
be obtained. (Doc. # 7 at ¶¶ 23-24).
21.

Temporarily stopping construction upon reaching an

unresolved parcel is not a tenable option, as it would delay
completion of the Project indefinitely and cause Sabal Trail
to miss the in-service date. (Id.). It also would result in
significant financial consequences, as Sabal Trail 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. at ¶ 23).
22.
efficient,

The

“move

linear

around”

workflow

option

and

delay

would

disrupt

completion

of

the
the

Project for at least as long as it takes to acquire the
necessary interests, thereby substantially increasing the
risk of missing the in-service date. Each such “move around”
is also very costly. (Id. at ¶ 24). Although move-around costs
are subject to various factors specific to each skipped area,
such as the size of the property and the nearest FERC-approved

11

access locations for the other accessible properties, such
costs will likely range between $18,000.00 to $130,000.00.
(Id.). If all of the construction crews are required to move
around a particular parcel, the cost for that single move
around would be approximately $720,000.00. (Id.).
23.

If Sabal Trail does not complete construction by

the May 1, 2017, in-service date, 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. # 7 at ¶ 25).
B.

Conclusions of Law
24.

It is well established that granting immediate

possession of property through a preliminary injunction is
appropriate where a pipeline company holds a valid FERC
Certificate, a court has entered an order establishing the
pipeline company's right to condemn the necessary easements,
and the pipeline company has satisfied the standard for
injunctive relief. See, e.g., E. Tenn. Nat. Gas Co. v. Sage,
361 F.3d 808, 828 (4th Cir. 2004) (“Sage”), cert. denied, 543
U.S. 978 (2004); Alliance Pipeline, LP, v. 4.360 Acres of
Land, More or Less, in the S/2 of Sect. 29, Twp. N., Range 85
W., Renville Cty., N.D., 746 F.3d 362, 368-69 (8th Cir. 2014),

12

cert. denied, 135 S. Ct. 245 (2014); Columbia Gas Trans.,
LLC, 768 F.3d at 315-16.
25. In the Eleventh Circuit, as in other circuits, a
party satisfies the standard for injunctive relief and is
entitled to a preliminary injunction if it show[s]:
“(1) a substantial likelihood of success on the
merits; (2) that irreparable injury will be
suffered unless the injunction is issued; (3) the
threatened injury to the moving party outweighs
whatever damage the proposed injunction might cause
the non-moving 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) (citations omitted).
26.

By

granting

Sabal

Trail’s

Motion

for

Partial

Summary Judgment, this court has determined Sabal Trail has
the right to condemn the Subject Easements.
27.

Accordingly, there is a substantial likelihood that

Sabal Trail will prevail on the merits.
28.

Sabal Trail will suffer irreparable injury if the

requested preliminary injunction is not granted.
29.

The

irreparable

injury

that

would

be

suffered

includes significant additional construction costs due to
work

suspensions,

move-arounds,

and/or

specialty

crew

remobilization charges. Each disruption of the Project’s
orderly, linear workflow would force Sabal Trail to incur

13

such added construction costs that could not be recouped and
constitute irreparable injury. See N. Border Pipeline Co. v.
64.111 Acres of Land, More or Less, in Will Cty., Ill., 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).
30.

Finally,

any

delay

in

granting

Sabal

Trail

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.
31.
outweighs

The irreparable injury at stake for Sabal Trail
any

damage

the

proposed

injunction

may

cause

Defendant, which damage is reparable. As explained in Sage,
the damage to Defendant is simply loss of possession that
“would still be disturbed, albeit at a later time, if just
compensation was determined first.” 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 Cty., Va., No. 3:07cv00028, 2007 WL 2220530,
at *4 (W.D. Va. July 31, 2007) (finding “the only ‘harm’ to
Defendants is that of compensation – an issue that will not
change depending on whether [the court] grant[s] or den[ies]

14

the injunction”). The relief that Sabal Trail seeks in the
form of immediate possession will not harm Defendant’s right
to compensation. Any damages to Defendant must and will be
remedied with money. Upon the grant of injunctive relief,
each landowner will still have the opportunity for a trial on
the

issue

of

monetary

compensation

and

this

right

to

compensation can be adequately secured by a bond. See ANR
Pipeline Co. v. Acres of Land, No. 03 C 50348, 2004 WL 421527,
at *1 (N.D. Ill. Feb. 24, 2004) (“There is no requirement
that the compensation be paid before possession is taken only
that

a

reasonable

and

adequate

provision

for

obtaining

compensation after the taking exists.”).
32.

In order to satisfy the requirement under Rule

65(c) of the Federal Rules of Civil Procedure that a movant
give security upon issuance of a preliminary injunction,
Sabal Trail has proposed to post a bond equal to two times
the appraised value of the Subject Easements. (Doc. # 6 at
3). This Court finds such security to be sufficient. See Sage,
361 F.3d at 824 (observing the financial strength of the gas
company and its parent corporation would enable payment if
the security fell short); Guardian Pipeline, LLC v. 950.80
Acres of Land, More or Less, in Kendall, McHenry, DeKalb, and
Will Ctys., Ill., 210 F. Supp. 2d 976, 979 (N.D. Ill. 2002)

15

(finding defendants could be “adequately protected by bond”
equal to the fee value of the affected land).
33.

Granting Sabal Trail immediate possession of the

Subject Easements in order to construct the Project in a
timely

manner

would

advance,

not

undermine,

the

public

interest. This conclusion is supported by the Natural Gas Act
and the FERC Certificate. “Congress passed the Natural 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.” Sage, 361 F.3d at 830. Before
issuing a certificate of public convenience and necessity,
FERC must determine that the project at issue furthers the
goals of the Act and, thus, serves the public interest. See
Id. (observing “FERC conducted a careful analysis of the
[pipeline
promote

project]

these

and

determined

congressional

goals

that
and

the
serve

project
the

will

public

interest”).
34.
the

Here, FERC determined the “[P]roject's benefits to

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].” (FERC
Certificate, ¶ 88, p. 28). Those findings are conclusive and

16

binding on this Court and cannot be collaterally attacked.
See, e.g., 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”).
35.

Further, supplying natural gas for the generation

of electricity and other energy needs advances the public
interest. See Sage, 361 F.3d at 830 (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); E. Tenn. Nat. Gas, 2006
WL 1133874, at *14 (“[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.”). And
the Sabal Trail 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. (FEIS, § 1 Introduction,
1.1.1.2, p. 1-5).
36.

A delay of the Project’s in-service date would

cause injury to Sabal Trail’s customers, particularly Florida

17

Power & Light and Duke Energy Florida, 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 may
justify a preliminary injunction. Sage, 361 F.3d at 829
(finding

the

gas

company’s

“inability

to

satisfy

[its]

commitments would have negative impacts on its customers and
the consumers they serve”). This factor counsels in favor of
granting immediate possession.
37.

Additionally, the Project is expected to have a

positive economic impact on Florida’s economy. Sabal Trail
anticipates that the Project will provide approximately 4,077
temporary construction jobs, 360 permanent operational jobs,
and 977 indirect employment positions. (FEIS, § 3 Envtl.
Analysis,

Table

3.10-1,

p.

177).

Postponement

of

these

benefits is not in the public interest. See Sage, 361 F.3d at
829 (noting construction delays would cause harm by hindering
“economic development efforts”).
38.

In consideration of the foregoing factors, this

Court finds that Sabal Trail's request for a preliminary
injunction should be granted. The Court conditions the entry
preliminary injunction on Sabal Trail posting a security bond
in the amount of $2,917,800.00. That bond will “blunt” or

18

negate any potential claim of irreparable harm to Defendant.
Sage, 361 F.3d at 829.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1.

Plaintiff’s Motion for Partial Summary Judgment

(Doc. # 4) is GRANTED, and Sabal Trail has the right to
condemn the Subject Easements.
2.

Plaintiff’s Motion for Preliminary Injunction and

Immediate Possession (Doc. # 6) is GRANTED.
3. Upon Sabal Trail posting a proper security bond with
the Clerk of this Court in the amount of $2,917,800.00, the
following shall occur:
a.

Sabal Trail shall have immediate access to, and
possession of, the Easements described in Exhibit
A attached hereto and incorporated herein; and

b.

Sabal Trail may immediately begin pre-installation
activities so that construction-related activities
can commence by June 21, 2016, for the purposes of
constructing the Project’s pipelines and related
facilities at the Easements described in Exhibit A.

4.

All

pre-installation

and

construction-related

activities shall be consistent with the Easements acquired by
Sabal Trail and obligations agreed to by Sabal Trail as set

19

forth in Exhibit A, the FERC Certificate, and all other
required regulatory permits.
DONE and ORDERED in Tampa, Florida, this 11th day of
May, 2016.

20